Benjamin Mendy has been remanded in custody, following charges of four counts of rape and one count of sexual assault. The charges relate to three complainants over the age of 16 and are alleged to have taken place between October 2020 and August 2021. His employer club, Manchester City, has suspended Mendy pending an internal investigation.
This blog post will not go into the criminal law aspect of the reported charges, and to do so risks charges relating to contempt of court but will look at the broad employment law issues relating to the situation the player may find himself in and the options available to Manchester City.
Broad Legal Principles
In most cases the law recognises that a player’s criminal misconduct will risk bringing their club’s broader reputation into disrepute – and, in some cases justify the player’s summary dismissal for misconduct, as well as breach of the standard Premier League Player’s Contract (PLPC).
A club does, though, need to be careful to allege ‘gross misconduct’ rather than the more nuanced principle of ‘frustration’ of a player contract (i.e., in simple terms that the contract has become impossible to perform) as even imprisonment does not necessarily frustrate the employment contract entitling a club to dismiss the player.
In the definitions section of the standard form PL contract ‘gross misconduct’ is defined as “serious or persistent conduct behaviour or omission by the Player involving one or more of the following (a) theft or fraud (b) deliberate or serious damage to the Club’s property (c) use, possession of, or trafficking of a Prohibited Substance (d) incapacity through alcohol affecting the Player’s performance (e) breach or failure to comply with any of the terms of the PL contract or such other similar or equivalent serious or persistent conduct behaviour or activity or omission by the Player which the Board reasonably considers to amount to gross misconduct”’.
This is a relatively broad definition which together with clause 10.1.3 of the standard form PLPC which allows a club to terminate a player’s contract with 14 days written notice if they are convicted of a criminal offence and imprisoned for 3 months or more; gives an employer club significant powers to terminate a contract for such a breach should Mendy be convicted of the alleged offences.
Amongst other matters, the standard form PLPC expressly obliges Mendy not to do anything “which is likely to bring the Club or the game of football into disrepute” as per clause 3.2.5 of the PL Players Contract. However, the mere levelling of criminal charges, despite their seriousness, are insufficient to be lawful grounds for dismissing on Mendy at this stage and would need to await the outcome of the pending trial before they can lawfully take steps towards dismissing Mendy.
Suspension Pending Investigation of the Player
It is logically for that reason that City has chosen to suspend Mendy pending its internal investigation into his alleged gross misconduct – which it is entitled to do for up to 14 days whilst the investigation continues under paragraph 3.1 of part 1 of the standard form PLPC. It would seem reasonable that this suspension could be renewed after the initial 14-day period where the allegations are of a serious nature and the situation complicated by a concurrent criminal process – such as in Mendy’s case. Whilst he is under suspension Mendy is entitled to be paid in full as per his player contract, including benefits, but may not access City’s premises except with its prior consent or at its request.
The standard form PLPC sets out a prescribed process for a disciplinary investigation and then, as appropriate, disciplinary action. If a disciplinary hearing is to be held, full details of the allegations are to be provided to the player along with reasonable notice of the date and time of any such hearing which is contained at paragraph 3.2.1 of part 1 of schedule 1 of the standard form PLPC.
No disciplinary penalty, including dismissal, can be imposed without giving Mendy the opportunity to state his case either personally or through a representative (paragraph 3.2.2 of part 1 of schedule 1 of the standard form PLPC).
However, a disciplinary hearing can take place in the player’s absence and a disciplinary penalty can be imposed if he fails to appear after having received proper notice of it representative (paragraph 3.2.3 of part 1 of schedule 1 of the standard form PLPC). Mendy would then have an automatic right of appeal against any disciplinary sanction representative (paragraph 3.3.1 of part 1 of schedule 1 of the standard form PLPC).
Evidently, if Mendy was to plead guilty to any of the serious charges that he faces, City would then be permitted to dismiss him fairly for gross misconduct.
Potential Financial Consequences for Mendy
A further sting in the tale would be that, if convicted, Mendy would be in breach of his Manchester City player contract. In 2017 he was signed by Manchester City for £52million on a 5-year contract, at the time the world’s most expensive defender. Mendy's registration is a valuable financial asset to Manchester City.
The club is entitled to seek compensation from Mendy if he breaches his contract, which causes the club loss – in the same way Chelsea successfully sued Adrian Mutu for £14.4 million (in principle, rather than ever receiving the compensation) when it sacked him in 2005 for gross misconduct for a failed drugs test for recreational drugs. Although this was a lengthy process which was finally settled by the European Court of Human Rights in 2018, and it is highly unlikely that Chelsea will ever see the entirety of £14.4million, but the legal principle stands.
Whilst Mendy’s market value may not be what it once was, given his recent form and the limited time left on his contract with City, in the event of either a guilty plea or a conviction, City would have reasonable grounds to seek compensation in the sum of his ‘market value’ from him. Even for a multi-millionaire footballer that would be financially debilitating, but whether it would be practically desirable to do so as the club would be unlikely to receive the full value of such a claim (as in the Mutu case) when dealing with the sums discussed in this blog post. Making such a claim would be more of a statement on behalf of the club rather than an attempt to recoup the entirety of the sum claimed.
Whilst the headlines thus far understandably have focused on the seriousness of the criminal allegations levelled against Mendy with the expected custodial sentence he would expect to receive if convicted, it is not only his freedom but also his entire financial footing which is at serious risk because of the allegations. Given those ramifications, one can expect that Mendy will plead not guilty to the charges and fight them with the best legal team he can afford.