Will Diego Costa bring a ‘constructive dismissal’ claim against Chelsea?
At the start of the 2017/18 Premiership Diego Costa remains in Brazil having been given an additional week’s holiday by his club Chelsea.
The Costa Conte stand-off does not, however, appear to be ending any time soon, and may be heading towards a constructive dismissal claim against the club, says law firm Howard Kennedy.
Jake Calvert, a member of Howard Kennedy’s Sports Law team said:
Whilst the specific terms of Costa’s contract are unknown, he may be able to argue that his employer, Chelsea Football Club, is guilty of conduct that amounts to constructive dismissal and thereby entitles him to terminate the contract.
“If he does bring this claim and succeeds he would be free to join any club prepared to pay his wages – including Premier League title rivals - and there would be nothing Chelsea could do to stop him.
Costa's argument could run along the following lines.
Despite scoring 20 Premier League goals and helping his club to the title last season, whilst on international duty in June his manager texted him to say he was no longer in the club's plans. That text evidenced that he was not going to be a part of the club's first team squad and that he would not be afforded the same opportunities as other players. His desirability as a player would decrease substantially; with the World Cup around the corner and several years of football ahead of him, Costa needs to ensure he is, rightly, regarded as one of the top strikers in the world. Being a part of the Chelsea reserves certainly does not aid his cause.
Costa could argue that this, plus the alleged text message, is highly demeaning of a player of his calibre and profile and this breached the mutual trust and confidence between employer and employee. If he were to return to the club, Costa would, he claims, be refused access to the first-team dressing room. In the words of his agent, “This discriminatory behaviour makes it impossible for Diego Costa to return to Chelsea while Antonio Conte is the coach; there is no condition for him to continue playing at Chelsea”.
Costa would need to show that the actions of Conte were so serious that it entitles him to terminate the contract. He would need to be sure not to take any steps to affirm that contract – by, for example, asking Chelsea to continue to pay him.
“That he remains in Brazil and has publicly stated that he is prepared to spend the whole season without being paid by Chelsea certainly indicates that he has been advised on how best to protect his position regarding any claim for constructive dismissal.”
Howard Kennedy has 53 partners and numbers 350 people in total and works alongside national and international clients across many disciplines, including banking, corporate and commercial, family, finance, employment, dispute resolution, intellectual property, private client, real estate and tax. Howard Kennedy has particular focus on the Financial Services, Media and Technology, Real Estate, Retail and Leisure, Sports Individuals sectors, and, through HK One, the firm’s legal concierge service for high net worth individuals with complex legal needs.
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