The pressure on sports club doctors has never been greater.
Footballers in particular are multi-million pound assets for their clubs in what has become a vast business environment. The consequences of an in-game substitution, or the temporary loss of a player undergoing treatment, may be seen as catastrophic by the manager and fans, but the interests of the player must prevail – even where that player is reluctant to come off the field and, in effect, needs protection from himself. Stripping away the glamour of a job carried out on the most public of stages, the club doctor's role and responsibilities can at times seem overwhelming.
The on-going saga surrounding Chelsea FC's doctor Eva Carneiro shows how the axiomatic principles of a doctor's duty to his or her patient have become strained in this environment.
Carneiro was publicly criticised by manager José Mourinho for going on to the pitch to treat the injured midfielder Eden Hazard, in a game when Chelsea had already been reduced to 10 men. Carneiro and the club physiotherapist had been waved on by the match referee, but Mourinho later called their intervention, which led to Hazard having to leave the field, 'impulsive and naïve'.
Carneiro was subsequently demoted from her senior position on the medical bench and, reportedly, barred from attending training sessions. She has now left Chelsea, with speculation rife that she may bring a claim for constructive dismissal.
Where the buck stops
The increasing burdens placed on football and rugby club doctors, by managers and club owners, are accompanied by tightening of the rules to promote player safety. Following a slew of on-field scandals, protocols to safeguard injured players from concussion injury are being reviewed; news is awaited on the establishment of a Football Association panel of medical experts to consider concussion in the sport.
Club doctors will play a central role in ensuring compliance with the new regime.
A deluge of litigation in the American NFL and other leagues offers a vision of the future if these safeguards are not implemented, and this has implications for clubs, their insurers and governing bodies keen to avoid high-value negligence claims.
The case of Eva Carneiro is a reminder of the unusual triangular relationship between doctor, player and club, and raises the question of where responsibility ultimately lies. There is a clear risk of conflicts of interest arising – some rugby club doctors will take out their radio earpieces when treating a player on the field, to avoid any interference with their clinical judgement from the dugout. Ultimately, a doctor has a primary responsibility to his or her patient, irrespective of the source and context of his employer's instructions.
Employment law in the beautiful game
As employers, a club will normally be vicariously liable for the actions, and any failures, of its club doctors. This issue arose in the tragic case of Rad Hamed, the Tottenham Hotspur youth team player whose cardiac abnormality went undiagnosed until he collapsed on the pitch and suffered severe brain damage – liability was apportioned 70% to the club (shared with its employed doctors), and 30% to the external cardiologist. Arguments were also raised about the club's direct duty to the player as his employer - an employer has a duty to ensure that its employees are fit to undertake the tasks they are contractually employed to perform.
The question of whether the club's treatment of Carneiro constituted a repudiatory breach of her contract – that is, a breach so serious that it entitles Carneiro to treat her resignation as a dismissal – would depend on the nature of the club's conduct, Caneiro's subsequent reaction and the terms of the contract. Examples of successful constructive dismissal claims against football clubs include cases where employees' earnings have been reduced without any contractual right to do so; where a financial penalty has been imposed that is not proportionate to any failing; or where an employee has been demoted or suspended without justification.
In the reported case of Keegan v Newcastle United Football Club (2010), Kevin Keegan argued, before the Premier League Managers Arbitration Tribunal, that he had been constructively dismissed. The then director of football at the club, Dennis Wise, bought a player, Ignacio Gonzalez, against Keegan's express wishes as club manager; the Tribunal found in favour of Keegan, ruling that his contract with the club contained a term by which the final decision on purchasing players rested with him as manager. Keegan had been entitled to leave the club in the face of their breach of this term.
In McBride v Falkirk Football & Athletic Club (2012), the director of the club's youth academy had a power in his contract with the club to select the under-19 side without requiring approval of the first team manager, James McBride. As first-team manager, McBride claimed that his position had been made untenable and walked out. The Employment Appeal Tribunal found that McBride had been constructively dismissed. In its judgment, the EAT said that:
'… an autocratic style of management is the norm in football but … an employer (club) cannot pray in aid that he and others in his industry treat all employees badly and therefore treating an employee badly cannot amount to a breach of the duty to maintain trust and confidence.'
Carneiro would surely have felt that she would have failed in her duty of care to Hazard if she had not interrupted the game in order to treat him. As such, she was complying with her ethical and professional duty to the player as her 'patient' – she was also obeying the rules of the sport, responding to the orders of the referee. Arguably, a club doctor's regulatory body, the General Medical Council, may have something to say if non-medical interests are allowed to prevail over the obligation to treat the patient. The code of conduct for club doctors, to be introduced by FIFA, is long overdue.
Club doctors can find themselves the subject of claims, from players and clubs, for misdiagnosis or failure to treat injuries. The media coverage of the Carneiro case has understandably featured round condemnation of Chelsea's hasty reaction in demoting her, and what happens next will shed light on the nature of the player-doctor-club relationship. It is a reminder of the pressures faced by club doctors, conscious of their professional duty to the player, which overrides the duty to the club employing them. We are not privy to the terms of the contract between Carneiro and the club, but it would be surprising if the club had given itself the power to override the duty that a doctor owes to players.
Despite the high-profile and eye-watering financial sums at stake in the football industry, players must be able to expect the same duties of care from their doctors as would any other patients. There can be no buy-out clause from these responsibilities.