Why it’s best for everybody if footballers leave mid-contract
Damian Phillips of Cardiff law firm Darwin Gray on why top footballers, unlike most employees, are genuine business assets...
Our most valuable assets are our employees’. It’s a well-worn phrase used by many businesses, but is it really true?
Employment relationships are governed by an employment contract.
These contracts are usually (and should be) put in writing.
Most people are employed under an open-ended ‘permanent’ contract.
Many employees working in the City are employed under contracts for a fixed period, often rolling year on year unless terminated on a specific anniversary date.
Professional footballers are also employed under contracts that last for a fixed period; say between two and four years.
The time often comes during an employment relationship when an employee believes that the grass is greener elsewhere and they want out.
I am regularly instructed by senior employees and City workers who find their planned exits thwarted by lengthy notice periods or unexpired fixed terms, with the possibility of having to repay a chunky ‘golden handshake’.
It is a well-established legal principle that an employer cannot force an employee to work for it, regardless of what the employment contract stipulates.
However, it is possible for an employer to prevent an employee who is contractually obligated to it from working elsewhere while the contract remains in force.
Simply walking out is generally not the best option, as it may result in an injunction preventing the employee from working elsewhere.
Any new employer could also be exposed to a claim for inducing the employee to breach their employment contract, which may not be the best start to a new working relationship.
The reality is that, in such situations, it is the current employer who generally holds the stronger hand. Courts understand the need for businesses to protect their interests and will uphold reasonably drafted terms of employment, including post termination restrictions preventing solicitation of clients and the like.
Ultimately very few businesses will want to employ someone who is not committed to the cause.
Employees who have willingly agreed to employment terms must accept that it is rarely possible to ‘have one’s cake and eat it.’ However, through careful and sensible negotiation, it is usually possible to reach a compromise that satisfies both parties’ needs.
The position is different for many footballers. They have a value, and therefore really are assets themselves.
Indeed, the sums being paid by the top clubs are eye-watering. The initial outlay undoubtedly gives footballers an advantage when a better offer comes in part way through a contracted term. As a result, it appears increasingly to be the case that football clubs are becoming powerless to prevent players from moving.
We have recently seen Swansea striker Jordan Ayew (before his loan move to Crystal Palace) allegedly refusing to train with his team, following speculation that he may be leaving the club. In the past, players such as Carlos Tevez and Raheem Sterling have effectively “gone on strike”. The only real sanction open to clubs in such circumstances is to not pay players, for failing to carry out their contractual obligations.
The reality is that these players have already become so rich that, unlike the rest of us, they can afford to sit out lengthy periods without pay and the threat is therefore ineffective.
Commercially the real factor is that the closer a player comes to being out of contract, the less their subsequent transfer value becomes. Clubs understandably want to recoup initial outlays or profit on players whose standings have increased.
The last thing they want is an out-of-contract player being able to move on a free transfer.
Therefore, despite the public rhetoric, behind the scenes clubs probably know that they have little choice but to sanction moves and go for the best possible price rather than letting players sit on the side-lines.
To add insult to injury, post termination restrictions that apply in everyday employment situations will not be an issue.
Transferring footballers will generally be free to ply their trade elsewhere at will, the only restriction being the increasingly common sight of contrite ‘goal celebrations’ when scoring against a former club.
So, unlike most employees, professional footballers are genuine business assets, who are traded as commodities.
This commercial reality means that it is also fair to say that top footballers can ‘have their cake and eat it’– maybe washed down by a couple of vintage bottles of Cristal before being chauffeured home in one of their Bentleys, Range Rovers, Ferraris...