Boris Johnson announced on 19 July that the UK Government was planning to require people attending venues where large crowds gather, such as Premier League football matches, to be fully vaccinated from the end of September. But can clubs legally force players to get vaccinated? David Lewis and Mary Goldsbrough take a look.
Earlier this year, the Government initially proposed mandatory vaccinations for all attendees of Premier League football matches, including players. However, following opposition from clubs and fans, the plan now from 1 October, is that all attendees must have proof of either a negative lateral flow test or a double vaccination via the NHS COVID-19 app.
Last season, Premier League players were able to continue playing by being tested twice a week and having to stick to certain areas of their training grounds and stadiums – although it’s worth noting that these matches were closed to spectators for the first half of the season. The backlash against mandatory testing is not surprising, particularly given the potential legal issues faced by clubs trying to enforce this requirement.
Some Premier League clubs have reported a low vaccine uptake among players. However, other clubs like Leeds United, Wolverhampton Wanderers, and Brentford have gone public with the increase in vaccination rates at their own clubs with 89 percent and 100 percent of players jabbed.
If clubs mandate vaccinations, some players could bring claims for indirect discrimination under the Equality Act 2010. There is no upper limit on the amount of compensation that can be awarded for successful claims.
A mandatory vaccination requirement for players is likely to amount to a provision, criterion or practice that would put individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic. For example:
To reduce the risk of successful claims for indirect discrimination, clubs would need to show that mandating double vaccination for players was a proportionate means of achieving a legitimate aim, and/or that any mandatory vaccination policy allowed for exceptions in certain circumstances.
Protecting the health and safety of attendees at matches is likely to amount to a legitimate aim. But clubs may struggle to demonstrate that requiring players to be double vaccinated is a proportionate means of achieving this aim, given that there are other, less discriminatory, means of doing so, such as routine testing.
Mandating double vaccinations carries an additional risk when players have been with their club for 2 years or more, as these players could also bring a claim for unfair dismissal if their contract was terminated because they refused to be vaccinated.
To successfully defend an unfair dismissal claim, the club would need to show that the dismissal was made for a fair reason, such as requiring players to be double vaccinated to protect the health and safety of attendees, and that the club acted reasonably when deciding to dismiss on these grounds. A club might find it difficult to persuade a tribunal that they had acted reasonably in these circumstances, given the other measures available to control Covid-19 risks and the fact that clubs have used these during other seasons.
From a commercial angle, Premier League players are unlikely to pursue unfair dismissal claims at an employment tribunal as awards are capped at £85,000. But there is a real possibility of players bring breach of contract claims in the civil courts. Since professional players are on fixed term contracts, the compensation (subject to mitigation) could amount to the remainder of their contract’s worth, which could be millions.
At Capital, we’re used to working with the sports sector – advising clubs, athletes, coaches, and management on both contentious and non-contentious legal issues. If you have any questions on the above or would like our opinion on something else, make sure to get in touch.