UEFA FFP investigation - CAS decision to be announced Monday, 13th July 9.30am BST

[bobmcfc]

pretty sure bayern are doing a similar thing with addidas

Shame we can’t expose them and all the rest with a few leaked emails

 

[Keith Moon]

pretty sure bayern are doing a similar thing with addidas

..and Audi + Allianz, they have sponsorship deals with their owners worth 2 billion Euros.

 

[OB1]

Are you referring to me? I've just had a look at the document based on which Castles wrote his story. On its face, it does seem to be binding. And it does expressly exclude the right to apply to a "state court", which isn't defined but which a court, I suspect, would view as including both the Swiss Federal Supreme Court and the ECJ. The document is governed by Swiss law, so there are two questions:

- under what circumstances does Swiss law allow a contract that purports to be binding to be treated as non-binding?
and
- under what circumstances does Swiss law allow a challenge in a state court to an arbitral award when the arbitration clause in the relevant contract precludes such a challenge?

I have no qualifications to advise on matters of Swiss law. Nonetheless, I've had a quick dig around and discovered certain rules of Swiss law that can be used in some cases with regard to the above questions.

1. Swiss private law has an overriding duty for parties to act in good faith “in the exercise of his or her rights and in the performance of his or her obligations” and further provides that a “manifest abuse of a right” is afforded no legal protection (see here in Article 2 of the Swiss Civil Code - https://www.admin.ch/opc/en/classified-compilation/19070042/201901010000/210.pdf). Further, it seems that parties can be barred from invoking matters agreed upon between them if they’re regarded as in breach of Article 2 (see the discussion here on numbered pages 285 to 288 - https://www.zora.uzh.ch/id/eprint/160651/1/Picht_Studen__Chap11_-_Civil_Law__Introduction_to_Swiss_Law.pdf).

2. There are cases in which a challenge in a state court to an arbitral award has been permitted, but the wording of the relevant arbitration clause seems to be crucial. I'm afraid I'm simply not equipped to deal with those kinds of subtleties under Swiss law (see section 6 here: https://www.globallegalinsights.com/practice-areas/litigation-and-dispute-resolution-laws-and-regulations/switzerland).

I'm not qualified to say and am absolutely NOT saying that the above would be applicable to the current issues between MCFC and UEFA because I just don't know how the relevant rules work in practice. However, they serve as examples of why there can sometimes be successful litigation challenging even ostensibly watertight contractual provisions agreed by the parties to be binding on them or an agreement for dispute resolution through mandatory arbitration of which the result purports to be binding on both parties.

What I will say is that I presume one of MCFC's three top law firms who are supposedly on this case is able to provide authoritative advice from top-class Swiss lawyers. I also presume that, in developing a strategy for any potential further litigation after the two bites we'll have at the CAS cherry (the current procedural case and a potential appeal against a future sanction from the AC) have been exhausted, they're aware of the purported constraints imposed by the document Castles cites. It would be extraordinarily unprofessional if they aren't.

I suspect there already is a strategy in place to deal with the eventuality that we end up with a ban notwithstanding the appeals to CAS or the eventuality that we consider further post-CAS steps necessary to deal with reputational damage even if we avoid a ban. If so, that strategy will take into account the document in question.

As I’ve said before, the bottom line is that no one on the outside of this matter has enough information to offer a remotely credible analysis of the state of play. City will have the very best lawyers in the business working on this and we simply have to trust that the strategy they come up with will be the optimum one for the club in the circumstances.

And that also means us on here being relatively sanguine and not panicking when people come along quoting arguments that our opponents will likely run, as Conn did the other day and as Castles is doing here. MCFC know what our opponents' arguments are already and, when the time comes, will be as well prepared to combat them as it’s possible to be. I hope it's enough for us to succeed, but we won't and can't know that until the time comes, I'm afraid.

I was definitely thinking of you.

Thank you for taking time to do some research and reply.

City clearly do have a strategy here. The initial approach to CAS appears to have no hope and I think City know that but want to make it very clear to UEFA that we will take this all the way and they had better be bloody sure of their case before finding us guilty. One can only speculate if they think they can go beyond CAS but my guess would be that they do.

 

[91:23]

..and Audi + Allianz, they have sponsorship deals with their owners worth 2 billion Euros.

And Qatar airways!

 

[Fame Monster]

I was definitely thinking of you.

Thank you for taking time to do some research and reply.

City clearly do have a strategy here. The initial approach to CAS appears to have no hope and I think City know that but want to make it very clear to UEFA that we will take this all the way and they had better be bloody sure of their case before finding us guilty. One can only speculate if they think they can go beyond CAS but my guess would be that they do.

Exactly. It is definitely strategic.

 

[Parisian]

Let’s say we have flouted certain rules regarding FFP.

Now we cannot surely be alone in this, other clubs not currently under or been subject to investigation surely have and are doing the same.i refuse to believe the cartels aren’t doing dodgy stuff to circumvent the rules

Almost any and every club has tried, tries and will try to circumvent some rules to gain a competitive advantage. The big spanish clubs have a special status they are keeping for fiscal reason, they also maintained unfair repartition of TV rights. The youth transfers are massively dubious between the under table deals with parents/agents of the youngsters. Big clubs are getting punished for youth transfers all the time.

In regards of FFP, though, they don't need to cheat. It is rather nice when the rules have been designed specifically for you to pass and for your targeted opponents (City and PSG) to fail. The FFP conveniently ignores the previous debt of those clubs and it is not a coincidence. Their big debt (some were in hundreds of millions while the market was not as inflated as it is now) is a testament that they were "financially doping" and are still benefiting from it now.
Let's say FFP had asked those clubs to reimburse their debts before investing their money in the market. Not an hard ban but something like PSG and City had to agree to under the 2014 sanctions : you can make a 50 M purchase but that is all (or you have to balance with sale). Then, i would say, FFP is kinda "fair".

 

[Bodicoteblue]

Platini -June 2008:
‘Look at the debts Utd and Chelsea have,fifa and uefa are going to have to do something to combat that because, today, it is the clubs who cheat that are winning’.
‘I don’t think one should cheat to win when clubs are in debt- it’s probably easier for them to beat other clubs who aren’t in debt’.
‘We have to look for clubs to be less in debt and find methods to fight this’
Quite easy to see what they were pre-occupied with.
Spot the difference between that and the rules they have implemented.

 

[KS55]

Okay i have tweeted Prof. Simon Chadwick who is prof of sports enterprise based in Salford. After reading an article he was interviewed on for goal.com
https://www.goal.com/en/news/footba...rturn-ffp-in-court/1jtln6fw19enj1pwwn7sm11m7t

He has replied stating this is what he believes is happening right now in the game -
https://www.policyforum.net/deals-not-rules-becomes-footballs-new-game/

And this -
http://www.ejinsight.com/20181108-europe-s-consternation-at-latest-football-leaks/

Not impressed by Chadwick's articles. A bit of shoehorning to make football events fit his global view.

 

[BlueMoonz1977]

Platini -June 2008:
‘Look at the debts Utd and Chelsea have,fifa and uefa are going to have to do something to combat that because, today, it is the clubs who cheat that are winning’.
‘I don’t think one should cheat to win when clubs are in debt- it’s probably easier for them to beat other clubs who aren’t in debt’.
‘We have to look for clubs to be less in debt and find methods to fight this’
Quite easy to see what they were pre-occupied with.
Spot the difference between that and the rules they have implemented.

Exactly what ffp was originally brought in for wasnt it ! Stop football running off debt, except when those that run of debt realised what was happening they lobbied uefa and got the rule changed

 

[petrusha]

Not impressed by Chadwick's articles. A bit of shoehorning to make football events fit his global view.

Agree with this. I follow Chadwick on Twitter because his tweets sometimes contain interesting links. However, I often find his own analysis lacking the authority I'd expect from someone with his qualifications.

City clearly do have a strategy here. The initial approach to CAS appears to have no hope and I think City know that but want to make it very clear to UEFA that we will take this all the way and they had better be bloody sure of their case before finding us guilty. One can only speculate if they think they can go beyond CAS but my guess would be that they do.

With regard to the highlighted part, you may well be right but I personally don't take this as a given. This is mainly because, if it's true, I really don't see our application as making sense in strategic terms. UEFA will have been blindsided by our application to the CAS at this stage, but any concern on their part quickly dissipates if you have only a no-hope case. In fact, putting forward a case that they can effortlessly swat away and that the CAS will haughtily dismiss will simply make UEFA more confident in an "If that's the best they can come up with, we really don't have much to worry about" kind of way. On the other hand, if we put forward a credibly arguable case and UEFA still win, they'll know they've been in a fight and will proceed with a degree of concern.

Moreover, a defeat in a first application to the CAS would be damaging to City in PR terms. Imagine the glee with which our detractors will greet it: they'll be delighted to take the chance to trumpet that the cheats are merely full of bluster and the CAS has seen through us. If we have a significant chance, even if it's fifty-fifty or perhaps as low as one in three, then there's a viable prospect of a significant upside (throwing a spoke in the wheel of UEFA's process) to balance against the risk of the downside. But to accept an inevitable reputational battering when the prospect of the upside is more or less zero? That doesn't make much sense to me.

It's difficult to assess the merits of City's legal arguments without access to information that isn't in the public domain. However, the analysis so far put forward suggests that the Milan case is a decisive precedent. Having read the judgment in that case, I'm not absolutely sure that it will be for three principal reasons:

1. City seem not to be challenging the merits of the decision but the procedure via which it was reached. In Milan's case, the punishment would have been struck out, whereas for us it would remain possible for the IC to begin a new investigation and do it properly this time.
2. In the Milan case, the CAS suggested that it would have had the power to intervene at the stage of the IC referral if that had been necessary to safeguard Milan's interests but it declined to do so because Milan's interests were already sufficiently protected. On the face of it, MCFC's argument for this kind of discretion to be exercised is stronger than Milan's was if there are serious procedural breaches on UEFA's side and if our conduct in timely supplying information and the like has been beyond reproach. After all, in Milan's case the AC was taking a decision based on an investigation whose propriety was unchallenged. That's not the case with us, and we'll argue that, therefore, the AC's decision would inevitably be compromised so they shouldn't be invited to take it given the reputational repercussions for us as a club of an adverse AC decision.
3. Thirdly, I've read that City are also running a further and different argument that there's no case to answer and the decision to initiate an investigation was flawed so should be set aside. The Milan case isn't a precedent with regard to this argument.

So it seems to me that there's the kernel here of some viable legal arguments that could, in the right circumstances, even be quite strong. However, and here's the rub, they can only be convincing if City have extremely compelling evidence of procedural breaches, inherent bias and a lack of proper cause to initiate the investigation in the first place. Many Blue Mooners take it as gospel that we do have such evidence. They're wrong to do so - we simply have no idea of what the evidence is so can't assess its strength. As I wrote previously, to try to do so is a fool's errand.

So maybe I'm wrong about City's strategy. Perhaps for some strange reason they're prepared to go forward with a case that they know they'll undoubtedly lose. And maybe there are other CAS precedents, in cases more similar to City's than Milan's was, suggesting that the CAS will regard the possibility of an appeal against an eventual AC decision as a sufficient safeguard of MCFC's interests. However, so far it's the Milan case that's been put forward as the reason why City's application is likely to fail. It may well fail, of course, but I don't think the position is quite as cut and dried as many others seem to.