Dr. Eva Carneiro's claims against Chelsea and Jose Mourinho: breaking down the legal issuesJames Williams, Nicola Holdsworth
Further to Dr Eva Carneiro announcing her departure from Chelsea FC, this article examines what claims she may have against the club and/or Mr Mourinho for unfair dismissal and/or sexual discrimination. Whilst the authors are aware that Dr Carneiro and Jon Fearn were demoted by Chelsea at the same time this article specifically focus on the potential claims of Dr Carneiro.
The dispute in question involves Eva Carneiro, a highly qualified and well-respected medic, who until recently held the position of first team doctor at Chelsea Football Club. Having retained the position under four different managerial regimes, she has apparently felt compelled to leave Chelsea after being undermined and publicly insulted by the ‘Special One’ himself, Jose Mourinho.1 Her apparent wrongdoing? Performing her professional obligations and discharging her Hippocratic duties.2
The conflict between Mr Mourinho and Dr Carneiro arose following the recent 2-2 draw between Chelsea and Swansea. In the dying moments of the game, with Chelsea down to 10 men having had their goalkeeper sent off, Dr Carneiro and the team physiotherapist were called on to the pitch by the referee to treat the Chelsea player, Eden Hazard. In the post-match press conference (no doubt seeking to distract from a disappointing result), Mr Mourinho expressed his anger that the medical staff’s “hasty” actions had effectively reduced his side to 9 men and labelled them “impulsive and naïve”.3 He went on to say that “even if you are a kit man, doctor or secretary on the bench, you have to understand the game”4 (the inference being that Dr Carneiro did not).
Following the incident, Carneiro was stripped of first team duties, with The Guardian reporting: “she will no longer be on the sideline during training sessions and matches. She will not be at the team hotel, either. Mourinho is happy for her to remain as the first-team doctor, working out of an office at the training ground in Cobham”.5
It has also subsequently been alleged that Mr Mourinho called Dr Carneiro a “filha da puta”6 – Portuguese for ‘daughter of a whore’. The intense public interest surrounding these events has resulted in Dr Carneiro being subjected to unprecedented media scrutiny,7 with her photograph plastered across newspapers, stories sold about her sex life and her professionalism called into question.
Despite widespread criticism of his actions, Mr Mourinho continues to fight his corner, claiming that he and his staff “need disagreements to improve.”8 Negotiations between Dr Carneiro and the Club have not resolved matters, and the Football Medical Association (medical and science personnel in professional football) has recently confirmed that it has not been possible to achieve a satisfactory outcome and that the case will now be dealt with by Dr Carneiro’s lawyers.9
So, exactly what claims might Dr Carneiro have; and against whom could they be brought (Mr Mourinho and/or Chelsea FC)?
Claim for constructive unfair dismissal
The most obvious claim for Dr Carneiro to bring would be for constructive unfair dismissal under Section 95(1)(c) Employment Rights Act 1996.10
A constructive dismissal occurs where an employee is not expressly dismissed by the employer but instead resigns because of the way in which they have been treated by their employer. The employer’s conduct must be so unreasonable that it constitutes a ‘repudiatory’ (i.e. fundamental) breach of an express or implied term of the employment contract, and the employee must resign in response to the treatment, not for any other reason.
A repudiatory breach may occur if the employer breaches an express contractual term by, for example, unilaterally reducing an employee’s pay11 or commission.12 It can also occur where an employer breaches the ‘implied duty of trust and confidence’ that employers owe to employees. This may occur where, for example, the employer initiates disciplinary proceedings against an employee without any adequate basis or reasonable inquiry13 or subjects the employee to bullying or humiliating treatment.14 The relevant legal test as to whether the implied term of trust and confidence has been breached is whether the employer ‘without reasonable and proper cause’ conducted itself ‘in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence’.15
In order to succeed with a claim for constructive unfair dismissal, Dr Carneiro would therefore need to demonstrate that Chelsea committed a repudiatory breach of an express or implied term of her contract. Depending on the job title and duties specified in her contract of employment, Chelsea’s unilateral decision to remove her from certain key first team duties may constitute a breach of an express contractual term. Alternatively, if her contract did not stipulate that she must be allowed to carry out this role, she might be able to show that Chelsea was in breach of the implied term of trust and confidence.
In circumstances where Dr Carneiro was guilty of little more than fulfilling her duties as a doctor and responding to the referee’s direct instruction16 to enter the field of play, it is likely to be relatively straightforward to show that Mr Mourinho’s actions in publicly reprimanding, insulting and demoting her constituted a breach of the implied duty of trust and confidence. Chelsea would almost certainly be held ‘vicariously liable’ for Mourinho’s conduct as there was a sufficiently close connection between the wrongdoing and his employment that it could be regarded as having been done in the course of employment.17
Chelsea’s own actions would also be taken into account, with particular consideration being given to its apparent failure to support Dr Carneiro or issue any public censure of its manager.
Wasn’t it within Mourinho’s discretion to remove Carneiro from duties?
It is likely that Mr Mourinho’s contract with Chelsea includes a clause giving him sole discretion to determine who plays, trains and assists the first team. If so, Chelsea might seek to defend its actions by reference to this, for example, by arguing that it was prevented from stepping in to support Dr Carneiro because to do so would put it in breach of its contractual obligations to Mr Mourinho.
However, in the author’s opinion it seems unlikely that a court or Tribunal would be persuaded by this argument. A party exercising a discretion is required to “act honestly and on proper grounds and not in a manner that is arbitrary, irrational or capricious”.18 In circumstances where there are grounds to believe that Mr Mourinho’s decision did not satisfy this test and was not therefore a proper exercise of his discretion, it is logical to conclude that Chelsea could (and should) have taken steps to reinstate Dr Carneiro without it breaching any other contractual obligation by so doing.
Could Carneiro’s Facebook comments provide Chelsea a defence?
Chelsea might also seek to defend itself by pointing to the fact that Dr Carneiro took to social media to pass comment on the situation.19 This argument would presumably be that her actions caused damage to its reputation and therefore constituted a breach of her implied (and possibly express) contractual obligations to the club (we are unsure as to whether her contract included an express social media policy, but it would not be uncommon at high profile clubs). If upheld, this could result in her constructive dismissal being found to be fair (being on the grounds of her conduct) and/or any award of compensation to her being reduced to reflect her contributory fault.
There is authority confirming that an employee can be fairly dismissed for posting offensive, threatening and obscene comments on social media: see Game Retail Limited –v- Laws.20 However, in the author’s view, this simply does not fit the facts of the Carneiro case. Dr Carneiro’s comment on social media was limited to a Facebook posting to “thank the general public for their overwhelming support….really very much appreciated”.21 It is difficult to see Chelsea showing that this caused significant and foreseeable harm to it or its officers and employees such as to justify her dismissal or constitute contributory fault.
Potential compensation for unfair dismissal
If successful in her claim, Dr Carneiro would be eligible for compensation for the losses she suffers as a result of being forced out, the starting point for which would be the value of salary and benefits that she would have received had her employment continued. Such compensation is subject to a statutory cap of the lower of a year’s salary or £78,335.22
Could Carneiro also claim “stigma” damages?
She might also seek to claim damages for the ‘stigma’ she has suffered as a result of her treatment by Chelsea and Mr Mourinho. However, such damages are limited to circumstances where an individual’s ability to secure alternative employment is adversely affected by the fact that he/she has brought legal proceedings against the ex-employer23 or where the individual’s ability to mitigate their loss is adversely affected by their association with an ex-employer who has run their organisation in a corrupt or dishonest manner.24 In the author’s view, neither argument would seem to apply here.
Obligation to mitigate
Dr Carneiro would be under a duty to take reasonable steps to mitigate her losses by looking for alternative work and, having occupied a high profile position very successfully for a number of years, one might expect that she will not be short of offers. However, she would no doubt argue that her ability to find another job has been directly and adversely affected by Mr Mourinho’s and Chelsea’s actions, which have called into question her professional ability and resulted in her receiving unfavourable and intrusive press coverage.
Claim for sexual discrimination
In order to avoid the cap on unfair dismissal compensation, it is likely that Dr Carneiro would be advised to bring an additional claim for sex discrimination, which, if successful, would entitle her to uncapped compensation.25 Sex discrimination is covered under the Equality Act 201026 and provides for equal treatment for men and women with regard to access to employment, training, promotion and working conditions.27 It also makes it unlawful for an employer to discriminate, harass or victimise an employee on the grounds of any ‘protected characteristic’, gender being one such characteristic.28
Alleged ‘filha da puta’ comment
Dr Carneiro’s potential sex discrimination claims can be split into two possible actions. Firstly, if proven, she could claim that Mr Mourinho calling her a ‘filha da puta’ constituted sexual harassment, being unwanted conduct related to her sex, which she found offensive and which resulted in a degrading, humiliating and offensive working environment for her.
On the face of it, this will be difficult for Chelsea and Mr Mourinho to defend, although they may try to argue that Mr Mourinho would in the same circumstance have used abusive, gender-specific language towards a male medic (the male equivalent of ‘filha da puta’ in Portuguese is apparently ‘filho da puta’, loosely translated as ‘son of a bitch’). While legally sound, there are reputational and employee relations consequences of relying on this defence, which in effect requires Chelsea to argue that it is routinely unpleasant and objectionable to all its employees and that Dr Carneiro was not singled out for particular treatment in this respect.
An alternative defence for Chelsea / Mr Mourinho would be to argue that it was not reasonable for Dr Carneiro to have found this comment offensive and for it to have resulted in a degrading, humiliating and offensive working environment for her.29 However, in circumstances where the comment was plainly derogatory, was made in a public forum and has been widely publicised, this would be, at best, a high risk defensive strategy.
Does the fact that Mourinho is not being charged by the FA make a difference?
Mr Mourinho may also claim that he has been vindicated by the Football Association’s decision not to charge him with discriminatory language.20 However, the relevant statutory test for sexual discrimination31 differs from the FA’s internal rules32 and an Employment Tribunal is, in any event, unlikely to attach much weight, if any, to the findings of an opaque regulatory committee.
Being stripped of certain 1st team duties
The second claim Dr Carneiro could bring would be that being stripped of certain first team responsibilities33 constituted less favourable treatment on the grounds of her sex. On the face of it, this would be a more a difficult argument to run, as her male assistant was also subjected to demotion.
However, it may be possible to argue that the demotion of her subordinate was a natural consequence of the decision to demote her and that this primary decision was tainted by gender discrimination. It certainly seems likely that an Employment Tribunal would want an explanation of Mr Mourinho’s reference to a “secretary on the bench”34 in deciding whether the implicit suggestion that Dr Carneiro did not understand football (and therefore deserved to be demoted) was motivated by her sex.
If Dr Carneiro was able to show that her departure from Chelsea was a result of her sexual harassment and/or constituted less favourable treatment on grounds of sex, she would be entitled to uncapped compensation.35 This would again be based on her actual or projected loss of earnings until she secures another role.
Finally, Dr Carneiro would also be entitled to an award for injury to feelings,36 although it is likely that this would not be more than about £10,000-15,000 at most. This is due to the three bands of award for injury to feelings set out in the case of Vento v Chief Constable of West Yorkshire Police (No. 2).37 Awards in the top band (£18,000-30,000) are reserved for the most serious and exceptional cases, usually involving a lengthy campaign of harassment; awards in the middle band (£6,000 - £18,000) are for serious cases which do not merit an award in the highest band; and awards in the bottom band £600 - £6,000 are for less serious cases such as a relatively trivial one-off incident.
Whom would the claims be against?
As a final point, it is worth noting that any claim for constructive unfair dismissal would only be against Chelsea (as her contractual employer), not Mr Mourinho.38 However, as set out above, there seems little doubt that Chelsea would be found vicariously liable for the actions of its manager, which were demonstrably carried out in the course of his duties.
More interestingly, the claims for sexual harassment / sex discrimination could be brought against Mr Mourinho personally as the individual who has engaged in the alleged conduct, as well as against Chelsea as his (and Dr Carneiro’s) employer. It is very likely that Chelsea would stand by their manager and defend the claims alongside him. However, in such circumstances it is possible for employers to raise the so-called ‘statutory defence’,39 which in effect places the entire liability on the allegedly offending employee rather than the employer. In order to run this defence, Chelsea would need to prove that it took such steps as were reasonably practicable to prevent the employee doing the thing, or doing anything of that description, such as putting in place equal opportunities policies and providing training to him and other staff.40 If it could prove this, Mr Mourinho alone would be liable to compensate Dr Carneiro.
This raises the prospect of a wedge being driven between Chelsea and its manager, as well as making it much more likely that Mr Mourinho would have to appear as a witness in the proceedings. However, in reality it is relatively unusual for an employer to cut a senior employee adrift in this way, not least because of the implications if the defence fails and the employer is left having to deal with a very disgruntled continuing employee as well as the Claimant.
So far Chelsea has refused to comment on what they refer to as an “internal staffing matter”41 and Dr Carneiro has also kept her counsel. While Mr Mourinho may see this as a matter of principle and be disinclined to negotiate with Dr Carneiro, the depth of Chelsea’s pockets and the very significant reputational and commercial fall-out that might result from a protracted public legal dispute suggest it is likely that a settlement will be reached.
Of wider interest is how the game itself responds to the incident, particularly given some of its previous failures to act against sexism in the game. The Chief Medical Officer of FIFA has criticised Mr Mourinho, and Anna Kessel, the co-founder of Women in Football, has stated "this is about medical ethics, human rights, employment rights, the integrity of the game. This is a test and we urge football not to shy away from it."42 It also brings into contrast some of the wider difficulties facing sports doctors when having to balance their Hippocratic duties against the success of their team,43 an issue that is currently of much debate as it relates to the assessment of on field concussions.44
The FA is apparently conducting an official investigation into the matter and so it remains to be seen whether it heeds this call. Of particular interest will be whether it asks Dr Carneiro herself to contribute to the investigation given its apparent previous failures to engage with her.
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- Tags: 2015 FIFA Womens World Cup | Contract Law | Employment Law | Employment Rights Act 1996 | England | Equality Act 2010 | Football | Permier League | Trade Union and Labour Relations (Consolidation) Act 1992 | United Kingdom (UK)
- Could incidents of concussion in sport be an issue of negligence?
- Richard Scudamore: Slings and arrows or outrageous (good) fortune?
- Football manager contracts of employment – key clauses for clubs to consider – Part 2
- Football manager contracts of employment – key clauses for clubs to consider – Part 1
About the Author
James is a Partner in the Employment & Pensions team at international law firm Hill Dickinson LLP. Hill Dickinson has a strong reputation in sports law and provides specialist legal expertise to a broad portfolio of clients, including global events and brands, rights holders, sporting bodies, clubs, sponsors, agents and individual athletes. James has advised on employment law issues within the context of sports for many years, providing support to clients including football clubs and players, events organisers and professional bodies.
Nicola Holdsworth is a trainee solicitor in the Employment & Pensions team at international law firm Hill Dickinson LLP. Hill Dickinson has a strong reputation in sports law and provides specialist legal expertise to a broad portfolio of clients, including global events and brands, rights holders, sporting bodies, clubs, sponsors, agents and individual athletes.