Football and the European “Super” League

Mark ScottBy Mark Scott  |  Associate

This week has seen football making both the front and back pages of newspapers with the “big six” Premier League football clubs announcing their intention to join a breakaway European Super League (ESL) as “founder members”.  Although it now appears clubs have withdrawn faster than they joined, leaving the ESL the butt of many a joke (it was said the ESL is comparable to a lads night out before any had actually sought permission from their wives to go), the question of how the players at the relevant Premier League clubs would have been affected is an interesting discussion topic

Beyond the owners of Arsenal, Tottenham, Manchester United, Liverpool, Manchester City and Chelsea it was hard to find any support or enthusiasm in the UK for the ESL.  Alan Shearer called for the clubs to be thrown out of the Premier League and even Manchester City manager Pep Guardiola stated “It’s not sport if success is guaranteed”.  The concern for most seemed to centre on how a league could properly operate if it was a closed shop and that competition did not determine membership.  UEFA, and the Premier League swiftly condemned the ESL stating they would “consider all measures available to us, at all levels, both judicial and sporting in order to prevent this happening.”  FIFA’s approach was equally firm, stating that clubs involved in the ESL would be banned from playing in competition, both at domestic, European and world level, meaning players could be prevented from playing international football.  Even the UK Government was reportedly prepared to bring legal action to prevent the European Super League although it remains unclear quite what steps it would actually have taken.

Elite level footballers are handsomely paid and have very lucrative playing contracts, but those directly affected by the European Super League were placed in an invidious position.  The contract between Premier League players and their clubs is a standard one.  The salary is negotiated between club and player and includes their basic pay but also bonuses based upon individual and team performance, and often Premier League appearances too.  If clubs had continued with plans to join the ESL then on the face of it the decision could have amounted to a repudiatory breach of the employment contract and, potentially, players may have refused to play for their club, meaning that for some there was the scope for contracts to be terminated.  If a player had desired to assert his contractual rights then the existence of alternative income from the ESL would be irrelevant because the playing contract has an implied term that the employing club will not conduct itself in a manner resulting in contractual remuneration not being paid [Cantor Fitzgerald International v Callaghan 1999].  An added complication for the player however is clause 3.1 of the contract headed “Duties and obligations of the player”, which states players must “participate in any matches in which he is selected to play for the club” meaning that, inevitably a player who refused to participate in the ESL might easily be held in breach of contract.  Conversely though, clauses 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”.  Contractually rules are defined as “statutes and regulations of FIFA and UEFA, the FA rules, the league rules, the code of practice and the club rules”.  Analysis therefore suggests it would be difficult to foresee an outcome by which a club asking its players to play in unsanctioned competitions is anything but a breach of this particular clause.

It is often said of top flight football that too much power vests in the player but here it appears a club requiring players to play in matches under the guise of the ESL (or for that matter any other breakaway league) would be unlawful and could therefore present players with a legitimate reason to refuse to play because, in real terms, it places them, the employed player, in direct conflict with governing bodies such that in practice most (if not all) would be prevented from representing their country at international level.  A breach leading to repudiation would reasonably entitle the player to maintain their treatment amounts to a constructive dismissal.

Many may think that pressure from fans and stakeholders resulted in the U-turn by clubs, but clearly any continued allegiance with the ESL was a litigation time bomb that has been more easily and proportionately defused by remaining aligned with competition provided by the already lucrative structure of the Premier League, rather than following the perceived riches on offer by the creation of an ill-judged ESL.