By Tony Attwood
As we have noted the Manchester City hearing at the Court of Arbitration for Sport is over and we await the outcome. I have suggested before that there might be three possible results but looking further at the matter and judging by what has been said there could be several more
First, the CAS could find that Uefa’s decision was reasonable and Manchester City could accept this and its punishment of a two year ban.
Second CAS could find the Uefa decision excessive and reduce the punishment to a one year ban
Third the CAS could find the Uefa decision wrong, and Man City could walk away and carry on as before.
And now the extra possibilities.
Fourth, CAS could find that Uefa’s decision was reasonable and Manchester City could not accept this and not accept its punishment of a two year ban and so turn to the Swiss Federal Tribunal. This is allowed where the case is made that CAS does not have jurisdiction, or has not given Man City a fair hearing.
Fifth, Manchester City could carry out the threat to take the fight to Uefa. When it was charged the club put out a statement to the effect that the process against the club was “hostile” and that Uefa had ignored a lot of evidence. Subsequently it raised concerns about what it considered to be leaks of confidential information and the fact that evidence provided came from hacked emails.
The leaks of November 2018 included one from Simon Cliffe who acted as a lawyer for Manchester City which stated that the Manchester City chair had told Gianni Infantino that “he would rather spend £30 million on the 50 best lawyers in the world to sue them for the next 10 years” than acknowledge liability and pay a fine.
Non-payment of any fine would presumably lead to further hearings, and ultimately have Man C thrown out of Uefa and hence out of the Premier League.
But this matter has become confused further by the fact that Infantino and the Swiss general prosecutor are both about to be charged with having secret meetings together. This, as I have mentioned several times before, is a subject all over the European media, but on which the British media are being utterly quiet. Quite why that is, is a matter of speculation. But Man C are unlikely to get much of Uefa’s attention in the coming weeks and months.
Further Manchester City have stated that because the evidence against them was gained from hacking, and thus cannot be used. Also they have claimed that FFP regulations are in breach of European law. They also said that their appeal to CAS is “in the first instance” implying that if they lose they will proceed elsewhere. So we need to look and see where else there is to go.
Rather coincidentally the definitive volume on sports law in the European Union is published by Manchester University Press, (“Sports Law and Policy in the European Union”), and it states that the “legal consequence of Bosman was that the EU no longer had to justify why sport was subject to EU
law, but rather sport would have to justify why it should be exempt from the Treaty. Even so, the acknowledgement by the ECJ that sport was different to other ‘normal’ industries may be interpreted as the genesis of EU sports law.”
That unique position, is expounded at much length in the book although a lot of the current position in Europe goes back to the ECJ’s pronouncement on 15 December 1995 of which the book says, “the acknowledgement by the ECJ that sport was different to other ‘normal’ industries may be interpreted as the genesis of EU sports law.”
If CAS upholds Uefa’s ruling, precedent suggests an appeal to European law is likely to be unsuccessful. Of course this is speculation, but in this event it is open for the Premier League to take action in the form of a points deduction for breach of their rules.
There is also no absolute certainty that if Man C are kicked out of Europe Uefa would then allow the next team down the table to qualify in their place. Rather ludicrously this doesn’t seem to be mentioned in the Uefa rulebook although many assume it will happen.
Of course Man C can also appeal on the grounds that they have not had a fair hearing, and could then take up the option so volubly outlined by them previously of bringing Uefa down by starting legal cases in every court in Europe.
That is an interesting notion, but it is one that is fraught by difficulty, because the Uefa rules do provide for an appeal beyond CAS through the Swiss courts. At the same time it must be remembered that Uefa will have found Man C guilty not of technical or minor breaches but of “serious breaches” of the rules governing sponsorship revenue if that is indeed the outcome.
Beyond this is the issue of whether evidence obtained by hacking is legitimate. Hacking is a criminal offence in Switzerland under article 143b of the Swiss criminal code but the code does not prohibit it being used as evidence in a trial.
There is also the point that in 2014 Man City entered a Settlement Agreement in which the club accepted various sanctions and agreed “to ensure that Manchester City becomes break-even compliant” with the regulations “in a short space of time”.
But rather step out of the FFP limelight Man C were then further engaged in it with the issues of specific transfers and transactions with other companies directly related to Man C. It was reported at the time that Man C then asked for assurances that they were now compliant with the regulations. I don’t know what the response to that was, but whatever it was, it was washed away by Football Leaks.
Of these David Conn of the Guardian said, “First, and most damaging, were emails and accounting documents which appeared to show that City’s owner, Sheikh Mansour, of the Abu Dhabi ruling family, was mostly funding the huge, £67.5m annual sponsorship of the club’s shirt, stadium and academy by his country’s airline, Etihad. That created a perception that the Abu Dhabi hierarchy, in their drive to mega-spend on City attaining elite status while somehow complying with FFP rules, had deceived Uefa in their financial submissions.”
When Man C lost the first case it asked the Investigatory Chamber to suspend the investigation so that Man C could investigate what it called the “repeated leaking of confidential information about the investigation.” Uefa found that while the leaks were regrettable no serious harm was done to Manchester City’s case. It’s other appeal meanwhile, as I understand this (and of course this is all based on my understanding from reading the documentation) is that in this case Manchester City claimed that their rights had been violated by the procedures adopted by Uefa and thus there was what is known as “procedural injustice.” The CAS can investigate this if it wants.
Meanwhile, although some people have written into Untold claiming that the whole case can be thrown out because it relies on information from Football Leaks, the rules under which the Club Financial Control Body operates, and which Man C have agreed to in signing up to play in European competitions, allow such material to be used in evidence, specifically in the Procedural Rules…
- Article 13(2) “All means of evidence may be considered by the CFCB chief investigator”;
- Article 23(1) “The adjudicatory chamber may request either the reporting investigator or the defendant to produce such evidence as the adjudicatory chamber may consider appropriate for the determination of the case.”
Indeed there are a number of cases that have been cited in which evidence from what is called an “illegitimate source” has been used. And there is nothing unusual in this where the issue of a significant public interest in the case requires that all sources of evidence should be allowed.
Manchester City are therefore rather likely to fail to have the case thrown out on the grounds of any evidence being hacked.
They have also suggested that FFP itself is illegal under European law, but as a review of sporting law within the single market (above) has shown, such attempts have all failed. In the most famous case of Galatasary v Uefa it was found that financial fair play was compatible with both the relevant treaties and the notion of freedom of movement at the heart of EU regulations.
There have also been challenges arguing that the Premier Leagues own FFP rules are against competition laws, and these too have always failed.
Now Man City’s lawyers must know all this. Likewise they must have known that the argument that the case against them was brought by Uefa, prosecuted by Uefa and judged by Uefa is irrelevant given that CAS is completely independent of Uefa. So what are they playing at? Or perhaps we might ask, what gallery are they playing to when they make the threat to challenge the legality of FFP in the courts? Given the range of precedent it is hard to see this as anything other than background noise.
But while we have often wondered about what would happen if Man C carried out its threat the bring down Uefa by suing it in every court they could find. But in doing this they might also note rule J8 of the Premier League Handbook, which makes the point that if you don’t tell the controlling body what you are up to, in a full and frank way, you can be kicked out of Uefa sanctioned competitions.
It is all looking a little bit tacky at the moment.
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