partner at international law firm Eversheds comments: “The existence of an express clause in Mr.
Curblishley’s contract enabled him to establish that West Ham had made a
repudiatory breach of his contract of employment by selling the two players in
question without Mr. Curbishley’s permission. In addition, the fact that clause
was clearly of significance to Mr. Curbishley during his contract negotiations
appears to have made it easier for him to argue that West Ham’s breach of the
clause was sufficiently fundamental to justify his resignation. Further, Mr.
Curbishley’s prompt response to West Ham’s decision to sell the players
assisted him to demonstrate that he had resigned in response to the breach: in
other words, he had not waived the breach.
“The tribunal’s ruling is a reminder of the
fundamentals of employment and contract law and that they continue to apply in
the sports industry as they do in other industries. In particular, if a
contract specifies the precise terms of engagement between the parties – in
this case, employer and employee – both parties will be expected to respect
such terms, particularly where they have been set down in clear and unequivocal
terms. In this day and age, with increasing levels of pressure on football
managers and players now being bought and sold not just for football reasons,
managers are likely to insist on similar clauses in their contracts (to the
extent that they don’t already). This decision is a warning to any club which
decides to ignore such clauses.”
6 November 2009
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