Club says player’s behaviour amounted to gross misconduct, irrespective of potential criminal proceedings

A footballer whose employment was terminated following allegations he was involved in spot-fixing is to sue his former club.

Colombian winger, Cristian Montano, was sacked by League One side Oldham Athletic Football Club last December following an investigation by the now infamous Mazher Mahmood, the undercover journalist also known as the ‘Fake Sheikh’.

The Sun on Sunday newspaper sting saw Montano and five other players arrested by the National Crime Agency (NCA). Although the NCA say its investigation is ongoing it has already released all six players from bail.

Despite no criminal charges being brought against the player, Oldham Athletic made the decision to sack Montano on disciplinary grounds and irrespective of any legal proceedings.

A club statement at the time of his dismissal read: “After a thorough investigation carried out by Oldham Athletic Football Club relating to the conduct of Cristian Montano, a decision has been made by the board to dismiss the player forthwith.

“Oldham Athletic takes matters such as this extremely seriously and believes it was essential to act as swiftly as possible.”

Barrister Roy Ledgister of 25 Bedford Row, who is acting as Montano’s agent, told BBC Sport: “At the time of his arrest we urged Oldham to suspend him and then reach a conclusion at the end of a trial. They did not do this, acted recklessly and on emotions and will now have to face the consequences.”

As news broke of the impending law suit, chairman of the League One club, Simon Corney, told the BBC: “We find this development very surprising given that the National Crime Agency’s investigation into Cristian is ongoing. However, should this go to court then we look forward to making public the various issues with Cristian that led to our decision to terminate his contract.”

Responding to Ledgister’s comments, Jeremy Moore of CM Solicitors, who are acting for Oldham Athletic, said: “After following due process, Mr Montano’s conduct was found to be such as to amount to gross misconduct, irrespective of the ultimate outcome of the criminal proceedings. Mr Montano declined the opportunity to appeal further to the Football Association and as far as we are concerned the matter is closed.”

Protecting the business?

Kevin Poulter is SJ’s editor at large and a senior associate in the employment team at Bircham Dyson Bell

Whenever an employee is arrested or subject to a criminal investigation, employers can feel compelled to take immediate action in order to protect the business from any adverse publicity or reputational damage which may result. Further, criminal investigations can take months or even years and there are significant financial considerations for an employer if the employee is suspended on full pay pending the outcome.

In the current case, Mr Montano’s employer appears to have carried out a separate internal investigation into his conduct. If that investigation is considered to be fair and the finding of gross misconduct reasonable, a claim for unfair dismissal is likely to fail. In any event, if the dismissal was effective in December, an employment tribunal claim is almost certainly out of time.

It should also be remembered that the criminal burden of proof is much higher than that in the employment tribunals, where conduct is assessed on the balance of probabilities and the actions of a reasonable employer are material.

This article was first published in the Solicitors Journal on 27 November 2014 and is reproduced with kind permission.