FOOTBALLER’S LEGAL BATTLE AN IMPORTANT REMINDER OF WAGE PROTECTIONS

The Manchester Employment Tribunal has upheld the majority of professional footballer Benjamin Mendy’s unauthorised deduction of wages claims against Premier League club Manchester City.

The issue before the Tribunal was whether the Club were entitled to stop paying Mr Mendy’s wages following the widely publicised allegations of sexual offences (for which he was ultimately acquitted in the criminal proceedings)

and his subsequent suspension and custody.

In late August 2021, Mr Mendy was remanded in custody following a number of allegations of serious sexual offences and at the end of September, the Club informed him it would stop paying his wages.

This situation continued, and his wages were withheld each month until the expiry of his contract at the end of June 2023, when he transferred to French club FC Lorient. The sums in dispute were significant and thought to be in the region of £11 million.

In this case Judge Dunlop determined that Mr Mendy was ready, willing and able to work, and the deductions were unauthorised.

Tim Copplestone, partner and head of the sport sector at national law firm Clarke Willmott LLP, is an expert in employment law. He said: “This case is a powerful reminder of the extensive protection of an employee’s wages under s.13 of the Employment Rights Act 1996, and the importance of a clear contractual term authorising clear deductions in agreed circumstances.

“In the absence of such a provision, and given on the facts of this case the wages were still considered to be ‘properly payable’ and Mr Mendy was ‘ready, willing, and able’ to work, there was no scope to turn off the tap on his £500k per month salary payments even though he was prevented from performing his duties.

“If the parties intend deductions to be authorised, for example, for disciplinary fines, specific suspension circumstances, or to refund sums owed or an employer’s significant investment in an employee’s qualifications and training if they leave early, the authorised deductions should be clearly set out in the contract, and any subsequent agreement clearly documented.”

A breach of contract claim in the Employment Tribunal is subject to a maximum cap of £25,000 and a breach of contract claim in the Tribunal can only be presented when the employment has terminated. An unauthorised deduction from wages claim amount in contrast (under section 13 of the Employment Rights Act 1996) is not capped (although the back pay period is capped at 2 years), can be pursued whilst the employment continues, and can allow a Claimant to claw back a series of unlawful deductions.

Judge Dunlop emphasised the legal principles in play: “To a degree, both sides presented arguments which went to the question of whether or not Mr Mendy deserves to be paid the wages that Manchester City chose to withhold from him. Mr Mendy’s position is that he is an innocent man whose career has been ruined, and life blighted, by false sexual allegations and that the football club which brought him to this country effectively abandoned him in his hour of need.

“Manchester City’s position is that Mr Mendy largely brought his troubles upon himself and ignored sensible advice and warning after warning in his self-destructive pursuit of his chosen lifestyle. Both these narratives have validity, and there is no one cause of the chain of events which unfolded in this case. The question of whether Mr Mendy deserves to be paid, however, is one for the commentators and comments sections. The only question for me is whether Manchester City was legally entitled to withhold that pay, within the terms of s.13 ERA.”

In headline summary, section 13 of the Employment Rights Act provides a fundamental right not to suffer unauthorised deductions from wages, providing that: an employer shall not make a deduction from the wages of the worker, unless: (a) the payment is required or authorised by statute or a provision in the worker’s contract, or (b) the worker has given their prior written agreement or consent.

Judge Dunlop held that Mr Mendy was unable to work due to two separate impediments: (1) the unavoidable impediment of his FA suspension, and (2) the avoidable impediment of being remanded in custody.

The Tribunal awarded in Mr Mendy’s favour for the first period of custody from 1 September 2021 – 7 January 2022. Mr Mendy was not however awarded his wages for the period 1 September 2021 – 7 January 2022 and 30 December 2022 – 17 January 2023 (when Mr Mendy was remanded in custody due to an admitted breach of his bail conditions.)

Tim continued: “The Tribunal highlighted the limits within the standard playing contract terms to impose a fine on a

player, or to suspend them from their duties, and in the absence of an express power to withhold wages in these circumstances it was also not deemed appropriate to imply a term (and power for the Club to make deductions) to this effect. The deductions were deemed unlawful.”

The Clarke Willmott employment team have successfully represented players in the Premier League Tribunal, including in respect of the distribution of a multi-million pound bonus pot, and are frequently instructed by elite players, managers, and employers to advise on employment law matters.

To find out more visit Sports Solicitors – Sports Law Firm – Clarke Willmott

Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton.