meltonblue
Well-Known Member
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- 14 May 2013
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Having (finally) had time to read and (partially) digest the judgment, here are my thoughts for what they are worth.
First, I sort of get why the PL took the stance they did, and why some posters and commentators have called it something of a score draw. The bottom line is, if you strip it down and say 'how many of the individual battles did City win, and how many did they lose' the answer is the PL won something like 15-5. So I don't find it surprising that the PL have spun it the way they have, and there is a degree of justification there.
To decide whether a lawsuits has been, basically, either been successful or not, however - whether MCFC 'won' or lost' - it is important to understand what were the objectives of each party.
City's objective is stated in the decision at paragraph 4. City sought a declaration that the rules concerning APTs were unlawful and an order that two decisions of the PL board concerning APTs in which MCFC have tried to participate were unlawful and should be set aside - that is rescinded.
The PL's objective was plainly to uphold their rules and to uphold the two decisions that City challenged.
Then you can look at the final summary paragraph to see how each party did. Paragraph (i) says the APT rules breach sections 2 and 18 of the Competition Act 1998. So the APT rules are unlawful. Paragraphs (ii) and (iii) say much the same thing, in relation to different aspects of the rules.
Then paragraphs (iv) to (vii) say that the two decisions referred to in paragraph 4 were unfair, and those decisions must be set aside.
By that yardstick, there is no doubt at all that City won and the PL lost. City's objectives were spelled out in the decision and they achieved them all.
What muddies the water - if you let it - is that City raised a lot of different arguments as to why the rules were unlawful, and why those decisions were unfair, and the majority of those arguments were not successful. This has allowed the PL and their useful idiots at the BBC to assert something of a score draw or even a PL win.
As I say, when you actually look at what the Club sought by the arbitration and the outcome, there is no doubt City won and the PL lost.
I have been trying to think of a non-legal analogy that might help. Say you were being tested for cancer. The doctor sits you down and says "we tested for lung cancer, you were clear on that. We tested for stomach cancer and you were clear on that. We tested for prostate cancer and you were clear on that. It was only testicular cancer that you tested positive for. "
Do you call that a win? Do you call that a score draw?
Do you fuck. You've been diagnosed with cancer and they're going to cut your bollocks off.
Most people would call that a complete fucking disaster.
That's a dramatic analogy I know, but the point that seems to have been glossed over by some is that something is either lawful or it is not. So when the Government gets taken to court about (say) the legality of the Rwanda scheme, five different arguments might be raised about why it is unlawful. Even if four fail, the success of the fifth tells you what the headlines will be the next day.
So here is my takeaway from the ruling: the PL drew up the new rules in a way which favoured certain teams who rely on interest free shareholder loans. They did that deliberately and knowingly and after having received advice it was probably unlawful. Then, they drew up procedural rules which effectively required City to be condemned without seeing the evidence on which they were being tried.
These are pretty basic flaws. The tribunal doesn't go this far - it's not its job - but it does raise the question why the rules were drawn up in the way they were.
One positive from the PL's perspective is that the tribunal has pretty much rejected the suggestion that the PL team that looks at these matters had any sort of agenda against City. They worked within the rules as they were drawn up, and the tribunal was pretty impressed that they went about their work diligently and conscientiously.
It wasn't their fault the rules were flawed.
This however brings me on to a wider point. I think I can summarise the tribunal's reasoning on a lot of the points City lost on in this way:
"The PL has a difficult job to do. It decided that it needed to do something to make sure that clubs don't go to the wire like Portsmouth, and the way it decided to do it was PSR. It could have done it in other ways but it chose this one, and that wasn't an objectively unreasonable decision. We recognise that they should be allowed a margin of appreciation in these matters. And the team they have brought in to deal with these matters don't have any sort of agenda against City. They just call it as they see it based on the evidence they have before them."
To put the same point in another way, the tribunal recognised that the regulator, the PL, has something of what you might call a margin of appreciation as to how it implements schemes which it judges to be in the best interests of the PL as a whole. The tribunal plainly gave the PL the benefit of the doubt in a number of situations, and as I say they were plainly satisfied that there was not a particular unspoken mission to target clubs from Gulf states.
The point that strikes me is this. Despite that margin of appreciation, despite being given the benefit of the doubt where they were, the PL was STILL found to have introduced rules and practice that were unlawful and unfair.
That is a major blow. The issue about interest-free loans from shareholders is a significant example of this. The rules were drawn up - deliberately - in a way that permitted some forms of subsidy from owners but prohibited others. Call me a cynic but it strikes me as rather likely that the reason for drawing this distinction might have something to do with who stood to benefit from the distinction that was being being drawn. (A clue: they play in red.)
But as I say, what I find really striking is that despite a tribunal giving the PL a pretty wide degree of latitude, MCFC still succeeded in showing the rules and the decisions made under them to be unlawful.
In football terms, the PL had a complete homer and he still gave us three penalties.
To my mind, that says all you need it to say about why the rules were drawn up the way they were.
Great post. Does make me question why we voted for the shareholder loans being exempt recommendation though. Either at the time we thought other reasons were more likely for the rules to be considered unlawful, or that’s some proper 3d chess going on!