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By Mike Rowbottom
December 9 – When, a little more than a year after he had managed Derby County to the 1974-75 First Division title, Dave Mackay read a national newspaper story claiming he was to be replaced, his reaction was characteristically defiant. As he admits in his autobiography The Real Mackay (Mainstream, £15.99), he stormed into the boardroom and challenged the club’s directors to deny that they had been behind the article.
When no such denial was forthcoming, Mackay’s response was: “You can stick your job up your arse.”
But after returning to his office, he swiftly realised he could not let matters rest in such a manner.
“I had just jacked in my job,” he wrote. “I had a wife, a family, a mortgage and a dog. By implication, I had committed not just myself but my assistant, Des Anderson, to the dole queue. By resigning, I had forfeited any financial settlement. I jumped back up and burst into the boardroom again. This time the directors looked around for any exit that I was not blocking. ‘I don’t resign. You have to sack me.'”
The experience of this most courageous and combative of sportsmen is emblematic of the calculations football managers have had to make when they have fallen out of favour with their employers.
But an expert in employment law has said this week that he believes the recent successful actions for constructive dismissal brought by Kevin Keegan (pictured) and Alan Curbishley against, respectively, Newcastle United and West Ham, may have altered the sport’s legal landscape for good.
Both men resigned from their positions but subsequently convinced Premier League panels that their employers had effectively broken their contracts, with Keegan winning his case in October, and Curbishley getting his judgement on November 4.
“It may be that outcomes such as these are tipping more managers towards considering their options if they feel their contracts have effectively been breached,” says Will Nash, a specialist on employment law with the corporate legal firm Charles Russell LLP.
“What Keegan and Curbishley have done, in the space of four weeks, has created a template for future managers.
“Essentially they have both said to their clubs, ‘You have fundamentally breached my contract. I can’t carry on working now because of what you have done.’
“While we have seen cases where the owner of a club has brought an action against a manager, as Simon Jordan did at Crystal Palace when Iain Dowie left, this is the first time I can remember when managers have brought constructive dismissal actions against their clubs.
“So while there has been a change in how many clubs manage themselves, bringing in directors of football and devolving responsibility for transfers in a way that has operated on the continent for some years, there has also been a change in attitude about where managers stand.”
Although Keegan, who walked away from St James’ Park in September 2008, only received a £2 million award after seeking £25 million in an action that included ‘stigma damages’, and although Curbishley must wait until next month to hear what the level of compensation will be coming his way, Nash feels they have established an important principle in the relationship between managers and clubs.
“These two took a big financial risk,” Nash says. “Traditionally managers have not wanted to put themselves in the position they did.
“Normally clubs encourage managers to resign by doing a deal with them and getting them to leave by mutual consent. But with both these managers it would seem that the clubs didn’t want them to go.
“The law in this area hasn’t changed much. I just think managers have become more aware of the legal channels they can use. Any manager in the last 30 years could have done the same thing.”
Keegan and Curbishley both claimed that their contracts had effectively been broken over the transfer of players. Keegan, memorably, described the farcical background to Newcastle’s signing on loan of Valencia’s Ignacio Gonzalez, a transfer overseen by the man who had been installed as the club’s director of football, Dennis Wise.
“I resigned because I was being asked to sanction the signing of a player in order to do a favour for two South American agents,” Keegan said. “No one at the club had seen the player play and I was asked to sign him on the basis of some clip on YouTube. This was something I was not prepared to associate with in any way.”
Curbishley (pictured), meanwhile, insisted West Ham broke a clause in his contract confirming that he would have the final say on players being transferred to and from the club.
“The club completely ignored my contract when selling Anton Ferdinand,” Curbishley claimed. “When George McCartney was then sold, the club having given me assurances that no players would be leaving the club after the sale of Ferdinand, I had no alternative but to resign.”
Such circumstances have prompted the League Managers’ Association to comment on the need for clubs to respect contracts.
Curbishley, such an assured figure during the years when he oversaw what many regarded as Charlton Athletic’s regular achievement in punching above their weight, became increasingly irascible in his time at Upton Park, with his normal sang froid once disappearing entirely during a hectoring appearance at a post-match press conference in which he first told reporters to put down their notebooks and then concluded by telling them to report what he had just told them accurately.
It was distressing to witness the change in a man who has always been widely respected in the game, although Curbishley, who is being linked with Premier League clubs once again, swiftly recovered his equilibrium.
It is unwelcome timing for West Ham given the volatile financial situation in which they have found themselves over the past year. But anecdotal evidence suggests that the club’s fans are far from being united in opposition to his case.
“Alan, quite rightly, threw his toys out of the pram when Anton Ferdinand and George McCartney were both sold against his wishes, therefore breaking a vital clause in his contract,” wrote the supporters’ website westham.vitalfootball.co.uk, adding: “Fair points Alan, can we pay you a fiver a week though, we’re a little on the skint side at the moment mate!”
It remains to be seen how close Curbishley’s award is to his expectations. Managers looking to mitigate their losses have to look for new work immediately and the former West Ham and Aston Villa midfielder needs to have convinced the panel he has done this. Awards for constructive dismissal are compensatory to the manager, not punitive against the club.
Nash does not believe that the possible new stance of managers is likely to be replicated in the ranks of the players they manage, however, particularly at Premier League level.
“If players are not happy at a club, perhaps not being played in the first team, they are more likely to look for a move, or if not, to stay in the reserves, because their contracts are so lucrative. If they walk away from a club it may affect their chances of getting another one.”
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