, Mark Hughes and the legitimacy of breaking a contract: leadingcounsel.co.uk
Skip to main content.

Mark Hughes and the legitimacy of breaking a contract

Last month/last year the manager of Manchester City Football Club was sacked, albeit that the team was placed sixth in the Premier league table and had only lost two games. Time will tell whether Mancini is the right person for Man City, and even then of course that will not tell us what would have happened had Mark Hughes been allowed to stay in post. In this regard it is perhaps pertinent to note that it is some 20 years since Sir Alex Ferguson, according to accepted urban legend (albeit denied by members of the board who were around at the time), was "saved" from the sack by the Mark Robins FA Cup goal which started the run which led to that year's FA Cup and subsequently a cupboard full of trophies.

Press comment was almost universally scathing about both the approach to the sacking both of the chief executive of Manchester city and the Abu Dhabi-based owners. Unsurprisingly the football pundits who consist of ex-footballers (or ex-managers or possibly future managers) who are friends with ex-footballers and ex-footballer managers and existing ones all were of the view that a manager needs to be given time to prove himself. Insofar as it goes that is a statement it is difficult to find fault with. However these chats are always akin to the sort of commentary you get when a footballer commits a howler ("he'll be disappointed with that" instead of "that was pathetically inadequate for a highly paid professional"). It might be a bit livelier if someone attempted to put the case for the defence.

I have always been an admirer of Mark Hughes and think he is a talented football manager who has done well and will do well. However I have the luxury of him not having spent 200 million of my money, or whatever it was has been invested in the team. Whilst the principle of giving time is the correct one, that of course is against the background that there is no guarantee of success. If a goalkeeper had three howlers in succession but wanted sufficient time to prove his capabilities, I doubt a manager would grant it. In the same way when owners have invested huge amounts of money in a football club, whilst they might agree with the principle of a manager having time to prove himself as the right one for that particular job, waiting until sufficient time has passed can be catastrophic if in the event the result is failure.

Ironically the decision seems to have been made before (apart from a poor performance at Tottenham) results had improved. The reason for the delay in appointing Mancini was apparently that they did not want to settle the new manager with some very tough fixtures and hence pressure from the start. (Difficult to find fault with the logic of that). There was also some opprobrium attached in some quarters of the press to the idea of early soundings out of other managers whilst Mark Hughes was still in post.

On a strictly legal analysis, it is difficult to see why any of this was objectionable. As a general rule contracts are not specifically enforceable and as long as if you break the contract you are prepared to meet the financial consequences by way of damages there is nothing intrinsically morally reprehensible in that. After all, if a football manager does not reach the desired target he will not be reimbursing the owners for the price of failure. Whether they are right or wrong, those who will ultimately pay the penalty have to be allowed to make their own decisions.

Again if you are thinking of replacing someone if their performance is insufficient, it would be an act of utter folly not to have taken steps to see who might be available. Let us say that this was a fashion chain. The board might have concerns about the general manager. They might intend to give him say three months to turn things around, but if he fails they need to know what their options are, particularly if people at the right level and right calibre are few and far between. If they took no such steps there would be absolutely no way of knowing whether or not they could improve things by bringing someone else in. It would be obviously insane only to start looking for potential replacements at the time you could already made an irrevocable decision to dismiss. Even if you had concerns about someone, if they were the best candidate available then you might still decide to soldier on.

It is perhaps time that the sporting world to conform realistic legal view of what occurs in relation to contracts. There are circumstances in which breaking a contract can be reprehensible, and in particular in circumstances where the breaches are either "hidden" or where for example a failure to pay is used to try and drive someone from being able to enforce their rights, or where spurious excuses to justify termination a used. However in general terms, providing there is a willingness to pay appropriate contractual compensation, those who are paying ought to be able to judge whether the person being paid is satisfactorily achieving what is desired. (Obviously failure sufficient to amount to repudiatory breach would be treated differently). Perhaps instead of berating the easy target of foreign owners, the press might have done better to consider that if central government and local councils adopted the same hardheaded approach as to how to deal with employees who were not delivering the desired results, that the finances of this country would be in vastly better shape.

Michael J. Booth QC