Tiran Gunawardena

fallout from the defamation saga: part 1

Tiran Gunawardena
fallout from the defamation saga: part 1

Fallout from the defamation saga: Part 1

In a previous 2-part series, we explored the defamation issues resulting from a false news story which inaccurately portrayed Reevaldo to be out drinking and partying hours before Paddington’s biggest match of the season.

In a new 2-part series, we explore the fallout from this defamation story and explain where, and how, a dispute between Reevaldo and Paddington would be resolved. We will also look at what issues would be involved in such a dispute and how this could affect Reevaldo’s chances of finding another club to play for.

As always, don't miss the footnotes --> 1 <-- which contain links to useful documents as well as additional insights.

What happened after the derby?

As a result of Paddington manager Leo Nadal believing and acting upon the defamatory and untruthful account of what Reevaldo did the night before the derby, the relationship between Reevaldo and Nadal has completely broken down and is beyond repair. Reevaldo does not want to be part of a team managed by Nadal and Nadal thinks Reevaldo should just “get over it.”

Reevaldo feels betrayed by the club. In the aftermath of the defamatory article claiming that Reevaldo was partying in a nightclub until four in the morning (less than 12 hours before kick-off) when he was actually relaxing with his wife and friends at home, Nadal dismissed Reevaldo’s account of what happened as lies and refused to listen to two teammates who had dinner at Reevaldo’s home that night. Furthermore, Nadal attempted to fine Reevaldo one month’s wages (which was since rescinded by the club), benched him for the match, and in the post-match press conference, he blamed Reevaldo for the club’s 4-0 defeat.

Things got even worse for Reevaldo until the end of the season. When he returned to training following the derby, he was told - in front of all his teammates - that he was no longer going to train with the first team and that he was to train with the club’s U21 squad. In fact, his name badge and locker had been moved to from the first team dressing room to the U21’s dressing room. Further, he was told by Nadal that he would no longer be taking part in any activities of the first team (e.g. team meetings, commercial engagements and team meals). Reevaldo was shocked and embarrassed that all this was done without any explanation or prior consultation with him. Reevaldo was ultimately not selected by Nadal in the first team squad for the final 6 games of the season after the derby.

In Nadal’s end of the season press conference, the manager mentioned that the squad would be overhauled this summer and specifically referred to the need for “true professionals” on the pitch and in the changing room. When he was asked whether this meant that Reevaldo would be leaving this summer, Nadal made it clear that Reevaldo did not have a future in his squad, commenting that “I am not sure if he has the right mentality.”

Reevaldo raised a grievance with the club under clause 12 of his Premier League contract2, but it did not result in a change in the club’s treatment towards him.

Reevaldo’s lawyers have sent Paddington a letter before action threatening to terminate the contract, but this is a complex legal issue, the outcome of which could be substantially impacted by which club Reevaldo would join after terminating his contract with Paddington.

Where would this dispute be heard?

The first thing to consider is where the dispute between Reevaldo and the club would be resolved.

(a) Domestically

If Reevaldo were to terminate his contract and move to another club in England or Wales, any dispute arising from that termination would be governed by domestic football regulations. In this scenario, under clause 17 of the Premier League contract, Reevaldo’s dispute with Paddington would be referred to domestic arbitration in accordance with Premier League rules (or the FA’s rules if the parties mutually agree). Moreover, the laws of England and Wales would be applicable, as that is the law governing the Premier League contract.3

Under UK employment law, Reevaldo (being an employee) could ordinarily pursue a claim for constructive dismissal at the Employment Tribunal. However, an employee needs a minimum of two years’ service with their employer in order to bring such a claim, so in this particular scenario, Reevaldo would not be entitled to bring such a claim.

Hypothetically, even if Reevaldo were at Paddington for over two years and succeeded with a constructive unfair dismissal claim, his compensation would be split between a ‘basic award’ and a ‘compensatory award’, of which there are statutory limits.4 Broadly, the maximum compensation Reevaldo could hope to achieve for constructive unfair dismissal would be in the region of £82,000 – not particularly significant given his high salary.

An alternative claim Reevaldo could bring is the more straightforward breach of contract claim. The Employment Tribunal can only award up to £25,000 for breach of contract claims so it would be advisable for Reevaldo to pursue this claim via Premier League or FA arbitration.

(b) Internationally

Conversely, if Reevaldo were to terminate his contract and move to a club abroad, the dispute would then take on an ‘international dimension’5 and under Articles 22(b) and 24 of FIFA’s Regulations on the Status and Transfer of Players (“RSTP”), the dispute could be heard by FIFA’s Dispute Resolution Chamber (“DRC”). The FIFA RSTP would then be the applicable regulations.

In these circumstances, Paddington would almost certainly file a claim for compensation against both Reevaldo and his new club before the FIFA DRC. Paddington would cite Article 17 of the FIFA RSTP, which outlines the consequence of terminating a contract without “just cause” (i.e. a valid reason). The decision rendered by the FIFA DRC could then be appealed by either (or both) parties to the Court of Arbitration for Sport (“CAS”) in Switzerland.

It is important to note that if Reevaldo were to terminate his contract and sign for another club overseas, Paddington would likely want to pursue its claim against him at FIFA rather than domestically, as they would want to involve Reevaldo’s new club in any claim (for the reasons set out further below). If a claim was to be filed domestically, Paddington would be unable to involve the new club as domestic arbitration would not have any jurisdiction over a club outside of England and Wales.

Under Article 25(6), in such a dispute the FIFA DRC would take into account not only the provisions of the FIFA RSTP but Swiss law for the procedure, and arguably the laws of England and Wales (being the governing law of Reevaldo’s Premier League contract) for issues arising out of the contract.6

What issues would be involved in the dispute?

Again, there would be a slight distinction in the arguments Reevaldo could run depending on whether this dispute was heard domestically or internationally (i.e. at FIFA/CAS).

(a) Domestically

Under Article 11.1 of the Standard Premier League Playing contract, a player is entitled to terminate his contract with 14 days’ notice in writing only:

  • where the club has failed to make payments due to the player (which does not apply to Reevaldo’s situation), or
  • where the club is guilty of a serious or persistent breach of the terms and conditions of this contract.

As there have not been any issues regarding his pay, Reevaldo would therefore need to successfully argue that Paddington was guilty of a “serious or persistent breach” of the contract which gave him grounds to terminate - which may prove difficult.

Reevaldo could resign in response to Nadal’s conduct. In every employment contract, there are certain terms which are implied by law, regardless of whether they have been expressly agreed between the parties – one such implied term is that of mutual trust and confidence between the parties. Reevaldo could argue that Nadal’s conduct has led to a fundamental breach of that implied term and that the relationship between him and Paddington (as his employer) has irrevocably broken down due to that conduct. This is what is known as constructive dismissal.

If there has been a fundamental breach of the implied term of mutual trust and confidence, then Reevaldo could resign and treat himself as having been dismissed. In order to bring a successful constructive dismissal claim (albeit in this scenario as noted above Reevaldo would not be able to file such a claim having been employed for less than two years), Reevaldo will need to establish that:

  • Paddington (through Nadal’s conduct) has committed a repudiatory breach of the employment contract;
  • He resigned in response to this breach; and
  • He did not delay too long before resigning in response to the breach. If Reevaldo remains employed for any length of time without leaving Paddington, then it is likely that he will lose his right to treat the contract as breached.

Reevaldo could argue that Nadal’s total dismissal of his account of what happened the night after the derby; Nadal’s attempt to fine Reevaldo one months’ wages; Nadal publicly blaming Reevaldo for Paddington’s defeat and the fact that Reevaldo was told he would no longer be participating in activities with the first team amounts to a breach of the implied term of mutual trust and confidence on Paddington’s part, thus being a fundamental breach of contract.12

(b) Internationally

Whilst it would not be framed in the context of constructive dismissal (rather, a breach of contract with just cause), many of the same arguments would also be raised by Reevaldo if this dispute was heard at FIFA. However, crucially, at FIFA Reevaldo would also be able to argue that his ‘performance rights’ or ‘personality rights’ under Swiss law were violated by Paddington.

Broadly, according to Articles 28 et seq. of the Swiss Civil Code7, any infringement of ‘personality rights’ caused by another is presumed to be illegal and subject to penalties unless there is a justified reason that overturns this presumption. It is generally accepted in Swiss jurisprudence8 that personality rights apply in the world of sport.9 Essentially, an athlete’s ‘personality rights’ encompass “the development and fulfilment of personality through sporting activity, professional freedom and economic freedom.”10 This is frequently referred to as a player’s ‘right to play’.

Reevaldo would argue that by assigning him to the U21 squad and preventing him from undertaking any first team activities including playing for the first team, the club were violating his ‘right to play’. Reevaldo could also make reference and comparisons to recent cases at the CAS which dealt with issues involving players being demoted to the reserve team and/or being forced to train alone. 11

In Part 2 of this series, we will explore the potential consequences of Reevaldo terminating his contract with Paddington and how it could affect his chances of signing for another club.

  1. Pretty cool, right?

  2. For a copy of the Standard Premier League contract, see the Premier League Handbook 2017/18.

  3. See clause 21 of the Standard Premier League contract, found in the Premier League Handbook 2017/18.

  4. The maximum basic award is £14,670 but, given Reevaldo’s age and length of service, it is more likely to be in the region of £1,000 to £2,000 in his case. In respect of the compensatory award, Reevaldo would be awarded compensation for his net loss of earnings, albeit this would be subject to a statutory cap. The cap, at present, is the lesser of either his annual gross salary or the statutory cap of £80,541.

  5. As Reevaldo is a Brazilian national in a dispute with an English club while being registered for another European/international club.

  6. Pursuant to Article 2 of the Rules Governing the Procedures of the Players’ Status Committee (PSC) and Dispute Resolution Chamber (DRC), when deciding a dispute the FIFA DRC or PSC will apply “the FIFA Statutes and regulations whilst taking into account all relevant arrangements, laws and/or collective bargaining agreements that exist at national level, as well as the specificity of sport.” A copy of the Procedural Rules can be found here.

  7. A copy of the Swiss Civil Code can be found here.

  8. For example, see ATF 120 II 369; ATF 102 II 211; ATF 137 III 303; Judgment of the Swiss Federal Tribunal 4A_558/2011, dated March 27, 2012.

  9. When professional athletes, a suspension or any other limitation on access to the sport may impede the economic development and fulfilment of the athlete, the freedom of choosing his professional activity and the right to practice it without restriction. This freedom is particularly important in sport as an athlete’s career is usually short. See para 224 of CAS 2013/A/3091-3093

  10. See CAS 2013/A/3091 FC Nantes v. FIFA & Al Nasr Sports Club CAS 2013/A/3092 Ismaël Bangoura v. Al Nasr Sports Club & FIFA, CAS 2013/A/3093 Al Nasr Sports Club v. Ismaël Bangoura & FC Nantes.

  11. See for example CAS 2014/A/3642 Erik Salkic v Football Union of Russia & Professional Football Club Arsenal, CAS 2011/A/2428 I. v. CJSC FC Krylia Sovetov, and CAS 2013/A/3091 FC Nantes v. FIFA & Al Nasr Sports Club CAS 2013/A/3092 Ismaël Bangoura v. Al Nasr Sports Club & FIFA, CAS 2013/A/3093 Al Nasr Sports Club v. Ismaël Bangoura & FC Nantes.

  12. A dispute between Blackpool Football Club and Nile Ranger in very similar circumstances to this occurred in 2016, and a Player Related Dispute Commission of the Football League held that comments made by the club’s manager were sufficient to find that the employment relationship had irretrievably broken down.