When settlement isn’t settlement

24 August, 2017
by: Cripps Pemberton Greenish

Despite entering into a settlement agreement an England footballer speaks out making serious allegations against the manager of England’s women’s football team.

Eni Aluko one of England’s top female footballers, who also happens to be a qualified lawyer, is reported to have entered into a settlement agreement with the Football Association (FA) prior to the European Championships 2017 (EC).

Allegations of discrimination in professional football are not unheard of as reported previously: Substantial payment to former member of backroom staff and £2 million payout to former player

The general principle of entering into a settlement agreement is that in return for the payment of a sum an employee waives any and all employment related claims (subject to a few exceptions) against the employer (and any group companies).

Importantly, it is normally a condition of a settlement agreement that its terms are confidential and that neither party shall make any comments to the detriment of the other party.  

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In the event of any such breach a settlement agreement will often provide that the employee shall indemnity the employer for any losses suffered resulting from that breach.

Further, in the event the employee commences an Employment Tribunal claim the agreement will often state that the employer can offset the sums it has paid to the employee under the agreement against any award.

So, why has Aluko spoken out?

On the face of it Aluko accepted a sum of £80,000 in return for not bringing any claims against the FA in an Employment Tribunal.

Interestingly, as reported by the BBC Aluko believed she had a strong case and rather than accepting the payment to avoid disrupting the England team’s participation at the EC did so on the basis it is what she believed she may have received from an Employment Tribunal.

In contrast, again according to the BBC, the FA’s position is that the payment was to avoid disruption to the team’s EC campaign and Aluko was not gagged but was free to speak out. This appears in part supported by the Telegraph’s article which states the FA has given its consent to Aluko speaking out.

A slight twist in the tale is Aluko’s interview with the Guardian  where she appears to explain away the mystery as to why she has spoken out now. Aluko claims that one of the terms of her agreement was that she could not speak about the matter unless it became public – which conflicts with the FA’s position that she was always free to speak out. 

The matter raises some interesting questions, including:

  • How did the matter get into the public domain? Who was privy to the terms of the settlement agreement? 
  • If Aluko was always free to speak out, why did the FA enter into a settlement agreement paying Aluko £80,000 knowing that the allegations could be made public at a later date?
  • If the FA’s intention was to protect the team’s EC campaign, it is possible the settlement agreement permitted Aluko to comment publicly after a certain date – If this is the case, it could be that the FA had always acknowledged the severity of the allegations, but may not have fully considered the negative publicity?