Carlos Tevez’s apparent refusal to come on for Manchester City as a substitute against Bayern Munich on Tuesday night has led to widespread condemnation but the incident has also led to a very interesting analysis of the legal obligations contained within a football player’s contract of employment and how footballer’s can potentially breach those obligations.
So, what obligations within his contract did Carlos Tevez potentially breach?
Premier League Rule K10 provides for a premiership player’s contract with a club to be in a standard format prescribed by the Premier League. Clause 3 of the standard contract imposes a number of obligations on players but, in relation to the Tevez incident, a player is obliged “when directed by an authorised official of the Club”:
a) “To participate in any matches in which he is selected to play for the Club” (Clause 184.108.40.206); and
b) “To comply with and act in accordance with all lawful instructions of any authorised official of the Club” (Clause 3.1.6)
Roberto Mancini, as manager of Manchester City, is undoubtedly an authorised official of the club and so if it is proved that Tevez refused to come on as a substitute following Mancini’s order, then Tevez is clearly in breach of these obligations.
Are Manchester City Entitled To Terminate?
In order to determine whether an employer can terminate an employees contract, it is necessary to first look into the actual contract to ascertain the instances when an employer can dismiss an employee.
Clause 10 of the standard Premier League contract says “the club is entitled to terminate the employment of the Player by fourteen days’ notice in writing to the Player if the Player:
10.1.1 shall be guilty of Gross Misconduct;
10.1.2 shall fail to heed any final written warning given under the provisions of Part 1 of Schedule 1 hereto; or
10.1.3 is convicted of any criminal offence where the punishment consists of a sentence of imprisonment of three months or more (which is not suspended).”
The only provision relevant to the Carlos Tevez incident is Clause 10.1.1, gross misconduct. Gross misconduct is defined in the standard Premier League contract as “serious or persistent conduct behaviour activity or omission by the Player involving one or more of the following:
(a) theft or fraud;
(b) deliberate and serious damage to the Club’s property;
(c) use or possession of or trafficking in a Prohibited Substance;
(d) incapacity through alcohol affecting the Player’s performance as a player;
(e) breach of or failure to comply with of any of the terms of this contract or such other similar or equivalent serious or persistent conduct behaviour activity or omission by the Player which the Board reasonably considers to amount to gross misconduct.”
The relevant clause here is Clause (e) and the question is whether it is reasonable for Manchester City to consider Tevez’s potential breach of contract i.e. his apparent refusal to come on as a substitute as amounting to gross misconduct.
During the past week, there has been much legal opinion on whether a refusal to play amounted to gross misconduct. Ian Lynam, a partner at Charles Russell’s sports law group doubts whether it would. Speaking to the Daily Telegraph’s Paul Kelso, Lynam said:
“Tevez’s refusal is clearly a breach of contract but is it so serious a breach as to represent gross misconduct? The general position from case law is that one act of disobedience by an employee can justify dismissal only if it demonstrates that the employee is repudiating the contract,”
A repudiatory breach is one that is so fundamental and serious it would entitle the aggrieved party, in this case Manchester City, to terminate the contract. Carlos Tevez is after all employed by Manchester City to play football and so if he refused to carry out his obligation to play football, this is arguably a fundamental breach that would entitle Manchester City to terminate Tevez’s contract.
However, Tevez was very quick to deny that he refused to come on as a substitute, describing the episode as a “misunderstanding”. Manchester City would therefore be best advised to tread extremely carefully and ensure first and foremost that their facts are correct before deciding whether they are justified to terminate.
If Manchester City do choose to dismiss Carlos Tevez and terminate his contract, the club also have the option of taking action against Tevez for any losses they have incurred as a result of his breach of contract. This is providing they are justified in terminating Tevez’s contract. Undoubtedly, the market value of Carlos Tevez would have fallen as a result of his actions and so the loss that Manchester City are likely to incur is this reduction in transfer value as a direct result of any potential breach of contract.
Comparisons have been made between the case of Carlos Tevez and Adrian Mutu however it is doubtful whether Tevez’s potential breach of contract is as serious as Mutu’s was. The use of a prohibited substance is included as one of the examples of gross misconduct in the standard Premier League contract and use of a class A drug is undoubtedly a fundamental breach of a footballer’s contract whilst a refusal to come on as a substitute is not as clear-cut.
Manchester City have confirmed that Tevez has been suspended for the maximum period of 14 days pursuant to the disciplinary procedure contained within Schedule 1 Part 1 of the standard Premier League contract. This is to “ensure that the Club behaves fairly in investigating and dealing with allegations of unacceptable conduct with a view to helping and encouraging all employees of the Club to achieve and maintain appropriate standards of conduct and performance.”
Whilst Tevez is suspended, “his contract will continue together with all the Player’s rights under it including the payment of the Player’s remuneration and benefits but during the period of suspension the Player will not be entitled to access to any of the Club’s premises except at the prior request or with the prior consent of the Club.” (Paragraph 3.1 of Part 1 Schedule 1 of the standard Premier League contract).
During this investigation, Manchester City will need to ascertain whether Tevez actually refused to come on as a substitute and, if so, assess whether this potential breach of contract justifies termination of his contract. Manchester City must also carefully consider the possible claim that Tevez may bring for unfair dismissal if they were to unjustifiably terminate his contract.
Manchester City may want to make an example of Tevez by terminating his contract and potentially suing him for loss of transfer value but such an action would be a big risk. This is especially considering the fact that once the player’s contract is terminated, the Club is obliged to release the Player’s registration (Clause 10.6 of the standard Premier League contract) and so would be prohibited from selling the player. The safer option for Manchester City is therefore to sell the player in the January transfer window and recover what they can financially.