Mutu could serve as a reference point

BY foxsports • September 30, 2011

One might argue that the worst aspect of the supposed refusal of Carlos Tevez to come off the bench for Manchester City during Tuesday’s Champions League defeat to Bayern Munich, is the complete disregard for the time, effort and money expended by the thousands of City fans who traveled to Germany to support their team. Of course there is nothing in his contract which says he must love the fans or foster any sort of relationship with them, however.

But if the facts suggest that he did outright refuse to play on Tuesday, then there is a serious case to be made by Manchester City that it is gross misconduct and a breach of the terms of his contract, which would say that he should not only actually play football but also obey reasonable instructions from the management.

City have provisionally given Tevez a two-week suspension while they try to determine whether he was guilty of gross misconduct. If Tevez is found to be guilty of gross misconduct, City are permitted to take several different courses of action. For the sake of harmony in the dressing room and stability on the pitch, some have argued they should terminate his contract; but they might then lose the exorbitant transfer fee that a player of Tevez’s calibre would demand.

There is a promising precedent for Manchester City for this case in the dealing between Romanian striker Adrian Mutu and Chelsea. In September 2004, after just over a year at Chelsea, Adrian Mutu took a drugs test and tested positive for cocaine. Deemed as gross misconduct, Chelsea terminated the contract – and then sued Mutu, and were awarded the right to just over €17million in compensation for, amongst other things, the transfer fee they paid to Parma for Mutu’s services.

They also claimed an unknown amount of compensation from Juventus, who picked up Mutu on a free in January 2005, given his contract and subsequent registration with Chelsea had ended, and then sold the Romanian for €8m to Fiorentina the next year. You might question how Chelsea would have a case for compensation from Juventus, who picked up Mutu on the basis that he was a free agent. Juve might not have gone for Mutu if he was still registered with Chelsea given he would have cost a large transfer fee. Juventus didn’t care about his history with his employer prior to the end of his contract; once he is a free agent, he’s anyone’s to employ.

However, the jurisdiction for scenarios like this lies with FIFA’s Dispute Resolution Chamber (DRC), which presided over the Mutu compensation. Apart from provoking images of a haunting medieval basement where Sepp Blatter permanently resides, the Chamber has a ruling which seems to suggest that the new club of a player may be liable to pay compensation to the old club in scenarios such as these, depending on the circumstances.

This will be determined by who the DRC deems to have ended the contract – is it the club, given gross misconduct doesn’t necessarily mean that the contract has to end? Or is it the player, given that drug-taking or refusing to play is such a serious breach of the contract?

It is probable that Carlos Tevez is more likely to be able to pay the compensation to City than Mutu has been to Chelsea, so there may be no need for City to pursue anyone else than Tevez for the loss of transfer fee. But while we do not yet know the outcome of proceedings between Chelsea and Juventus, there may be a precedent set for City to receive compensation from whoever might pick up Tevez if his contract were to be terminated by the north west club.

If City do not take immediate action against Tevez, they would legally be seen to ‘affirm’ his contract, part of which says that he has to be considered for at least ten percent of available games. This would rule out the option of simply holding onto his registration but not playing him.

Tevez apologized after the incident, suggesting a desire to settle the matter from his side, while City would be foolish to waste the utility of a world-class striker, whether that utility be in appearances or transfer fees. If City’s reshuffling in midfield due to recent injuries is anything to go by, world class back-up isn’t anything to be sniffed at, and so it is hard to believe that a termination of the contract is likely to be the disciplinary action from the club, no matter what precedent is set by the DRC over Mutu and Chelsea.

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