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Carneiro vs Chelsea FC – not what the doctor ordered

The England women’s team finished third in the Women’s World Cup this year, eclipsing all efforts by the men’s team since the 1966 win; journalists such as Jacqui Oatley and Amy Lawrence are pushing back the boundaries and showing that football punditry need not be the sole preserve of men; and the club currently sitting third in the Premier League is run by a woman. 

Nevertheless, it is evident from the latest row involving the beautiful game’s attitude to the fairer sex that some continue to believe that women simply don’t understand the ‘complex’ world of football. The row in question involves Eva Carneiro, a highly qualified and well-respected medic, who until recently held the position of first team doctor at Chelsea Football Club. Having retained the position under four different managerial regimes, she has apparently felt compelled to leave the Club this week after being undermined and publicly insulted by the ‘Special One’ himself, Jose Mourinho. Her apparent crime? Performing her professional obligations and discharging her Hippocratic duties.

The conflict between Mr Mourinho and Dr Carneiro arose following the recent 2 -2 draw between Chelsea and Swansea. In the dying moments of the game, with Chelsea down to 10 men having had their goalkeeper sent off, Dr Carneiro and the team physiotherapist were called on to the pitch by the referee to treat the Chelsea player, Eden Hazard.  In the post-match press conference (no doubt seeking to distract from a disappointing result), Mr Mourinho expressed his anger that the medical staff’s “hasty” actions had effectively reduced his side to 9 men and labelled them “impulsive and naive”. He went on to say that “even if you are a kit man, doctor or secretary on the bench, you have to understand the game” (the inference being that Dr Carneiro did not).

Following the incident, Carneiro was demoted from her first team position (apparently at Mr Mourinho’s insistence) and was told she was no longer to attend training sessions, matches or enter the team hotel. It has also subsequently been alleged that Mr Mourinho called Dr Carneiro“filha da puta” – Portuguese for ‘daughter of a whore’. As a result of this scapegoating, Dr Carneiro has been subjected to unprecedented media scrutiny, with her photograph plastered across newspapers, stories sold about her sex life and her professionalism called into question.

Despite widespread criticism of his actions, Mr Mourinho continues to fight his corner, claiming that he and his staff “need disagreements to improve.” Negotiations between Dr Carneiro and the Club have not resolved matters, with the Football Medical Association confirming that it has not been possible to achieve a satisfactory outcome and that the case will now be dealt with by Dr Carneiro’s lawyers. So, exactly what claims might Dr Carneiro bring against Mr Mourinho and Chelsea?

The potential claims

The most obvious claim for Dr Carneiro to bring would be for constructive unfair dismissal. In order to succeed with this, she would need to demonstrate that Chelsea was in repudiatory breach of an express or implied term of her contract. Depending on the job title and duties specified in her contract of employment, Chelsea’s unilateral decision to remove her from first team duties may constitute a breach of an express contractual term. However, even if her contract did not stipulate that she must be allowed to carry out this role, she may be able to show that stripping her of her first team position was a breach of the implied term of trust and confidence.

The relevant legal test in this respect is whether Chelsea ‘without reasonable and proper cause’ conducted itself ‘in a manner calculated or likely to destroy or seriously damage the relationship of trust of confidence’.  In circumstances where Dr Carneiro was guilty of little more than fulfilling her duties as a doctor and responding to the referee’s direct instruction to enter the field of play, it is likely to be relatively straightforward for her to demonstrate this. If successful in her claim, Dr Carneiro would be eligible for compensation for the losses she suffers as a result of being forced out, the starting point for which would be the value of salary and benefits that she would have received had her employment continued. However, any such compensation would be capped at £78,335 which, in the world of Chelsea’s millionaire players and billionaire owner, is small change. The solution for Dr Carneiro is therefore likely to be to bring an additional claim for sex discrimination, which, if successful, would entitle her to uncapped compensation.

Dr Carneiro’s potential sex discrimination claims can be split into two possible actions. Firstly, she could claim that Mr Mourinho calling her a ‘filha da puta’ constituted sexual harassment, being unwanted conduct related to her sex, which she found offensive and which resulted in a degrading, humiliating and offensive working environment for her. On the face of it, this will be difficult for Chelsea and Mr Mourinho to defend, although they may to argue that Mr Mourinho would in the same circumstance have used abusive, gender-specific language towards a male medic (the male equivalent of ‘filha da puta’ in Portuguese is apparently ‘filho da puta’, loosely translated as ‘son of a bitch’). While legally sound, there are reputational and employee relations consequences of relying on this defence, which in effect requires the Club to argue that it is routinely unpleasant and objectionable to all its employees and that Dr Carneiro was not singled out for particular treatment in this respect.

The second claim Dr Carneiro could bring would be that her demotion constituted less favourable treatment on the grounds of her sex. On the face of it, this would be more a difficult argument to run as her male assistant was also subjected to demotion. However, it may be possible to argue that the demotion of her subordinate was a natural consequence of the decision to demote her and that this primary decision was tainted by gender discrimination. It certainly seems likely that a Tribunal would want an explanation of Mr Mourinho’s reference to a “secretary on the bench” in deciding whether the implicit suggestion that Dr Carneiro did not understand football (and therefore deserved to be demoted) was motivated by her sex. If Dr Carneiro was able to show that her departure from Chelsea was a result of her sexual harassment and/or constituted less favourable treatment on grounds of sex, she would be entitled to uncapped compensation. This would again be based on her actual or projected loss of earnings until she secures another role. She would also be entitled to an award for injury to feelings, although it is likely that this would not be more than about £10,000-15,000 at most.

As a final point, it is worth noting that any claim for constructive unfair dismissal would only be against the Club, not Mr Mourinho. However, there seems little doubt that the Club would be found vicariously liable for the actions of its manager, which were demonstrably carried out in the course of his duties. More interestingly, the claims for sexual harassment / sex discrimination could be brought against Mr Mourinho personally, as well as against Chelsea as his (and Dr Carneiro’s) employer. This raises the tantalising prospect of a wedge being driven between the Club and its manager, as well as making it much more likely that Mr Mourinho would have to appear as a witness in the proceedings, to the glee of tabloid editors everywhere.

So far Chelsea has refused to comment on what they refer to as an “internal staffing matter” and Dr Carneiro has also kept her counsel. While Mr Mourinho may see this as a matter of principle and be disinclined to negotiate with Dr Carneiro, the depth of Chelsea’s pockets and the very significant reputational and commercial fall-out that might result from a protracted public legal dispute suggest it is likely that a settlement will be reached.

Of wider interest is how the game itself responds to the incident, particularly given some of its previous failures to act against sexism in the game. The Chief Medical Officer of FIFA has criticised Mr Mourinho and Anna Kessel, the co-founder of Women in Football, has stated that ‘this is about medical ethics, human rights, employment rights, the integrity of the game. This is a test and we urge football not to shy away from it.’ The FA is apparently conducting an official investigation into the matter and so it remains to be seen whether it heeds this call.

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