At a rare moment when Manchester City are struggling on the pitch, they have also been dealt a defeat off it.
Benjamin Mendy, their former defender, has won the main part of his employment tribunal against the club which saw him claim £11million ($14.2m) in unpaid wages.
The hearing was told City stopped paying Mendy’s wages in September 2021, a month after he had been charged with multiple counts of rape and one of sexual assault. He was later cleared of all criminal charges.
Mendy argued City unlawfully withdrew his salary from that moment until his contract expired in June 2023 and, on Wednesday morning, Judge Joanne Dunlop ruled he was entitled to recover most of the sums claimed — around £8.5million.
We examine the details of her judgment and what the implications could be for the game.
What was the case about?
In the evidence he presented to the tribunal, Mendy, who joined City from Monaco of France’s Ligue 1 for £52million in the summer of 2017, revealed his six-year contract with the Premier League side was worth £6m a year.
The tribunal heard how this was topped up by various bonuses, including a minimum £1.2million in image-rights payments every year, a further £900,000 appearance bonus if he featured in 60 per cent of City’s matches and a one-off payment of £1m if they reached the Champions League. He would have received another £700,000 from winning the Champions League, £350,000 for the Premier League, £100,000 for the FA Cup and £50,000 for any of the League Cup, UEFA Super Cup or the Club World Cup.
In her written judgment, Judge Dunlop said Mendy had developed “a taste and habit for ‘partying’, a euphemistic term which, in Mr Mendy’s case included having frequent casual sexual encounters with different women, often women whom he had only just met”.
She added: “As his fame and earnings increased, opportunities for partying, and casual sex, similarly increased.”
Mendy was initially arrested, in November 2020, on an allegation of rape but was released under investigation. In January 2021, he was arrested for a second time, following sexual allegations made by a different woman, and was released on bail, conditional on him not holding parties at his home. However, Mendy continued to hold and attend parties, breaching both Covid-19 restrictions and those related to his bail.
He was arrested again on a rape allegation on August 25, 2021. The next day, Mendy was charged with multiple sexual offences and held in police custody. He was suspended by City at that time, and also suspended by England’s Football Association, which had acted — according to the judgment — due to one of the complainants in the criminal case being aged 17 at the time of the alleged offences. Mendy’s ban was, effectively, a safeguarding measure.
The following month, on September 28, City stopped paying his wages.
Mendy was cleared at trial of six rapes and one sexual assault in January 2023, with a re-trial ordered on two further charges — one of rape and another of attempted rape. After having been again granted bail, he was found not guilty of those charges in July last year.
His City contract having expired on June 30 last year, he moved on a free transfer to French club Lorient, and made 15 league appearances for them as they were relegated to the second division at the end of the 2023-24 season.
Benjamin Mendy now plays for Lorient (Loic VenanceE/AFP via Getty Images)
What did Mendy argue?
Mendy, who was represented by sports lawyer Nick De Marco KC, argued that nothing in his contract permitted City to stop paying him in September 2021.
His case was predicated on him wanting to fulfil his obligations to the club but that he faced an “unavoidable impediment” in doing so due to the bail conditions imposed on him — which, in January 2023, were extended to being unable to enter the County of Greater Manchester within the area surrounded by the M60 motorway, which covered City’s stadium and training ground — and the FA’s suspension.
In her written judgment, Judge Dunlop described Mendy as believing “that he is an innocent man whose career has been ruined, and life blighted, by false sexual allegations and that the football club which brought him to this country effectively abandoned him in his hour of need”.
During the hearing, Mendy said City’s refusal to pay him “very nearly made me bankrupt” and that he was forced to rely on the support of team-mates to fund his legal fees. He told how he “struggled to pay child support” when City stopped his wages.
Mendy felt he had been unfairly targeted when other City players had attended the parties, referencing an article by The Athletic that named team-mates including Riyad Mahrez, Raheem Sterling, Jack Grealish, Kyle Walker and John Stones as having been at the same gatherings.
He also flagged the case of then Manchester United striker Mason Greenwood as an example where other players had been granted preferential treatment from the FA and their club, as The Athletic previously reported.
Mendy won three Premier League titles with City (Dave Thompson – Pool/Getty Images)
What did City argue?
In her judgment, Judge Dunlop set out City’s case as being “that Mr Mendy largely brought his troubles upon himself and ignored sensible advice and warning after warning in his self-destructive pursuit of his chosen lifestyle”.
City argued they could not involve Mendy in training and matches because of his FA suspension, the time he was in police custody and his bail conditions, and that those “full impediments” were a result of the player’s behaviour.
During the hearing, Sean Jones KC, City’s lawyer, said that despite repeated warnings about his conduct, Mendy kept partying and “was asking to be locked up”.
Why did Mendy win most of his money back?
Judge Dunlop ruled that City were entitled to withhold payment during the two periods when Mendy was held in police custody – September 1, 2021 to January 7, 2022, and December 30, 2022 to January 17, 2023.
Her rationale for this was that Mendy had effectively made it impossible for him to complete the terms of his employment contract by breaching his bail conditions. This, she decided, was “a culpable conduct which could be separated from the underlying criminal allegations”.
However, she ruled that Mendy was “ready and willing” to work for the remaining period outside custody — around 17 months, equating to around £8.5million of the £11m he was claiming — and was prevented from doing so by impediments which were “unavoidable or involuntary on his part”.
Specifically, these impediments were the FA suspension — which the judgment press summary noted “was precautionary rather than punitive” and did not lead to any misconduct charges — and Mendy’s bail conditions, which had been indirectly influenced by the FA’s decision to suspend him.
Crucially, Judge Dunlop also highlighted that the lack of specific provision in Mendy’s contract for City to withhold wages in the event of an FA suspension or bail conditions preventing him from working “was an important part of the reason for this decision”.
She added: “In those circumstances, and absent any authorisation in the contract for the employer to withhold pay, he was entitled to be paid.”
Judge Dunlop said the exact amount of money to be paid to Mendy must be calculated by his legal team and City, or at another tribunal hearing if no agreement can be reached.
Has Mendy responded?
Shortly after the ruling, Mendy put out a statement on X:
Statement. pic.twitter.com/9EgsM2jQM7
— Benjamin Mendy (@benmendy23) November 6, 2024
Have City responded?
The Athletic has approached the club for comment, but there has been no formal response to the ruling.
“It will be interesting to see if Manchester City appeal it, because in other litigation that they’ve been party to, we’ve seen a rather no-expense-spared approach to litigation,” Dan Chapman, partner and head of sport and employment at Leathes Prior, told The Athletic.
“This was an employment tribunal decision and that really is the first rung of the legal ladder. They may seek to appeal it to the employment appeals tribunal and from there, there are further appeal routes, up to the potential Court of Appeal and Supreme Court.
“They’ve got to establish a basis for that appeal, though, and I’m not entirely clear what it could be.”
What was the legal reaction and what could be the implications for football?
Legal experts spoken to by The Athletic were not surprised by the outcome, with Chapman observing that footballers’ contracts are weighted heavily in their favour, which means there are only very small exceptions where, legally, a club cannot pay them.
“I think City either took the view that, ‘Morally, we don’t think we should pay him, and therefore we’re not going to and we’re going to disregard what the contract says and we’ll take our chances’, or they misunderstood the position,” Chapman said. “I don’t think this outcome legally is a surprise.”
He added: “I think clubs are already aware there are very, very limited circumstances in which they are able to not pay a player. So the unusual feature of the case isn’t the outcome, it’s the fact City didn’t pay Mendy.”
One key question relates to Judge Dunlop’s highlighting of the lack of provision in Mendy’s contract to withhold wages in the event of an FA suspension.
“Clubs might look at this and think, ‘Hang on, the FA can suspend one of our players, innocent or guilty of a criminal offence, the criminal legal system can take a long time, so is it right that we as a club should have to pay for a player that we cannot play?’,” Chapman said.
“Some clubs lower down the leagues will be thinking do they need to talk to the FA about this? If the FA are going to suspend people who are saying they are innocent of a criminal offence, are the FA going to put their hands in their pockets and cover their wages during that time?
“If the contracts aren’t changed, and I don’t see why the PFA (the Professional Footballers’ Association — their trade union in the English game) would be motivated to weaken the protection the players have, I think the FA may think more carefully before suspending players who have been accused of a criminal offence who maintain they are innocent.”
(Top photo: Oli Scarff/AFP via Getty Images)
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