Jonas Gutierrez’s disability discrimination case – wider implications for sport

Introduction

In what could prove to be a landmark employment law decision for athletes in the UK, Jonas Gutierrez, who was represented by Mills & Reeve, won a disability discrimination claim against his former club, Newcastle United Football Club, after he successfully argued that the club discriminated against him due to his cancer diagnosis.

After originally signing for the Newcastle United in July 2008, Gutierrez signed a new four-year contract with the club in September 2011. The contract contained a clause providing for an automatic one year extension of the contract if he started 80 Premier League games. Gutierrez was a regular first team player of the Newcastle United for five years. However, in Summer 2013, he was diagnosed with testicular cancer and required an operation. Gutierrez claimed that within a couple of weeks of his return to Newcastle United after receiving treatment, the club informed him that he was no longer a part of their plans and that he was free to search for a new club. Newcastle United asserted that Gutierrez had been informed before his cancer diagnosis that he did not have a future with the club and this decision was taken on sporting considerations alone.

When the contract ended in June 2015, Gutierrez had started in 78 games, ie, 2 short of the 80 required to trigger the Extension Clause. He claimed that his selection for first team Premier League matches had been manipulated to prevent the Extension Clause being triggered due to his cancer. He further claimed that he had been treated less favourably by the Newcastle United following his cancer diagnosis. In addition, the club had discretion to extend the contract but they chose not to do so.

Gutierrez brought a disability discrimination claim against Newcastle United at the Employment Tribunal and argued that the club discriminated against him due to his cancer diagnosis. In April 2016, the Employment Tribunal found in Gutierrez’s favour.

This article will provide an overview of the tribunal’s decision, outline what made this case unusual in the context of employment related disputes in professional football in the UK and touch upon the possible wider repercussions for sport generally.

Summary of the decision

Gutierrez filed his claim under the Equality Act 2010, which makes it unlawful to discriminate against workers on the grounds of a mental or physical disability. Crucially, the Act considers a cancer diagnosis to be a disability.

Gutierrez made four claims under the Equality Act 2010, of which two were upheld and two were dismissed by the Employment Tribunal. These claims will be discussed in further detail below.

Gutierrez’s main allegation was that the club board influenced team selection to prevent him from reaching the contractual trigger point to secure an extension to the contract, and they did so due to his cancer diagnosis. The Employment Tribunal upheld this claim and it’s ruling stated: “We find as a fact therefore that the respondent was deliberately managing the claimant’s selection to prevent him triggering the option [of extension]. We concluded that the reason why the respondent managed the claimant’s selection was because they had no longer wanted him at the club because of his cancer.”

A remedies hearing is due to take place to determine the amount of compensation that will be awarded to Gutierrez. As of 25 April 2016, Newcastle United has not yet confirmed whether it will be appealing the decision to the Employment Appeal Tribunal.

An employment law perspective

As noted above, Gutierrez argued four separate claims under the Equality Act:

1. A claim under section 13 for “direct discrimination”. To succeed in such a claim Gutierrez needed to establish that he had been “less favourably treated” than other players would have been treated because of his disability. 
2. A claim under section 15 for “unfavourable treatment because of something arising in consequence of his disability”. 
3. A claim under section 21 for failure to make reasonable adjustments. 
4. A claim for disability-related harassment.

Deemed disability

Except in the case of cancer and certain other progressive conditions, the definition of disability is only satisfied if the claimant can show that he or she is suffering from a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out “normal day-to-day activities”.

One unusual feature of this case, therefore, was that Gutierrez was deemed to be a disabled person because of the diagnosis of cancer rather than the effects of the cancer on him. On the facts of the case, his two courses of treatment (one on initial diagnosis and one following a diagnosis of metastatic cancer in a lymph node) were no more disruptive to his fitness than the kind of injuries commonly experienced by footballers.

Employment Tribunal Decision

The tribunal dismissed claims two and four largely because the effects of the cancer on Gutierrez were no more disruptive to his ability to work than the kind of injuries commonly suffered by footballers. Claim 2 (discrimination arising out of disability) is a much more common type of disability discrimination claim, since it is normally the consequences of a disability (ie, the inability to attend work or perform key duties) that gives rise to adverse treatment by employers, not the disability itself. Similarly, under claim 4, it is often the consequences of the disability, rather than the disability itself, that gives rise to harassment. However it appears that in this case the cancer had no effect on Gutierrez’s physical capabilities once the period of rehabilitation was over.

Claim 1 was upheld, because the tribunal inferred from the surrounding facts that the diagnosis of cancer must have been the reason why Newcastle United decided, shortly after Gutierrez returned from his initial operation, that he was not going to be part of their long-term plans. The tribunal also inferred that his cancer diagnosis was the reason why the club manipulated his appearances, ie, so that he could not benefit from an automatic extension of his contract.

Crucially, Gutierrez was able to demonstrate that he had been a regular fixture in the team before his diagnosis, and that there was no reason why he should not have been selected once he returned to fitness. He was also able to demonstrate that at the end of his final season, when it was mathematically impossible to achieve the required number of starts to secure a contract extension, he was again selected for the team and indeed played a vital part in the Club avoiding relegation, scoring the winning goal in the last game of the 2014/15 season.

Claim 3 was also upheld. Leaving aside the deliberate manipulation of his appearances (which happened towards the end of his spell at Newcastle United) one reason why he did not accumulate the necessary number of appearances was because of the two spells when he was unfit to play due to his treatment for cancer. The tribunal held that, under the circumstances, the club had a duty to make reasonable adjustments in light of the Gutierrez’s disability. This duty should have been manifested by the club adjusting the terms of his contract to reduce the required number of starts pro rata to reflect these periods of absence. 

Why was this case heard outside of traditional sports arbitration?

The Premier League Standard Professional Playing Contract (the PL Contract) contains an arbitration clause (clause 17), which states that the vast majority of disputes are subject to private football arbitration (generally before the Premier League, unless both parties agree to submit the dispute to FA Arbitration). However, in the majority of (non-football related) employment cases, the relevant institution for submitting a claim will be the Employment Tribunal, where proceedings and pleadings are open to public scrutiny.

An additional consideration for bringing this claim in the Employment Tribunal related to the reverse burden of proof in reasonable adjustment claims. It is for a claimant to establish that a provision, criterion or practice (PCP) was applied to him/her which caused him/her substantial disadvantage and put forward an adjustment that should have been made. Crucially, it is then for the employer to establish, as a matter of fact that the particular adjustment contended was not a reasonable one. This reverse burden of proof simply would not have applied had this case been brought for example as a breach of contract claim and determined by sports arbitration.

Gutierrez argued that there were in fact two PCP’s; the extension clause as well as the club’s decision not to offer him the extension despite his getting so close to reaching the trigger for automatic renewal. Newcastle United failed to discharge its burden of proving that the adjustment to the extension clause, claimed by the Gutierrez, was unreasonable.

In this case, Gutierrez’s disability discrimination claim did not fall under the PL Contract’s arbitration clause, as it involved protections afforded under the Equality Act 2010, which cannot be contracted out of (except via a compromise agreement). Accordingly, the Employment Tribunal had exclusive jurisdiction over such disputes, rather than the football dispute resolution bodies.

Right to terminate for long term illness/injury

Clause 8 of the PL Contract entitles a club to terminate a player’s contract with 12 months notice:

• In the event that the player suffers Permanent Incapacity (where Permanent Incapacity is defined as permanent total disablement under the Premier League’s insurance policy or incapacity by reason of or resulting from injury or illness, which medical opinion determines will result in the player being unlikely to play at the same standard again for a consecutive 20 month period).
• Or the player has been incapacitated from playing for the same injury/illness for 18 months in any consecutive period of 20 months.

If this were to occur, the club is entitled to serve notice on the player terminating the PL Contract. The notice period is reduced from 12 months to 6 months when the injury/illness results from the player’s breach of his obligations under the PL Contract. After such notice, a club may pay the player the residual value of his contract and bring the PL Contract to an end prematurely.

This type of clause exists in many other employment contracts in sport (albeit some are not as generous as the PL Contract provisions). However, while this allows for termination in the event of a long term injury or illness, it’s operation would however be subject to the employer’s duties under the Equality Act pending the trigger point for termination.

The Equality Act allows employers to defend section 15 claims (ie, “unfavourable treatment because of something arising in consequence of the disability”) if the treatment is a “proportionate means of achieving a legitimate aim” – normally referred to as the “justification defence”. This means that if the player is permanently incapacitated it will normally be justifiable to terminate their contract, in much the same way as in most employment contexts. This makes claims to the Employment Tribunal in these circumstances unlikely. However such a defence is not available in “direct” discrimination claims under section 13.

Conclusion

This case has very particular facts, but it also has wider implications for sports and non-sports employers. Sport clubs (and employers generally) will need to avoid jerk reactions to news of a cancer diagnosis, not only to ensure compliance with the Equality Act but out of common humanity.

The other, broader lesson, is that sports institutions should not assume that the disability provisions of the Equality Act will not be engaged in their dealings with their players/ athletes and should be mindful to treat sporting personnel in the same way they would treat other employees and indeed to make reasonable adjustments where that duty is engaged. For example, in this case the tribunal questioned who conducted Gutierrez’s return to work interview, which is of course standard practice for most employees, but may be seldom adhered to in a sporting environment.

As a wider observation in a team sports context, provisions similar in nature to the extension clause are common place and we are aware of numerous disputes between clubs and players where the players have claimed that they have not been selected to avoid triggering an extension clause. While this may in itself give rise to a breach of contract claim, the onus is on the player to prove this breach, which may be incredibly difficult.

In this case, Newcastle United argued that it should have absolute discretion to select its strongest starting XI in every match and such decisions were determined by purely sporting considerations. However, as the Employment Tribunal held in this case, following its scrutiny and criticism of the credibility of witnesses as well as very telling internal e-mails, the reason for non-selection was determined to be the player’s disability. This is perhaps a salutary lesson for clubs that engage in the practice of internally “managing” contractual extensions, that in the context of a disabled employee, this practice could lead to the club facing a disability discrimination claim and such actions being publicly exposed.

It is of course true that given their age profile and levels of fitness, professional sportsmen and women are less likely to suffer from a disability than the general population. To satisfy the definition of a “disability”, generally speaking a condition must last, or is likely to last at least 12 months to count.

However, given the growing awareness of mental illness among high achieving sportsmen and women, a long term mental illness may well be considered a disability under the Equality Act. This case demonstrates that responding to the needs of a player/athlete who is regarded as disabled for Equality Act purposes extends beyond paying him/her during their recuperation: adjustments may need to be made to contractual terms and there may even be an impact on team selection decisions.

The message for clubs and sports organisations in general is that they are not able to avoid what would be regarded as “ordinary employment principles” and should be cautious when disregarding employment law in favour of sports custom and practice.