PL charge City for alleged breaches of financial rules

TinFoilHat said:

Premier League clubs ask government to block nation-state ownership | Premier League | The Guardian

Top-flight teams have asked for move to be part of new football regulator’s brief while equality, diversity and inclusion will not be central part of governance code
amp.theguardian.com amp.theguardian.com

I get the impression that it's coming to head and we've won.
Click to expand...


Same cunts as always…….


The imminent arrival of the regulator was also welcomed by the chair of the EFL, Rick Parry. “As a consistent supporter of the independent regulator’s introduction, it is important that delivering financial sustainability for men’s English professional football will be its focus, and we now look forward to seeing legislation introduced to parliament,” he said.
 
Jim Tolmie's Underpants said:
Jan 1891.

A letter from Ardwick manager Lawrence Furniss protesting against the League's boycott of the club:

"The fact is, that the clubs that now comprise the English League have secured their positions by advantages which they now seek to deny to others."

Sound familiar?


F5aknysXwAEaBUw
Click to expand...
I’m sure I’ve read/heard before that the Manchester Football Association and the Manchester area teams who were in the Mcr FA were not looked upon kindly by the Lancashire FA and Lancashire teams.

We decided we wanted our own FA (formed 6 years after the Lancs FA) and teams playing under our Mcr FA and not be associated with the Lancashire FA. This rubbed the more established Lancashire FA and their much more established teams up the wrong way.

In the world in general at that time Manchester was doing things at a faster and bigger rate than anyone else, and I bet football was worried Manchester would take over in the football world n’all.

Animosity grew to the Southern teams and the likes of Aston Villa, and it was Villa players who got an investigation started on Billy Meredith (who then grassed all his teammates up) for something that was actually common across the sport at the time… and we had our players banned from playing for us as Manchester City in 1906.
 
bluenova said:
Having read it, it looks like the video is based on the MEN article, rather than the full document.

I may be wrong, but it's certainly not as positive as the article or video.

Throughout, they do suggest that the bar is high for the Premier League, but they also suggest that it may be a lot more of a challenge for City than the UEFA case, and conclude by summing up City's position, "Put simply, defending this claim would require the deployment of enormous resources, intuitive legal reasoning, and persuasion beyond known boundaries." Which doesn't sound particularly easy.
Click to expand...

You are completely correct that the full article is not as positive as the video or the article would suggest. There are in fact many points in the article which could be cherry picked in isolation to make it sound a lot more positive, or indeed a lot less, depending on your perspective and inclination. With respect to the lad in the video, who has doubtless done his best with unfamiliar material, it strikes me that he reports the bits he wants to report.

However, even standing back and taking the article as a whole, it has to be said that it really adds nothing to the discussion that has been taking place in this thread, and in some respects the article is demonstrably wrong, or conceptually flawed.

The first major error in the article relates to the standard of proof. It has been extensively discussed in this thread that the standard of proof that the panel will apply is the civil standard of proof, namely the balance of probabilities. This is because the relationship between MCFC and the PL is fundamentally contractual - breaching PL FFP regulations is, at it's heart, an allegation that we have breached our contract with the PL - and moreover it is a contract that is specifically governed, as the PL rules confirm, by English law. It is a fundamental tenet of English law that contractual disputes are resolved on the balance of probabilities. Despite this the authors say that as the standard of proof used in CAS is that of 'comfortable satisfaction,' that is also the standard that the panel should apply in this case.

That is complete bollocks. No legal justification whatsoever is provided as to why the panel would suddenly disapply English law to this process other than "that's what CAS do, so we think the panel should do the same." If they did, it would give the losing party, whoever that is, an automatic ground of appeal - the panel applied the wrong standard. It would be to import a civil law standard of proof into what is essentially a common law adversarial process. It is overwhelmingly likely that there will be at least one experienced KC on the panel, if not two or three. To suggest that people with 40 years experience of operating with the balance of probabilities would suddenly apply a foreign law concept as to the standard of proof in the most high profile of cases stretches credulity well beyond breaking point.

The authors compound their error when discussing the evidence on which the panel could be satisfied that MCFC is guilty of the charges laid. They say - correctly - that these are serious charges, but then say - incorrectly - that there is a sliding scale so that the more serious the charges, the higher the standard of proof, so that it moves away from the mere balance of probabilities towards the criminal standard of Beyond Reasonable Doubt. This is also bollocks. In criminal cases the standard of prof is beyond reasonable doubt. In civil cases, such as this, the standard of proof, as already discussed at length in this thread, remains steadfastly the balance of probabilities.

What is undoubtedly the case is that whilst that standard does not change, a greater weight of evidence is needed to demonstrate more serious charges than in other cases. This simply reflects the fact that it is inherently less probable that people are guilty of serious wrongdoing than it is that people are guilty of minor infractions. To take the charges against MCFC, it is inherently more likely that the club's reaction to yet more charges being brought against them , based on essentially the same allegations that were ventilated at CAS, was "fuck this, we aren't co-operating" than it is that the senior executives at the club have conspired with each other over a period exceeding 10 years to present misleading accounts to HMRC, the PL, UEFA, the club's own auditors and any other relevant body. That is why a greater weight of evidence - substantially greater - will be required to prove most of the charges beyond the 'non-co-operation' ones.

Having set out in the wrong direction, the authors of the article expressly say that the analysis that follows is based on their analysis of the standard of proof: "based on the above analysis of the burden and standard of proof it is now prudent to outline and explain the charges". The problem with that is that when you set off in the wrong direction, you are inevitably less likely to reach the required destination. So to my mind much of what they go on to say is at least questionable given that it is based on a misunderstanding of the standard of proof. This is not to say the authors are overstating the case against City - in some respects the concept of being 'comfortably satisfied' might make it harder for the PL to make the charges stick against the club - but given that they get this central point wrong - and comfortably wrong, one might say - it is difficult to have a great deal of faith in what follows.

That said, there are some interesting points in the article about the effect of FFP, in terms of cementing into position the established clubs, but an avid reader of this forum would not find anything new in there. There are some interesting comments about the differences between the regulations formulated by the PL, the EFL and UEFA, for instance in relation to allowable deviations (the size of the loss before FFP sanctions come into play). Again, we've been down that road before.

However there are other issues which, fundamentally, seem to me that they might have been lifted from RAWK or Red Cafe and translated into academic-speak. For instance, they say "it is submitted that the different charges included in the charge sheet indicate not only the seriousness of the matter but also the premise that this is not a frivolous claim." That seems to me nothing more than a long winded way of saying "there's 115 charges, they must have done something wrong." The number and nature of the charges is consistent with (if not evidence of) a desire on the PL's part to charge the club with anything and everything the PL possibly could. Given the pressure we know the PL was under - witness the errors in the presentation of the charges into the public domain ('failure to enter the FA cup', anyone?) - that is far from an implausible scenario.

A further example is their concluding observation that "Put simply, defending this claim would require the deployment of enormous resources, intuitive legal reasoning, and persuasion beyond known boundaries." It is obvious that defending the club will require enormous resources, which by all accounts the club are willing to deploy in their own defence (a point the authors do not make). To say that a successful defence will require 'intuitive legal reasoning,' however is bollocks. Intuitive legal reasoning is basically a way of describing the sort of left-field argument that sometimes emerges in the courts but rarely succeeds. A successful example might be a case several years ago when some people were accused of sabotaging (IIRC) US combat aircraft. They defended themselves by saying they were trying to prevent genocide, and genocide is a greater crime than criminal damage. Surprisingly, the defence succeeded.

Based on what we know, however, there is simply no need for any left-field defence in this case. Very specific allegations have been made that can either be proved or cannot, based on the evidence available. Thus far, with the exception of the non-co-operation charge, in my view the evidence that we know of falls a very very long way short of being the sort of material on which the panel might find the charges against the club proved. I simply don't see why the authors say a successful defence will necessitate intuitive legal reasoning, other than perhaps as a way of expressing a hope that the defence of these charges will be more difficult than the publicly available evidence suggests.

Much the same point applies to the observation that a successful defence will require 'persuasion beyond known boundaries.' With great respect to the authors, that is bollocks. The defence is simply 'the evidence doesn't exist to allow the PL to establish the charges.' If it does, the charges will be proved. If it doesn't, they won't. That doesn't require Marshall-Hall like heights of eloquence, it requires extremely careful attention to the detail of what the accounts and the other documents say. (See point 1 about the resources MCFC are devoting to this.)

Overall, the analysis of the charges themselves once again tells us nothing we don't already know. There is a helpful discussion for the uninitiated as to how serious the charges are, and there is, perhaps understandably, no discussion whatsoever of the actual evidence on which the panel's decision will be based.

Finally the predictions of mutiny whatever the outcome. The authors say:

"Whatever the result of the present dispute, it is almost certain that UEFA will face serious unrest from its member clubs to a point of mutiny. The financial prowess of football clubs such as Manchester City, with the expert lawyers taking apart the inefficiency and complexity of the regulations (contra preferentem comes to mind), can only demonstrate how weak such regulations are in their application."

I simply don't follow this. I can see why certain clubs would not react well to a finding that the more serious claims against MCFC were not made out, but that is simply the way those clubs roll. Senor Tebas for instance is highly unlikely to say "well the panel found there was nothing to see here, so all's good." The line about 'expert lawyers' taking apart the regulations however seems to me to suggest a line of reasoning on the authors' part that goes 'City are obviously guilty of something, and if the PL can't make the charges stick that's because the regulations are inadequate, not because the club is not guilty of anything.' In other words, it assumes guilt in the absence of evidence of innocence.

Bearing in mind they start out by getting the standard of proof wrong, it is perhaps in keeping with the entire article that they end up by getting the burden of proof wrong as well.
 
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Chris in London said:
You are completely correct that the full article is not as positive as the video or the article would suggest. There are in fact many points in the article which could be cherry picked in isolation to make it sound a lot more positive, or indeed a lot less, depending on your perspective and inclination. With respect to the lad in the video, who has doubtless done his best with unfamiliar material, it strikes me that he reports the bits he wants to report.

However, even standing back and taking the article as a whole, it has to be said that it really adds nothing to the discussion that has been taking place in this thread, and in some respects the article is demonstrably wrong, or conceptually flawed.

The first major error in the article relates to the standard of proof. It has been extensively discussed in this thread that the standard of proof that the panel will apply is the civil standard of proof, namely the balance of probabilities. This is because the relationship between MCFC and the PL is fundamentally contractual - breaching PL FFP regulations is, at it's heart, an allegation that we have breached our contract with the PL - and moreover it is a contract that is specifically governed, as the PL rules confirm, by English law. It is a fundamental tenet of English law that contractual disputes are resolved on the balance of probabilities. Despite this the authors say that as the standard of proof used in CAS is that of 'comfortable satisfaction,' that is also the standard that the panel should apply in this case.

That is complete bollocks. No legal justification whatsoever is provided as to why the panel would suddenly disapply English law to this process appears other than "that's what CAS do, so we think the panel should do the same." If they did, it would give the losing party, whoever that is, an automatic ground of appeal - the panel applied the wrong standard. It would be to import a civil law standard of proof into what is essentially a common law adversarial process. It is overwhelmingly likely that there will be at least one experienced KC on the panel, if not two or three. To suggest that people with 40 years experience of operating with the balance of probabilities would suddenly apply a foreign law concept as to the standard of proof in the most high profile of cases stretches credulity well beyond breaking point.

The authors compound their error when discussing the evidence on which the panel could be satisfied that MCFC is guilty of the charges laid. They say - correctly - that these are serious charges, but then say - incorrectly - that there is a sliding scale so that the more serious the charges, the higher the standard of proof, so that it moves away from the mere balance of probabilities towards the criminal standard of Beyond Reasonable Doubt. This is also bollocks. In criminal cases the standard of prof is beyond reasonable doubt. In civil cases, such as this, the standard of proof, as already discussed at length in this thread, remains steadfastly the balance of probabilities.

What is undoubtedly the case is that whilst that standard does not change, a greater weight of evidence is needed to demonstrate more serious charges than in other cases. This simply reflects the fact that it is inherently less probable that people are guilty of serious wrongdoing than it is that people are guilty of minor infractions. To take the charges against MCFC, it is inherently more likely that the club's reaction to yet more charges being brought against them , based on essentially the same allegations that were ventilated at CAS, was "fuck this, we aren't co-operating" than it is that the senior executives at the club have conspired with each other over a period exceeding 10 years to present misleading accounts to HMRC, the PL, UEFA, the club's own auditors and any other relevant body. That is why a greater weight of evidence - substantially greater - will be required to prove most of the charges beyond the 'non-co-operation' ones.

Having set out in the wrong direction, the authors of the article expressly say that the analysis that follows is based on their analysis of the standard of proof: "based on the above analysis of the burden and standard of proof it is now prudent to outline and explain the charges". The problem with that is that when you set off in the wrong direction, you are inevitably less likely to reach the required destination. So to my mind much of what they go on to say is at least questionable given that it is based on a misunderstanding of the standard of proof. This is not to say the authors are overstating the case against City - in some respects the concept of being 'comfortably satisfied' might make it harder for the PL to make the charges stick against the club - but given that they get this central point wrong - and comfortably wrong, one might say - it is difficult to have a great deal of faith in what follows.

That said, there are some interesting points in the article about the effect of FFP, in terms of cementing into position the established clubs, but an avid reader of this forum would not find anything new in there. There are some interesting comments about the differences between the regulations formulated by the PL, the EFL and UEFA, for instance in relation to allowable deviations (the size of the loss before FFP sanctions come into play). Again, we've been down that road before.

However there are other issues which, fundamentally, seem to me that they might have been lifted from RAWK or Red Cafe and translated into academic-speak. For instance, they say "it is submitted that the different charges included in the charge sheet indicate not only the seriousness of the matter but also the premise that this is not a frivolous claim." That seems to me nothing more than a long winded way of saying "there's 115 charges, they must have done something wrong." The number and nature of the charges is consistent with (if not evidence of) a desire on the PL's part to charge the club with anything and everything the PL possibly could. Given the pressure we know the PL was under - witness the errors in the presentation of the charges into the public domain ('failure to enter the FA cup', anyone?) - that is far from an implausible scenario.

A further example is their concluding observation that "Put simply, defending this claim would require the deployment of enormous resources, intuitive legal reasoning, and persuasion beyond known boundaries." It is obvious that defending the club will require enormous resources, which by all accounts the club are willing to deploy in their own defence (a point the authors do not make). To say that a successful defence will require 'intuitive legal reasoning,' however is bollocks. Intuitive legal reasoning is basically a way of describing the sort of left-field argument that sometimes emerges in the courts but rarely succeeds. A successful example might be a case several years ago when some people were accused of sabotaging (IIRC) US combat aircraft. They defended themselves by saying they were trying to prevent genocide, and genocide is a greater crime than criminal damage. Surprisingly, the defence succeeded.

Based on what we know, however, there is simply no need for any left-field defence in this case. Very specific allegations have been made that can either be proved or cannot, based on the evidence available. Thus far, with the exception of the non-co-operation charge, in my view the evidence that we know of falls a very very long way short of being the sort of material on which the panel might find the charges against the club proved. I simply don't see why the authors say a successful defence will necessitate intuitive legal reasoning, other than perhaps as a way of expressing a hope that the defence of these charges will be more difficult than the publicly available evidence suggests.

Much the same point applies to the observation that a successful defence will require 'persuasion beyond known boundaries.' With great respect to the authors, that is bollocks. The defence is simply 'the evidence doesn't exist to allow the PL to establish the charges.' If it does, the charges will be proved. If it doesn't, they won't. That doesn't require Marshall-Hall like heights of eloquence, it requires extremely careful attention to the detail of what the accounts and the other documents say. (See point 1 about the resources MCFC are devoting to this.)

Overall, the analysis of the charges themselves once again tells us nothing we don't already know. There is a helpful discussion for the uninitiated as to how serious the charges are, and there is, perhaps understandably, no discussion whatsoever of the actual evidence on which the panel's decision will be based.

Finally the predictions of mutiny whatever the outcome. The authors say:

"Whatever the result of the present dispute, it is almost certain that UEFA will face serious unrest from its member clubs to a point of mutiny. The financial prowess of football clubs such as Manchester City, with the expert lawyers taking apart the inefficiency and complexity of the regulations (contra preferentem comes to mind), can only demonstrate how weak such regulations are in their application."

I simply don't follow this. I can see why certain clubs would not react well to a finding that the more serious claims against MCFC were not made out, but that is simply the way those clubs roll. Senor Tebas for instance is highly unlikely to say "well the panel found there was nothing to see here, so all's good." The line about 'expert lawyers' taking apart the regulations however seems to me to suggest a line of reasoning on the authors' part that goes 'City are obviously guilty of something, and if the PL can't make the charges stick that's because the regulations are inadequate, not because the club is not guilty of anything.' In other words, it assumes guilt in the absence of evidence of innocence.

Bearing in mind they start out by getting the standard of proof wrong, it is perhaps in keeping with the entire article that they end up by getting the burden of proof wrong as well.
Click to expand...
Top stuff Chris. Thank you
 
Chris in London said:
You are completely correct that the full article is not as positive as the video or the article would suggest. There are in fact many points in the article which could be cherry picked in isolation to make it sound a lot more positive, or indeed a lot less, depending on your perspective and inclination. With respect to the lad in the video, who has doubtless done his best with unfamiliar material, it strikes me that he reports the bits he wants to report.

However, even standing back and taking the article as a whole, it has to be said that it really adds nothing to the discussion that has been taking place in this thread, and in some respects the article is demonstrably wrong, or conceptually flawed.

The first major error in the article relates to the standard of proof. It has been extensively discussed in this thread that the standard of proof that the panel will apply is the civil standard of proof, namely the balance of probabilities. This is because the relationship between MCFC and the PL is fundamentally contractual - breaching PL FFP regulations is, at it's heart, an allegation that we have breached our contract with the PL - and moreover it is a contract that is specifically governed, as the PL rules confirm, by English law. It is a fundamental tenet of English law that contractual disputes are resolved on the balance of probabilities. Despite this the authors say that as the standard of proof used in CAS is that of 'comfortable satisfaction,' that is also the standard that the panel should apply in this case.

That is complete bollocks. No legal justification whatsoever is provided as to why the panel would suddenly disapply English law to this process appears other than "that's what CAS do, so we think the panel should do the same." If they did, it would give the losing party, whoever that is, an automatic ground of appeal - the panel applied the wrong standard. It would be to import a civil law standard of proof into what is essentially a common law adversarial process. It is overwhelmingly likely that there will be at least one experienced KC on the panel, if not two or three. To suggest that people with 40 years experience of operating with the balance of probabilities would suddenly apply a foreign law concept as to the standard of proof in the most high profile of cases stretches credulity well beyond breaking point.

The authors compound their error when discussing the evidence on which the panel could be satisfied that MCFC is guilty of the charges laid. They say - correctly - that these are serious charges, but then say - incorrectly - that there is a sliding scale so that the more serious the charges, the higher the standard of proof, so that it moves away from the mere balance of probabilities towards the criminal standard of Beyond Reasonable Doubt. This is also bollocks. In criminal cases the standard of prof is beyond reasonable doubt. In civil cases, such as this, the standard of proof, as already discussed at length in this thread, remains steadfastly the balance of probabilities.

What is undoubtedly the case is that whilst that standard does not change, a greater weight of evidence is needed to demonstrate more serious charges than in other cases. This simply reflects the fact that it is inherently less probable that people are guilty of serious wrongdoing than it is that people are guilty of minor infractions. To take the charges against MCFC, it is inherently more likely that the club's reaction to yet more charges being brought against them , based on essentially the same allegations that were ventilated at CAS, was "fuck this, we aren't co-operating" than it is that the senior executives at the club have conspired with each other over a period exceeding 10 years to present misleading accounts to HMRC, the PL, UEFA, the club's own auditors and any other relevant body. That is why a greater weight of evidence - substantially greater - will be required to prove most of the charges beyond the 'non-co-operation' ones.

Having set out in the wrong direction, the authors of the article expressly say that the analysis that follows is based on their analysis of the standard of proof: "based on the above analysis of the burden and standard of proof it is now prudent to outline and explain the charges". The problem with that is that when you set off in the wrong direction, you are inevitably less likely to reach the required destination. So to my mind much of what they go on to say is at least questionable given that it is based on a misunderstanding of the standard of proof. This is not to say the authors are overstating the case against City - in some respects the concept of being 'comfortably satisfied' might make it harder for the PL to make the charges stick against the club - but given that they get this central point wrong - and comfortably wrong, one might say - it is difficult to have a great deal of faith in what follows.

That said, there are some interesting points in the article about the effect of FFP, in terms of cementing into position the established clubs, but an avid reader of this forum would not find anything new in there. There are some interesting comments about the differences between the regulations formulated by the PL, the EFL and UEFA, for instance in relation to allowable deviations (the size of the loss before FFP sanctions come into play). Again, we've been down that road before.

However there are other issues which, fundamentally, seem to me that they might have been lifted from RAWK or Red Cafe and translated into academic-speak. For instance, they say "it is submitted that the different charges included in the charge sheet indicate not only the seriousness of the matter but also the premise that this is not a frivolous claim." That seems to me nothing more than a long winded way of saying "there's 115 charges, they must have done something wrong." The number and nature of the charges is consistent with (if not evidence of) a desire on the PL's part to charge the club with anything and everything the PL possibly could. Given the pressure we know the PL was under - witness the errors in the presentation of the charges into the public domain ('failure to enter the FA cup', anyone?) - that is far from an implausible scenario.

A further example is their concluding observation that "Put simply, defending this claim would require the deployment of enormous resources, intuitive legal reasoning, and persuasion beyond known boundaries." It is obvious that defending the club will require enormous resources, which by all accounts the club are willing to deploy in their own defence (a point the authors do not make). To say that a successful defence will require 'intuitive legal reasoning,' however is bollocks. Intuitive legal reasoning is basically a way of describing the sort of left-field argument that sometimes emerges in the courts but rarely succeeds. A successful example might be a case several years ago when some people were accused of sabotaging (IIRC) US combat aircraft. They defended themselves by saying they were trying to prevent genocide, and genocide is a greater crime than criminal damage. Surprisingly, the defence succeeded.

Based on what we know, however, there is simply no need for any left-field defence in this case. Very specific allegations have been made that can either be proved or cannot, based on the evidence available. Thus far, with the exception of the non-co-operation charge, in my view the evidence that we know of falls a very very long way short of being the sort of material on which the panel might find the charges against the club proved. I simply don't see why the authors say a successful defence will necessitate intuitive legal reasoning, other than perhaps as a way of expressing a hope that the defence of these charges will be more difficult than the publicly available evidence suggests.

Much the same point applies to the observation that a successful defence will require 'persuasion beyond known boundaries.' With great respect to the authors, that is bollocks. The defence is simply 'the evidence doesn't exist to allow the PL to establish the charges.' If it does, the charges will be proved. If it doesn't, they won't. That doesn't require Marshall-Hall like heights of eloquence, it requires extremely careful attention to the detail of what the accounts and the other documents say. (See point 1 about the resources MCFC are devoting to this.)

Overall, the analysis of the charges themselves once again tells us nothing we don't already know. There is a helpful discussion for the uninitiated as to how serious the charges are, and there is, perhaps understandably, no discussion whatsoever of the actual evidence on which the panel's decision will be based.

Finally the predictions of mutiny whatever the outcome. The authors say:

"Whatever the result of the present dispute, it is almost certain that UEFA will face serious unrest from its member clubs to a point of mutiny. The financial prowess of football clubs such as Manchester City, with the expert lawyers taking apart the inefficiency and complexity of the regulations (contra preferentem comes to mind), can only demonstrate how weak such regulations are in their application."

I simply don't follow this. I can see why certain clubs would not react well to a finding that the more serious claims against MCFC were not made out, but that is simply the way those clubs roll. Senor Tebas for instance is highly unlikely to say "well the panel found there was nothing to see here, so all's good." The line about 'expert lawyers' taking apart the regulations however seems to me to suggest a line of reasoning on the authors' part that goes 'City are obviously guilty of something, and if the PL can't make the charges stick that's because the regulations are inadequate, not because the club is not guilty of anything.' In other words, it assumes guilt in the absence of evidence of innocence.

Bearing in mind they start out by getting the standard of proof wrong, it is perhaps in keeping with the entire article that they end up by getting the burden of proof wrong as well.
Click to expand...
Superb, well said
 
Chris in London said:
You are completely correct that the full article is not as positive as the video or the article would suggest. There are in fact many points in the article which could be cherry picked in isolation to make it sound a lot more positive, or indeed a lot less, depending on your perspective and inclination. With respect to the lad in the video, who has doubtless done his best with unfamiliar material, it strikes me that he reports the bits he wants to report.

However, even standing back and taking the article as a whole, it has to be said that it really adds nothing to the discussion that has been taking place in this thread, and in some respects the article is demonstrably wrong, or conceptually flawed.

The first major error in the article relates to the standard of proof. It has been extensively discussed in this thread that the standard of proof that the panel will apply is the civil standard of proof, namely the balance of probabilities. This is because the relationship between MCFC and the PL is fundamentally contractual - breaching PL FFP regulations is, at it's heart, an allegation that we have breached our contract with the PL - and moreover it is a contract that is specifically governed, as the PL rules confirm, by English law. It is a fundamental tenet of English law that contractual disputes are resolved on the balance of probabilities. Despite this the authors say that as the standard of proof used in CAS is that of 'comfortable satisfaction,' that is also the standard that the panel should apply in this case.

That is complete bollocks. No legal justification whatsoever is provided as to why the panel would suddenly disapply English law to this process appears other than "that's what CAS do, so we think the panel should do the same." If they did, it would give the losing party, whoever that is, an automatic ground of appeal - the panel applied the wrong standard. It would be to import a civil law standard of proof into what is essentially a common law adversarial process. It is overwhelmingly likely that there will be at least one experienced KC on the panel, if not two or three. To suggest that people with 40 years experience of operating with the balance of probabilities would suddenly apply a foreign law concept as to the standard of proof in the most high profile of cases stretches credulity well beyond breaking point.

The authors compound their error when discussing the evidence on which the panel could be satisfied that MCFC is guilty of the charges laid. They say - correctly - that these are serious charges, but then say - incorrectly - that there is a sliding scale so that the more serious the charges, the higher the standard of proof, so that it moves away from the mere balance of probabilities towards the criminal standard of Beyond Reasonable Doubt. This is also bollocks. In criminal cases the standard of prof is beyond reasonable doubt. In civil cases, such as this, the standard of proof, as already discussed at length in this thread, remains steadfastly the balance of probabilities.

What is undoubtedly the case is that whilst that standard does not change, a greater weight of evidence is needed to demonstrate more serious charges than in other cases. This simply reflects the fact that it is inherently less probable that people are guilty of serious wrongdoing than it is that people are guilty of minor infractions. To take the charges against MCFC, it is inherently more likely that the club's reaction to yet more charges being brought against them , based on essentially the same allegations that were ventilated at CAS, was "fuck this, we aren't co-operating" than it is that the senior executives at the club have conspired with each other over a period exceeding 10 years to present misleading accounts to HMRC, the PL, UEFA, the club's own auditors and any other relevant body. That is why a greater weight of evidence - substantially greater - will be required to prove most of the charges beyond the 'non-co-operation' ones.

Having set out in the wrong direction, the authors of the article expressly say that the analysis that follows is based on their analysis of the standard of proof: "based on the above analysis of the burden and standard of proof it is now prudent to outline and explain the charges". The problem with that is that when you set off in the wrong direction, you are inevitably less likely to reach the required destination. So to my mind much of what they go on to say is at least questionable given that it is based on a misunderstanding of the standard of proof. This is not to say the authors are overstating the case against City - in some respects the concept of being 'comfortably satisfied' might make it harder for the PL to make the charges stick against the club - but given that they get this central point wrong - and comfortably wrong, one might say - it is difficult to have a great deal of faith in what follows.

That said, there are some interesting points in the article about the effect of FFP, in terms of cementing into position the established clubs, but an avid reader of this forum would not find anything new in there. There are some interesting comments about the differences between the regulations formulated by the PL, the EFL and UEFA, for instance in relation to allowable deviations (the size of the loss before FFP sanctions come into play). Again, we've been down that road before.

However there are other issues which, fundamentally, seem to me that they might have been lifted from RAWK or Red Cafe and translated into academic-speak. For instance, they say "it is submitted that the different charges included in the charge sheet indicate not only the seriousness of the matter but also the premise that this is not a frivolous claim." That seems to me nothing more than a long winded way of saying "there's 115 charges, they must have done something wrong." The number and nature of the charges is consistent with (if not evidence of) a desire on the PL's part to charge the club with anything and everything the PL possibly could. Given the pressure we know the PL was under - witness the errors in the presentation of the charges into the public domain ('failure to enter the FA cup', anyone?) - that is far from an implausible scenario.

A further example is their concluding observation that "Put simply, defending this claim would require the deployment of enormous resources, intuitive legal reasoning, and persuasion beyond known boundaries." It is obvious that defending the club will require enormous resources, which by all accounts the club are willing to deploy in their own defence (a point the authors do not make). To say that a successful defence will require 'intuitive legal reasoning,' however is bollocks. Intuitive legal reasoning is basically a way of describing the sort of left-field argument that sometimes emerges in the courts but rarely succeeds. A successful example might be a case several years ago when some people were accused of sabotaging (IIRC) US combat aircraft. They defended themselves by saying they were trying to prevent genocide, and genocide is a greater crime than criminal damage. Surprisingly, the defence succeeded.

Based on what we know, however, there is simply no need for any left-field defence in this case. Very specific allegations have been made that can either be proved or cannot, based on the evidence available. Thus far, with the exception of the non-co-operation charge, in my view the evidence that we know of falls a very very long way short of being the sort of material on which the panel might find the charges against the club proved. I simply don't see why the authors say a successful defence will necessitate intuitive legal reasoning, other than perhaps as a way of expressing a hope that the defence of these charges will be more difficult than the publicly available evidence suggests.

Much the same point applies to the observation that a successful defence will require 'persuasion beyond known boundaries.' With great respect to the authors, that is bollocks. The defence is simply 'the evidence doesn't exist to allow the PL to establish the charges.' If it does, the charges will be proved. If it doesn't, they won't. That doesn't require Marshall-Hall like heights of eloquence, it requires extremely careful attention to the detail of what the accounts and the other documents say. (See point 1 about the resources MCFC are devoting to this.)

Overall, the analysis of the charges themselves once again tells us nothing we don't already know. There is a helpful discussion for the uninitiated as to how serious the charges are, and there is, perhaps understandably, no discussion whatsoever of the actual evidence on which the panel's decision will be based.

Finally the predictions of mutiny whatever the outcome. The authors say:

"Whatever the result of the present dispute, it is almost certain that UEFA will face serious unrest from its member clubs to a point of mutiny. The financial prowess of football clubs such as Manchester City, with the expert lawyers taking apart the inefficiency and complexity of the regulations (contra preferentem comes to mind), can only demonstrate how weak such regulations are in their application."

I simply don't follow this. I can see why certain clubs would not react well to a finding that the more serious claims against MCFC were not made out, but that is simply the way those clubs roll. Senor Tebas for instance is highly unlikely to say "well the panel found there was nothing to see here, so all's good." The line about 'expert lawyers' taking apart the regulations however seems to me to suggest a line of reasoning on the authors' part that goes 'City are obviously guilty of something, and if the PL can't make the charges stick that's because the regulations are inadequate, not because the club is not guilty of anything.' In other words, it assumes guilt in the absence of evidence of innocence.

Bearing in mind they start out by getting the standard of proof wrong, it is perhaps in keeping with the entire article that they end up by getting the burden of proof wrong as well.
Click to expand...
I love it when you and the other usual suspects talk dirty.
Brilliant sir.
 
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