Bournemouth and Boscombe Athletic Football Club and Co Ltd v Manchester United Football Club Ltd 1980

SlowDownDerek

SlowDownDerek

UTC Legend
Not stealing Billy's thunder...

Looking through some legal cases for an unrelated work thing (rock-'n'-roll Sunday I know) and I stumbled across this, which I've never heard of before.

Man United appealled to the Court of Appeal over a previous decision to award AFCB part of a top-up fee from the Ted MacDougall transfer - spoiler alert: cherries win 2-1 - Obviously an omen for Wednesday.

Before my time - was this court case widely known at the time?

I can't link it because it's a paywall site but the decision is public record and is quite a funny discussion when legal people talk football.

Warning: long read so may only interest people who are already bored of reading leagal cases all day. There's apparently a 1,000 word limit so I'll have to do it in parts.

Bournemouth and Boscombe Athletic Football Club and Co Ltd v Manchester United Football Club Ltd

1980 Court of Appeal
LORD DENNING MR

Football is a great industry in this country. Football clubs are like traders. They buy and sell their players. In this particular case, The Bournemouth Football Club sold one of their best players, Mr. Edward MacDougall, to Manchester United Football Club for about £200,000.£175,000 was paid. The remaining £25,000 was to be paid when Mr. MacDougall had scored 20 goals for Manchester United.
Mr. MacDougall did not score 20 goals for Manchester United. Yet the Bournemouth club claims to be entitled to the extre £25,000. Can they get it?
Mr. Edward MacDougall was a first-class player. Bournemouth were in the third division when he played for them. He scored 126 goals in 166 matches for them. In 1972Mr. O'Farrell, the manager of Manchester United, had his eye on Mr. MacDougall. As Manchester United were rather in the doldrums - they were in danger of being relagated to the second division - Mr. O'Farrell wanted to strengthen the Manchester United team. So he approached the Bournemouth club with a view to obtaining the services of Mr. Edward MacDougall. A round sum of £200,000 was agreed for the transfer, but Manchester United wanted to be sure of Mr. MacDougall's performance with them. So they put in a special clause under which they would pay £175,000 straight away but the extra £25,000 would only be paid after Mr. MacDougall had scored 20 goals.
I will not go into the oral conversations. A great deal of this case depends on he written contract dated the 27th September, 1972, which was signed both by the Bournemouth and the Manchester United clubs. It said:
"We hereby agree to the transfer of EDWARD JOHN MACDOUGALL from Bournemouth and Boscombe Athletic Football Club to Manchester United Football Club for the gross fee of £194,445... the financial arrangements to be as follows:- 5% Levy to the Football League to be paid by Manchester United 5% Levy to the Player to be paid by Manchester United £100,000 to be paid to Bournemouth & Boscombe F.C. on completion of the registration of the Player £75,000 to be paid to Bournemouth & Boscombe F.C. on the 1st June 1973".
This is the important clause:
"It is further agreed that Manchester United F.C. will pay a further sum of £27,777 to Bournemouth & Boscombe F.C. when Edward MacDougall has scored 20 goals in first team competitive football for Manchester United, of which 5% will be paid to the Football League and 5% to the player by Manchester United F.C.". The extra 10% accounts for the excess over £25,000.
Mr. O'Farrell was the manager of the Manchester United Football Club at that time. He negotiated the agreement for Manchester United. Mr. MacDougall started playing for the club. All went well from October until December. He scored four goals in 11 matches. That was quite good going. He was what is called a "striker". He worked in parallel with Wyn Davies. They were the two "strikers". They both did quite well during the time that Mr. O'Farrell was the manager.

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The critical point in the case comes on the 19th December, 1972. Mr. O'Farrell, the manager, was summarily dismissed by Manchester United. We do not know the rights or wrongs of it, and it is not necessary to go into it. But he was summarily dismissed then and there: and his place as manager was taken by Mr. Tommy Docherty. Mr. Tommy Docherty took over on Friday, 22nd December, 1972.It is important to note the consequences. On the 23rd December - the next day - Manchester United played Leeds. Mr. MacDougall scored a goal during that match. On the 26th December - Boxing Day - they played Derby, and lost. Mr. MacDougall scored no goals in that match. Then, on the 29th December, after having played in only those two matches, Mr. Docherty dropped Mr. MacDougall for a friendly match for the next day, the 30th December.
Now there is very strong evidence that, almost as soon as he took over, Mr. Docherty had let it be known that Edward MacDougall was up for sale. There were telephone communications on the 29th December between Mr. Tommy Docherty and Mr. Harris of Sheffield United in which Mr. Docherty said that he was ready to sell Mr. MacDougall to Sheffield United if a suitable price could be arranged. By Monday, 2nd January, three other offers had come in for Mr. MacDougall - one from West Ham United: another from Brighton: another from Crystal Palace. Those offers were in the £140,000 to £160,000 range. They were reported to the directors on that Monday.
Those dates are very important because they bear out the finding of the judge: that the whole sitiuation was transformed by the appointment of Mr. Docherty as manager of Manchester United. He determined to get rid of Edward MacDougall. A transfer was eventually arranged with West Ham by the end of February. The price was £170,000. During the intervening period Mr. MacDougall did badly. Under Mr.Docherty's managership he only scored one goal in seven matches.
What was the reason for it all? What was the reason for Mr. MacDougall leaving Manchester United? This is what the judge found (page 6 of his judgment):
"It is necessary that I should decide what the real reason was for MacDougall leaving Manchester United. I have no doubt that it was because Docherty had decided, which as the new manager he was entitled to do, that MacDougall had no place in his scheme of things for Manchester United. Docherty was intent on building a team which he felt was required for Manchester United, and in the course of doing so spent just under £500,000". Later on the judge said (page 14):
"... the real reason for his transfer was, in my view, that after Docherty took over there was no future for MacDougall with Manchester United and that Docherty made up his mind to transfer him when the time was ripe".
It seems to me, on the evidence, that those findings of the judge were right. The whole situation was transformed when Mr. Docherty became manager. From the outset Mr. Docherty had made up his mind that there was no place in Manchester United for Edward MacDougall, and the sooner he was transferred the better.
Seeing that he was transferred so soon, he had not scored his 20 goals. So the extra £25,000 was not strictly payable. Yet Bournemouth say that they are entitled to it. The question arises - and this is important - as to whether there was an implied term in this contract: and, if so, in what way it related to the engagement of Mr. MacDougall. It is now settled by the House of Lords that it is not sufficient for it to be a reasonable term: it has to be a necessary term such that a bystander would say that it must be so, see Trollope & Colls Ltd. v. North West Metropolitan Regional Hospital Board[1973] 1 WLR 601 [1973] 2 All ER 260; Liverpool City Council v. Irwin [1977] AC 239, [1976] 2 WLR 562. The general principle is established, but the application of it depends on each particular contract in every case.
We were given many illustrations to test the position.
A good illustration was given by Lord Justice Donaldson. Suppose that Mr. MacDougall had done exceedingly well for Manchester United. Suppose he had scored 18 goals, and then another club, such as Arsenal, had offered £250,000 for him: and Manchester United had accepted that offer. Could Manchester United, in those circumstances, refuse to pay the £25,000 to Bournemouth because Mr. MacDougall had not scored 20 goals? The answer surely is that they could not. They could not, by their own action in selling Mr. MacDougall at a higher price, deprive Bournemouth of their dues under the contract.
The implied term can be put in many ways. One way was that Manchester United were bound to afford Mr. MacDougall a reasonable opportunity of scoring 20 goals in first team competitive football for the defendants. That was a term which the judge was ready to imply. He held that Manchester United had not afforded Mr. MacDougall a reasonable opportunity of scoring 20 goals. Another way of formulatingan implied term was put by Lord Justice Brighton in the course of the argument. It was that Manchester United would not transfer Mr. MacDougall without just cause so as to deprive Bournemouth of their dues of £25,000. Whichever way it is put, I think there was a breach by Manchester United of an implied term.

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Alternatively there can be said to be a condition that Manchester United would do nothing to prevent the Bournemouth club from earning the £25,000. I need only refer to the cases cited to us by Mr. Crowther such as M'Intyre v. Belcher (1863) 14 Common Bench Reports 654; Telegraph Despatch & Intelligence Co. v. McLean (1873) Law Reports, 8 Chancery Appeal Cases 658. In those cases there was an implied term that they would not, without reasonable cause, do anything to prevent the earning or the receipt of the money.
Another way of putting the position is to be found in Stirling v. Maitland (1864) 5 Best & Smith's Reports 840, where Chief Justice Cockburn said at page 852:
"I look on the law to be that, if a party enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative". That passage was cited and approved by Lord Atkin in Southern Foundries Ltd. v. Shirlaw [1940] AC 701 at page 717.
But, whichever way it is put, it seems to me that the conduct of the Manchester United Football Club, through their management, in determining to transfer Edward MacDougall, as they did, without any reasonable cause - straight away, and thus depriving Bournemouth of the £25,000 - was a breach of contract.
We were referred to the "commission" cases, culminating in Luxor (Eastbourne) Ltd. v. Cooper [1941] AC 108. I can well understand that in the case of a commission agent, who is getting money as an ancilliary or subordinate step to the continuance of a business, there is no implied term that the business will continue. That is well-established by a whole series of cases. That seems to me to be entirely different from this case where, so to speak, an asset is being sold in return for payment. In those circumstances, the person who has to pay the money must not do anything by himself to reduce the value of the asset - so as to prevent the proper amount being paid.
So the Bournemouth club are entitled to damages for breach of contract. The judge did not award the full sum of £25,000. He reduced it a little because Mr. MacDougall might have had an injury which disabled him from scoring 20 goals. That was quite right.

For these reasons, which are substantially those given by the judge, I would dismiss the appeal.
 
Was it well publicised at the time? Can't say I knew about it.

On the evidence I think it could easily have gone the other way.
 
yeah, I vaguely remember it. United appealed the ruling and lost and it took ages for the club to get the money which as Rob says was £22, 000. I believe the club had to threaten to send the bailiffs in to force them to pay.
 
Didn't Docherty get them relegated after he sold Ted?

This is my favourite bit from the case:

"All went well from October until December. He scored four goals in 11 matches. That was quite good going. He was what is called a "striker". He worked in parallel with Wyn Davies. They were the two "strikers". They both did quite well" :gent:
 
It was certainly reported in the Echo. I remember a picture of Harold Walker celebrating outside the court as if he had won the lottery and saved the club!
 
Just checked this out in Ted Macs book "MacDouGOAL" (published a year or so ago and highly recommended).
Page 224 tells the tale.
AFCB wanted £25K and won the case, Utd appealed and lost, judge awarded us £22,261 plus costs in late 1978. United eventually paid up in Aug 1980.
 
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