Gutierrez v Newcastle Utd disability discrimination case: the wider implications for sport

Carol Couse, a Senior Consultant at Mills & Reeve, led the team that acted for Jonas Gutierrez in the matter.  The team also included employment Partner, Richard Santy, Associate, Andrew MacDonald and Sports Law Executive, Tiran Gunawardena.

In what could prove to be a landmark employment law decision for athletes in the UK, Jonas Gutierrez (“the Player”) won a disability discrimination claim against his former club, Newcastle United Football Club (“the Club”), after he successfully argued that the Club had discriminated against him due to his cancer diagnosis.

This article will provide an overview of the tribunal’s decision, outline what made this case unusual in the context of employment related disputes in professional football in the UK and touch upon the possible wider repercussions for sport generally. 

Facts

After originally signing for the Club in July 2008, the Player signed a new four-year contract with the Club (“the Contract”) in September 2011.  The Contract contained a clause providing for an automatic one-year extension (“the Extension Clause”) of the Contract if the Player started 80 Premier League games during the four-year term.

The Player was a regular first team player of the Club for 5 years. However, in Summer 2013, the Player was diagnosed with testicular cancer and required an operation to remove his testicle. He claimed that within a couple of weeks of his return to the Club after receiving treatment, the Club informed him that he was no longer a part of their plans and that he was free to search for a new club. The Club asserted that the Player had been informed before his cancer diagnosis that he did not have a future with the Club and this decision was taken on sporting considerations alone.

When the Contract ended in June 2015, the Player had started in 78 games, i.e. 2 short of the 80 required to trigger the Extension Clause. The Player claimed that his selection for first team Premier League matches had been manipulated to prevent the Extension Clause being triggered due to his cancer. The Player further claimed that he had been treated less favourably by the Club following his cancer diagnosis. In addition, the Club had discretion to extend the Contract but they chose not to do so.

The Player brought a disability discrimination claim against the Club at the Employment Tribunal and argued that the Club had discriminated against him due to his cancer diagnosis. In April 2016, the Employment Tribunal found in the Player’s favour.