I don’t agree with that.
Don’t forget, the APT rules came in in two tranches, the initial 2021 rules and the 2024 amendments. Don’t forget also that because the new rules - the “advance approval” system rather than the retrospective analysis - plainly had the effect of distorting the market, the test was whether they were a proportionate response to a legitimate problem.
The question of whether it was a legitimate problem in the first place is one you and I may have our doubts about, but the tribunal have made their decision about that, and short of an appeal (which wouldn’t succeed) that’s that.
On the question of whether it was a proportionate response, apart from the question of shareholder loans the tribunal evidently thought the APT rules were pretty fair. The shareholder loans point was a simple one, as the best points usually are - how can it be fair for the rules to permit one form of owner subsidy but prohibit another - but the overall approach of the rules was to remove owner subsidy, but to retain a system of checks and balances to ensure that sponsorship agreements that were above the norm but were still commercially legitimate arrangements were not outlawed. In other words, to outlaw owner subsidy, not to outlaw good commercial deals that might be struck between parties with symbiotic objectives.
I think the tribunal’s judgment shows that, apart from the shareholder loans issue, the tribunal thought the 2021 rules were a proportionate, and therefore lawful, response to the problem the PL had identified.
The real problem, as I see it, is that the 2024 amendments really removed most of those checks and balances. They shifted the burden of proof to the club to show that the deal was fair market value. They shifted the standard of proof because the initial APT rules said that an APT transaction would not be blocked unless it was “evidently” above fair market value. The removal of the word “evidently” meant that the PL no longer had to show clear blue water between what had been agreed and what would otherwise be fair market value. They changed the wording of the rules from ‘could be justified’ to ‘would be justified’ essentially so that APTs get judged not on the basis that the relevant sponsors are sponsoring the champions of England/Europe/the world but instead on the basis that they are sponsoring an average PL team.
There are two quick fixes to this. One, simply ditch the 2024 amendments. All of them. Two, simply remove the shareholder loans exemption. These are not difficult changes to the rules.
The real problem for the PL is that what they wanted to do was make it harder for City and Newcastle to achieve their objectives while not not interfering with those clubs - no names, no pack drill - who rely on extensive interest free shareholder loans. And when they found the initial APT rules still weren’t making it hard enough, they wanted to make it harder.
They have been told in no uncertain terms that what they were doing was illegal. I suspect they are dead in the water as regards the 2024 amendments or anything like them. I suspect they are equally dead in the water in terms of excluding shareholder loans.
The problem, a I see it, is that the objectives of the PL clubs who were behind APT have not changed, and they are now struggling to come up with a lawful way of achieving those objectives.
Which I doubt they will be able to do.
