Although essentially correct even in the civil arena and balance of probabilities there are differing standards. One of which is based upon burden of proof. The burden of proof is entirely on the PL to prove their case. Further because they have alleged dishonesty and essentially fraud, although not beyond a reasonable doubt standard, it is still much more than a simple balance of probabilities.
The best way to illustrate it is percentages. Balance of probabilities is basically whoever proves their case as being 51% most likely wins. Beyond a reasonable doubt is often described as 90-95% depending on who you are talking to. The higher standard expected when alleging fraud or dishonesty in the civil arena is more like 70-30.
These are of course simplistic figures and based on a representation. However I hope they illustrate how difficult the case that the PL has taken on will be for them to prove. If the panel accepts the same weight of witness and fact evidence that was presented to CAS as true then the PL CANNOT win on their main charge.
Long and tedious post alert. Non-geeks will entirely justifiably wish to scroll past it without paying further attention.
The standard of proof in the case before the PL commission will be the balance of probabilities, as you say. Provision to this effect is made in the PL rule book is a lesser standard than comfortable satisfaction, which applied in the case between City and UEFA before the CAS - see para 200 of the ruling, linked to
here.
Comfortable satisfaction is a third standard of proof, which is defined as lying in between the criminal beyond reasonable doubt and the civil balance of probabilities. On the face of it, the fact that the PL, in its rule book, provides for a lesser standard to apply doesn't seem like good news for us given that the previous case in which we prevailed featured a higher standard of proof than applies this time. However, as you say, it's a bit more complex than that. I just want to supplement your post with a look at the actual law for any other fellow geeks out there.
For one thing, the standard of proof was irrelevant at the CAS. The findings weren't that there was some evidence of wrongdoing but on balance the evidence was insufficient for a guilty verdict. As the final ruling stated numerous times, the panel took the view that there was "no evidence" that would enable it to do so on the matters that weren't time-barred.
Then there's the issue you raise of the matter at hand featuring allegations that cannot but entail dishonesty and, essentially, fraud on MCFC's part.
This article is pretty old, but it appears on the judiciary.uk website, which I take as some kind of endorsement, and, to the best of my knowledge, the position hasn't changed since it was published with regard to the standard of proof when dishonesty is alleged. The key statement is this:
The more serious the allegation the less likely it is that the event occurred, and thus the stronger and more cogent should be the evidence before a court determines that on the balance of probabilities, the event did occur. This principle has been regularly applied in a number of different settings for the past 60 years.
If people wonder what 'cogent' means, Google, using a definition from Oxford Languages (who publish the OED), define it when used with respect to an argument or case as meaning "clear, logical, and convincing". Though in theory it doesn't alter the standard of proof in a case, in practical terms it's often regarded as doing so.
This happened in a case I happen to have some knowledge of through my professional endeavours. As
this article from a law firm specialising in dishonesty-based cases states, in the proceedings in question:
It appears that the High Court judge allowed [the fact that claims containing such serious allegations as fraud and dishonesty require cogent evidence to succeed] to tip the balance on the standard of proof resulting in the Judge applying a heightened standard of proof in this case.
I hope this provides some comfort to people who are understandably anxious about this whole matter. The word I keep coming back to when describing these allegations is incendiary, but they are: if we were found guilty of the most serious of them, it would indicate systematic dishonesty and it'd hard to see how the panel could avoid recommending expulsion in that event. But the hurdles the PL face in proving that are formidable, too, which some fans might find good to know.
I also keep seeing references to going to the High Court. Let's deal with the law here quickly as well. The key piece of legislation here is the
Arbitration Act 1996, which will apply to our proceedings before the PL's panel.
The Act contains, in section 69, a right of appeal on a point of law unless the parties agree to exclude this. I assume the PL rules, which we're signed up to, don't contain such a provision as I saw a KC discussing this point with another lawyer on social and saying that the provision wouldn't apply because the issues were unlikely to give rights to points of law, and not because the right had been excluded. Anyway, points of law that we'd want to appeal do seem highly unlikely to arise.
We can also dispense with the idea of an appeal under section 67 based on substantive jurisdiction. The panel will have jurisdiction so this is a non-starter.
Finally, section 68 allows for an application to have the High Court set aside an arbitral award based on a "serious irregularity". There's a list of examples, but for our purposes it suffices to note that it's an extremely high bar and doesn't just apply if you get a decision you dislike. It's almost inconceivable that practitioners as eminent as Sir Murray Rosen KC and others who might be invited to join him on the panel would fall foul of this rule.
Nonetheless, I suppose that some may find a degree of solace in the idea that if we were to be the victim of a particularly egregious stitch-up, this provision offers a potential way to obtain recourse. We'd need compelling evidence, though.
This thread is so fast moving, with well over 10,000 posts and I haven't got close to reading 20%, let alone all, of them. Apologies if this covers ground that others have already gone over. I just thought it might be useful for people who aren't familiar with these matters to see why some of the people who are familiar are saying the types of things they're saying.
