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The recent Employment Tribunal judgment in the case of Duncan Culley vs Whitehawk Football Club understandably escaped the attention of the football press, focussed such are they on player/club disputes more of the Diego Costa magnitude.

Save for the coverage by the Brighton newspaper The Argus, Duncan Culley is no doubt pleased at that– he presents as a very articulate, non-league football who would normally (most unkindly) be referred to as the archetypal ‘journeyman’.  His career has seen him play for many non-league clubs on the South Coast, including the likes of Shortwood, Farnborough, Hampton & Richmond, Lewes and then Whitehawk.   No doubt he courts no attention for his recent legal victory.

The lack of publicity surrounding the decision of the London South Employment Tribunal is no surprise; Employment Tribunal judgments – whilst publically available – are read by few and at first glance the Culley case would appear insignificant to most.  That interpretation, however, would be a mistake.  Theoretically the case could have major ramifications for non-league football (and indeed amateur sport) – perhaps in a way that the ‘journeyman’ footballer in Belgium, one Mr Jean-March Bosman – changed the future of European football as a result of his legal action.

The Culley case principally concerned a player who believed (and the Tribunal agreed with him) that he was owed money by the football club that engaged him.  There is nothing unusual about that and Culley would not have been the first footballer (and in particular, non-league footballer) to threaten or indeed bring legal proceedings against a club for recovery of monies owed.  The unusual feature of Culley’s case – whether through happenstance or design the writer does not know – is that he chose to issue his proceedings not in the civil courts (the usual forum for a debt claim) but in the Employment Tribunal.

For the Employment Tribunal to have jurisdiction over Culley’s claims (which were in the most part successful) they had to conclude that he was either an employee or a worker.  If he were self-employed then the Tribunal could not consider his complaints, for that would be the domain of the civil courts.

The employment status of a footballer

The Courts have historically been called upon to determine the employment status of footballer.  As long ago as 1910, the Court held in Walker v Crystal Palace that a professional footballer was an employee and that decision was further established by the Eastham v Newcastle United case in 1964.  But what of the amateur or non-league footballer?

Until now, the view of the Football Association in England is that a football player is either a professional player and must be an employee, or he is amateur (and not an employee). There can be no dispute that any player within the Premier League or Football League is an employee for he has to be engaged under the standard form employment contracts that are the only documents which can be used in order to register a player.   But what of non-league clubs?

The FA have issued guidance to what they refer to as ‘semi-professional clubs’ stating that all contracted players must be employees of the club and can not be self-employed.  Non-contract players however (who make up the significant majority of players in non-league) ‘may or may not’ be employees, and the FA advise that ‘this will depend on the nature of the relationship between the Club and the player’.   The FA go on to say that if a player is not an employee of his club it may be considered that he is ‘playing for the love of the game’.

In essence, the FA’s position was and is that if a footballer is either professional or contracted by his ‘semi-professional’ club to play for them until a specified date in return for a salaried amount then he is an employee; otherwise he is playing for the love of the game as an amateur.

The Culley Judgment

 The decision of the Employment Tribunal has now created the spectre of a third category of footballer, plying his trade in the leagues that can interchangeably be described as non-league, semi-professional or amateur.  That footballer is neither an employee of his club, but nor is he ‘playing for the love of the game’.   If Culley was doing merely the latter, the Tribunal had no jurisdiction to hear his complaints.

 Whether or not Judge Hildebrand appreciated the significance of paragraph 13 of his judgment I know not; he merely stated that he ‘found that the Claimant was a worker’.   Reciting the well traversed definition of a worker to be found at section 230 of the Employment Rights Act 1996 [1], the Judge was clear that Duncan Culley contracted personally with Whitehawk Football Club and that the club was not a client of his.  This conclusion means that not only was Mr Culley not merely ‘playing for the love of the game’ but he was not self-employed either.

What does it mean if a footballer is a worker?

 A worker has significant rights that, whilst not as extensive as those enjoyed by employees, have caused major impact in a number of high-profile cases in 2017 (including Uber, Deliveroo and the so-called gig economy).  The full list of rights enjoyed by workers is beyond the scope of this article, but of most relevance to the non-league footballer or club those rights would include:

• The right to receive paid annual leave
• The right to be paid at least national minimum wage
• Possible pension rights under auto-enrolment provisions
• Protection against unlawful deduction from wages
• Protection against unlawful discrimination under the Equality Act 2010

The writer’s experience is that almost all (if not all) non-league footballers who are not treated as employees do not receive paid annual leave and, certainly, there is either non-payment of national minimum wage or non-compliance with the record-keeping requirements that a club would need to rely upon to prove compliance.  If one were advising a club in regards to both holiday pay and NMW, consideration needs to be given as to when in fact the worker (the player) is working?   Do training sessions count as work?  Is it only the games that are played?  Is it work when one is travelling to and from a game?  Is one working from arrival at a ground at 1.30pm on Saturday, or does work commence at kick-off?   Is the player who did not make the match-day squad or the unused substitute working?

It is possible to very quickly envisage the arguments that a club might deploy to suggest that a player’s ‘work’ is limited to a few hours per week; equally as easy to see how one can contend that a player may be working some 20 or so hours per week, and in some cases more.  Those arguments, of course, will drive to the heart of this matter and will be key to how significant the Culley judgment might ultimately be –  the financial burden upon clubs to comply with paid holiday and NMW will be vast (before one considers the possibility of retrospective claims) if the wider interpretation of what constitutes work is taken.
The issue of what constitutes work will form the second part of this article.  Until then, one is left to wonder whether the Culley judgment will remain an obscure decision considered by few (or considered only in the unusual and specific circumstances of his dispute with Whitehawk Football Club) or whether it might prompt the FA to reconsider how they advise their member clubs to treat the employment status of their players.

Or, in fact, might the FA take an active interest in intervening in the Culley case and lead an appeal to the Employment Appeals Tribunal?  For those who do, for the right reasons, wish to protect the sanctity of the ‘playing for the love of the game’ concept, such action may well be advisable.

For more information or assistance please contact Dan Chapman. Alternatively, you can email us on info@leathesprior.co.uk or call us on 01603 610911. 

[1] A worker is an individual who works under a contract of employment or any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business carried on by that individual