SOUTH AFRICA: ‘YOU’RE FIRED’: TERMINATING A FOOTBALL COACH’S CONTRACT
The latter part of the 2020/2021 football season saw the ‘sacking’ of José Mourinho [Tottenham Hotspur FC], Zinedine Zidane [Real Madrid FC] and, closer to home, Gavin Hunt [Kaizer Chiefs FC]. The termination of these coaches’ contracts demonstrates the highly competitive industry in which football coaches operate.
The football industry is not synonymous with job retention and job security; a concept head coaches at football clubs are all too familiar with, as they are subject to immense performance scrutiny and are readily dismissed for failing to meet targets.
Are coaches employees?
Football, commonly known as soccer, is a unique industry, which is governed by its own set of regulations. In South Africa, the South African Football Association (SAFA) is the governing body of football and the National Soccer League (NSL), also known as the Premier Soccer League, is affiliated to SAFA and is the governing body of professional football. As the governing body of professional football, the NSL must promote, administer and regulate professional football within the confines of SAFA. To achieve this purpose, the National Soccer League Handbook (NSL Handbook) was enacted and all professional clubs are bound by its provisions.
Unlike traditional professions, the frequent dismissal and inter-change of executives is not a foreign concept on account of coaches often failing to meet the performance targets set for them by the clubs they are employed by. The NSL Handbook does not, to the extent that it does with players, comprehensively regulate the ‘transfer’ of coaches. This begs the question: what regulates the movement of professional coaches?
In Tshabalala v Moroka Swallows Football Club Ltd 1991 12 ILJ 389 (IC), it was held that a coach at a soccer club is considered an employee of the club. By virtue of the coach’s duties and responsibilities, such as attending training, selecting the team and reporting to the club, a football coach cannot be considered as an independent contractor as an employment relationship exists between the parties. The principle that a football coach is an employee of a soccer club was also recognised in Santos Professional Football Club (Pty) Ltd v Igesund & another 2003 (5) SA 73 (C).
The body of law, which requires sporting regulations to be read with South African legislation and/or common law, is known as ‘sports law’. To this extent, to understand the relationship between a coach and a soccer club, the NSL Handbook must be read together with employment legislation; consequently, the relationship is one of employment. In light of the fierce competition and lucrative financial deals in the football environment, football coaches are often appointed as senior employees and/or executives and are set high performance standards.
In terms of the Labour Relations Act 66 of 1995 (LRA) an employee has a right not to be unfairly dismissed. The Code of Good Practice at schedule 8 to the LRA recognises three grounds of dismissal, which are misconduct, incapacity and where the operational requirements of the employer warrant dismissal. A fair dismissal comprises two components, which are substantive fairness and procedural fairness. A dismissal will be substantively unfair where there is no legitimate reason for the dismissal, and a dismissal will be procedurally unfair if a correct procedure was not followed in effecting the dismissal. The procedure to follow in effecting a dismissal will depend on the recognised ground the dismissal is based on.
Coaches are often dismissed for poor performance or failing to meet performance targets. The recognised ground of dismissal that poor performance falls into is incapacity. The general principle concerning procedural fairness with regard to a dismissal for poor performance is that an employer is required to make the employee aware of the sub-standard performance and to assist the employee to improve his or her performance. In order to comply with the procedural fairness requirement, an employer would have to place the employee under performance management and provide remedial measures, such as counselling and training, to remedy the poor performance. These measures must be adopted with the view of giving the employee a fair opportunity to meet the performance standard.
Football is not only a national pastime but is also a prominent and lucrative business. On this score, it is often not commercially feasible and/or practical for soccer clubs to follow procedural requirements when dismissing a football coach for failing to meet performance targets. The nature of football requires timeous and expeditious dismissals, so following extensive and time-consuming pre-dismissal procedures may adversely affect a football club’s operational requirements and performance objectives. Therefore, it is in the interests of a soccer club to dismiss a non-performing coach as quickly as possible with the view of appointing a new one with minimal disruption in the soccer season.
How to circumvent pre-dismissal procedures
In South Africa, the law differentiates between the dismissal for poor performance for an ordinary employee and that of senior managers or executives. In Somyo v Ross Poultry Breeders (Pty) Ltd  7 BLLR 862 (LAC), the Labour Appeal Court confirmed that the two exceptions to the requirement of following a fair procedure for dismissal for poor performance are: where the senior employee is qualified by their knowledge or experience and is capable of establishing for themselves whether or not they complied with the performance target; and where the required degree of professionalism is so high that any deviance from the required standards would be so serious that non-compliance would justify dismissal. The Labour Appeal Court’s view has been adopted and confirmed in a number of subsequent judgements and demonstrates that senior employees are held at a higher standard than ordinary employees.
In JDG Trading (Pty) Ltd t/a Price 'n Pride v Brunsdon (2000) 21 ILJ 501 (LAC), it was held that it would be unfair for an employer to apply the ‘normal’ guidelines regarding counselling to senior managerial employees. The court went on to say that an experienced executive who needs to be counselled is probably not fit to be an executive. In these circumstances a senior executive cannot oversee other employees if they cannot even oversee themselves.
It may be argued that coaches at professional soccer clubs fall within these exceptions as, by virtue of their appointments, they hold executive and senior positions and a high degree of professionalism is required from them. It cannot be argued that a coach who consistently loses soccer matches is unaware of his or her unsatisfactory performance – particularly in the highly publicised environment football operates in. In addition, a coach’s non-achievement of performance targets has serious adverse commercial and reputational consequences for a club.
In the light of this, a soccer club may terminate a football coach’s employment contract without following extensive pre-dismissal procedures, which would include placing the executive under performance management and/or providing remedial measures to address the non-performance. In the absence of a mutual separation agreement between the parties, soccer clubs, on the strength of the exceptions listed above, can timeously dismiss a football coach and embark on appointing another.
To strengthen their position, football clubs may also incorporate performance targets in the coach’s employment contract so that failing to meet them will constitute a material breach of the contract. The consequence of this would be that upon the breach of the contract by the coach, the club can elect to cancel the coach’s contract, which may negate the requirement of having to follow a pre-dismissal performance management procedure entirely.
Another method would be for the club and coach to agree at the beginning of a season as to what the reasonable and realistic performance targets would be - games won, qualification for leagues and cups and the like. In this way there can be no doubt over whether the coach is performing to the agreed performance standards and whether remedial action is required or not.
The appointment and dismissal of coaches is as much a part of the game as scoring goals on the field is. The environment in which football operates requires the timeous dismissal of coaches and there are measures available to soccer clubs to achieve this. Football coaches are integral in the success of soccer clubs and their profitability often hinges on a coach’s performance. If a coach fails to meet the performance targets set for him or her, a soccer club may dismiss the coach in order to prevent adverse consequences to its business operations. A new coach may be hired timeously with minimal disruption to the football season.
Notwithstanding this, soccer clubs are advised to seek legal advice as an incorrect application of the principles may lead to adverse financial and reputational consequences for them.