Non-league football contracts row: Should athletes be a special case in employment law?
Whether it realises it or not, non-league football has raised an age-old legal argument: should sportspeople be treated as a separate case under employment law, given the unique space in which they operate?
Reports suggesting that National League players could be prepared to go on strike over upcoming contract changes put forward by the Football Association will now have wider sport asking the same question.
Under proposals which would come into effect on 1 July, injured players across the division will only receive full wages for 12 weeks before moving onto “club sick pay” of £99.35 per week for up to 28 weeks. Those competing below the fifth league of English football, meanwhile, will only be offered full pay for six weeks.
That is a marked change from the current climate, in which sidelined players are eligible for full pay throughout their contracts unless an independent medical expert determines an injury has ended a career.
There are few precedents set when it comes to labour reforms in football, with Jimmy Hill credited for leading a campaign to scrap maximum wage rules as far back as the 1960s.
So why the change? The argument for alterations stems from the financial pressure non-league teams face following a loss of income during the pandemic, increased competition and the professionalism of sides.
While professional footballers’ union the PFA is not directly responsible for players outside English football’s top four divisions, it has reportedly advised those impacted to stick together and warned its existing members about changes to the standard contract at non-league level.
Various players within the division have been members of the PFA earlier in their careers and it is believed that around 85 per cent of National League players were previously signed up to the association.
The most extreme course of action would be for players to strike, although it would be difficult to see how they could justify a walkout as the new terms, including sick pay provisions, still appear to be more advantageous than general employment law.
While calls for a strike have caught the headlines, push back is already in effect: captains throughout the division have got together and signed a letter demanding action.
Letters and walkouts may cause the FA to review or retract its proposals, although the governing body will know full well that new contractual provisions cannot just be forced on the players and to existing employment deals as that requires mutual agreement.
Alterations may be staggered even if the proposed implementation is scheduled for this summer, but as we have seen with football agents and new rules to cap their fees, we could see a flurry of contracts being signed to avoid these implications.
If the proposed terms are to apply to new contracts, then an important distinction will be between breach of contract claims and general claims under employment law, such as unfair dismissal or disability discrimination.
While proposals have revisited a legal conundrum long drawn out, from the initial reaction to the FA’s proposition it would appear we are no closer to a solution.
Stephen Taylor Heath is head of sports law at JMW Solicitors.