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YOU’RE FIRED! The legal wrangles behind Papy’s Sunderland departure & Ndong’s extended holiday

Employment law expert (and Massive Lads Fan) Jonothan Scollen breaks down the tricky legal situation that Sunderland find themselves in with Papy Djilobodji and Didier Ndong in terms that we can all understand!

Sunderland v Hull City - Premier League Photo by Chris Brunskill/Getty Images

The ongoing saga of Papy Djilibodji and Didier Ndong seems to be reaching its climax as the club have taken legal action against the former of the aforementioned miscreants.

That being said, we aren’t particularly well versed in law over here at Roker Report and as such decided to seek some help. Thankfully, Jonothan Scollen, a lawyer and massive Lads fan, offered to decode the situation for us!

By now I would be surprised if there is a Sunderland fan out there who isn’t aware that Papy Djilobodji has been given the chop by the club; however, judging by the reaction on social media, the circumstances of his departure has caused some confusion.

Before getting into the crux of the problem, it is worth bearing in mind that full-time professional footballers are, in law, employees in the same way as a person stacking shelves in ASDA is an employee. The big difference is that footballers are also commercial commodities and are bought and sold – if anyone reading this is not a footballer and has been bought by their employer, I would advise that that person seeks legal advice!

As a consequence, players who act in ways that would mean the sack for anyone else are kept on because clubs are desperate to generate cash by selling rather than sacking. This set of circumstances warps reality in the sense that it makes it appear that employment law doesn’t apply to footballers – it does.

The following section of the club’s statement appears to have had a lot of people scratching their heads:

Sunderland AFC can confirm that it has accepted Papy Djilobodji’s repudiatory breaches of contract and notice of the same has been provided to the player.

A “repudiatory breach” simply means a breach of contract that is so serious it goes to the very heart of the contract. This isn’t just unreasonable behaviour, but conduct that is so bad the other party can respond to this by terminating the contract.

Sunderland v Liverpool - Premier League Photo by Ian MacNicol/Getty Images

Based on the club’s statement (and the state of affairs we have all been aware of for some time now) Papy’s breaches include his refusal to return to work despite written requests to do so, and his failure to maintain his fitness in order to be able to carry out his duties upon his return.

Case law has implied into employment contracts certain duties and obligations on both the employer and the employee.

One obligation on employees is to carry out the reasonable instructions of the employer. There is also an implied term that the parties to the contract will not act in ways which destroy or seriously damage the relationship of confidence and trust between employer and employee. If there is a breach of the implied term of trust and confidence – and this is a high threshold – this breach is deemed to be a fundamental (i.e. repudiatory) breach of contract.

Clearly, it is a pretty reasonable request for an employer to ask its employees to turn up to work. If an employee refuses to do so (basically taking unauthorised leave), there is no obligation on the employer to pay said employee – hence why neither Papy nor Ndong have been picking up pay cheques for a while. Most of us at this point would have probably received our P45, but it is the lure of a transfer fee which is the difference here.

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

Papy has therefore breached the implied term to carry out the reasonable requests of the employer (and probably also the actual written terms of his contract given that he isn’t turning up to work).

There is a strong argument at this point that he has also breached the fundamental implied term of trust and confidence; however, Papy wasn’t quite finished as he not only turned up unfit but then didn’t bother to turn up to the following day’s training. I think most tribunals at this point would agree that Papy had put paid to any lingering trust and confidence at that point.

When a party to a contract fundamentally breaches the contract, the innocent party then has a decision to make. Normally, when it comes to employment contracts, the innocent party can either accept the breach and terminate the contract or accept the breach and do nothing (as most football clubs usually do due to, once again, that bloody transfer fee).

As the club found that Papy had fundamentally breached his contract on the basis of the above behaviour, they have “accepted” that breach and terminated his contract in response (I imagine by reason of gross misconduct given the severity of the conduct in question). This does not mean that Papy has actually offered something that the club have accepted – that would be akin to a resignation. The club has served notice on Papy and not the other way round – that is a dismissal.

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

I imagine the club will take the same approach to Ndong should he attempt to return in no fit state to play, but for the meantime it probably makes more sense to let him soak up the sun for free and try and scrape some money back come January.

The above, in short, is the employment law behind Papy’s dismissal and will be the same principles in play should Ndong turn up at the Academy of Light.

In terms of suing either player for lost potential transfer fees, you would need to ask a civil lawyer about that side of things. However, the club would need to ask itself whether the players would be able to pay whatever is claimed and whether the club wants to be tied up in expensive and lengthy court proceedings (claims for over £200,000 will cost you £10,000 just to issue in court).

So, I’ll leave you with the bombshell that the difference between them and us is money - I’m sure you would have came away unscathed from photocopying your arse that Christmas party if your boss had paid £10 million to employ you.

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