AAL Commercial Awareness: Jonas Gutierrez, Newcastle United and disability discrimination

Feb 10, 2018

Written By Jack J Collins & Charlie Mead, AllAboutLaw.co.uk

We explore the depth of the ongoing lawsuit between Newcastle United Football Club and ex-player Jonas Gutierrez amidst claims of disability discrimination by the player.

The lawsuit regarding former Newcastle United player Jonas Gutierrez has reached boiling point following comments from Gutierrez’ lawyer’s claims this week that Alan Pardew has given “knowingly untrue” evidence to the court.

The legal saga began in October 2015, when Gutierrez announced that he was suing Newcastle United over their treatment of him following his diagnosis of testicular cancer in 2013.

He alleged that he had been discriminated against because of his disability, and opened his account by saying that this discrimination began in December of 2013, just two months after he had surgery for his cancer. Gutierrez claims that at this point Alan Pardew, who was the manager at the time, told him that he did not feature in the club’s plans and was free to leave.

On the first day of the hearing, Gutierrez stated that this “came as a great shock so soon after my cancer treatment," and that he: "believe the reason for this was due to my cancer diagnosis and very recent operation to remove the tumour as I had clearly been a crucial part of Newcastle's first-team line-up to this point. I think they feared that my illness would mean that I could no longer play at the highest level and they considered me to be a liability rather than an asset to the club."

Further testimony was given regarding the summer of 2014 when Gutierrez went into remission, where Gutierrez felt he was further ostracised by the club. He stated that over the course of his chemotherapy neither Pardew or any of the directors of Newcastle United contacted him to see how he was coping or to congratulate him on recovery. The club insisted this was not true.

The next big testimony came from ex-manager Pardew, now at Crystal Palace, on day three. His claim, that he had large concerns about the player’s future at the club as early as 2011, is now a crux on which the court case rests.

Pardew told the tribunal that his concern with Gutierrez was in relation to the low amount of goals he scored – “only three goals in the 2010-11 season which, for an attacking midfielder, was well below what I would have expected.” However, he then continued to start Gutierrez during the 2011-12 and 2012-13 seasons, because of his “experience.”

Pardew told the tribunal that it was over the summer of 2013 where he invested heavily in his squad, adding players such as Vurnon Anita, Moussa Sissoko and Yoann Gouffran, and he told the tribunal that he told Gutierrez then (at the start of the 2013 season before Gutierrez’ diagnosis) that he would not be a regular starter over the course of the season.

This however, doesn’t quite add up. Vurnon Anita was signed in the summer of 2012, and the other two aforementioned players were signed in the January of 2013. In the 2012/13 season, Gutierrez started 34 out of 38 Premier League games, and he was suspended for one of the four that he missed. Anita, in that full season, only made 17 appearances in the Premier League.

Whilst the two January signings played the majority of the Premier League games after they arrived, they appear to have done so alongside Gutierrez, rather than alongside him, and Pardew didn’t add any direct competition for the player in the summer of 2013. Furthermore, Gutierrez started the first game of the 2013/14 season, a 4-0 loss to Manchester City.

That said, managers are entitled to change their minds and players develop over time. Following being substituted at half time in that drubbing (incidentally for Vurnon Anita), he was dropped for five games, before returning to the match day squad (albeit on the bench) at Cardiff City, which, as early October 2013, one would assume was the last game before his diagnosis.

When he returned in December 2013, Pardew told him that he felt that he was still unlikely to feature in his first team plans. Gutierrez, as stated above, felt like this was because the club thought of him as a “liability”, but Pardew insists that it was “purely a footballing decision.”

It was at this point that Gutierrez was loaned out to former manager Chris Hughton, then at Norwich City, where he was limited to just four appearances by a calf injury and by Hughton’s ultimate sacking as manager.

In that summer the player went into remission and was treated by chemotherapy, and he was released from hospital in November 2014. After this he returned to Newcastle where he began training to recover from his ordeal. During this time, Pardew left for Crystal Palace, and he was replaced by John Carver, who gave evidence on the seventh day of the trial.

A second crux on which the decision of the panel rests is the next part of Gutierrez’ story. The contract that the player had signed in 2011 was a four-year contract, which would be automatically extended by one year if he started 80 league games for the club in that time. When he returned to full fitness from his cancer treatment, Gutierrez had 72 starts for Newcastle, and there were 12 games remaining of the season.

Carver started Gutierrez for the first time against Sunderland on the 5 April 2015, with 8 games remaining, where he completed the full 90 minutes. In an unfamiliar defensive role, he seemed to do well – The Independent rated his performance as a 7 (joint-top of the Newcastle ratings in a poor performance) – stating that “on his first Newcastle start in 20 months, the Argentine showed impressive determination.”

However, somewhat confusingly, Gutierrez was then dropped to the bench for the game after, against Liverpool. Interestingly, after this, and before the Tottenham Hotspur game the week afterwards, it has been revealed that Carver and Gutierrez had a major bust-up on the training ground.

"Jonas was displaying a general lack of care to what he was supposed to be doing and this ended up in me having to ask him four times for his attention," said Carver at the tribunal. "Due to his attitude, I asked him to leave the pitch and he then approached me using foul and abusive language and throwing his top off. I sent him back to the changing rooms and as he was walking off he still continued abusing me."

After the Tottenham game, Gutierrez apologised, and he then was selected to start the remaining five games of the campaign. However, the player gave evidence to the tribunal to suggest that he thought that: “Due to their concerns about my cancer I consider that the club then ensured that I would not be selected to start in a sufficient number of matches to trigger the option.”

He added that “In late April 2015 I was told the club may consider offering me a new playing contract at the end of the season. However, I knew by this stage the club had taken steps to ensure the automatic option in the contract was not triggered. I found it difficult to believe.”

Carver also spoke at the tribunal about the decision to let Gutierrez leave at the end of the season, despite the fact that his assist and goal in a 2-0 victory on the final day of the season, against West Ham United, kept Newcastle United in the Premier League. Carver told the court that his “opinion was that Jonas should not be offered a new contract as there were better players available to take the club forward.”

He stated that he had tried to get hold of Gutierrez to break this news, but that he could not get through to him. It was only upon speaking to Ryan Taylor (a fellow player, also released by the club at the time), who happened to be with Gutierrez on a course, that Carver was able to speak to him and tell him he would not be given a new contract.

"While I would have preferred to give Jonas this message face to face, it was not possible in the circumstances as I had been asked by the club to deliver the news as soon as possible," Carver concluded. Gutierrez has since stated that being released over the phone made him feel that the club “did not care” about him.

In the most recent developments of the trial, Newcastle United’s lawyer, Sean Jones QC, has described the idea that the Club would have dropped a player so as not to trigger an extension, in the midst of a relegation battle, as ludicrous, because what was at stake was the Premier League future of the club.

“The cost of relegation to the club would have been at least £30m, with an ongoing impact of around £80m if they didn't bounce back,” Jones pointed out. “It would have been a blow to Newcastle as a city, for their fans, and would have resulted in the termination of contracts for several of his colleagues and other people. It would have been a huge hammer blow to their finances.”

Hitting back, Gutierrez’ barrister, Martin Budworth, claimed that Pardew and other witnesses for Newcastle, had given “knowingly untrue evidence” to the tribunal, and that they had done so in order to “tailor” their accounts to fit the club’s version of what happened.

“There's not a single piece of paper that hints of any activity in the summer of 2013, nobody was emailed,” Budworth said, in regards to the claim that Pardew had told Gutierrez he would not be needed in the summer of 2013, prior to diagnosis. “Even if the slate is clean, they do not have evidence. There are no documents.”

The tribunal will continue, with neither side appearing to have any desire to back down. There are many questions that need to be answered before any decision can be made, but foremost amongst them are these – if Pardew really didn’t think Gutierrez fitted into his first team plans then why did he start him in the first game of the 2013/14 season? And despite a good performance against Sunderland, why was Gutierrez dropped for the Liverpool game in April 2015?

Only time will tell if Newcastle United are indeed guilty of the things Gutierrez is accusing them of, but now that all the evidence has been given and the panel have retired to discuss it, all there is left to do is wait for the final score.

Commercial Insights