so, can he be DISMISSED?
THE LEGAL VIEW
Published 29/09/2011 | 05:00
carlOs tevez's apparent refusal to take the pitch on Tuesday may be a breach of contract. If so, City would be entitled to terminate his contract, and may even pursue him for damages.
Roberto Mancini insisted after the game that Tevez would not come on as a substitute. Tevez has explained this as a "misunderstanding" but, if the facts suggest otherwise, and he did refuse, there is a strong argument that it constitutes a breach of contract.
"A refusal to play could be an act of gross misconduct," said Neil Johnston, a senior associate in employment law at Field Fisher Waterhouse. Tevez's contract implies that he should play football when asked to do so, and if he did not, he disobeyed a reasonable instruction of his employer.
Should City conclude that Tevez was guilty of gross misconduct, then they would be entitled to terminate his contract. They would be advised, though, to do this swiftly. "It would (have to) be a matter of days or weeks rather than months," said Johnston. A failure to act soon could be seen to affirm Tevez's contract, preventing City from terminating it.
If City do terminate Tevez's contract, they may pursue him for any future transfer fee which they miss out on. "If City do find him in breach of contract and terminate his contract they could also seek to recover the value of any future transfer fee," said Johnston. After Chelsea terminated Adrian Mutu's contract, following the striker's positive test for cocaine in 2005, they won £14m from the striker.
The club may not have the option of keeping Tevez's contract alive but refusing to play him. If Tevez stays, he would be owed fair consideration for selection, and the failure to give him that could even be a breach of contract by City.