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DJILOBODJI LEGAL APPEAL: What does it mean for Sunderland and how are things likely to progress?

Roker Report’s legal eagle (and employment law expert) Jonothan Scollen gives us his take on the news that Papy Djilobodji has appealed Sunderland’s decision to terminate his contract.

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And then there was one.

With Didier Ndong now out of the picture, Stewart Donald revealed during his most recent appearance on the Roker Rapport Podcast that Papy Djilobodji is appealing his dismissal, and that lawyers are thrashing out the details as we speak.

So what does this mean for Sunderland AFC, and what are the possible outcomes?

Firstly, it would seem that the parties are keeping this out of the tribunals for now – possibly having the appeal go through the FA in order to keep things as private and cost effective as possible – and this is evident in the fact that a November 2018 court date was mentioned (a pipe dream if this was going through an Employment Tribunal or other court where proceedings would drag on for months if not years).

Judging by what Stewart said, Papy appears to be asking to be reinstated given that he suggested that Papy would return to the club if he succeeds. If Papy is successful in his appeal and is reinstated, the club will likely have to back-pay the Senegal international to cover the period from when he returned to the club and confirmed his availability to work to the date of the judgment. Papy couldn’t claim any pay prior to this period as he was on unauthorised leave, therefore there was no obligation on the club to pay him.

Sunderland v Liverpool - Premier League Photo by Stu Forster/Getty Images

The former Chelsea defender’s argument will be, in a nutshell, that the club’s response to his conduct was not justified or was disproportionate and should therefore be revoked. Given the extent of Papy’s breaches of contract, however, my eyebrows would head north if his dismissal was reversed.

It is not surprising that Papy has taken the route that he has, because if he was to claim unfair dismissal (in which case he would be looking for compensation in the form of future loss of earnings) he would be facing an uphill battle for potentially no gain.

There are specific reasons for dismissal which are “potentially” fair, one of which is conduct. Clearly here the club would argue that the reason for Papy’s dismissal was his conduct: he failed to turn up to work when requested to do so and then turning up unfit to carry out his duties, which amounted to gross misconduct and therefore immediate dismissal was an appropriate response. I don’t think the club would have any problems there.

The attention would then turn to three key questions: did the club genuinely believe that Papy was guilty? Did the club have reasonable grounds for that belief? Did the club carry out a reasonable investigation before making a final decision about Papy’s guilt?

Sunderland v Everton - Premier League Photo by Stu Forster/Getty Images

The first two questions are easily dealt with – Djilobodji didn’t turn up to training, despite the club’s repeated requests and made it clear that he had no intention to do so (at least initially).

When Papy did decide to return, the club carried out a fitness test which revealed that - shock, horror - doing naff all for months had left Papy incredibly unfit. In the circumstances, the club would not have to have done very much for any investigation to be “reasonable” nor was there much doubt as to the player’s guilt.

The club responded to this by giving Papy the chop.

The final question to be dealt with is whether the dismissal was within the “range of reasonable responses”.

I think querying whether another employer would have dismissed an employee who refused to turn up to work when asked and then, when he bothered to do so, turned up unfit to do their job is more of a rhetorical question than a legal one. In my opinion, it is hard to see how the club wasn’t justified in taking the action it did.

Sunderland v Leicester City - Premier League Photo by Stu Forster/Getty Images

Even if Papy could somehow do what he never did on the pitch and successfully defend his position, such a claim would probably be worthless even if he won. Tribunals can take into account the fact that someone’s conduct was so bad that it contributed to their dismissal, and/or the fact that he would have been dismissed in any event, and reduce any compensation to reflect that fact.

In Papy’s case, that reduction is more than likely to be 100% (i.e. he would win if he could show that the procedure was unfair but would receive £0.00).

Given how egregious Papy’s breaches of contract were, I think he would do well to garner any sort of sympathy from any legal body. However, as Stewart pointed out, stranger things have happened. Papy is also taking a risk in that the club apparently will withhold his registration as long as his status is in flux (although if he were to be confirmed as dismissed I do not see how the club could possibly continue to hold his registration – this make no logical or legal sense).

No doubt fans will be hoping that Papy’s exit is confirmed and that yet another reminder of a not-so-happy past is severed from the club. In the meantime, I have some free advice for Papy: watch some videos of Baldwin. He’s what you call a de-fend-er.

Jonathon is also a member of the recently formed Leeds-Bradford Supporters Branch. Be sure to follow them on twitter - they’re @SLeedsBradford over there.

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