Blue Moon’s painful divorce . . . tip toeing through the legal minefield!
Amidst the chaos and confusion of Manchester City’s 2-0 defeat by Bayern Munich on Wednesday, the claims and counterclaims as to what happened “on the bench” still reverberate around the incident.
As a consequence, City have suspended Carlos Tevez after it was alleged he refused to appear as a substitute. Tevez, 27, who said the dispute was a “misunderstanding”, is banned until further notice for a maximum of two weeks while the club investigate. It is indicated the Club has fined him the maximum two weeks wages (reports suggest this will total around £400,000), but it could seek to take more extreme action, including seeking to sack him for gross misconduct.
Perhaps we can use the title of a Rod Stewart album – “Every Picture Tells a Story” or the common expression “actions speak louder than words!”
The Tevez situation has potential for being a legal minefield that Manchester City will try to tackle. City’s legal team will go through the small print of Tevez’s contract before deciding how to deal with the controversial striker. Chairman Khaldoon al-Mubarak is expected to have the final say on the issue. The club are ensuring any action will not be the subject of appeals by Tevez, as prima-face as the evidence appears to be.
By refusing to play against Bayern Munich Carlos Tevez is effectively in breach of his contract with the club, according to Clause 3.1 of the standard Premier League contract.
Clause 3.1 states: “The Player agrees when directed by an authorised official of the Club to participate in any matches for which he is selected to play for the Club.”
Manchester City would face a difficult task in winning a legal battle against Tevez despite him refusing to play against Bayern Munich. One course of action open to City is that the club could sack the striker for gross misconduct and also sue him for damages in breach of contract but City would have to prove both cases in court.
Did Tévez’s “refusal” constitute gross misconduct? To decide one has to look at Clause 10 of the standard Premier League contract which gives a club the right to sack players for gross misconduct, defined as “serious or persistent” conduct.
Following the summer of discontent between Tevez and City, and his open criticism of the club which brought the club into question, it is unclear if Tevez is subject to ongoing disciplinary proceedings, which together with his refusal to play raises the strong possibility of gross misconduct which would entitle City to sack him.
However before doing so, there are set procedures within a player’s contract, regarding a written warning, then a final written warning and then the last resort of dismissing a player.
Manager Roberto Mancini claims Tevez refused to come on as a substitute in his club’s 2-0 defeat at the Allianz Arena, a version of events later denied by the player, who said his non-appearance midway through the second half was the result of a “misunderstanding”.
The Tevez statement was clearly drafted by his lawyers to try and shore up his legal position, and specifically to deal with the repudiation point. By denying that he refused to take the field, and stating that he “is ready to play when required and to fulfill my obligations” he denies both breach of contract, and makes it appear he intends to fulfill his contract in future.
There is a dispute between Tevez and Mancini as to what actually happened, with Mancini stating that Tevez refused to play and Tevez denying this. The legal position would be decided by what actually happened. Like so many legal disputes that would be down to a tribunal or court hearing evidence and making a decision on what occurred.
If the position as outlined by Mancini is correct, there is the clear case of breach of his contract, although the case could hinge on whether it is deemed to be gross misconduct or a less significant breach.
The difficulty is that although Tevez could be sacked and sued by the club, if they sack him, what is in it for them? By terminating his contract of employment, this would mean he could go out and do what he wants to do, which is sign for another club for no fee and as a consequence (and due to the nature of football) he would demand an even greater “king’s ransom” and undoubtedly some club somewhere would do that!.
As with any claim for breach of contract, City would have to prove that they had suffered some form of loss as a result of Tevez’s breach. The argument and issue which would have to be proved is that if he had gone on the pitch City would have won or drawn and, by getting something out of the game, they would have progressed in the Champions League!
However, realistically such an argument would be impossible to prove given that they were 2-0 down at the time and Mancini had already made one substitution replacing a striker for a midfield player, overlooking Tevez!
With regard to the legal, commercial and practical alternatives open to the club, it would be better for all parties to manage him out of the club as soon as possible and at the highest transfer fee they can get, which may include a percentage of future transfer fees from any “sell on” of the player by a new club. Otherwise, by terminating the contract, City would be surrendering his registration making Tévez a free agent and would be unable to recoup the £43 million spent on purchasing his economic rights from companies controlled by his agent, Kia Joorabchian, in a transfer fee.
There are loose comparisons to the Mutu case several years ago where Chelsea finally won a five-year legal battle against Adrian Mutu last year after suing the player for damages when he tested positive for cocaine. A professional footballer engaging in the taking of Class ‘A’ drugs is about as fundamental a breach of contract as you can imagine. Mutu, through his action, damaged himself as an asset to the company and the value of Chelsea. Chelsea were put in an untenable position and had no option but to terminate his contract and sue the player to recover their losses.
Following his sacking, Mutu played for Fiorentina. Chelsea then sued Mutu for compensation for the loss of the transfer fee they would have received had it not been for his breach of contract. The Court of Arbitration for Sport upheld Chelsea’s claim and Mutu was ultimately ordered to pay Chelsea 17m Euros [£11.5m at the time] for breach of contract.
It could be argued that the Tevez’s fiasco is as a result of a complete breakdown with the club rather than bringing the club in to disrepute through external actions or circumstances.
Should the situation continue to spiral and each party’s attitudes harden, one possibility that has been aired is that Tevez could sue City if he is dropped from the first-team squad and ordered to train with the reserves until he is made available for a transfer in January. However this would be somewhat tenuous because that is the manager’s decision. This however may constitute a breach of FIFA regulations that say players can only be left out on technical grounds, not because of a disagreement between player and coach.
There is a further legal issue if Tevez has been libeled.
If Tevez feels he has been libeled by Mancini’s or the club’s statements in the press, he could argue his reputation has been damaged and therefore he will suffer future loss because he is less marketable as a player. But if there are a number of people on the bench who confirm that what Mancini has said was true, a libel action falls at the first post.
Perhaps the final word should go to our Sports Consultant, Robbie Savage:
Robbie told BBC Sport: “As a footballer, if you are paid £1 or £200,000-a-week, if your manager asks you to go on and do a job for your team, your team-mates and the fans and you refuse to, that is a disgrace. If I was a manager that guy would never kick a ball for me again. It is a complete disrespect to your manager and, more importantly, your team-mates. Carlos Tevez could have altered that game last night because he is a top-class player.”
So watch this space, Sir Alex called City “the noisy neighbours” others may call them the Battersby’s or the Dingles . . . . . but one thing’s for sure, the soap opera will continue to run and never a dull moment!