The Adam Johnson case: could Sunderland have suspended him pending trial?

When it became public that Adam Johnson’s lawyers had somehow disclosed to Sunderland’s Chief Executive (Margaret Byrne) well before his trial, that their client had confessed to one of a number of criminal charges brought against him, the suggestion was made by much of the media that she should have informed the board. Had she done so (it was argued), the board would have suspended Johnson at the very least, pending his trial.

As a result (it was claimed) Johnson would have borne some consequences for the action he had admitted rather than continue to draw his substantial salary and play for the club.

Now that Byrne has resigned in response to overwhelming pressure and Johnson is awaiting a custodial sentence, it is possible to take a cool look at the desperately difficult situation Byrne was faced with and ask what the board of Sunderland could have actually done had they been made aware of Johnson’s confession. In particular, could they have suspended him pending trial?

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Disciplinary options for football clubs under the Premier League contract

The starting point for looking at this question should be the players standard contract which (save for salary and other personal perquisites) contains all the provisions that must be used by all clubs in the Premier League. This document is a collectively agreed contract between the Premier League and the footballers’ union (PFA). The contract (Form 26) can be accessed in the FAPL Handbook 2015/16 at pages 273-294.

Assuming Johnson did not retract his confession once the board was appraised of it, under the contract, the club could have indeed suspended him at once; however this would have only been for 14 days while an internal investigation was carried out (see Schedule 1, clause 3.1).

If the player was found guilty of “gross misconduct” (widely defined in the Definition section) in the internal investigation and did not appeal, then if the club did not consider that a dismissible offence had been committed, it could have suspended the player (by excluding him from the club premises) but for four weeks only (Schedule 1 clause 4.1.3) and fine him two weeks wages (Schedule 1 clause 4.1.2).

If, on the other hand, the club considered that the offence did merit dismissal but did not want to go that far, it could have suspended him but for six weeks only and docked his wages for the same limited period (Schedule 1, clause 4.1.4).

Assuming that he was found guilty of gross misconduct and the club decided to terminate his contract but he appealed, the club could have suspended him, but only for six weeks with or without pay provided that if it was without pay, then his salary was paid into an escrow account pending any appeal (Clause 10.5.2). If he appealed the temporary suspension as well as the gross misconduct finding, then that penalty would have been suspended as well (see Schedule 2, clause 3.3).

So far, it is clear the club’s options to deal with someone like Johnson pending trial are limited to say the least.

Of course the club might have decided not to select him while the internal procedures (such as the appeal) were continuing; however it would have been rather hard to explain to supporters why a star player was not being picked at the time that the club was in dire straits when he had not been definitively found guilty of anything. So non-selection would not have been a practical option.

Dismissal rather than limited suspension or fines is an appropriate response for gross misconduct. According to the standard contract, dismissal only takes effect once appeals are exhausted (Schedule 2, clause 3.3.3). During this period, a club retains the player’s registration so he can be selected. So again, had the club been minded to dismiss Johnson, it faced the dilemma of defending non-selection of a star player to supporters who would have said the player has not been definitively found guilty of anything until his internal disciplinary appeal had been decided.

The only scenario in which Johnson could have been prevented from playing for Sunderland pending his trial would have been if the club had sacked him after an internal investigation the outcome of which the player decided not to appeal.

In practice however, a club is most unlikely to sack a player for gross misconduct unless and until he is found guilty in a court of law. The reason is that in sacking a player a club cancels the player’s registration; so in effect it does a “Bosman” on itself by creating a “free agent” who could be picked up by a rival club for nothing – provided it can stand the opprobrium.

This situation arose in the case of Adrian Mutu, who was sacked by Chelsea for cocaine use. Chelsea then sued Adrian Mutu for damages for loss of his “resale value” occasioned by the action that led the club to sack him and thus make him a “free agent”. As is well known, Adrian Mutu found work pretty quickly elsewhere and it is not yet clear whether Chelsea has recovered any money despite winning its case.

The possible availability of damages down the line scarcely encourages a club to sack a player in appropriate circumstances. Again, summary dismissal while a trial was pending would have created huge problems with fans in this case, as Johnson could have simply joined another club. It follows that Sunderland’s position was pretty weak in dealing with Johnson pending trial – a fact that Byrne’s decision to keep Johnson’s confession to herself had the effect of concealing.

The standard player contract needs to be made fit for purpose

The effect of standard contract between FAPL and PFA (as well as the transfer system) puts star players in a very strong position if they behave very badly indeed – as Johnson undoubtedly did in this case – behaviour for which he is entirely responsible. As we have seen, suspension options are very limited, fines are almost derisory, and termination is perilous for a club even if they know the full facts.

It follows that Byrne’s non-disclosure of the confession to the board did not really make a difference and criticism for her behaviour needs to take football realities into account.

What, if anything, should be done about footballers’ behaviour? One obvious way of addressing it would be for the clubs to amend the standard contract and give themselves considerably more flexibility to suspend the player than the current standard agreement allows. At the same time fines for abhorrent behaviour could be increased from their current low levels relative to player earnings.

Change of this sort is easier said than done. By adopting a common position on ticket prices for away fans, the clubs have shown that they can act swiftly. However, any changes to the standard contract requires player union agreement and negotiations on changes to a standard contract in sport can take years.

The PFA likes to talk about education as the answer to the sadly inevitable behavioural problems caused by very wealthy young men with way too much time on their hands, but a “stick” is needed as well as a “carrot”. At the moment the standard contract is not the “stick” it should be. Unless and until the PFA addresses the problem and actually volunteers change to the clubs it must really accept more responsibility for the negative image created by players’ unacceptable and criminal behaviour.

Stephen Hornsby is a partner at Goodman Derrick