First, a confession. I’m a big football fan and regularly post legal blogs trying to link football to employment law. Sometimes there is an obvious link (i.e. a football manager being sacked) and sometimes the link is more tenuous (i.e. a previous blog many moons ago in which I tried to link a Luis Suarez blog to an employment law situation!)
However, during the recent League Cup Final (yes, I refuse to refer to the tournament by the sponsor’s name), there was a golden employment-related opportunity. Yes, naturally, I’m talking about Kepa Arrizabalaga’s refusal to accept his substitution from the game in the 119th minute.
In fact, the opportunity was perhaps so obvious that I woke up on Monday morning to a LinkedIn post wondering how long it would be until I posted a blog on the topic. So here it is.
Rather than my usual method of substituting the real-life situation for a fictional one (i.e. in the Luis Suarez example above, I created a fictional employee in a factory who bit a colleague), I’ll explore the actual situation at Chelsea and their options.
Kepa Arrizabalaga (who I’ll call “Kepa” for the rest of the blog) no doubt has a contract at the club to represent the club to his full ability. This would involve training, keeping fit, playing games he is picked for and, as per all employees, the implied duty of ‘obeying reasonable management instructions’. Naturally, it doesn’t take a law degree to conclude that Kepa’s refusal to obey his manager’s decision to be substituted from a Cup Final is a likely failure of his Contract of Employment with the club, both in terms of a complete, literal failure to obey reasonable management instructions from his Manager and, also, bringing the club into disrepute and/or failing to represent the club in good faith.
Within most employment situations, Kepa would be a potential candidate for Gross Misconduct dismissal in a situation like this and, in fact, if Chelsea so chose, they are likely to be able to terminate his contract on grounds of his repudiatory breach of the above-mentioned terms.
However, the big story is that everyone knows Chelsea won’t do so. This is because Kepa has a huge market value (being the most expensive goalkeeper in the world) and the manager doesn’t (and, at Chelsea in particular, has a short shelf life). Whilst you can’t believe everything you read online, the general belief is that terminating Kepa’s contract and/or dropping him from the team would cause a £71m asset to depreciate, whilst Maurizio Sarri’s termination payment would be in the region of £5m.
So, the real story is that the situation yesterday was a story of player power winning out at a major club in an extraordinary way. Another obvious example being the transformation of Manchester United’s season when Jose Mourinho was replaced by Ole Gunnar Solskjaer. Is Solskjaer a materially better manager than Mourinho? Definitely not. Do the players listen to him and want to play for him? Absolutely. There is no other clear explanation of the change in performances and form. Surely that is the situation for Sarri now – he has lost the dressing room and all apparent authority because the players don’t back him, regardless of how reasonable or unreasonable his instructions are.
Would a player dare stay on the pitch in such a way against Jurgen Klopp? Absolutely not. (In fact, the mental image is of Klopp leaping onto the pitch and dragging them off if they didn’t want to obey!) At very least, you’d expect teammates to firmly tell the player to obey the Manager’s substitution, as per usual when a player is unhappy at being substituted.
So, where are Chelsea left? At the moment, in a weird compromise situation where Kepa and Sarri both remain at the club in their respective positions in a temporary ceasefire (in which Sarri has downplayed the incident and Kepa has apologised). How long will that last? Well, it is highly likely that there are continuing discussions behind the scenes at the club and the waters remain choppy, so it will be interesting to see whether player power really does win out and, as is perhaps easily predicted, Sarri departs the club far before Kepa does.