Gutierrez v Newcastle Utd disability discrimination case: the wider implications for sport

Published 03 May 2016 | Authored by: Carol Couse, Richard Santy

Carol Couse, a Senior Consultant at Mills & Reeve, led the team that acted for Jonas Gutierrez in the matter.  The team also included employment Partner, Richard Santy, Associate, Andrew MacDonald and Sports Law Executive, Tiran Gunawardena.

 

In what could prove to be a landmark employment law decision for athletes in the UK, Jonas Gutierrez (“the Player”) won a disability discrimination claim against his former club, Newcastle United Football Club (“the Club”), after he successfully argued that the Club had discriminated against him due to his cancer diagnosis.

This article will provide an overview of the tribunal’s decision, outline what made this case unusual in the context of employment related disputes in professional football in the UK and touch upon the possible wider repercussions for sport generally. 

 

Facts

After originally signing for the Club in July 2008, the Player signed a new four-year contract with the Club (“the Contract”) in September 2011.  The Contract contained a clause providing for an automatic one-year extension (“the Extension Clause”) of the Contract if the Player started 80 Premier League games during the four-year term.

The Player was a regular first team player of the Club for 5 years. However, in Summer 2013, the Player was diagnosed with testicular cancer and required an operation to remove his testicle. He claimed that within a couple of weeks of his return to the Club after receiving treatment, the Club informed him that he was no longer a part of their plans and that he was free to search for a new club. The Club asserted that the Player had been informed before his cancer diagnosis that he did not have a future with the Club and this decision was taken on sporting considerations alone.

When the Contract ended in June 2015, the Player had started in 78 games, i.e. 2 short of the 80 required to trigger the Extension Clause. The Player claimed that his selection for first team Premier League matches had been manipulated to prevent the Extension Clause being triggered due to his cancer. The Player further claimed that he had been treated less favourably by the Club following his cancer diagnosis. In addition, the Club had discretion to extend the Contract but they chose not to do so.

The Player brought a disability discrimination claim against the Club at the Employment Tribunal and argued that the Club had discriminated against him due to his cancer diagnosis. In April 2016, the Employment Tribunal found in the Player’s favour. 

 

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Summary of the decision

The Player filed his claim under the Equality Act 2010 (“the Act”), which makes it unlawful to discriminate against workers because of a mental or physical disability. While there will often be a dispute in a disability discrimination claim regarding whether or not a person’s ill health is sufficiently serious to constitute a disability under the Act,  the Act deems cancer to be a disability.[1]

The Player made 4 claims under the Act, of which 2 were upheld and 2 were dismissed by the Employment Tribunal. These claims will be discussed in further detail below.

The Player’s main allegation was that the Club’s board influenced team selection to prevent the Player from reaching the contractual trigger point to secure an extension to the Contract, and they did so due to his cancer diagnosis. The Employment Tribunal upheld this claim and its ruling stated:

“We find as a fact therefore that the respondent was deliberately managing the claimant’s selection to prevent him triggering the option [of extension]. We concluded that the reason why the respondent managed the claimant’s selection was because they had no longer wanted him at the club because of his cancer.”[2]

A remedies hearing is due to take place to determine the amount of compensation that will be awarded to the Player. As of 25 April 2016, the Club has not yet confirmed whether it will be appealing the decision to the Employment Appeal Tribunal.

Analysis

An employment law perspective

As noted above, the Player advanced 4 separate claims under the Equality Act:

  1. A claim under Section 13 for “direct discrimination”.  To succeed in such a claim the Player needed to establish that he had been “less favourably treated” than other players were treated or would have been treated because of his disability;
  2. A claim under Section 15 for “unfavourable treatment because of something arising in consequence of his disability”;
  3. A claim under Section 21 for failure to make reasonable adjustments; and
  4. A claim under Section 26 for disability-related harassment.

Deemed disability

Except in the case of cancer and certain other progressive conditions, the definition of disability is only satisfied if the claimant can show that he or she is suffering from a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out “normal day-to-day activities[3]”.

One unusual feature of this case, therefore, was that the Player was deemed to be a disabled person because of the diagnosis of cancer rather than the effects of the cancer on him. On the facts of the case, his two courses of treatment (one on initial diagnosis and one following a diagnosis of metastatic cancer in a lymph node) were no more disruptive to his fitness than the kind of injuries commonly experienced by footballers. 

Employment Tribunal Judgment

The tribunal dismissed claims 2 and 4 (listed above) largely because the effects of the cancer on the Player were no more disruptive to his ability to work than the kind of injuries commonly suffered by footballers. 

Claim 2 (discrimination arising out of disability) is a much more common type of disability discrimination claim than a claim for direct disability discrimination, since it is normally the consequences of a disability (i.e. the inability to attend work or perform key duties) that gives rise to adverse treatment by employers, not the disability itself.  Similarly, under claim 4, it is often the consequences of the disability, rather than the disability itself, that gives rise to harassment.  However it appears that in this case the cancer had no effect on the Player’s physical capabilities once the period of rehabilitation was over.

Claim 1 was upheld because the tribunal inferred from the surrounding facts that the diagnosis of cancer was the reason why the Club decided, shortly after the Player returned from his initial operation, that he was not going to be part of their long-term plans.  The tribunal also inferred that his cancer diagnosis was the reason why the Club manipulated his appearances, i.e. so that he could not benefit from an automatic extension of his contract. 

Crucially, the Player was able to demonstrate that he had been a regular fixture in the team before his diagnosis, and that there was no reason why he should not have been selected once he returned to fitness.  He was also able to demonstrate that at the end of his final season, when it was mathematically impossible to achieve the required number of starts to secure a contract extension, he was again selected for the team and indeed played a vital part in the Club avoiding relegation, scoring the winning goal in the last game of the 2014/15 season.

Claim 3 was also upheld.  Leaving aside the deliberate manipulation of his appearances (which happened towards the end of his spell at the Club), one reason why the Player did not accumulate the necessary number of appearances was because of the two spells when he was unfit to play due to his treatment for cancer. 

The tribunal held that, under the circumstances, the Club had a duty to make reasonable adjustments in light of the Player’s disability. This duty should have been manifested by the Club adjusting the terms of his contract to reduce the required number of starts pro rata to reflect these periods of absence.

Why was this case heard outside of traditional sports arbitration?

The Premier League Standard Professional Playing Contract (“the PL Contract”) contains an arbitration clause (clause 17).  The clause states that the vast majority of disputes are subject to private football arbitration (generally before the Premier League, unless both parties agree to submit the dispute to FA Arbitration). However, in the majority of (non-football related) employment cases, the relevant institution for submitting a claim will be the Employment Tribunal, where proceedings and pleadings are open to public scrutiny.

An additional consideration for bringing this claim in the Employment Tribunal related to the reverse burden of proof in discrimination claims[4].  With regard to a reasonable adjustment claim, it is for a claimant to establish that a provision, criterion or practice (PCP) was applied to him/her, which caused him/her substantial disadvantage[5] in comparison with non-disabled persons, and to identify a potentially reasonable adjustment(s) that should have been  implemented. It is then for the employer to establish that the particular adjustment contended for was not a reasonable one.   This reverse burden of proof would not have applied had this case been brought for example as a breach of contract claim and determined by sports arbitration.

The Player argued that there were in fact two PCPs: the Extension Clause as well as the Club’s decision not to offer the Player the extension despite his getting so close to reaching the trigger for automatic renewal. The Club failed to discharge its burden of proving that the adjustment to the Extension Clause, as claimed by the Player, was unreasonable.

In this case, the Player’s disability discrimination claim did not fall under the PL Contract’s arbitration clause, as it involved protections afforded under the Act which cannot be contracted out of[6] (except via a valid settlement agreement). Accordingly, the Employment Tribunal had jurisdiction to determine the dispute and neither the Club nor the PL could require the Player to submit to a sports arbitration.

Right to terminate for long term illness/ injury

Clause 8 of the PL Contract entitles a club to terminate a player’s contract with 12 months’ notice:

  1. in the event that the player suffers Permanent Incapacity (where “Permanent Incapacity” is defined as permanent total disablement under the Premier League’s insurance policy or incapacity by reason of or resulting from injury or illness, which medical opinion determines will result in the player being unlikely to play at the same standard again for a consecutive 20 month period); or
  1. the player has been incapacitated from playing for the same injury/illness for 18 months in any consecutive period of 20 months.

If this were to occur, the club is entitled to serve notice on the player terminating the PL Contract. The notice period is reduced from 12 months to 6 months when the injury/illness results from the player’s breach of his obligations under the PL Contract. After such notice, a club may pay the player the residual value of his contract and bring the PL Contract to an end prematurely.

This type of clause exists in many other employment contracts in sport (albeit some are not as generous as the PL Contract provisions).  However, whilst this may contractually allow for termination in the event of a long term injury or illness, reliance on this provision would still be subject to the employer’s duties under the Act.    

The Act allows employers to defend Section 15 claims (i.e. “unfavourable treatment because of something arising in consequence of the disability”) if the treatment is a “proportionate means of achieving a legitimate aim” – normally referred to as the “justification defence”. 

This means that if the Player is permanently incapacitated it will normally be justifiable to terminate their contract, in much the same way as in most employment contexts.  This makes claims to the Employment Tribunal in these circumstances unlikely. However such a defence is not available in “direct” discrimination claims under Section 13.

Conclusion

This case has very particular facts, but it also has wider implications for sports and non-sports employers. Sports clubs (and employers generally) will need to avoid knee jerk reactions to news of a cancer diagnosis, not only to ensure compliance with the Act but out of common humanity.

The other, broader lesson, is that sports institutions should not assume that the disability provisions of the Act will not be engaged in their dealings with their players/ athletes and should be mindful to treat sporting personnel in the same way they would treat other employees, and indeed to make reasonable adjustments where that duty is engaged. For example, in this case the Employment Tribunal questioned who conducted the Player’s return to work interview, which is of course standard practice for most employees, but may be seldom adhered to in a sporting environment.

As a wider observation in a team sports context, provisions similar in nature to the Extension Clause are commonplace and we are aware of numerous disputes between clubs and players where the players have claimed that they have not been selected to avoid triggering an extension clause.  Whilst this may in itself give rise to a breach of contract claim, the onus is on the player to prove this breach, which may be very difficult.

In this case, the Club argued that it should have absolute discretion to select its strongest starting XI in every match and such decisions were determined by purely sporting considerations. However, as the Employment Tribunal held in this case, following its scrutiny and criticism of the credibility of witnesses as well as very telling internal e-mails, the reason for non-selection was determined to be the player’s disability. This is perhaps a salutary lesson for clubs that engage in the practice of internally ‘managing’ contractual extensions, namely that in the context of a disabled employee, this practice could lead to the club facing a disability discrimination claim and such actions being publicly exposed.      

It is of course true that given their age profile and levels of fitness, professional sportsmen and women are less likely to suffer from a disability than the general population. To satisfy the definition of a ‘disability’, generally speaking the substantial adverse effects of a condition (on the Player’s ability to carry out normal day to day activities) must have lasted, or be likely to last, at least 12 months in order to count.

However, given the growing awareness of mental illness amongst high achieving sportsmen and women, it is important to understand that a long-term mental illness may well be considered a disability under the Act. This case demonstrates that responding to the needs of a player/athlete who is regarded as disabled for Equality Act purposes extends beyond paying him/her during their recuperation: adjustments may need to be made to contractual terms and there may even be an impact on team selection decisions.

The message for clubs and sports organisations in general is that they are not able to avoid what would be regarded as “ordinary employment principles” and should be extremely cautious when considering disregarding employment and discrimination law in favour of sporting custom and practice.

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About the Author

Carol Couse

Carol Couse

Carol is a consultant in the sports team at Mills & Reeve LLP and has over thirteen years of experience in sports law, both in-house and in private practice.

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Richard Santy profile picture

Richard Santy

Richard is a partner in our employment law team, based in our Birmingham office. Richard's focus is on the commercial sector and, while I advise on all aspects of employment law, I have a particular focus on complex litigation. Over the years I have advised a number of high profile corporates including Debenhams, Kuehne + Nagel, Next Retail, One Stop Stores and two of the midlands’ biggest football clubs.

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