This is going to be a very long post, and no doubt excruciatingly dull for the vast majority of posters on here. Nonetheless, when it's completed, I'll hit reply, having spent a big chunk of my Saturday morning on it, because I think it's helpful to try to clear the issue up when there seem to be differing interpretations of just how serious the charges brought by the PL will be seen to be when the issues behind them are known.
In the post quoted above, the assertions that I've bolded might be correct. Not only don't we know what evidence the PL has in order to substantiate the charges against us, but the PL hasn't even seen fit to provide the slightest detail regarding what the charges relate to.
Nonetheless, I personally consider that the chances of such an analysis proving correct are very slim. Of necessity, for it to be right in the light of what was said (which I quote below) by the CAS Panel in 2020 in the proceedings regarding the charges brought by UEFA against City, the PL's current charges must be completely unrelated to the accusations UEFA made against the club. I don't buy that.
Reports by journalists with extremely close connections to the most influential clubs reportedly pressing the PL to investigate and charge City have indicated that the purpose behind those exhortations has been to attempt to cover once more aspects of the case that UEFA prosecuted incompetently (in the meddlers’ view) before the CAS and to catch matters that might have been time-barred in the CAS proceedings. In the light of this, I think that by far the more reasonable conjecture is that the essence of the charges UEFA brought is replicated in the new charges.
So let's look at
the CAS's award dated 13 July 2020 and see what the Panel itself, comprising three highly eminent and extremely experienced practitioners, thought of UEFA's charges.
Para 206 of the Award states as follows: "The Panel is satisfied to accept that the allegations in these proceedings are particularly severe. It not only concerns alleged arrangements between MCFC and ADUG as its main shareholder but also Etihad as one of its principal sponsors, concerning equity funding being disguised as sponsorship contributions over a significant period of time, resulting in an influx of relevant income for monitoring purposes, with the consequence that it could spend significantly more money (more than GBP 200,000,000) than it would have been able to spend without such arrangements."
In para 207 of the Award, the Panel notes that the alleged conduct described in para 206 would constitute dishonest concealment. Importantly, it then goes on to equate such dishonest concealment to corruption, noting that an approach developed in CAS jurisprudence with regard to matters of corruption is: "... not only applicable to cases involving corruption, but also to cases concerning an alleged dishonest concealment of equity funding as sponsorship contributions ...".
Further, looking at the skeletal information so far given by the PL of what the charges involve, it seems extremely difficult to conceive of a situation in which the accusations are true but City's accounts haven't been fabricated in a material way. The charges involve the provision of false financial information over a period of nearly a decade, and the prospect seems negligible that we could have done that but nonetheless have prepared and filed true and accurate accounts throughout that time.
Here, let me quote the opinion of
@projectriver, whose knowledge of the legal aspects of City’s regulatory difficulties comfortably exceeds that of any other poster on here and that of any 'expert' I've seen in the media. He's read all the available relevant materials, for a start, which fact on its own seems to put him ahead of almost every other 'expert' commentator in terms of being qualified to deliver opinions.
In case anyone doubts his experience and abilities, I take the liberty of outlining Stefan's credentials in a post that he himself made on Tuesday, 8 February: "[I am] someone who personally led the defence of major false accounting claims in civil proceedings, prosecuted a civil claim for negligence against an auditor and for over 5 years led the (successful) defence of a public company being investigated by the SFO".
As for substantive assessments, Stefan said the following in posts on this forum on Tuesday, 8 February: "It is an ALLEGATION of wholesale false accounting over 9 seasons." Later the same morning, he wrote: "They are, in effect, claiming City deceived the PL, their auditors and multiple other bodies and filed fake accounts and fake financial forecasts. For at least 9 years."
So, assuming we're going over many of the same allegations made by UEFA and played out before the CAS, how should those be characterised? Well, the CAS made a comparison between corruption and the level of dishonesty that would have been involved had such a set of events occurred. And if we look at the criminal law in England and Wales, there's plenty of evidence there, too, as to just how serious these matters are.
The principal piece of legislation relating to criminal liability for fraud and obtaining services dishonestly is the
Fraud Act 2006. However, more relevant for our purposes is section 17 of the Theft Act 1968, which relates to the criminal offence of false accounting. After all, where a relevant specific offence exists, it's proper to look at that rather than a similar but more general offence.
Section 17(1)(b) of the 1968 Act provides that a person "shall, on conviction on indictment, be liable to imprisonment for a term not exceeding seven years" if that person "dishonestly, with a view to gain for himself or another or with intent to cause loss to another" when he "in furnishing information for any purpose produces or makes use of any account, or any such record or document as aforesaid, which to his knowledge is or may be misleading, false or deceptive in a material particular".
I'm not claiming that City's directors would necessarily face prosecution for this offence even if the PL’s Panel makes an adverse finding against us. When to prosecute for this offence is a complex issue that was debated at some length on here in response to a post of mine back in the context of the CAS proceedings. I don't want to reopen that discussion.
For now, I simply note that I see no reasonable interpretation of the CAS Panel's description of UEFA's accusations that doesn't, on a word-by-word analysis, meet the definition of false accounting under section 17 of the 1968 Act on the part of MCFC's directors. In other words, UEFA implicitly suggested criminality on the part of officers of the club.
The CAS Award backs this up. In para 254, the Panel expressly acknowledges that to find City guilty "would require a conclusion that the evidence of several high-ranking officials of large international commercial enterprises [both inside and outside MCFC] were false and that at least [one, possibly more] would be subject to criminal sanctions". Thus, the thrust of UEFA's allegations is absolutely clear. Until presented with evidence to the contrary, we're entitled to infer that the PL's charges entail similar issues.
It's also worth discussing whether 'fraud' is a loaded term that we should avoid in this context. I submit that it isn't. First, though the body of the criminal offence of fraud under English law entails specific factors listed in the Fraud Act 2006, the term has common currency in standard English. Oxford Languages, publishers of the OED, define fraud as "wrongful or criminal deception intended to result in financial or personal gain".
I don't believe that, on a message board where most people aren't lawyers, we need to shy away from using words in their standard English meaning when there's also a more narrow or specific legal meaning. And in the standard English meaning, that's exactly what UEFA accused us of (see para 206 of the CAS Award) and what the PL presumably has, too.
But even if we should only use the term 'fraud' if there's a legal ground to do so, one exists by virtue of the Theft Act 1968. If we look at
the Table of Contents of the 1968 Act, we see what heading covers the section of the Act in which false accounting falls and remember that the description of that offence is technically a match for the conduct of City's directors had UEFA's allegations been proven as well as presumably for the PL's charges.
The heading in question reads 'Fraud and blackmail'. Well, blackmail plainly isn't relevant here, so we're left with a clear suggestion that fraud is. In other words, we can infer that the 1968 Act, in the form in which it's still in force, regards false accounting as a particular form of fraud.
For all the reasons I've stated, I think it's highly likely that the substance of the PL's allegations against City are as serious as it would be possible for them to be. Furthermore, I regard the use of terms such as 'dishonest concealment', 'false accounting' and 'fraud' in this context to be highly justified. It seems rather fanciful to me to argue that only a few administrative breaches are at play, and at worst we'll receive a slap-on-the-wrist fine, being told to go away and be good boys and girls in future.
The odds, strongly, are that our club's in an existential fight for its future, at least in terms of its ability able to compete at the very top of the English and European game. That doesn't mean we have to slash our wrists and I think there are some grounds for us to be bullish - but that's for another post another time. In the meantime, nor do I think we should doubt the probable severity of the allegations made against us. Deluding ourselves is ultimately unhelpful.
For now, let’s enjoy the rest of Saturday. And let’s hope the players show a bit of the passion Pep did yesterday and take out all of our frustrations on Villa with a good performance and a win tomorrow afternoon.
