Underperforming contracts in the Premier League

A recent exchange on Twitter introduced IP Draughts to the standard employment contract that is used for footballers in the English Premier League. It makes for an interesting case study in contract drafting.

Thanks to https://twitter.com/stephen_bogle and https://twitter.com/in_nominate for drawing this document to his attention.

A note of caution: IP Draughts has not been able to discover any more recent version of this document on the internet, but it refers to out-of-date legislation on company law and data protection. The contract appears to be the output of collective bargaining, so he would be surprised if the current text is significantly different to the version linked above.

Until he saw this document, IP Draughts had assumed that Premier League footballers (or, more likely, their agents) individually negotiated the terms of their contracts – not just the financial amounts but the detailed wording. But it seems they all have to use this template. Given that the average salary of footballers in the Premier League now exceeds UK£3 million, one might expect that the League would not skimp on lawyers to get the basic drafting right. So, how good a job have those lawyers done? Are they the galacticos of the contract drafting world?

Many of the terms are conventional for a UK employment contract, or are required by employment legislation, irrespective of whether the employee is earning the minimum wage (which ranges from £4.15 to £8.72 per hour) or £3M per annum. For example, contracts are required to state the employee’s “normal retirement age”; the unusual feature in this case is that the stated age is 35.

As one might expect, some terms are focussed on the specifics of professional football. It seems that the Player may wear boots of his choosing, and in the case of goalkeepers, gloves of their choosing. Presumably these are the subject of personal sponsorship deals, and are exceptions to the Club’s sponsored dress codes that otherwise apply.

So far, so good. The contract appears to address the substance of footballers’ relationships with their employing clubs. But what is the drafting like? Is it easy to understand for employees whose first language may not be English?

Unfortunately, IP Draughts has to report that the drafting is of very poor quality. The template shows signs of what Ken Adams calls the “dysfunction of mainstream contract prose“. A few examples illustrate the general point.

What first drew IP Draughts’ attention to this contract was a query on Twitter about the interpretation of a clause that reads:

The provisions of this contract shall remain in full force and effect in respect of any act or omission of either party during the period of this contract notwithstanding the termination of this contract.

In IP Draughts’ mind, this wording is unusual and seems to be conflating the issues of (a) which clauses survive termination, and (b) whether a party is liable, after termination, for breaches that occurred prior to termination.

When he looked closely at the wording of the contract, IP Draughts discovered many more examples of questionable drafting.

The parties are described as being “of the one part” and “of the other part”. IP Draughts hasn’t seen this in an English commercial contract for many years.

The Player is required to “observe” the Laws of the Game. IP Draughts hopes he would never use such an ambiguous word in a contract, even if it is conventional in ordinary (if fairly sophisticated) speech.

Many of the clauses avoid using commas, which was a common practice some generations ago. Combined with some very long sentences, this makes for a turgid read. But the contract is not consistent on this issue, perhaps reflecting its evolution at the hands of different drafters.

An example of a long and unclear phrase (not even a whole sentence) is this monstrosity, which forms part of a set of obligations on the Club:

promptly arrange appropriate medical and dental examinations and treatment for the Player at the Club’s expense in respect of any injury to or illness (including mental illness or disorder) of the Player, save where such injury or illness is caused by an activity or practice on the part of the Player which breaches clause 3.2.1 hereof, in which case the Club shall only be obliged to arrange and pay for treatment to the extent that the cost thereof remains covered by the Club’s policy of medical insurance or (if the Club does not maintain such a policy), then to the extent that it would remain covered by such a policy were one maintained upon normal industry terms commonly available within professional football and so that save as aforesaid this obligation shall continue in respect of any examinations and/or treatment the necessity for which arose during the currency of this contract notwithstanding its subsequent expiry or termination until the earlier of completion of the necessary examinations and/or prescribed treatment and a period of eighteen months from the date of expiry or termination hereof;

As well as being horribly lengthy and complicated, the above-quoted phrase uses old-fashioned legalese such as “save as aforesaid”.

The drafter(s) are fond of other legalistic phrases such as “provided that”, which IP Draughts dislikes for several reasons, including that it tends to be used in different ways to mean “except that”, or “on condition that”, or even “oh, and another thing”. What is striking in this document is that the drafter(s) have not bothered to clean up the inconsistencies in the appearance of this phrase. It appears variously as:

• PROVIDED THAT
• PROVIDED that
• provided that
• provided always that

There are many other linguistic oddities in the template. The Player may not “use as his regular place of residence any place which the Club reasonably deems unsuitable…” When he first read this clause, he wondered if it was designed to stop a player from living in an unsuitable type of residence, eg a brothel. But, more likely, it is trying to stop, say, an Italian player commuting weekly from Rome. Is it deliberately vague to capture these and other possibilities? This form of words would not, in IP Draughts’ experience, be seen in most employment contracts.

Overall, IP Draughts has an impression that the drafter(s) are journeyman plodders who don’t really care about the linguistic aspects of the contract. There is no passion for excellence or modern thinking. If a Premier League footballer displayed this lack of desire, he would be sold as soon as possible, and might well end up playing in a lower division.