What constitutes restraint of trade in football players’ and managers’ contracts?

Luis Suarez
Published: Wednesday, 03 September 2014. Written by John Mehrzad QC No Comments

After recent controversial football disciplinary sanctions such as the Suarez ban and contractual disputes revolving around player transfers, John Mehrzad analyses the common legal issue arising in those types of case - restraint of trade. 

He discusses to what extent bans can be overturned, clubs can dictate where a player or manager can go after they leave, and clubs are able to preclude a former player or manager from criticising their staff after they leave.

 

Key legal principles

A prohibition on an employee, such as a player or manager, from carrying out their chosen profession will usually amount to a restraint of trade.1 However, it does not follow that a restraint will necessarily be legally unenforceable. 

At domestic (England and Wales) level, courts uphold restraints where they are reasonably necessary to protect a legitimate and desirable aim.2

At international level, the Swiss Federal Tribunal has reminded FIFA and the Court of Arbitration for Sport (CAS) that a restraint, by way of a disciplinary sanction specifically (but the same analysis ought also to apply more generally), must be “proportionate” to be enforceable

Ultimately there are two stages to establish an unenforceable restraint of trade: 

  • Is there a restraint in the first place? At this stage, the employee must prove that there is an obligation imposed on him which prevents him from earning or limiting his ability to earn a living at his chosen occupation.3
  • If so, can the restraining party demonstrate that the restraint pursues (a) a legitimate aim in (b) a reasonable and proportionate manner?

Specificity of sport

Given there are a myriad of situations in which restraint of trade arguments arise within the context of player or manager contracts, the rest of this blog will only consider to what extent bans can be overturned, clubs may dictate where a player or manager can go after they leave, or a club is able to preclude a former player or manager from criticising its staff after they leave.

Nevertheless, the legal principles summarised above remain those under which any restraint of trade situation will be analysed by the courts or sports-specific panels.

Continue reading this article...

Register with your email and password
Already a member? Sign in

Get access to all of the expert analysis and commentary at LawInSport including articles, webinars, conference videos and podcast transcripts.  Find out more here.

Related Articles

About the Author

John Mehrzad QC

John Mehrzad QC

John Mehrzad QC was appointed Silk after only 13 years’ practice – the fastest appointee in the 2019 competition.  With a background in employment law and commercial law, his sports law at Littleton Chambers, London, practice focuses, on the one hand, on financial disputes between clubs, managers, players, intermediaries, associations and commercial partners – usually before FA, PL or EFL arbitrations, or before FIFA or the CAS.  

  • This email address is being protected from spambots. You need JavaScript enabled to view it.

Leave a comment

Please login to leave a comment.

Copyright © LawInSport Limited 2010 - 2020. These pages contain general information only. Nothing in these pages constitutes legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. LawInSport is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website.