By Dan Chapman
Whilst it is unlikely that many (if any) elite footballers are suffering the financial pain that the majority of the UK workforce are enduring right now, it is worth sparing a thought for the many non-league footballers who are – some whose football employment is their sole source of income.
Following the outbreak of the global pandemic, Coronavirus (COVID-19), and the postponement of football across the country, we have been receiving a significant number of questions from non-league football players who, like millions of other employees across the country, are concerned about their ongoing employment in these testing times.
Football players are in many ways no different from other employees who have this week been told they are not going to be paid. In fact, the football industry as a whole (and particularly non-league and the lower leagues) faces the increased challenge, as compared to most industries, of operations having been suspended indefinitely. With an overwhelming majority of a non-league football club’s revenue coming on match days, this suspension has the potential to be hugely damaging for many clubs’ ability to pay their players as normal. It is therefore vital that one is not quick to judge any club that is struggling to meet its obligation to pay wages and to recognise that these are unprecedented times – whilst there have been many cases in recent times where clubs were rightly lambasted for their wilful refusal to pay wages (often whilst continuing to incur other liabilities) one would think that in most cases the current situation does not warrant criticism of the clubs.
However, football players do have certain options available to them which are not available to the general public and many will want to consider their legal options. In response to the questions we have been receiving, a basic summary of these options is set out below.
Players who are contracted to their club under the standard non-league Football Player Contract will almost certainly have the benefit of a particular clause within that contract.
This clause allows players to terminate their contract on giving 14 days’ notice to their club in the event of the club committing a serious or persistent breach of the contract. Failure to comply with payment obligations (particularly if it occurs on more than one occasion) would be likely to satisfy this test.
For players who have a significant value to their club (in terms of performance and future transfer value), the potential exercise of this clause in the event of non-payment could be enough to ensure that a club makes every effort to comply with its payment obligations.
Players should also note that their contract also allows termination of the contract by mutual consent which some players and clubs will willingly explore. Similarly, a player and the club can reach a ‘deal’ by mutual consent to vary the express terms of the contract – for example, we are seeing many clubs offering to pay their players 50% of what is due to them for the rest of the season until such time (and if) the season continues. A player would be free to accept or reject that ‘deal’, but may wish to take advice before rejecting so that they are fully aware of their options (and the economic realities of pursuing action against any employer that is in distress).
Options under FA Rules
All participants in the game of football, including players and clubs, must submit to a set of rules provided by the Football Association. Amongst other things, the FA’s rules provide for a set procedure to be followed in order to resolve disputes between participants – this is called “Rule K Arbitration”.
If a football player has not been paid by their club, they would be permitted to bring Rule K Arbitration proceedings against their club in order to attempt to recover the unpaid sums. Rule K proceedings are relatively straightforward to bring, and provide a more streamlined approach to dispute resolution as compared to the civil courts.
The other key benefit to players of using the Rule K process, as opposed to the small claims court, is that if the player is successful with the claim, they are likely to be able to recover at least a portion of the legal costs they incur in bringing that claim. This is not likely to be the case if a claim is brought in the small claims court.
Other Legal Options
A contract between a football player and a club is subject to the same legal framework as any other contract made under English Law. Therefore, if one party breaches its obligations under that contract (as a club would do by failing to make payment), the other can sue for breach of contract. However, as opposed to the Rule K process, generally if a claim is heard in the small claims court (for amounts less than £10,000) the player would not be able to recover their any legal costs incurred in bring the claim. There can also be risks with this route if there is a genuine dispute about what sums are due – in which case the Rule K process should be preferred.
More nuclear options available to players who are not paid include the serving of a statutory demand or a winding up petition on their club, however the public backlash against either one of these options would be significant, so we would advise extreme caution before going down this route.
Clearly one has to appreciate that as much as any unpaid player will understandably feel aggrieved and worried, those who hold the purse-strings at a non-league club are also desperately trying to survive in an unprecedented scenario where no gate income is being received. Neither club or player will be to blame in almost all cases so the best advice in many cases will be to hold open discussions, be honest and see what options may be available. These are difficult times indeed.
If any player or indeed club would like to discuss any of the options set out above in more detail, please get in touch with us at firstname.lastname@example.org or via 01603 610911.
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The spearhead and Senior Partner of Full Contact, Dan is an experienced solicitor and advocate, with a specialist background in employment law and sports.
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