6th September 2022
Last season, Manchester United took the decision to suspend Mason Greenwood after allegations of rape and sexual assault were made against him. This followed Everton’s decision to suspend a player at the start of last season after his arrest on suspicion of child sex offences.
Conversely, West Ham decided not to suspend Kurt Zouma after a video went viral of him abusing his cats – instead, deciding to fine him the maximum amount possible under his playing contract.
With evidence of alleged wrongdoing so easily recorded, and so quickly disseminated online, clubs may actually find out about allegations on social media, or feel pressured to act quickly where news of the player’s arrest being leaked. Even where the police issue a statement intended to keep a player’s identity anonymous, the power of the internet usually boils it down to one or two suspects within minutes.
Acting quickly to appease other stakeholders runs the risk of legal challenges, but acting slowly (or not at all) often poses significant reputational risk. How should clubs respond?
1.Investigate: The first step when faced with any allegation of wrongdoing outside work is to investigate it – decisions should not be made in haste because of external pressures. The standard playing contract provides that a club must not take any disciplinary action against a player before a proper investigation has been undertaken.
2.Suspension: Clubs have discretion as to whether to suspend an employee while the investigation takes place. For players, it should be limited to 14 days, although this can be deviated from where it is considered ‘expedient’ to do so and the player is not treated less fairly as a result. This might be the case where, for example, the investigation is complex and/or the club considers it necessary to wait for the outcome of the police investigation. Suspension should be on full pay and written notice should be given.
3.Disciplinary hearing: If, following the investigation, the established facts are such that the individual has a case to answer, they should be invited to a disciplinary hearing. In order to prepare their case, they should be given full written details of the complaints against them and any evidence which will be relied upon.
4.Evidence of wrongdoing: If, as was the case of Kurt Zouma, the facts are clearly established in evidence and/or the player admits wrongdoing, the club’s decision will be a case of choosing the appropriate penalty (if any), be it a warning, final written warning, or dismissal (or, in the case of a player, a fine or penal suspension).
The club will not only have to consider the merits of the case, but also the potentially wide-reaching effect its decision will have on its reputation and commercial relationships and interests. For example, West Ham’s decision to only fine Kurt Zouma led to Vitality suspending its sponsorship of the club with immediate effect.
A club armed with evidence of wrongdoing would likely be able to rely on a number of express or implied contractual terms to take action. Under the standard playing contract, this may include failing to comply with the rules and regulations of the relevant league and/or knowingly or recklessly doing or saying something which is likely to bring the club or the game of football into disrepute. The appropriate penalty is a question of fact and degree.
Broadly speaking, all staff have a right to appeal the decision internally. For players, this right is contractual and, if the appeal is not upheld and the penalty is more than an oral warning, the player may appeal to the relevant league, where they are in a considerably stronger position than a ‘normal’ employee. Unlike in the employment tribunal, the league’s arbitral panel has discretion to confirm, vary or revoke the decision made, as well as make any other order, as it considers appropriate.
In making any decision, it should be noted that a club is not determining criminal culpability but, rather, whether the employment relationship should continue (or whether some other action should be taken) based on the facts available. For players (and certain footballing/senior staff), whether they have committed a repudiatory breach of their contract will likely be the key consideration. An individual’s statutory employment rights (and therefore the ‘fairness’ and ‘reasonableness’ of any decision) should also be considered where relevant.
5.No evidence of wrongdoing: Where an individual is the subject of allegations, or has been arrested or charged, but the club has no evidence of wrongdoing, it is left in a more difficult position. The contractual provisions discussed above usually presuppose that the individual has committed the relevant act, which is clearly not necessarily the case where the individual has not been convicted of an offence or where the club does not have enough evidence to determine if any wrongdoing has taken place.
For example, a club is expressly entitled to dismiss a player where they have been convicted of a criminal offence and received a (not suspended) custodial sentence of at least three months.
Dismissing on the basis of an allegation alone (for example, because a club believes this is causing reputational damage) is risky territory – it is generally assumed that the public understand the concept of innocence until proven guilty. But this doesn’t mean that dismissal or other action can never be an option. It may be possible to argue that the mere fact of the allegation, arrest and/or charge suffices to take action, although this will depend on the nature of the relevant offence and the individual’s role (and therefore risk to others) at the club. Of course, where there is a safeguarding issue, the club must follow The FA’s, the relevant league’s and their own rules, policies and procedures in order to ensure the safety of others.
Given the prominence of social media and the ability to share information so quickly, we are seeing more and more of these conduct ‘outside of work’ cases involving allegations of wrongdoing. This is a notoriously difficult area and what will be appropriate in any given case will be highly dependent on the specific facts. If you have any queries in this area or require advice or assistance on any sports-employment matters, please contact Charlotte or Adam, who will be very happy to help.