Oh so false Number 9s – why the law is powerless to act – A football tale for the Summer Holidays

August 15th, 2017 by Julian Wilson

The Premiership season may have begun but the transfer window rumbles on. We, mere supporters, have to put up with the unedifying spectacle of highly paid “want away” players requesting transfers, refusing to train, feigning injury, and generally malingering. The great Bill Shankly once said that players like these were a menace to society and that he would lock them up if he could. In these more liberal days, fans still ask why it is that a “want away” player’s contract cannot be enforced to oblige him to play. The answer is that English contract law has a rule against the compelled performance of personal services, by employees.

The rationale for the principle has been variously explained as a desire to avoid turning the contract into one of slavery (hardly relevant you would think for a footballer paid in the millions), the impossibility of constant court superintendence (I actually know some judges who would probably relish running the touchline) and the undesirability for public policy reasons for courts to get involved with enforcing the maintenance of personal relationships dependent on mutual trust and confidence. Most convincingly perhaps, it is said that court orders would be made in vain because human nature is such that there are unlimited possibilities for evasion. Did he put that “sitter” over the bar on purpose?

Today’s overpaid, exotically coiffed and tattooed football stars are often derided as prima donnas and divas by those of us who drew on Bob Paisley’s boot room for their life’s philosophy. So it is perhaps unsurprising that the law in this area was most famously developed by reference to the cases of an opera singer tied to an impresario from whom she sought a transfer- Lumley v Wagner- and of the film star Bette Davis who wanted to escape the bonds of her lucrative but artistically restrictive contract to the Warner Brothers’ studio–Warner Bros. Inc. v- Nelson. As one leading Judge commented by reference to the facts of Lumley, if performance was ordered of an opera singer’s contract to sing for an impresario, the court could commit for contempt the singer who remained silent but would not know what to do about the singer who sang flat, sharp, too fast or slow, too loud or too quiet or who indulged in the manifestations of temperament for which such singers are known. So too, the player who held his hamstring, removed his shirt to provoke a booking, or pushed the Ref.

So, the defining rationale is either libertarian- upholding the personal right to offer or withdraw labour- or pragmatic- that the courts will not be prepared to take on the burden of deciding whether there has been proper performance of the complex obligations characteristic of this type of contract. The libertarian aspect of the rule is reinforced by statute: s.236 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that the court must not attempt to compel an employee to work or turn up for work, whether by issuing an order for specific performance or by issuing an injunction.

The employer is limited to its rights in damages. But suing your star player is hardly conducive to getting the most out of him is it? Time to recognise Bill was right – lock up that menace!

A Happy Summer holidays to all our readers.

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