Burnley Football Club confirmed in October that their captain, Ben Mee, had tested positive for Covid-19. This made him unavailable for selection for at least 10 days, forcing him to miss several important games for the club. The news of Mee’s positive test came after the BBC reported earlier this month that fewer than half of the players at most Premier League and English Football League clubs have been fully vaccinated.
Joseph Lappin looks at some of the issues football clubs will need to consider in developing their vaccination policies as the winter months approach and infection rates are expected to rise.
The scientific data is clear. Those who are double vaccinated are less likely to contract Covid-19 and are less likely to become seriously ill should they contract the virus. Therefore, it is no surprise that managers and those running football clubs are keen for their playing squads to be fully vaccinated.
Football players are employees, but they are also expensive commodities. Many football clubs, especially those playing in the Football League, cannot afford to have a sizeable number of the playing squad unavailable for selection.
Managers of several Premier League clubs, including Mikel Arteta (Arsenal) and Pep Guardiola (Manchester City), have called on their players to get fully vaccinated.
Guardiola, whose mother died after contracting Covid-19, recently said: “When all the scientists, all the doctors, all the big specialists about medicine say the only solution to eradicate or help to move forward after this two years of pandemic situation is being vaccinated, I think they should consider it.”
After Republic of Ireland forward Callum Robinson recently disclosed he has not been vaccinated and has chosen not to be, manager Stephen Kenny told the media: “There are a lot of myths and a lot of issues around virility that people are concerned about and other issues, and I do think it is complex. I am not a medical expert, but I do trust the experts and I do think it is better to be double-vaccinated.”
The issue of vaccination is a sensitive one. In the UK, vaccination remains a personal choice. Nobody can be compelled to have the vaccine. However, football clubs are exploring the steps they can take to improve vaccination rates among playing staff.
- Find out what percentage of the playing squad has been vaccinated
Some clubs will have a bigger problem than others. Wolverhampton Wanderers, a Premier League club, has confirmed that 100% of its first-team squad has been fully vaccinated. However, the majority of players at most Premier League clubs have not been fully vaccinated, and some clubs have shied away from asking their players to confirm their vaccine status.Clubs must comply with vigorous data protection laws, and data on vaccination will be ‘special category data’ for the purposes of UK GDPR and the Data Protection Act 2018.However, although vaccination data needs more protection because it is sensitive, clubs should be entitled to ask their players if they have received the Covid-19 jab. Collecting this data is likely to be necessary to comply with a club’s health and safety obligations and draw up a vaccine strategy. Footballers work and train together daily, and the health and safety risks of having unvaccinated players engaging in physical training is high. Clubs need to know what their risk level is.
- Encourage players to get jabbed
It looks increasingly unlikely the government will introduce vaccine passports or ‘green passes’ (as introduced in many EU countries). So, English football clubs will not be able to rely on government intervention in the push to drive up vaccination rates among their playing staff. Instead, clubs will want to encourage their players to get jabbed. Most clubs are already doing this. Managers at many top-level clubs have spoken out publicly about the importance of vaccination. Steve Bruce, the Newcastle United manager, recently expressed his desire that “everyone should get jabbed”. Bruce and Middlesbrough manager Neil Warnock have also warned about the danger of conspiracy theories influencing players’ decisions regarding the vaccine. Clubs should run education campaigns for their players highlighting the benefits and risks of getting vaccinated.
- Test, test, test
Overall, football clubs have been good at testing their players regularly. Following the suspension of the 2019/2020 season in March 2020, Project Restart saw the Premier League work closely with the government to resume the Premier League campaign safely. Strict protocols were put in place at clubs’ training grounds, which saw players regularly tested for Covid-19.We consider that testing players regularly, including those who are double vaccinated, is permitted under data protection and employment laws. Like asking players to confirm their vaccination status, regular testing will be proportionate and necessary for clubs to comply with their duty to protect the health and safety of their players and non-playing staff.
- Consider making vaccination a requirement for continued employment
Insisting that all players are vaccinated on health and safety grounds is risky. Despite the push by club owners and managers that players should get jabbed, it is unlikely any Premier League or English Football League clubs will go down this route. We believe this would give rise to complaints (and possibly litigation) by players against clubs. That said, one or two clubs may consider carrying out a risk assessment and decide that the damage caused by an outbreak of Covid-19 among the playing staff could be severe and crippling for the club’s business, especially if they have to cancel games because too many players are unavailable.
These clubs may, therefore, instruct all members of the playing staff to be jabbed. They may even make it a condition of being allowed to train and play and, potentially, a condition of employment. There are several commercial factors football clubs need to consider that employers operating in different industries do not. If a particular member of the playing staff is an integral member of the first team, is a fan favourite, or adds brand value to the club, then a club may not want to marginalise that player or refuse to let them train or play. An unhappy footballer who is not playing can also negatively influence their teammates, affect the player’s chance of international selection, and ultimately reduce their transfer market valuation. Despite the legal risks of doing so, some clubs may take the nuclear step of terminating a player’s contract if they refuse to be vaccinated.
Football clubs should consult with players who refuse to be vaccinated and understand the reasons for their objection before telling them they cannot train or play, taking disciplinary action or terminating their contract.
Some players may have reasonable grounds for refusing the vaccine. For example, some may have a medical condition that means it is dangerous on health grounds to be vaccinated. Others may have religious grounds for refusing the jab. Depending on the reason for the refusal to be vaccinated, players may have protection under the equality legislation, and clubs who subject their players to a detriment or dismiss them for failing to adhere to a form of ‘no jab, no job’ policy could face discrimination complaints.
Clubs should also bear in mind their litigation risks should they pressure a player to be vaccinated, who in turn has a negative response to a jab that causes a serious injury or loss of career.
If a player feels that they are coming under unreasonable pressure to get vaccinated against their wishes, they could resign on the ground that the club has breached trust and confidence between them and claim constructive unfair dismissal (but players will need to have been employed for two years to have unfair dismissal protection).
Any football clubs or players seeking advice on this complex and sensitive issue should contact Joseph Lappin.
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