Following Steve Bruce’s resignation on 15 July 2019 from his role as Head Coach at Sheffield Wednesday Football Club, rumours are that his signing to Newcastle United is imminent.
Bruce, having only held his position at Sheffield Wednesday for 6 months, is now facing controversy with his former club over his exit.
But what impact does Bruce’s resignation have in an employment context, and is there anything that Sheffield Wednesday can do to prevent Bruce from jumping ship so soon? Remember also it’s not just Bruce that resigned, but also other members of his coaching team.
It is likely to fall down to Bruce’s manager contract terms.
It’s not the first time this has happened in football and given the unpredictability of the football industry, particularly so close to the transfer window, it is unlikely that this will be the last time we see this sort of scenario unfold. Bruce himself has already been the centre of attention once before in 2001, when Crystal Palace sought an injunction from the High Court to enforce contract terms against him.
Clubs often attempt to keep hold of their coaching staff, particularly if they are being approached by rival clubs however, by doing so, this can force the relationship between the employee and employer club to become strained.
In such circumstances then, what is the resolution for football clubs that find themselves in this position? Provided the employee’s contract contains the appropriate provisions, one option is for the club to seek to place the employee on “garden leave”.
This is a commonly used tactic by clubs for a number of reasons, which extend beyond delaying the departure of the employee to a rival club. The main motivation is to prevent confidential information held by the club from misuse by the employee and preventing the employee from poaching colleagues & players during the notice period.
This risk of leaked confidential information in the football industry has potential to be highly detrimental and could go as far as preventing a club from being promoted. Senior employees, such as coaching staff, are likely to have access to a wide variety of confidential information including information relating to the strategies and tactics of the clubs, not only in relation to gameplay, but also marketing, players transfers, and raising revenue. It all comes down to protection from the risk of competitive harm.
Clubs can therefore protect themselves from this risk by including post-termination restrictions in the contract of employment such as ‘garden leave’. Such a provision means that, in this instance, Bruce would remain employed by Sheffield Wednesday for a set period of time and he would still be subject to the terms of his former contract. He would also be bound to obey legitimate instructions, such as not contacting colleagues, players, prospects or suppliers in connection with Sheffield Wednesday’s business and he will crucially not have any access to confidential information or be able to go work for a competitor until the set period of time had passed.
Given that Bruce has already resigned however, in order to enforce such a provision, Sheffield Wednesday would need to consider applying to the court for an injunction to restrain Bruce from joining any prospective club before the end of his notice period.
What are the practical implications though, of taking such enforcement action against Bruce? As we know all too well, litigation is expensive, time consuming and attracts unwanted publicity, particularly for such high-profile clubs. Not only that, but we cannot ignore the lasting impact such adversarial proceedings can have on the relationships within the footballing industry. Is the ‘garden leave’ provision a dead end?
More often than not, the resolution boils down to compensation. The ‘garden leave’ provision is a powerful bargaining tool which can be used to increase the compensation being offered for that employee, in return for Sheffield Wednesday allowing the move to go ahead.
The court nor Sheffield Wednesday can force Bruce to continue working at the club if he no longer wishes to do so, but Bruce cannot escape so easily the provisions of his employment contract with Sheffield Wednesday.
It’s likely then to come down to how much any prospective club is willing to pay Sheffield Wednesday in order to be able to release Bruce’s from his contractual obligations, but in the same instance, whether the sum offered is enough for Sheffield Wednesday to accept the potential risks to the club.
In this lies all the power.