Carlos Tevez's alleged refusal to come on as a second half substitute for Manchester City against Bayern Munich on 27 September sparked not only a furore in the press but also an interesting legal debate as to what MCFC could (and would) do about it. The situation was fuelled by heated remarks made to the press by Tevez's manager, Roberto Mancini, and the debate has rumbled on with Tevez returning to Argentina and apparently refusing to return for training.
A footballer has a number of duties and obligations to comply with under the terms of the Premier League standard contract. MCFC found Tevez to be in breach of the following 5 terms:
- An obligation to participate in any matches in which the player is selected to play for the club when directed by a club official.
- An obligation to undertake such other duties and to participate in such other activities as are consistent with the performance of the player's duties and as are reasonably required of him.
- An obligation to comply with and act in accordance with all lawful instructions of any authorised official of the club.
- An obligation to observe the statutes and regulations of FIFA and UEFA, the FA Rules, the League Rules, the Code of Practice and the club rules, including but not limited to breach of Rule E3(1) of the FA Rules (obligation on the player at all times to act in the best interests of the game and not act in any manner which is improper or which brings the game into disrepute).
- An obligation not to knowingly or recklessly do anything or omit to do anything which is likely to bring the club or the game of football into disrepute or cause the player or the club to be in breach of the Rules (as defined in the contract) or cause damage to the club.
The contract allows the club the right to terminate the contract if a player is guilty of gross misconduct, which is defined as "serious or persistent conduct, behaviour, activity or omission" involving, amongst other things, "breach or failure to comply with any of the terms of this contract."
There is no doubt that, if Tevez did refuse to play on 27 September, he breached multiple terms of his employment contract. However, was this isolated incident serious enough to constitute gross misconduct thereby enabling the club to terminate the contract however? The answer is not straightforward.
One act of disobedience by an employee may justify dismissal, but only if it demonstrates that the employee is repudiating the contract. That is, the breach must be sufficiently serious so as to entitle the employer to treat the contract as having been terminated. There is a good argument that a footballer refusing to play football is a repudiatory breach as it goes to the very root of the contract, this being what he is employed to do.
It is not unheard of for football clubs to terminate players' contracts for single acts. Adrian Mutu was famously dismissed from Chelsea FC when he tested positive for cocaine, Dennis Wise was dismissed by Leicester City for breaking a team-mate's jaw and Marlon King was dismissed by Wigan Athletic for sexually assaulting a woman in a nightclub. Does refusing to play deserve to be classed alongside such acts?
MCFC did not attempt to go down that line, instead opting to suspend Tevez for 2 weeks and to fine him 4 weeks' wages (later reduced to 2 weeks after the PFA failed to ratify the 4 week fine). However, since the fine was issued, the controversial player has returned to Argentina and failed to turn up for training or scheduled talks with MCFC. This has led to the PFA withdrawing any further support for him.
This subsequent behaviour would appear to strengthen MCFC's case that Tevez is acting in repudiatory breach of contract. The reality, however, is that the club's entitlement to terminate Tevez's contract is of academic interest only, as to do so would deny MCFC the opportunity to sell Tevez for a considerable transfer fee. Instead, they would have to take an action for damages against the player and, if Chelsea's similar action against Adrian Mutu is anything to go by, would have to spend a number of years chasing Tevez back and forth between the FIFA Dispute Resolution Chamber and the CAS in pursuit of damages (which are likely to be calculated on his unamortised transfer fee rather than his current market value). No real surprise then that MCFC has been slow to pull the trigger and terminate Tevez's contract, whatever its legal rights to do so.
Tevez is therefore likely to move on, but at what price? Reports seem to indicate that clubs are not willing to pay as much now for Tevez as they might have last summer. Is that drop in value attributable to Tevez's breach(es) of contract? If so, could MCFC consider an action against Tevez to recover the diminished transfer value? Such an action would likely have benefits outside MCFC – it would serve as a useful example to all footballers that such behaviour will simply not go unpunished and that, surprisingly enough, being engaged as a professional football player does actually mean that you will be required to play. Whether such an action would succeed is questionable, however. In the absence of an express reservation of rights, the sale of Tevez may be treated as a waiver by MCFC of their right to sue the player for breach of contract. For the moment, and whether you are following from the a lawyer's perspective or that of a football fan, it is a question of watch this space.
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