How France balances the right of free speech against obligations owed to an employer - The Gus Poyet case

Football player and press conference
Published 28 November 2018 | Authored by: Christophe Bertrand

In France, recent events have illustrated the possible excesses of athletes/coaches when they are interviewed by the media. The case concerns the coach of the Girondins de Bordeaux Football Club, Gustavo Poyet. In August 2018, during a press conference following a Europa League Championship match, Gus Poyet made direct criticisms1 of the club's management regarding the sale of one of their players, Gaetan Laborde, against his will. Poyet even went as far as mentionning his possible resignation during the quite extraordinary interview:

It is a shame that they did this against me, against the players, against the fans. I can't accept that. I need explanations from the owners and the president. When they explain this to me, we'll see if I can keep going. I don't care about the Bordeaux leaders who talk from behind, they try to kill me from behind. It is up to them to talk with you.2

In light of the events, this piece examines the balance that France strikes between an individual’s right to free speech, and the simultaneous duties that they owe to their employer.

Freedom of speech in the work place

In French law, two legal concepts are weighed against each other: freedom of speech on one hand, and the obligation of loyalty towards your employer on the other.

Freedom of speech is governed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 10):

Everyone has the right to freedom of speech. This right includes freedom of opinion and the freedom to receive or impart information or ideas without interference from public authorities and regardless of frontiers. This article shall not prevent States from subjecting broadcasting, cinema or television undertakings to a licensing regime.

The exercise of these freedoms involving duties and responsibilities may be subject to certain formalities, conditions, restrictions or sanctions, provided for by law, which are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder and crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information or for guaranteeing the authority and impartiality of the judiciary.

The freedom of expression is also guaranteed by Article XI of the Declaration of the Rights of Man and of the Citizen (1789) which has constitutional value.3 Only the violation of public order justifies the restriction of this freedom by law.

Regarding the freedom of speech in labour law, Article L. 1121-1 of the French Labour Code provides:

No one may impose restrictions on the people rights and on individual and collective freedoms that are not justified by the nature of the task to be performed or proportionate to the intended purpose.

The courts have however expressed certain limits to this freedom, including the condition that it cannot turn into abuse:

If the exercise of freedom of expression in and outside the company cannot justify dismissal, it is on condition that it does not turn into abuse4.

Consequently, employees enjoy, within and outside the company, freedom of speech5, except in cases of abuse of rights, characterized when the terms used by the employee are abusive, defamatory or excessive.

The French Supreme court has ruled that the freedom of speech includes the right of the employee to criticise the employer6. In the landmark case of Clavaud, it held that an employee may criticise his/her employer in a statement quoted in the press.7

However, if the employee systematically expresses his/her disagreement with the decisions made by the employer, this may be considered as an abusive behaviour.8

The French Labour Code also has a title which specifically deals with the “right of direct and collective expression of employees” (Title 8).

More particularly in sport, it has been judged that:

Whereas, unless abused, the employee enjoys, within and outside the company, his freedom of expression, to which only restrictions justified by the nature of the task to be performed and proportionate to the intended purpose may be applied; (...) that the alleged statements are part of a media controversy with the trainer, the Court of Appeal may have decided that the employee did not abuse his freedom of expression; (...)9.

And:

Whereas the Court of Appeal found that the employee had made outrageous and unfounded public statements challenging the honesty and loyalty of the majority shareholder and that he had proposed that the majority shareholder transfer his shares and leave the club; that, in the light of these findings, the Court of Appeal could decide that the employee had abused his freedom of expression.10

In addition, even though the National Collective Agreement on Sport and the collective agreement on professional football (Charte du football professionnel) remain silent on this matter,11 the 2018/2019 Disciplinary Regulation of the Professional Football League (Article 2 – Skill) mentions:

violations of the Football Ethics Charter as well as  violations of sporting morals, serious breaches affecting the honour, image, reputation or consideration of football, the LFP or one of its officers attributable to any natural or legal person subject to the jurisdiction of the FFF, whether or not committed during a match, including during statements, attitudes or behaviour brought to the attention of the public (media, social networks...).

This Football Ethics Charter mentions "Any breach of the duty of confidentiality in public statements" (Part 2).

The General Regulations of the French Football Federation 2017/2018 also sanction the use of "any abusive term or contempt, any offensive expression, any allegation or imputation of a fact (...)" (Article 204 – Damage to sporting morals), or its Annex 2 entitled "Disciplinary Regulations" which specifies that

"Any behaviour contrary to morals, ethics or damaging the honour, image or consideration of the F.F.F., its Leagues or Districts, the Professional Football League, one of their managers, a taxable person or a third party, or, more generally, French football".

However, to remedy this failure, some French clubs have the practice of inserting in the players’ contracts:

In the case of Gustavo Poyet, he was dismissed12 by the Club des Girondins de Bordeaux on the grounds, in particular, of serious misconduct and the abuse of freedom of speech. The President of the Club stated that: ‘

There has been a drift in behaviour and such remarks towards the institution cannot be tolerated. The limits were crossed yesterday.

Mr. Poyet’s case has not yet been heard.

References

1 Adam White, Eric Devlin, ‘Gus Poyet melts down as Bordeaux go from crisis to crisis’, theguardian.com, 20 Aug 2018, last accessed 18 Nov 2018, https://www.theguardian.com/football/2018/aug/20/gus-poyet-bordeaux-ligue-1

2 Planet Football, ‘Watch: Gus Poyet’s incredible press conference rant: ‘What you say is bullshit’, planetfootball.com, 18 Aug 2018, last accessed 18 Nov 2018

https://www.planetfootball.com/videos/watch-gus-poyets-incredible-press-conference-rant-what-you-say-is-bullshit/

3 According to this text, “The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, except to respond to the abuse of this liberty, in the cases determined by the law”.

4 Cass. soc. 29 Nov. 2006, n° 04-48.012

5 Cass. soc. 14 Dec. 1999, No. 97-41.995; Cass. soc. 22 June 2004, No. 02-42.446

6 Cass. soc. 21 September 2010, No. 09-42382

7 Cass. soc. 28 April 1988, No. 87-41804

8 Cass. soc. 11 February 2009, No. 07-44127

9 Cass. soc. 28 April 2011, n°10-30.107

10 Cass.soc. 28 January 2016, n°14-28.242

11 The collective agreement on professional football (“Charte du football professionnel”) also remains silent on this issue.

12 Josh Lawless, ‘Gus Poyet Suspended By Ligue One Side Bordeaux After Incredible Post-Match Presser’ sportbible.com, 17 August 2018, last accessed 28 Nov 2018, https://www.sportbible.com/football/news-poyet-given-the-boot-by-ligue-one-side-bordeaux-after-one-league-game-20180817

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About the Author

Christophe Bertrand

Christophe Bertrand

Partner, Bertrand & Associates

Christophe has been a sports lawyer since 1998 in Paris (France) at Bertrand & Associate law firm (partner).

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