BluessinceHydeRoad
Well-Known Member
- Joined
- 26 Mar 2012
- Messages
- 2,562
Marcotti's article was quite interesting though it assumes that the application of the FFP regulations is straightforward, but in the Adjudicatory Chamber the judges will almost certainly be required to rule on the rules themselves. I have not read an opinion by a bona fides commercial lawyer which rates them as any higher than "well worth a challenge", but the most interesting was by an American commercial lawyer who had been asked to mount the defence he would present in court if required to do so by UEFA.
His main argument would be that FFPR do try to protect competition and though some of their provisions may appear ant-competitive when taken in isolation, when taken as a whole their aim is clearly to increase it. Just as a ban for taking a banned substance in athletics reduces competition by removing one athlete from it, it is clear that the ban is justified because it protects healthy, fair competition. Thus a limit on the investment made by a super rich owner is a restriction on his rights, it is justified in that it protects the essential competition at the base of any sport. Related party deals are to be controlled to prevent such owners circumventing the restrictions on investment.
He did, however, confess that the FFPR are "exceptionally fragile legally", because he didn't know how such arguments could be maintained when the rules were subjected to detailed examination, as they inevitably would be in the Chamber. They could not really withstand assertions that restrictions may be acceptable if the regulations did protect competition, but these regulations never get anywhere near doing that. In fact the opposite is more probably true.
His real weakness is that UEFA starts from the assumption that football is perfectly competitive now and that this needs protection from certain very rich club owners. In fact, this is not true. Very few clubs are "competitive" in financial terms. Most clubs are not competitive at all in financial terms. They are not competitive for a variety of reasons, not simply because their owners cannot plough billions into their clubs. Yet that is exactly what those clubs at the pinnacle of the game have done - the briefest perusal of their books shows that they did spend more than their revenue, and some of them did it repeatedly as they established their position at the top. Many are carrying very high levels of debt, but UEFA has never found this to require action, and they will keep any benefits acquired from the excess spending and debt. This hardly enhances competition when debt is not allowed to other clubs.
Debt is symptomatic of other failings in FFPR. Shareholder investment is the ONLY element of the balance sheet on which FIFA takes action. Historic debt is ignored, the inequalities of sponsorship and commercial deals are ignored, and "football related income" is allowed, though it may mean running a hotel on the other side of the world. UEFA will have difficulty explaining why these are so much fairer than shareholder investment. In fact rather than enhancing competition FFPR will cement the position of those clubs presently at the pinnacle of the game. It will make it much more difficult for other teams to qualify for the CL so that the disproportionate rewards for CL teams will make fair competition even less likely.
Our "expert" would not be confident of success!
His main argument would be that FFPR do try to protect competition and though some of their provisions may appear ant-competitive when taken in isolation, when taken as a whole their aim is clearly to increase it. Just as a ban for taking a banned substance in athletics reduces competition by removing one athlete from it, it is clear that the ban is justified because it protects healthy, fair competition. Thus a limit on the investment made by a super rich owner is a restriction on his rights, it is justified in that it protects the essential competition at the base of any sport. Related party deals are to be controlled to prevent such owners circumventing the restrictions on investment.
He did, however, confess that the FFPR are "exceptionally fragile legally", because he didn't know how such arguments could be maintained when the rules were subjected to detailed examination, as they inevitably would be in the Chamber. They could not really withstand assertions that restrictions may be acceptable if the regulations did protect competition, but these regulations never get anywhere near doing that. In fact the opposite is more probably true.
His real weakness is that UEFA starts from the assumption that football is perfectly competitive now and that this needs protection from certain very rich club owners. In fact, this is not true. Very few clubs are "competitive" in financial terms. Most clubs are not competitive at all in financial terms. They are not competitive for a variety of reasons, not simply because their owners cannot plough billions into their clubs. Yet that is exactly what those clubs at the pinnacle of the game have done - the briefest perusal of their books shows that they did spend more than their revenue, and some of them did it repeatedly as they established their position at the top. Many are carrying very high levels of debt, but UEFA has never found this to require action, and they will keep any benefits acquired from the excess spending and debt. This hardly enhances competition when debt is not allowed to other clubs.
Debt is symptomatic of other failings in FFPR. Shareholder investment is the ONLY element of the balance sheet on which FIFA takes action. Historic debt is ignored, the inequalities of sponsorship and commercial deals are ignored, and "football related income" is allowed, though it may mean running a hotel on the other side of the world. UEFA will have difficulty explaining why these are so much fairer than shareholder investment. In fact rather than enhancing competition FFPR will cement the position of those clubs presently at the pinnacle of the game. It will make it much more difficult for other teams to qualify for the CL so that the disproportionate rewards for CL teams will make fair competition even less likely.
Our "expert" would not be confident of success!