On what grounds can contracts be terminated following Papy Djilobodji’s sacking?

It has been widely reported that Sunderland AFC have terminated the contract of their Senegalese defender, Papy Djilobodji, with immediate effect after he reported back late for pre-season training and then failed a fitness test.

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On what grounds can contracts be terminated following Papy Djilobodji’s sacking?

It has been widely reported that Sunderland AFC have terminated the contract of their Senegalese defender, Papy Djilobodji, with immediate effect after he reported back late for pre-season training and then failed a fitness test.

It is understood that Sunderland are currently taking advice as to the possibility of the Club suing Djilobodji on the alleged grounds of Djilobodji “deliberately devaluing” his worth. This follows the defender failing to report in adequate physical condition to undertake the work that he is employed for, i.e., play professional football.

Taking aside the employment aspect of this matter (which I am sure my employment colleagues would be happy to debate), it seems that, in contractual terms; Sunderland will be seeking to rely on Djilobodji’s repudiatory breach of contract.

If a repudiatory breach is accepted, the aggrieved party may also claim for damages. In this instance there appears to be a possibility that Sunderland would seek to recover any lost transfer fees that may have been available had Djilobodji been contracted to perform his duties in accordance with his contract.

In brief, the common law allows a contacting party to terminate a contract on the grounds of a serious breach including the following:

  1. Breach of a condition. An example of a condition could be a “time of the essence” clause setting out a deadline for performing certain works.
  2. Breach of an innominate term, also known as a breach of an intermediate term. If a breach deprives a party of substantially all of the benefits of the contract, the aggrieved party may be able to terminate on this basis.
  3. Renunciation. This is where one party shows an intention not to perform or explicitly declares that it will not perform obligations under the contract.
  4. Impossibility. This applies where one party has disabled itself from performing its obligations in some essential respect.

Of course, in these circumstances, we are not aware of the terms of Djilobodji’s contract with Sunderland. However, it seems that they will be relying on his failure to report to pre-season training and subsequent apparent lack of fitness as constituting a repudiatory breach, on the basis that he was not in a position to provide the services required under the contract.

Alternatively, they may argue that Djilobodji has renounced the contract by showing an intention not to perform the essential services. The position may be complicated by the fact that Sunderland are likely to benefit from not having to pay Djilobodji’s reported £32,000 a week wages.

It will be interesting to see how this story plays out.

Andrew Broadbent is an associate in Keebles litigation and dispute resolution team. He specialises in dealing with commercial disputes in various divisions of the High Court and County Court and is contactable on 0114 252 1416 or andrew.broadbent@keebles.com

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