This article contains extracts from the Independent Commission statement published on the FA Premier League website.
These extracts refer to the playing contracts of Carlos Tevez and Javier Mascherano as well as the Tevez and Mascherano agreements West Ham signed with their third party owners.
Note that these are the original agreements and contracts and these have since been replaced by new contracts / agreements (after the ruling for Carlos Tevez and after his transfer to Liverpool for Javier Mascherano).
The following is extracted from Independent Commission statement published here, and is discussed in much more detail here.
West Ham entered into what was called a private agreement with Mr Tevez and MSI Group Limited (MSI) and Just Sports Inc on 30th August 2006, and a contract, termed a deed, with Global Soccer Agencies Limited (GSA), Mystere Services Limited (MSL) and Mr Mascherano on 31st August 2006.
The dates of these two agreements may be of significance when we come to analyse the factual dispute between Ms Purdon and Mr Duxbury as to the times and contents of any conversations between them. Those two contracts are differently framed and thus required separate consideration. Both players signed FAPL contracts on 31st August 2006. Those contracts, even as to the personal terms, are identical, save for Mascherano signing a five-year contract and Mr Tevez a four-year contract.
The Tevez Agreement
We have in the main sought to paraphrase the effect of these clauses, we hope accurately. We have all looked at and taken into account all the terms. By clause 1, West Ham and Tevez acknowledge and confirm that the economic rights of Tevez are owned exclusively and absolutely by MSI and Just Sports Inc (the companies). In passing we note that those rights are said to have been transferred to the companies by an agreement dated 7th February 2006. We have not seen that agreement.
By clause 2, Tevez fully acknowledged that the companies had the sole, exclusive and unilateral right, upon serving written notice to the club during the January transfer window, to terminate his contract with West Ham upon payment to the club of £2 million.
By clause 5, the companies have the unilateral option to exercise that right of termination during any subsequent UK transfer window for the sum of £100,000 payable to the club “without any right of objection from the club or from the player”, words that do not appear in clause 2 but by clause 4, West Ham, upon receiving such notice and the £2 million, had no right of objection.
By clause 6, Tevez and West Ham “irrevocably declare and confirm that only the companies may exercise their right of termination which cannot be exercised directly by the player or by the club directly or any other third party”. It is clear to us that clause 6 has to be read in conjunction with both clauses 2 and 5.
By clauses 7 and 8, Tevez and West Ham have to promptly inform the companies of any and all circumstances which might lead to the transfer of his federative and economic rights.
By clause 9 “any sort of transaction related to the player’s rights shall only take place pursuant to the companies’ written instructions”. Further, the club were not “to vary, amend, avoid, repudiate or terminate the employment contract or any of its terms without the prior written consent of the companies”.
By clause 10, West Ham were not to transfer or otherwise dispose of the federated or economic rights of Tevez, offer so to do, enter into any discussions in respect thereof or hold themselves out as having any authority so to do.
The Mascherano Agreement
By clause 1, West Ham only held the federative rights of Mascherano, the economic rights being held by GSA and MSL (the companies).
By clause 3, West Ham and Mascherano were not to take any action in respect of his federative or economic rights or to agree or negotiate in respect of those rights without the prior written consent of GSA.
West Ham were not to alter, vary, amend, avoid, repudiate the employment contract or any of its terms without prior written consent of GSA.
Clause 4 contains similar provisions in respect of the disposal, permanently or temporarily, of such rights.
By clause 6, in the event of the companies serving a written notice on West Ham and Mascherano, requiring West Ham to effect the transfer of Mascherano during a transfer window, the companies were to pay the sum of £150,000. Mascherano was to sign for such club as directed by GSA, provided such was in the highest league of the relevant country and provided the terms were not materially worse. West Ham and Mascherano irrevocably declare and confirm that only GSA may exercise their right of termination which cannot be exercised directly by West Ham or Mascherano.
By clause 11, West Ham, as was the case with Tevez, was to insure Mascherano at their expense, and in the event of any proceeds from such insurance, to hold such on behalf of the companies.
The playing contract
Insofar as relevant, and thus insofar as it is said the same conflict with those other contracts, the playing contracts include the following terms:
One, by clause 3.1.7 (under the heading of “Duties and Obligation of the Player”) the player agrees “to play football solely for the club or as authorised by the club”.
Two, by clause 4.1, the player was obliged at the request of the club to attend any and participate in promotional, community and public relation activities.
Three, by clause 4.2, whilst on (club duty) the player was to wear only clothing approved by the club and not to display (except on his boots) any badge, mark, logo, without the club’s consent.
Four, by clause 4.4 the player “agrees that he will not, either on his own behalf, or with or through any third party, undertake promotional activities in a club context or exploit the player’s image in a club context, nor grant the right to do so to any third party”.
Five, by clause 4.5, the player could otherwise carry out promotional activities and exploit his image so long as the same do not conflict with his obligations under the contract and he has given the club reasonable advance notice.
Six, by clause 4.6 the player granted the club what may be termed his image rights to be used in a club context.
Seven, clause 8 grants the club the right to determine the player’s contract in the event of permanent incapacity or incapacity of 18 months over a 20-month period.
Eight, by clause 10, the club was entitled to terminate the player’s contract in accordance with the provisions therein set out.
Nine, by clause 11, the player was entitled to terminate the contract in accordance with provisions therein set out.
The post is part of the main discussion on whether the penalty meted out to West Ham over the Tevez / Mascherano agreements was too lenient or justified.