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

[mancity2012_eamo]

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.



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.

Regarding reason no.1: Given the statutes of limitations has passed, could the IC begin a new investigation if the reason the previous one failed was their lack of procedure?

 

[Keith Moon]

Regarding reason no.1: Given the statutes of limitations has passed, could the IC begin a new investigation if the reason the previous one failed was their lack of procedure?

Its game over for UEFA if CAS rule in our favor.

 

[nmc]

I think City have indicated to friendly journos that the procedural failures include undue haste in the investigate and bias amongst some of the investigators. Maybe the best outcome would be force the investigation to restart but that would be a victory of sorts (albeit a minor one). I sense that it is unlikely but could UEFA be timed out on the five year rule if they had to restart the investigation?

We would need to take a serious PR hit for this appeal not to have been worthwhile because the negative press seem to have gone quiet in recent weeks. For example, Martin Samuel has returned to being more supportive (after he distanced himself from us on FFP after the “leaks”). Also, it might not be very telling evidence but from a PR perspective linking Craig Parry as an investigator to the footage from inside City’s coach for last year’s Champions League Semi Final might be a decent ploy. Liverpool are detested by fans of other Prem Teams after all
Although they have international popularity.

We may (or may not) also be able to evidence bias from the former Prime Minister of Belgium given Khaldoon has focused on him, albeit that might be just because he led the investigation.

There are clearly different ways of looking at the pros and cons and it could backfire. That said, for most of us who are growing weary of the apparently corrupt Champs League, City putting up a legal ad PR fight is a major step forward in its own right.

On your first point there’s lots of legal precedent- although I’m not familiar with CAS or Swiss Federal Law - to suggest that in the event of the investigatory process being flawed; UEFA being asked to go back and do it properly. On your other point about whether this would then deem UEFA to be out of time - that’s really interesting and on such fine margins the case may rest. On the one hand if CAS send UEFA back to do the investigation again it will need to be a much more transparent process given it will be subject to CAS scrutiny (if it finds us guilty) so I’d guess that’s a good thing. However, if City can show serious flaws in the investigatory process - and theres good grounds to assume it’s been seriously rushed - then that is a scenario wholly within UEFAs control. One has to believe that they made a decision without talking to City and without seemingly giving much consideration to our 100 page dossier simply because they were out of time. On balance it’s hard to predict these things but I can see a scenario where CAS will want to see the investigation undertaken properly and a decision made on the basis of ‘facts’ but whether they will allow UEFA more time to do that is anyone’s guess.

 

[King KdB of Belgium]

We have lodge a case with CAS, just in case we should get a ban from the bosses of UEFA. Therefore making the appeal a lot quicker with CAS., should UEFA come out that there will not be a ban we will withdraw the case straight away. All this is just guess work on my side, however the judges decision should be out sooner or later, providing football leaks don't hack into UEFA and publish it's findings 1st, before we find out from UEFA.

 

[bobbyowenquiff]

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.



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.

If City don't have compelling evidence of procedural flaws and bias in the UEFA investigation then Khaldoon must be one hell of a poker player based on his initial bullish interview.

 

[BluessinceHydeRoad]

Regarding reason no.1: Given the statutes of limitations has passed, could the IC begin a new investigation if the reason the previous one failed was their lack of procedure?

Again we are in the realms of conjecture and speculation but I suspect that if CAS ordered a new investigation City's legal team would argue that any new investigation would be hopelessly compromised because the investigatory commission had already reached a verdict and recommended a sentence and that the deliberations of the adjudicatory commission had been prejudiced.

Petrusha has argued convincingly that there are so many unknowns in City's appeal to CAS that we can't discuss it with any confidence because we are almost completely in the dark. I think most of us suspect that City's legal team is about as good as it can be and that they would certainly not put in an appeal which they did not have a good chance of winning but ..... I do think City want an end to the whole saga of the club and FFP in 2014 and its relationship with UEFA. The club, I suspect, feels that it has vindicated its heavy investment of 2009-11/12 and now operates as the most highly efficient club in Europe and a model of what can be achieved by owners operating in accordance with sound and prudent business practice. There are other clubs - we can name them - who wish to do the same, and when achieving the objectives which UEFA says are its own don't wish to be hidebound by archaic rules which protect the position of a number of clubs which practice the exact opposite of what UEFA preaches. City wants the place in football it has earned and that's all.

If UEFA sticks rigidly to its rules and its assumptions and is backed up by CAS I think we will see a challenge to the legality of FFP itself. I'm fairly sure City would not score the total victory that some expect, the victory which sends the whole system crashing down, fines the cartel billions and leads to the imprisonment of UEFA officials, but I am confident that the right of owners to invest would be upheld and the break even rule consigned to the waste paper bin. The right of owners to invest is guaranteed explicitly in law and the ECJ has already warned UEFA that football must operate according to the law rather than UEFA's view of its own best interests. I can, however, see that the ECJ will attach importance to the argument of competitive balance and the problem of the inflation of the market. The problem for UEFA is that FFP has not even paid lip service to maintaining competitive balance, but rather has attempted to make permanent the imbalance of the past 30 years. And, of course, it has used its regulations to discriminate against "new" clubs, such as City and any needing investment from an owner in the future, and then changed them at the behest of "traditional" clubs. I think the ECJ would declare FFP illegal and, at best, tell UEFA to try again but to make sure future regulations were a genuine attempt to solve the problems they purported to want to solve and to remain well within the law, because future judgements may not take such a benign view of UEFA's motives. That really would be a very hot potato indeed for "our friends at UEFA" to deal with, but perhaps preferable for UEFA to being told that the operation of the market is no concern of theirs.

 

[petrusha]

Regarding reason no.1: Given the statutes of limitations has passed, could the IC begin a new investigation if the reason the previous one failed was their lack of procedure?

I think City have indicated to friendly journos that the procedural failures include undue haste in the investigate and bias amongst some of the investigators. Maybe the best outcome would be force the investigation to restart but that would be a victory of sorts (albeit a minor one). I sense that it is unlikely but could UEFA be timed out on the five year rule if they had to restart the investigation?

We would need to take a serious PR hit for this appeal not to have been worthwhile because the negative press seem to have gone quiet in recent weeks. For example, Martin Samuel has returned to being more supportive (after he distanced himself from us on FFP after the “leaks”). Also, it might not be very telling evidence but from a PR perspective linking Craig Parry as an investigator to the footage from inside City’s coach for last year’s Champions League Semi Final might be a decent ploy. Liverpool are detested by fans of other Prem Teams after all
Although they have international popularity.

We may (or may not) also be able to evidence bias from the former Prime Minister of Belgium given Khaldoon has focused on him, albeit that might be just because he led the investigation.

There are clearly different ways of looking at the pros and cons and it could backfire. That said, for most of us who are growing weary of the apparently corrupt Champs League, City putting up a legal ad PR fight is a major step forward in its own right.

I think that it's gone quiet partly because the IC's decision ran its course as a newsworthy item and things moved on when we had the two European finals plus the Nations League finals. Had the AC's decision come through in fairly short order as many were predicting, I expect we'd have had another round of media abuse.

I agree with you, though, that it's good to see the club take a more proactive stance at last. I did smile when I heard about this case because I've no doubt that UEFA expected to see us in the CAS after the AC's decision and our taking that step now will have come as a surprise to them.

As for UEFA's starting a new investigation, someone pointed out on here a few days ago that the rules say they can't "prosecute" a case after five years. (I don't have time to dig out the post, I'm afraid). So in theory they could investigate whatever they want for however long they want to do it, but if they can't prosecute it, then the IC presumably can't make a referral to the AC.

The usual practice in cases of procedural delay is that the clock gets reset. So UEFA would argue that, having begun an investigation 68 days before the final referral deadline, they should go back and have 68 days for another crack at doing it properly this time. We'd argue that, if the investigation had been struck out for procedural irregularities, that's entirely within UEFA's control and they don't deserve another crack given that they've already fatally compromised the process.

Hard to tell how it would play out. Our position is certainly arguable, but you can't rule out at least two CAS arbitrators deciding that the process should go through to the end rather than being aborted.

 

[petrusha]

If City don't have compelling evidence of procedural flaws and bias in the UEFA investigation then Khaldoon must be one hell of a poker player based on his initial bullish interview.

This is true. And it's, let's say, not wholly unknown for UEFA to act in the way that City have already publicly accused them of. I suspect we're likely to have put together an impressive case, but it still remains conjecture. :)

 

[mancity2012_eamo]

While we have a couple of the legal eagles in at the moment, can I ask one other, probably naive question.
Regarding the MOU that David Conn (I think it was), inferred rendered going beyond CAS out of the question. Is this something that is signed every season or is it something we signed up for on first entry into uefa competitions.
Probably naive as I say, but if the rules we signed up to abide by have been changed since we've agreed, would it not render the MOU useless?

 

[MillionMilesAway]

While we have a couple of the legal eagles in at the moment, can I ask one other, probably naive question.
Regarding the MOU that David Conn (I think it was), inferred rendered going beyond CAS out of the question. Is this something that is signed every season or is it something we signed up for on first entry into uefa competitions.
Probably naive as I say, but if the rules we signed up to abide by have been changed since we've agreed, would it not render the MOU useless?

It gets updated every few years.
it starts with preamble including:

• UEFA and ECA have concluded Memorandums of Understanding on 21 January 2008, 22 March 2012 and 24 March 2015, with which they established the basis for their co-operation;
• UEFA and ECA wish to continue and reinforce their relationship, by implementing a new arrangement, in accordance with the principles set out in this Memorandum of Understanding, which supersedes the 2015 Memorandum of Understanding as from the date of its entry into force;