The early winter months are not commonly known for high profile Rugby League stories, however towards the end of 2016 the sport took centre stage on the back pages intriguing fans and legal observers alike.
The story concerns New Zealand born Denny Solomona who has sparked controversy switching codes from Rugby League’s 'Castleford Tigers' to Rugby Union’s Sale Sharks.
While moving between the two sports isn't, in of itself, particularly controversial - players have swapped League for Union and vice versa since the sport first split in 1895 - the manner in which Solomona and Sale went about the switch has split opinion and caused outrage among many Rugby League devotees.
The Samoa international signed a new 3-year deal for Castleford in November 2015. However, late last year, it is alleged that he failed to report for pre-season training and announced that he was 'retiring from Rugby League'.
Surprisingly, just a couple of weeks after departure from the Tigers, Solomona made his debut for Sale in their Champions cup defeat to Saracens.
In response to the switch, Castleford threatened to bring a High court case alleging that Solmona had breached of contract (which has now been issued). The action between Castleford, Sale, Solomona and his agent highlights a number of interesting legal issues.
Was he allowed to walk away?
Commonly under contracts of employment / contract generally both parties are usually able to give notice to end the relationship. This notice would usually be required in writing and typically the notice period would be three to six months. However in this case, it appears that Solomona has given little or no notice, claiming instead that he was to retire from rugby league, generally, with immediate effect. If true, this could form the basis of a case against him.
Were any restrictive covenants in place?
A restrictive covenant is a clause contained in a contract which prohibits a party from taking certain actions after the termination of the contract or employment. In a sporting context, this may take the form of clause prohibiting the departing player from joining a rival team within six and 12 months of the contract.
However, the courts are reluctant to enforce such wide restrictive covenants as it could be interpreted as endorsing a barrier to the individual earning a living. The position of the courts is clear in that a restrictive covenant (in contractual relationships or employment relationships) would be enforceable if such restrictions were reasonable and proportionate. The burden in this case is on Castleford to prove this.
Has a precedent already been set?
Commentators have suggested that if the case does proceed to Court it could provide a landmark decision akin to the Bosman case in 1995 in which a footballer, Jean-Marc Bosman, was permitted to leave his club prior to the expiration of his contract.
It is important to point out that we are yet to learn the fine detail in the case. However, in such cases, it usually advisable for the parties to explore a swift out-of-court resolution to the dispute. If they can’t strike a deal then they may have to embark on a high profile, adversarial and costly legal battle.
Our knowledgeable commercial team, provides extensive advice to businesses when dealing with such cases or the drafting of contracts. We can advise you fully regarding the implications of any restrictive covenants and the steps you can take to protect your business. Speak to our specialists on 01616 966 229