When Boris Johnson announced the introduction of Tier 4 restrictions in London and the South East less than a week before Christmas, long term holiday plans were thrown into chaos. With household mixing banned indoors, many people spent Christmas 2020 alone, rather than eating, drinking and relaxing with loved ones.
It is unsurprising, therefore, that news of professional footballers breaching those restrictions has triggered a flurry of negative press and touched a nerve within the football community and beyond. The clubs involved have issued statements to the effect that matters will be dealt with internally and the players in question have apologised. However, some of those players were immediately involved in subsequent matches and it is not clear that these breaches led to any significant punishment. Bearing in mind professional football’s exemption from the new national lockdown, the high profile of the players, and the increasing number of positive tests in clubs, not to mention the severe health risks posed by Covid-19, The FA and the leagues may begin to feel more pressure to act.
Indeed, games in both the Premier League and the EFL have already been postponed or cancelled as a result of positive tests within clubs. If more games are cancelled and there is evidence that a cancellation has directly resulted from breaches of Covid-19 protocols or a lax approach to enforcement at club level, the pressure on the FA and the leagues to sanction those involved, potentially with suspensions and match forfeiture, will only increase.
(In)action at club level
Generally speaking, the first port of call in matters of this nature are the clubs themselves. In addition to each club’s bespoke Covid-19 protocol, both EFL and Premier League standard player contracts include an obligation to comply with all lawful instructions of club officials. Breaches of a club’s Covid-19 protocol or other lawful instructions is therefore likely trigger the club’s internal disciplinary process. However, if players subject to that process continue to take part in matches and it emerges that clubs are not appropriately sanctioning their players, it is possible that The FA and the Premier League or EFL might consider further action.
In each case, every player is under an obligation to follow the rules of The FA and the league in which they play. This stems both from the FA Rules (which define misconduct as including a breach of league rules) and the players’ standard contracts (which include an obligation to comply with the FA Rules and league rules).
Who has the power to act?
In the case of the Premier League, action against individual players is unlikely because its Covid-19-related rules are drafted to be binding on clubs, rather than individuals. For example, Premier League Rule O.25 provides that each club, as opposed to individual players, must comply with the Premier League’s Covid-19 Training Protocol. Significantly, under section 25 of the Training Protocol, each club must require its players to comply with Government requirements regarding isolation and social distancing whilst not at the training ground (whether at their own homes or otherwise). From the Premier League’s perspective, the relevant obligation therefore falls on the clubs. The EFL similarly states that clubs, rather than individual players, are required to enforce protocols around training and matchdays to maintain safety and mitigate transmission of the virus.
Every Premier League and EFL club’s Covid-19 policy will undoubtedly include a direction to players stating that they should comply with Government requirements. But if clubs do not properly police or enforce that direction, it could be argued that those clubs are not truly requiring compliance with the requirements and that they are therefore in breach of the applicable protocols and league rules, such as Premier League Rule O.25.
In the case of The FA, the FA Rules contain the ability to take disciplinary action against any Participant – which includes both clubs and players – in respect of any misconduct. In this regard, the FA Rules contain a broad conduct requirement, Rule E3, which requires Clubs and Players to “at all times act in the best interests of the game” and to “not act in any manner which is improper or brings the game into disrepute”. In the time of Covid-19, it is arguable that this rule is broad enough to encompass misconduct allegations against individual players found to be breaching Government restrictions.
The potential for sanctions is real
It is therefore possible that a breach by an individual player could cause the player and his club to fall foul of both the FA Rules and the Premier League or EFL rules. Cases where there is a breach of both FA and league rules are generally dealt with by The FA, unless The FA and the league in question agree otherwise (FA Rule G3). In either case, though, the potential sanctions are serious and include fines, a suspension for the player, or even a points deduction.
Players and their representatives would therefore be well-advised to note that The FA does have the power to sanction individuals for misconduct and that, in light of the escalating Covid-19 crisis, it is increasingly likely to take a tough stance on breaches of the Government restrictions. This would certainly not be without precedent in sport, with the RFU fining and suspending rugby players for a breach of Covid-19 rules which led to the cancellation of England’s match against the Barbarians in October last year.
Further, clubs who deal with these incidents internally should also consider their obligation to require compliance from players: if rule-breakers are perceived to be escaping punishment via internal processes, the clubs themselves also run the risk of very serious sanctions.