The Arsenal Column

Reports suggest Manchester United forward Carlos Tevez has the right to break from his contract and leave for free.
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It’s quite fortunate that Carlos Tevez doesn’t want to break from his contract as if he did, it would surely tear a whole in the football universe and release with it a messy gunk of goo.

We all know Tevez and Mascherano both transferred to West Ham under the ownership of two third parties (Media Sports Investment and Just Sports Inc). Just what involvement the parties have now is unclear but Kia Joorabchian is still involved. Mascherano has signed for Liverpool outright while Tevez is still unattached to a club. It must be noted that third party ‘ownership’ is not illegal, providing there’s no right given to the them to influence the polices and performance of the team (such as missing a penalty etc.).

“It is a little bit like a loan deal between two clubs, except it is a loan deal between the club and a third party,” says Joorabchian, feeling like a modern day Robin Hood. “Third-party transfers are a way of bringing outstanding players to clubs that would not be able to afford them ordinarily. So they increase the competition. Why should only Manchester United and Chelsea be able to afford the best players?”

When the Argentinian joined Manchester United, the Red Devils agreed to a two-year lease deal worth £10million with his owners. United have registration of the player for that duration but the third-party owners have retained all economic rights over him. Under the terms, Tevez is not allowed to agree to anything without their consent and only MSI possess unilateral right to terminate the contract.

But if Tevez did want to leave he would have European Law on his side to allow him to do that. Chris Heaton-Harris, president of the EU’s powerful Sports Intergroup which deals with sporting matters across the continent and also East Midlands MEP Chris Heaton-Harris said: “It is unique and bizarre that an entity, rather than a club, owns a player.

“In employment terms, Carlos Tevez has a contract himself with this company. But if he went to the European Commission and said he wanted out of it, he would get European support. It is just an employment contract. You can’t keep a person to a contract that he doesn’t want to continue in. Under European law, he has the right to break this contract.”

Heaton-Harris then continued: “Bosman was tied to a football club and Tevez is tied to a company. There is very little difference. It is a simple follow-on from Bosman”

That case of course revolutionized football because it meant a player is no longer tied to a club when his contract does indeed run out. The Belgian defender’s representative claimed any third party (a club) which governs the movement of a player between jobs is a restraint of trade, prohibited under Treaty of Rome. The legal sticking point is likely to be the fact MSI signed their contract with Tevez in South America (ie outside of EU jurisdiction), but since he wants to play in Europe, his contract is arguably open to challenge within the EU.

Carlos Tevez’s lease deal has run it’s course and hypothetically should he wish to leave, would undergo a pretty lengthy court procedure as the Bosman case took five years, something the player is not motivated to do.

In employment terms, contracts of employments are to be distinguished from contracts for services, which typically deal with independent contractors or other types of employments such as agency workers (and which most probably includes footballers). Contracts of employments are the standard contracts which you and I have and which differ from contracts for services as they have certain implied terms embedded in to the contract (like the restraint clause), something which is missing in contracts for services.

In employment terms, restraint clauses are not unlawful  unless they are deemed ‘unfair’, which then the employee must prove. A company could restrict an employee from working at another company for a certain number of years if there is a risk of highly confidential information being passed on, or a skill that gives the company a USP.

In football, players have already made an obligation with the club for the number of years they can stay and therefore do not have the power to leave in the middle. (In the case of Bosman, he left at the end, a contract of employment doesn’t necessary have a time-limit).

It’s probably just as well then, Carlos Tevez has sought not to exercise such rights and let Kia Joorabchian handle the matter.

By this time you may have noticed nothing has been said about Arsenal, this being an Arsenal weblog. So to wrap things up, wouldn’t it be great if the Gunners signed Tevez? Do we need him? We’ve got many quality strikers. Eh, probably couldn’t afford him anyway…