Anelka - a matter of trust and confidence?
Published 25 January 2014 By: David Reade QC
Following The Football Association (The FA) charges against Nicolas Anelka announced on the 21st Jan 2014, David Reade Q.C considers the question how an employer's duties towards an employee who faces a disciplinary process initiated by a regulatory body may feature in this ongoing saga.
As one of the West Bromwich Albion faithful I was at the roller coaster ride which was their 3:3 draw with West Ham on the 28th December. Our collective jubilation over Nicholas Anelka's first goal prompted me only to have a quizzical second glance as the big screen replay of his goal celebration revealed an apparent muscular rigidity afflicting his right arm. The following days revealed that the gesture carried a wider significance and that I was a potential witness for an FA disciplinary hearing, there are others.
Whilst The FA mulled over possible action Anelka was picked for the Albion's match against Everton. The club have not yet taken disciplinary action themselves, although Anelka has agreed not to repeat the gesture. This week The FA charged Anelka, see Daniel Geey's blog on the disciplinary process. Whilst the Club has not held its own disciplinary hearing, reports in the media suggest that it has made clear that it is for Anelka to fund the costs of his own legal representation before The FA, if he continues to dispute the charge.
That does raise an interesting question of an employer's duties towards an employee who faces a disciplinary process initiated by a regulatory body, a question with particularly resonance within sporting regulation.
Of course it may be an express term of a contract that a club, or other employer, will support or meet a sportsperson's costs of an external disciplinary process. One can think of ready examples of footballers whose disciplinary track record would place this firmly on the agenda in a contractual negotiation. But, absent an express term, could such an obligation be implied into their contract?
The likely candidate for such an argument is the implied duty of mutual trust and confidence, implied in every contract of employment. The term that is played out in the argument that its breach by the employer entitles an employee to treat themselves as constructively dismissed, see by way of example the departure of a number of managers down the years e.g Keegan v. Newcastle United Football Company Ltd -  IRLR 94. The term has always had an elastic quality to meet particular circumstances. If a club has, itself, taken disciplinary action and found the allegation proven then there would appear to be little scope for arguing that there should be implied aspect of the duty that they fund the players’ defence of the charge by the governing body. Where the issue remains undetermined, or if the club has considered the issue and found the alleged misconduct not made out, then there is more scope for arguing that the duty embraces this obligation. That may particularly be the case if the prospect is that the disciplinary sanction will be a lengthy suspension which would frustrate the player's ability to perform their contract. However, it should be noted that, elastic as it may be, the Courts have been resistant to extending the implied term to embrace a positive duty on employers to advise their employees in relation to, for example, the most advantageous exercise of their rights under a pension or to counsel them against a course of action which may be to their financial disadvantage, Crossley v Faithful & Gould Holdings Ltd  EWCA Civ 293,  IRLR 377.
Trust and confidence is however a mutual thing and the breach may of course be in the opposite direction. Thus a serious disciplinary breach, which leads to a sanction which renders a player unable to perform their contract or includes conduct which potentially damages a club's relationship with its sponsors, could be such a breach. This potentially entitling a club to accept the repudiatory breach of contract which arises from a breach the implied term and thus avoid a continuing wage obligation. It might it be argued that such a dismissal would be compromised if the employer had itself not taken action to suspend the player whilst initiating disciplinary action itself.
Returning to Anelka, one cannot but suspect that at some stage arguments about trust and confidence will feature in this unfolding saga.
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David Reade Q.C is a commercial litigator at Littleton Chambers with a wide base of experience of sports based disputes, particularly in the field of managerial and player disputes. He recently successfully appeared for Crystal Palace FC in the Court of Appeal.