This IP business has created a bit of a storm, and it seems to me that a lot of people think it's just a ruse City have plucked out of the air to cut down our losses. However, it’s quite common in the way that global holding companies run their business when they have subsidiaries in a number of different countries, and this is the set-up that City are creating.
In essence, what we’re dealing with here is a device where a company forms a subsidiary to carry out operations in another territory, and they enter into what's called a cost sharing arrangement (CSA). Under this kind of arrangement, the companies share intangible costs that will be separately exploited by each of the participants.
Thus, for example, where R&D is carried out by the head office but will benefit all group companies, they all chip in for it in proportions that are in line with the proportions of the anticipated benefits they can expect to derive. This, I think, is why Ferran specifically mentioned recently that NYCFC will have use of City's international scouting network and commercial operation. They'll pay for it too, and those areas of MCFC's activity are world leaders so the services in question probably won't come cheaply.
Secondly, when a CSA is set up, you'll quite commonly find that one company already owns intangible assets which it then makes available to the others, and those others will benefit when they carry out their operations in future. This is very frequently met in the context of intellectual property. Let’s say that company A sets up a subsidiaries B and C to manufacture and sell company A's products (whether that’s chocolates or cigarettes or cosmetics or something else) in territories D and E. If company A is a well-known global brand, subsidiaries B and C have much better prospects if they sell the goods under company A's trademark(s)than if they sell the same goods under completely unknown brand F. This will be reflected in revenues down the track.
The standard way of dealing with this is for company A along with subsidiaries B and C to create a CSA, and for subsidiaries B and C to do something that’s known as "buying in". This means that they pay a lump sum at the inception of the CSA for future use of the rights. And later, when the CSA is up and running, if company A develops and makes further intangibles available to the participants in the CSA, then a further buy-in (often called an “acquisition buy-in”) takes place.
The rationale of this is that by settling things in this way at the outset, the parties can move on knowing that they’re on an even footing with one another in terms of using intangible property belonging to one another. As they move forward, it’s therefore fair for the subsidiary companies to keep all the profit they generate rather than having to remit part of it to pay off a debt owed to the parent company.
I work for Russia’s biggest law firm and, trust me, we meet arrangements like this all the time for the Russian subsidiaries of multinationals. It’s absolutely the standard way to deal with the kind of situation City are now in where they’re trying to build up the ‘City Football Group’. I don’t see it as something we’ll have done simply to meet FFP, though of course the knowledge that we have this money coming in will no doubt have informed decisions about our levels of spending on transfer fees and the wage bill.
Obviously to the extent that sales are to related parties these must meet a fair value test under FFPR. However, this also mirrors something that our clients face when they use CSAs: these expenses are deductible for profit tax purposes but also, when with related parties (which they invariably are), only to the extent that they reflect the market value of the rights in question.
Here clients take advice from independent specialists who value the rights for these purposes. The valuations are subjective to some degree, of course, as these things always are. But generally if you follow the recommendations of recognised neutral experts and can provide detailed reasoning as to why the figure you’ve picked represents an arm’s length value, the tax authorities tend not to get very excited.
I find it very difficult to imagine that City aren’t doing something similar in relation to FFPR, and that should probably see us right when it comes to UEFA. And while we’re doing something that’s uncommon (maybe unprecedented) in the football industry, that’s because the notion of subsidiary clubs is new as well. However, ultimately I don’t think we’ll see a comeback from handling that in a way that’s entirely in line with standard global practice for similar undertakings.
It seems to be that there’s a lot of hysterical press about this – stories along the lines of “City cheat FFPR with huge IP con”. Actually, I think the truth is a little different.