Penalty shoot-outs

If you punch someone at work, you stand to lose your job – you do not have to be schooled in the finer points of employment law to know that much. So how did the Football League’s newly-formed disciplinary committee, headed by a former Court of Appeal judge, arrive at the conclusion that docking the former Leicester City player Dennis Wise two weeks wages was an appropriate punishment for an unprovoked attack that left a fellow team member with a broken jaw?

“If it was any other job in the world and an employee punched another repeatedly and broke his jaw he would get the sack, there would simply be no question of him staying,” says solicitor-agent Mel Stein, who used to represent Gazza and who has some 70 players on his books. “Why should football be any different?” he adds.

Why, indeed? The Wise debacle was the first case to be tackled by the Football League’s Football Disciplinary Commission, which has been established to sort out disputes between players and clubs “to avoid messy legal battles which can ruin the reputation of the game”. Last week, an appeals committee, chaired by the eminent sports lawyer Sir Robert Reid QC, righted the perceived wrong of the new body – that was headed by no less a lawyer than Sir Philip Otton – and allowed Leicester to sack Wise. The initial tribunal had concluded, after a six-hour hearing, that the 35-year old player had assaulted team-mate Callum Davidson during the club’s pre-season tour of Finland. However, the tribunal concluded such an assault “did not warrant the termination of Wise’s contract”. An apparently regretful Wise last week signed up to Millwall, a team whose image is tainted by the violence of its fans.

“At the end of the day, clubs are employers, players are employees, and why should employment law not apply to them?” says Peter McCormick, Leeds United director and senior partner at McCormicks. “I think that a number of players, particularly at the high end of the scale, are acting as if they are above the law, above ordinary employer/employee relationship considerations. It’s bad for the game, the image of the game and it’s certainly an appalling example for young people,” he adds.

The attack was particularly vicious and Davidson sustained a double fracture of his right cheekbone. It was revealed that the blow was not delivered in a brawl following a game of cards as was first reported, but as the Scottish defender lay in bed in his hotel room. Leicester’s manager Micky Adams acted instantly by sending Wise home.

Of course, bad behaviour on and off the pitch has always been part of the game. But there is now an uneasy feeling that the game’s top stars are beyond the reach of the law following a series of high-profile cases. This month, Roy Keane will have his hearing into charges of bringing the game into disrepute. He is to refute the charge that he deliberately set out to injure Manchester City’s Alfe-Inge Haaland as revealed in his own autobiography. And last season, Lee Bowyer refused to pay a four-week fine for his involvement in a drinking session that led to the brutal beating of an Asian student (although Bowyer was acquitted of assault charges).

Stein believes that high-earning players have “no respect for the rules of the game and the law, because money has no meaning for them. If the ultimate penalty is only money why should they care about the rules?” he argues. The lawyer tells the apocryphal “but probably true” story of a player who wanted a match day off to pursue his commercial interests and so he asked his manager how much he would be fined if he missed the game. Stein says: “When the manager quoted the figure he simply drew out his cheque book, wrote out a cheque and tossed it on the manager’s desk.”

So a two-week fine is not going to hurt Dennis Wise, but being booted out of the club clearly sends out the message to the rest of the game. Tim Marshall, head of DLA’s employment practice, acted for Leicester City. He sees last week’s ruling by the appeals committee as, at last, laying down a “hard line” as to what is unacceptable behaviour. “When we were looking at the Wise case we were looking for precedents,” he explains. “There were quite a lot of precedents in the lower leagues of people being dismissed for all sorts of incidences, but that approach hasn’t filtered through to the higher echelons of the game.”

So why did the commission feel constrained to demand that the errant player be reinstated in the first place? Jonathan Taylor, a lecturer in sports law at King’s College London and partner at Hammonds, explains that the standard football Premier League and Football League contracts set out the provisions for taking disciplinary action against players. Under the standard contract, clause 16 gives the club the right to terminate the contract for any player found guilty of gross misconduct. The club also has the discretion, under clause 18, to waive the right to dismiss and instead impose a fine of two weeks wages. Most commentators have observed that the commission found that the club had waived their discretion because Leicester’s manager Micky Adams acted instantly by sending Wise home and docking his wages. “It was simply a question of the legal issue as to whether or not Leicester had waived the right to terminate,” says Taylor. “There was said to be a waiver, but it was argued that it wasn’t in fact a waiver because Adams didn’t have the full facts at the time, and he didn’t have the authority to make the decision for the club.”

In fact, DLA’s Marshall believes that the waiver point was “kicked out of touch immediately” by the commission, which comprised Sir Philip, ex-Wimbledon captain Robbie Earle and former Nottingham Forest manager Frank Clark.
The commission ruled on a 2:1 split that the savage assault did not amount to an action worthy of dismissal. Although the tribunal’s reasons have not been made public, it is not too difficult to work out the identity of the dissenting voice. Marshall says that the prevailing view from “every professional person you speak to in the game” is that it is a rough-and-tumble sport and such antics should be tolerated. “One of the problems that we encountered was bringing everyone around to accepting that this was in fact an extreme case, where a player, at 2.30 in the morning, went and broke his colleague’s cheek bone,” says Marshall. “And, yes, there is a difference between that and some kind of dispute on the pitch in training.”

Marshall admits he had concerns about the composition of the appeal tribunal, but, clearly, they delivered the right result. The appeal body was expanded and headed by Robert Reid QC, backed by ex-Spurs manager Keith Burkinshaw, and John Barnwell and Andy Williamson from the Football League.

While the Football League hopes that its new tribunal will prevent the game being dragged through the courts, some commentators would like to see it take a tougher line. “It really has to be more legalistic and less the old boy network,” says Stein. “This smacks almost of a bunch of prefects sitting around and saying to a fifth former, ‘You should know better’.”

Taylor argues that similar tribunals work well in other sports, such as rugby. He was involved in a case involving Leicester Tigers’ Austin Healey, who appeared before a British and Irish Lions disciplinary board for calling an Australian player a “plod” and a “plank” in an article. One of his team mates Martin Johnson was a member of the three-man panel. According to Taylor, Johnson was able to take a detached view, “bring the players’ perspective to the factual issues that were to be judged” and also to be fair.

“Part of the point of having internal discipline in sport is to try and make sure that the forum that hears the dispute has some sort of sensitivity to the context,” says Taylor. “It’s not that sport is above the law, but you need to take account of its special characteristics and at the same time have a lawyer to keep them thinking along the right lines.”

Apparently, Wise defended himself before the tribunal by arguing that Leicester was only trying to dump him to cut costs. Certainly, the parlous financial health of the game following the collapse of ITV Digital means that some clubs might well be looking to follow Leicester’s example and attempt to off-load troublesome players to save money. “When money is awash in the game it’s easier to forgive players their trespasses,” says McCormick. “If money is tight, then, like any business, if someone isn’t performing properly or they’re causing a problem they will look to drop them.”

Mel Goldberg, a partner at sports law specialist Max Bitel Greene, who up until a year ago acted for the hotheaded midfielder, also considers the first ruling “a strange decision”. He says: “In any other walk of life, if one employee attacks someone else then the employer would sack him on the spot without notice.”

In the immediate aftermath of the recent appeal, Wise’s agent Eric Hall was not ruling out an appeal against the decision to terminate his contract with Leicester City. “Of course, we can take monster, monster legal action if we want to, but we haven’t decided,” Hall says.

Goldberg believes that a breach of contract action by the player could be for as much as £3.5m in lost salary, but he doubts that such talk will come to anything. “I think that it would be unwise – if you will excuse the pun – bearing in mind his conduct,” he adds.