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Stamford Bridge over troubled waters II; Case Law comparison

The case of Barea v. Neuchâtel Xamax [2012] ISLR 34 is a useful comparator for the well publicised legal claim that former Chelsea FC doctor Eva Carneiro has against Chelsea FC (and as this blog will explain, personally against the ‘Special One’).  

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The facts of the case are football specific and serves as a useful precedent for demonstrating the ability for players’ or in Carneiro’s case backroom staff to challenge the power of their manager. Perhaps the most interesting fact about the case is that the case was decided by Swiss law which is the underlying law of the Court of Arbitration for Sport (which is the ultimate appeal jurisdiction for disputes arising in football).

Eddy Barea played for Swiss Super League club Neuchatel Xamax under head coach Miroslav Blazevic. During a post-match interview Blazevic ripped into Barea for his defiance in not playing the offside trap at a free kick directly against his manager’s orders. Blazevic labelled Barea ‘an idiot’ and ‘a traitor’ for his actions which Barea at the time thought were too risky at that point in the game. Similarly Carneiro was publicily humiliated by Mourinho describing her as ‘impulsive and naïve’ in a post match interview following Chelsea’s opening day draw at the hands of Swansea.

As a result of his defiance, Barea was excluded from first-team contact and forced to train with the under-21 team in much the same way as Carneiro was demoted from first team duties including club training sessions with Mourinho only allowing her to work out of an office at the training ground in Cobham.

As a result of the demotion Barea suffered, he terminated his contract and it was upheld by the Swiss Federal Supreme Court that Barea’s termination of his contract was valid and that his refusal to follow the direct order from Blazevic was the first occurrence of-non conforming behaviour in five seasons. Carneiro had been at the Blues since 2009 without any incidents where she came into direct conflict with Mourinho. Carneiro’s legal representatives served notice of a claim of constructive dismissal at the end of October.

Barea’s exclusion from the main squad was seen as disproportionate sanction to his behaviour. The court upheld Barea’s claim of compensation, as his market value would be affected by his inability to train and play with the squad at the level that he had been contracted. It was reported in the London Evening Standard recently that Charlton were willing to offer Carneiro a role to work alongside first team physiotherapist Erol Umut and club doctor John Fraser. Whilst the role at Charlton will satisfy Carneiro’s obligation to mitigate her losses by seeking alternative employment, this is a far cry from being first team doctor at the reigning Premiership Champions whom she tasted Champions League glory with in the 2011/12 season.

So the Barea case gives a clear precedent for the constructive unfair dismissal element of Carneiro’s claim and the vicarious liability Neuchatel Xamax had for the actions of Blazevic. It is likely that Chelsea FC, in their capacity as Carneiro’s contractual employer, will face the same fate if the case cannot be settled through early conciliation.

However, any claims for sexual harassment and / or sex discrimination will also be brought against Mourinho personally as it is reported he has been named as an individual respondent. Carneiro’s claims come in the wake of Mourinho calling her a ‘filha da puta’ (‘daughter of a whore’) and that Carneiro has (in the public’s perception) endured more criticism than her male counterpart physiotherapist Jon Fearn.

In conclusion Chelsea FC will be facing a potential settlement on the grounds of constructive unfair dismissal capped at £78,335 or one year’s salary, whichever is the lower. In regards to a claim that Carneiro’s exit from Stamford Bridge was as a result of sexual harassment and/or sex discrimination she will be entitled to uncapped compensation. With the increasingly unwelcome publicity and the latest rumours of a dressing room revolt against the ‘Special One’ Russian owner Roman Abramovich may look to dig into his deep pockets and settle this case before it reaches the tribunal.

If you need any advice on any sports related matters please do not hesitate to contact the Choix team.

Andy Boyde and John Hendrie – Sport Consultants

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