Ban Could Lead To ‘Frustration Of Contract’

Uruguay footballer Luis Suarez could face breach of contract claims from his employer Liverpool for allegedly biting Italy’s defender Giorgio Chiellini at the World Cup.

The incident took place in the final group stage game on 24 June and Fifa has confirmed that it has launched disciplinary proceedings against the player. If found guilty, the striker could be banned for 24 games or two years.

According to law firm Irwin Mitchell, the player could be sacked by Liverpool for gross misconduct, even though the alleged incident took place whilst not representing his employer. He could also face a claim for breach of contract if any potential ban meant that he was unable to fulfil his contract at the Anfield club.

Expert Opinion

The general position is that Suarez’s behaviour in the work environment would usually represent gross misconduct - given that it could be classified as an assault - and would usually result in the dismissal of an employee in most circumstances. If the matter has occurred outside of work and is not connected to it for example in the form of a work social, the issue for the employer would usually be whether the actions of the employee had brought the business into disrepute.

"In the case of Suarez this could easily be argued – particularly as it is the second time an incident like this has happened whilst he has been with the club (and 3rd time overall) and the Anfield Club stood by the player last time (despite risk to their reputation and despite his lengthy ban).

"The decision for Liverpool however is not really about whether they do what a “normal employer” may do. With Barcelona and Real Madrid apparently planning to make significant bids for the player after the World Cup, the decision is whether they are willing to dismiss a player and waive a potential huge transfer fee. Much will depend on what punishment FIFA hands down but if the ban is sufficiently long so that Suarez is unable to fulfil his contract, this so called ‘frustration of contract’ could lead to claims by Liverpool for breach of contract on the part of Suarez.

"In the case of Adrian Mutu, a player sacked by Chelsea in 2004 following a positive drugs test, he was forced to pay £14m to Chelsea for failure to fulfil his contract. Even if this was the same sort of situation for Suarez, this is nothing like the 80 or 90m being discussed as a possible bid for his services by the Spanish giants. It will be interesting to see how the situation develops over the next few days and what stance Liverpool take in relation to their highest profile and most valued employee." Glenn Hayes - Partner & National Head of Employment Law