For the second time this month, Sunderland AFC have terminated the contract of one of their players – this time that of record signing Didier Ndong.
In terms of the club’s actions, the same employment law principals which saw Papy shown the exit are in play here:
(1) Fundamental breach of contract – Didier did not return to the club for pre-season training and gave no reasons for his continued unauthorised absence (which would suggest the club was contacting him to try and understand why he wasn’t there and/or to demand that he return to work). Not only would this be a breach of the written terms of his contract but it is also likely to be a breach of the implied term of trust and confidence (which is classed as a fundamental breach) and breach of the implied term to carry out the reasonable demands of your employer (asking someone to turn up to work is clearly reasonable).
(2) The club accepts the breach and responds – again, as with Papy, this does not mean that Didier has offered the club anything. In legal terms, when a party to a contract commits a repudiatory breach the other party is entitled to accept that breach and, in employment situations, basically do nothing or terminate the contract in response. Once again, the club have accepted the breach and chosen to end Didier’s contract.
Papy and Didier’s positions are not identical, however - Papy at least notified the club that he did not want to return and there was a written agreement in place authorising unpaid leave so that Papy could find somewhere else to play football (although he ultimately breached this by turning up late and unfit).
Didier appears to have gone fully rogue in an effort to force the club’s hand with the only hint as to his whereabouts over the summer being a poolside Instagram post.
This seems to have particularly irked the club since in the statement released on SAFC.com, although it contained the usual spiel about accepting Didier’s breach and serving notice, there was an added sting in the tail:
Sunderland AFC does so whilst retaining the right to pursue the player and any club he may subsequently join in relation to compensation for the value of the player.
Could this just be legalistic bluster to stick one to the player by giving any potential suitors something to worry about should they sign him? Not according to a source at the club, who was unequivocal when they told us “we will pursue him and any club he signs for in relation to what we believe is a huge financial loss. The gloves are off – bring it on.”
Before we have a look at the implications of going after Didier, the matter of a player’s registration - namely the question of whether this is retained after a termination - was a hot topic amongst fans following Papy’s sacking.
Now, although I specialise in employment law and not sports law, I can’t imagine a situation where a club sacks a player but that player remains registered with the same club – otherwise how would this player be able to sign for someone on a free transfer or a club lose out on a transfer fee?
Similar, if not the same, principles were in play in the Jean-Marc Bosman case: his contract had expired (a form of termination) yet his club would not a release him before a club met its transfer fee demands. This was deemed unlawful and resulted in the “Bosman transfer” – I cannot imagine any court giving a club the power to totally control a player’s ability to work again, potentially for years, after terminating the contract. That, to my mind, is a legal impossibility and would definitely be unenforceable in the realm of employment law.
This leaves us with the option of dragging Didier and/or his new club to court in order to attempt to recoup compensation in the form of a transfer fee - the clear benefit of that is the potential to be awarded a substantial amount of money, with this having the added effect of further warning players that the club will not suffer fools.
The risks, however, are numerous – if Didier moves abroad there are jurisdictional issues to consider as well as possible lengthy enforcement proceedings; there is not a clearly defined loss (as we don’t actually know how much he would have sold for) and therefore any compensation is up for debate.
A court may disagree with your valuation and award less (assuming we succeed).
When Chelsea sued Adrian Mutu (via the Court of Arbitration for Sport) in 2003, they were still litigating in 2015 and, as far as I am aware, had not clawed back a penny. A very different case, but an indicator of how difficult and time consuming this type of legal action can be.
Putting the legal and financial issues aside, by sacking their record signing the club has set an important precedent and Didier’s departure represents another symbolic step away from the mismanagement of the past.
All we can do now is wait and see what action the club takes should Didier appear in the news donning another team’s colours. Whatever happens next, this is Sunderland AFC – it probably won’t be dull.