Posted: 21/04/2021
In a whirlwind 72 hour period, six Premier League clubs have gone from announcing their involvement in a breakaway European Super League (ESL), in which they were ‘founder members’, to unanimously withdrawing from the league. The ESL caught the attention of the world’s media, policy makers and football supporters. But how would it have affected current Premier League players if it had proceeded? Although some may say this is now largely academic, it is an important discussion point as players need to be aware of their rights should something similar be proposed in the future.
The ESL itself and the clubs’ decision to join it was widely criticised by managers and players including some from the six Premier League teams. Many voiced their concern at a league which was closed off and required no competition to be a member. Manchester City manager Pep Guardiola stated: “It’s not sport if success is guaranteed,”[1] and this succinctly summarises why so many were opposed to the ESL.
The reaction of UEFA was also swift and firm:
“...We – UEFA, the English FA, RFEF, FIGC, the Premier League, LaLiga, Lega Serie A, but also FIFA and all our member associations – will remain united in our efforts to stop this cynical project”…“We will consider all measures available to us, at all levels, both judicial and sporting in order to prevent this happening”.[2]
FIFA stated that clubs involved would be banned from playing in any other competition at domestic, European or world level, and their players could be denied the opportunity to represent their national teams. As was clear from many players’ response to the ESL, competition is a huge incentive for them and so being denied the opportunity to compete on various levels would have been unacceptable.
Further, in the UK, the Government was reportedly considering legal action to prevent the formation of the proposed league (which has been criticised as an anti-competitive cartel), imposing a windfall tax on the English participating clubs and visa bans for foreign players.
Additionally, international players (including EU citizens) requiring a visa to play in the Premier League need an endorsement from the FA. Considering the FA’s stance on the ESL, it seems unlikely that it would have endorsed visas for players joining ESL clubs. This would have prevented the clubs from signing international players and acted as a further deterrent to stop them joining the league.
The standard form contract for English Premier League players governs the employment relationship with their club. Remuneration is negotiated individually with players and, in addition to a basic wage, clubs normally incentivise their players with a variety of bonuses depending on individual and collective performance. Frequently, there are bonuses payable for the number of appearances in the Premier League, for progress in English domestic cup competitions, for success in European cup competitions run by UEFA, and/or for national selection. Further, some player transfer deals have ‘add ons’ which are beneficial for the selling club based on appearances and international appearances.
If the clubs had continued with the ESL and UEFA and FIFA had held firm, players whose clubs played in the ESL would no longer have been able to participate in the domestic and international competitions and they would have lost the chance to earn performance bonuses and international appearances as a result of a deliberate act by their employer. Could a player whose club had joined the ESL therefore have refused to play for their club and/or terminated their contract?
Such a decision, had it been taken by the club, could be said to be a repudiatory breach of the contract of employment by the club, which would indeed have allowed a player to terminate their contract. This is because the contract has implied into it a term that the club, as the employer, will not deliberately act in a way which will result in a refusal to pay the remuneration under the contract[3]. It would not have mattered if a club offered an alternative form of bonus or remuneration, because if a player wanted to assert their current contractual rights, they would have been free to do so[4]. In any event, if FIFA had been true to its word on excluding players from its international competitions, how could a club compensate a player for loss of international appearances?
Clause 3.1 of the contract, ‘Duties and obligations of the player’, states that a player must ‘participate in any matches in which he is selected to play for the club’. On the face of it, this clause, together with the implied contractual duties of service and of complying with all lawful and reasonable instructions, would mean that a player who had refused to play in an ESL match would have been in breach of contract.
However, clause 6.1.1 of the contract states ‘The club shall observe the rules, all of which (other than the club rules) shall take precedence over the club rules’. The contract defines the rules as ‘the statutes and regulations of FIFA and UEFA, the FA rules, the league rules, the code of practice and the club rules’. Accordingly, by competing in the ESL, it might be said that the club would have been in breach of this clause by asking the players to play in a UEFA unsanctioned competition in contravention of the rules. If that had been the case, it is arguable that the instruction to play in such matches would not have been a lawful and reasonable instruction, which players could therefore have refused.
Further, the contract contains an implied term that neither party shall, without lawful and reasonable cause, do anything to undermine the relationship of trust and confidence between the player and their employer. It may be suggested that deliberately putting a player in a position of conflict with their regulatory body and/or preventing them from representing their country at international level could breach trust and confidence.
In either case, such a breach would amount to a fundamental breach of contract and a repudiation of the contract, which would allow a player to act on the basis that they had been constructively dismissed.
Article 14 of the FIFA Regulations on the Status and Transfer of Players (RSTP) allows a club or a player to terminate the contract for ‘just cause’. Faced with a breach of their contract, a player could seek to rely on Article 14 to terminate the contract and join another club. Such action could be immensely damaging for clubs which had been participating in the ESL and which would lose the services of the player and their value as an asset.
In the end, the desire for competition has eclipsed financial gain and many will be pleased about this. The vast sums of money involved in the Premier League are often reported but on this occasion, the voices of the players, managers and fans have been listened to.
[1] https://www.bbc.co.uk/sport/av/football/56819670
[2] https://www.uefa.com/insideuefa/news/0268-12121411400e-7897186e699a-1000--statement-by-uefa-the-english-football-association-the-premier-/
[3] Cantor Fitzgerald International v Callaghan [1999] 2 All E.R. 411
[4] Rigby v Ferodo Ltd [1988] ICR 29
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