Knowing your options

Jordan Henderson is reportedly looking to bring his time in Saudi Arabia to a swift conclusion. The former Liverpool captain has made it clear that he’s struggled adjusting to life in the Middle East and options are being explored.

In a ‘normal’ employee-employer relationship, an unhappy employee would simply serve notice to terminate their employment, but given the unique nature of the player–club relationship and the regulatory regime which governs football, this isn’t possible.

We therefore look at the legal framework and the key risks involved when clubs are faced with such a scenario.

Contractual stability is crucial in the club-player relationship. Accordingly, the starting position is that a football contract must be for a fixed-term and can only be terminated prior to its expiry date with ‘just cause’.

There will be times where there isn’t just cause – the player just wants out.

In Jordan Henderson’s case, reasons being reported for his change of heart include the cultural shift, the heat and humidity, and less than inspiring match attendances – reasons that have little to do with his employer and therefore an impossible case for lawfully terminating his contract early.

This therefore leaves his employer in a dilemma.

An unhappy player is generally bad for business. The uncertainty and spectacle created are unlikely to help with team morale and other club operations, such as brand deals and commercial opportunities. Even if the player does continue to play and train, they may not be 100% ‘there’.

On the other hand, trying to sell the player presents its own problems. Prospective buying clubs are coming to the table knowing your hand – a player known to be unhappy at his current club will only reduce his market value.

When it becomes known that a player wants to leave, and the relationship starts to sour given the above, it’s perhaps understandable that the club will look to terminate the player’s contract.

Termination with just cause

To lawfully terminate a standard playing contract in England, a club’s most likely recourse would be to assert that the player has committed ‘Gross Misconduct’, which includes serious or persistent conduct which breaches any of the terms of the contract.

The key express obligations on the player in this regard are to play matches and participate in training and match prep. If the player has spoken to the press, their media obligations could also be considered. However, a serious breach must go to the root of the employment relationship – while an EFL or Premier League player talking to the media without informing their club would be a breach of contract, the content of that conversation would be crucial to the severity of that breach.

The upshot is that a player who merely expresses a desire to leave is unlikely to be in serious or persistent breach for the purposes of terminating their contract. Rather, it’s the manifestation of that desire to leave that is key.

The risks of terminating the contract

Under English law, if a club unlawfully seeks to terminate an employment contract, it will be in repudiatory breach of contract itself, which the employee can accept and terminate the contract.

At worst, the player will be able to join their preferred club without a transfer fee payable to the club they are departing from, and be entitled to compensation for any loss suffered. If they are unable to find another club, the club may be on the hook for the full value of the unexpired portion of their terminated contract.

Practical advice

Regardless of a club’s efforts to create an inclusive and desirable culture, a player may still want out. So, what then?

1. Discuss the issue – Speaking with the player is the first logical step. What has caused this feeling? Is there a world where the club and player can move forwards together? What can be done to make this work? Depending on the circumstances, more formal mediation should be considered.
2. Remind the player of media obligations – If the media are unaware of the player’s desire to leave, it would be worth reminding the player of their contractual obligations in respect of talking to the press and to refrain from doing anything likely to cause damage to the club. Once a media storm is created, the situation can escalate quickly.
3. Explore permanent and loan transfer options – If issues cannot be resolved, a loan spell or mutually agreed exit to another club could be in the best interests of everyone involved and is well worth exploring.
4. Termination as a last resort – Termination of the player’s employment contract should be a lever of last resort. Not least, as that is exactly what the player wants, but it also comes with considerable risk. If the player has committed a breach of contract, a lesser sanction may be more appropriate: a warning, fine or temporary exclusion, in line with what is permitted under their contract.
5. Avoid a knee-jerk reaction – It’s also important not to jump to conclusions. For example, it doesn’t necessarily follow that a player who has expressed a desire to leave and then doesn’t turn up at training the following day has done so in order to procure a move to their preferred club. That may be the case, but enquiries should be made and a proper process followed (including complying with contractual disciplinary provisions) before any action is taken.

Termination mechanics

If a decision is made to terminate a player’s contract, 14 days’ notice must be given to the player, and full reasons for that decision must be given within the following seven days. The player can then appeal to the relevant league. Pending the outcome of that appeal, their employment subsists.

How we can support clubs

We have extensive experience advising a number of clubs on employment issues, and navigating the issues raised by a player wanting to leave.

Please contact Charlotte Smith or Adam Melling for any sports-employment queries.