UK: Have Misbehaving Sports Stars Been Offered Too Many Yellow Cards?

Last Updated: 9 August 2011
Article by Will Nash

Until the phone hacking scandal spiralled out of control, in recent times barely a week has seemed to pass without a red top running another story implicating a sports star in scandal. From John Terry, Tiger Woods and Ashley Cole, to the recent revelations about Ryan Giggs, a steady flow of alleged indiscretions has been published to a slavering public.

Whatever your opinion on the personal lives of high profile sportsmen, one cannot help but notice the stark differences in how such conduct is dealt with in comparison to that of the ordinary employee (or indeed, the extraordinary employee, in an ordinary profession).

It can be relatively straightforward to discipline those (not destined for sports superstardom and commercial success) for actions that have the unfortunate effect of tarnishing an employer's reputation. Many contracts of employment will contain provisions that allow an employer to terminate an employee's contract if he or she brings the employer into disrepute. Footballers' playing contracts will be no different.

Indeed, recent case law has held that employers can take an employee's conduct outside of work into account if it is relevant to their role or damages the employer's reputation. In the recent case of Preece v JD Wetherspoons plc, a Tribunal found that a manager was lawfully dismissed after making comments about customers on Facebook. The circumstances surrounding misconduct need to be carefully scrutinised in each case but when appropriate, it can be relatively straightforward to dismiss on this basis if the effect on the employer is clearly detrimental.

This approach contrasts strongly with the history of disciplinary action in high-level professional sport, and in particular football. The recent media attention on Ryan Giggs and John Terry are prime examples. Both men are long-serving one club players, whose reputations commercially benefit both them and their respective clubs. Had the conduct reported in the media been attributed to senior figures in another industry, one would have expected dismissals to follow. Indeed, we have seen TV personalities and senior bankers sacked in similar circumstances. Such is the importance of Giggs and Terry to the playing and commercial sides of their respective clubs, such an outcome was plainly never even contemplated. In fact, John Terry's loss of the England captaincy proved to be only a temporary measure.

Similarly when Ryan Babel tweeted a picture of referee Howard Webb in a Manchester United shirt after what he believed to be favourable treatment of the Old Trafford club, both his club and the PFA came out in support of he player. He did, though, receive a fine from the FA. Imagine a lawyer publishing a mocked up picture of a judge with an opposing barrister after losing a case – one would suspect the sanctions from the employer would be rather more severe.

As noted, the distinction is one of enforcement, not legal right. Sports stars have benefitted from their employers choosing not to invoke disrepute clauses. Commercial and sporting reasons undoubtedly drive this phenomenon, but also a less exacting standard applied to their behaviour by the public and clubs. We may cry out when our sporting heroes stray, yet there remains a popular acceptance that their behaviour need not match the standards of a banker or a politician. The disciplinary approach preferred by employers remains that of the schoolyard, save that a slap on the wrist and a confiscation of sweets is replaced by a public rebuke and perhaps a fine.

Nonetheless, it is clear that sports stars cannot act as they please. It is interesting to note that less lenient stances have been adopted in different leagues and sports. For example, compare the lenient treatment of many Premier League footballers with the consequences for Max McKee, the Clyde FC teenager who was sacked after tweeting offensive remarks about Neil Lennon; and Andy Powell, who left Wasps by "mutual consent" after a brawl outside a pub. Perhaps, the cultural acceptance only stretches to infidelity and not to public disorder or drunkenness.

Another distinction to be drawn is between the security of employment contracts and commercial endorsements. Athlete sponsors are not concerned with losing a player's on field ability (although they will consider the commercial bottom-line) and often have corporate profiles which are much more susceptible to damage than the soiled reputations of many football clubs. This much was amply demonstrated by Tiger Woods (who was very quickly dropped by a number of his sponsors) after details of his multiple affairs were exposed.

Leaving aside the reality of enforcement against sports stars, the lesson from recent case law seems to be that employers are increasingly allowed to take the actions of their employees outside of work into account when considering dismissal for damage to their reputation. However, this issue must be approached cautiously as an over eager employer could face claims against them for unfair dismissal. In the context of multi-million pound player contracts, incorrect decisions could be extremely costly.

Sports stars confident of their worth are unlikely to consider the possibility of dismissal before going out to get their kicks. However, for the average employee trundling out for the pub team on a Sunday, it would seem wise to seek less controversial ways of keeping themselves entertained – certainly no air rifles in the office.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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