The facts

Benjamin Mendy moved from AS Monaco to Manchester City in the summer of 2017, a move that made him one of the most expensive defenders in the world at the time.

On 11 October 2020, following a party at Mendy’s home, he was arrested on an allegation of rape. He was released under investigation and no bail conditions were applied. Mendy hosted another party on 1 January 2021, following which he was arrested on a second allegation of rape by a different complainant. Mendy was released on conditional bail, which required him to stay at his house every night unless travelling with work and prevented him from having anyone else in his home (subject to specific exceptions).

Mendy breached his bail conditions on numerous occasions between January and August 2021 by hosting and attending various parties.

On 25 August 2021, he was arrested again on a further allegation of rape. The following day, Mendy was charged with multiple offences and held in police custody. On 27 August 2021, bail was denied, in part on account of routinely breaching his bail conditions.

On the same day, Mendy was suspended from all football-related activity by The FA on safeguarding grounds (the “Football Suspension”), as one of the complainants was 17-years-old at the time (this was a precautionary measure, as opposed to a finding of guilt). The Football Suspension remained in place until 2 November 2023 (after Mendy’s playing contract with the Club had already expired).

On 28 September 2021, Manchester City informed Mendy that he would not receive any further payment (including the pay due for September) until he was “ready and able” to perform his contractual obligations. The Club cited that he was not ready and able on account of the Football Suspension and him being remanded in custody. The Club did not pay Mendy for the remainder of his playing contract.

On 7 January 2022, Mendy was released on bail. His bail conditions included not being permitted to enter Greater Manchester unless for pre-arranged employment, as well as reporting to Macclesfield police station daily.

Following further arrests due to more allegations and breaching his bail conditions, Mendy was held in custody from 30 December 2022 until 17 January 2023. On 17 January, he was granted bail with conditions that prevented him from entering an area of Greater Manchester that included the Club’s stadium and training facilities.

Mendy was found not guilty of all substantive charges. At the end of June 2023, Mendy’s fixed-term contract expired and he left the Club.

The decision

The period of non-payment of wages from 1 September 2021 to 30 June 2023 was analysed in four distinct periods, distinguished based on the reasons (and the interaction between the reasons) that made him unable to play for the Club over each period.

The Football Suspension

Across all four periods, Mendy was prevented from fulfilling his contractual obligations due to the Football Suspension. The Tribunal determined that the Football Suspension was an “unavoidable” impediment. It was a safeguarding, ‘risk first’ style of suspension due to one of the complainants being 17, imposed as a precautionary measure under The FA’s safeguarding rules. In terms of Mendy’s culpability, the case does not suggest that Mendy knew the individual was 17, and the Tribunal took the view that there wasn’t sufficient culpability in not asking the question.

The interaction with the periods of custody and bail

On the basis the Football Suspension was unavoidable – and therefore Mendy would have been entitled to his salary during the entire period if that was the only impediment – the question then became whether that remained the case during the periods in which Mendy was also remanded in custody or under prohibitive bail conditions.

• 1 September 2021 to 7 January 2022 – Mendy was prevented from playing/training due to the Football Suspension, in conjunction with what the Tribunal considered to be the avoidable impediment of him being in custody. Mendy was, at least in sufficient part, held in custody due to his previous, and frequent, non-compliance with his bail conditions. As such, he was unable to work through his own culpable actions (notwithstanding the fact that he couldn’t have worked anyway due to the Football Suspension). The Tribunal determined that the Club was entitled to withhold wages during this period.
• 8 January to 29 December 2022 – Following his release on bail on 8 January, Mendy was prevented from playing/training by both the Football Suspension and his bail conditions (including daily police station reporting). It was determined that the bail conditions were unavoidable – imposed owing to the nature and seriousness of the underlying offences, as opposed to his disregard for previous bail conditions. In any event, though, the Tribunal held that the Football Suspension was the operative reason which prevented him from playing/training, as it would have made any application to amend the bail conditions to permit him to work pointless. As such, the Club was not entitled to withhold his wages during this period.
• 30 December 2022 to 17 January 2023 – Following further breaches of his bail conditions, Mendy was remanded in custody. As per period 1 above, he was unable to work due (in sufficient part) to his own actions. As such, the Club was entitled to withhold his wages during this period.
• 18 January to 30 June 2023 – More restrictive bail conditions were deemed to prevent Mendy from working over this period. The Tribunal did not expressly confirm whether it considered the bail conditions to be avoidable or unavoidable. In its view, for the same reason as period 2, that didn’t matter – it again determined that the Football Suspension was the operative reason for him not being able to play/train (as there was no point seeking to vary the conditions to allow him to play/train because the Football Suspension precluded all footballing activities anyway). As such, the Club was not entitled to withhold his wages during this period.

The decision is a first instance one, and therefore not binding, although it follows a line of appellate-level authority. That said, we don’t consider the current state of the law, which has not been consistently applied in all cases, to be immune from future challenge. Whether an impediment is “avoidable” or not is also incredibly fact-specific and different judges will view it differently (as the current cases show).

Key takeaways

If Mendy’s contract had included an express provision that permitted the Club to stop paying him (or pay him a reduced salary) during periods in which he was unable to work due to, for example, criminal or regulatory impediments, then there would have been no need for the common law analysis of whether he was ready, willing and (but for an unavoidable impediment) able to work. In terms of key takeaways (the first specifically for football clubs, with the remainder applying to all employers):

1. As currently drafted, the standard form Premier League player contract does not address the deduction of wages in these circumstances. Clubs could add bespoke clauses, albeit such a position may well be negotiated by any given player’s agent and/or the PFA. It’s also important to consider addressing this in other key footballing contracts such as for head coaches and coaching staff (whether under provisions which enable the withholding of pay or termination provisions).
2. It is also not particularly common for such clauses to be included in general employment contracts. The case highlights the difficult position that employers can be left in if one of their employees is remanded in custody (or unable to work due to some other suspension or ban). As such, express provisions should also be considered in all (or at least all senior) employment contracts, along with robust “termination for cause” provisions to deal with lengthy criminal, regulatory or other investigations/bans.
3. This case is also a reminder of the difficulties employers face when considering the dismissal of an employee during ongoing criminal / regulatory proceedings, due to the fundamental concept that an accused is innocent until proven guilty. Employers may be able to conduct their own investigations to determine their own view on culpability whilst such proceedings are ongoing, but much will depend on the specific circumstances. An employer might also have the ability to dismiss an employee ‘for cause’ in such circumstances prior to the relevant outcome, depending on the terms of the contract. We have considered this issue previously in relation to the Greenwood case.

The interaction between criminal/regulatory restrictions and the employment relationship: How we can support you

If you have any concerns or need support regarding employee restrictions during criminal or regulatory proceedings, please get in touch with our experts, Charlotte Smith, Adam Melling, and Hugo Adams.