By Tony Attwood
This article answers the question raised in the July 2020 article “What will Uefa and the clubs that obey FFP do now that FFP has been wrecked?”
In recent months and indeed years both Uefa and the Premier League have required that Manchester City hand over documents and give information that is related to investigations that both have been carrying out into the finances of the club.
In both situations it appears that Manchester City have refrained from giving the information, claiming in both cases that a) the investigators were not impartial and that b) they had no right to request sensitive financial information.
As a result the Premier League changed its rules to try and get arbitration to sort this out, but Manchester City again refused and took the case to the Commercial Court to be resolved. The Commercial Court said the League was acting in accordance with its own rules which Man C had to obey.
But much of the case looks like floundering because UK law has a Statute of Limitations which says that breach of contract cases must be brought within six years.
However, the Premier League rules DO state that the rules are subject to UK law – and the Limitation Act thus applies. The League has brought no charges, and with each day passing more and more actions by Manchester City slip outside its grasp.
Within this and other cases Manchester City have challenged financial fair play by saying it has not been managed properly. Indeed Manchester City argued in court against Uefa in a separate case that the rules over what can be appealed to the Court of Arbitration for Sport were not clear.
This and other complaints move away from the arguments about whether Manchester C have broken FFP rules into technical details and legal requirements, challenging not their case, but the entire set of rules about FFP and appeals to CAS.
They have also raised arguments on the issue of “failure to co-operate fully” arguing that “no adverse inferences can be drawn” when they don’t produce the documents they are asked for and they can never be given sanctioned when they don’t hand over documents.
In yet another argument Manchester City didn’t just use the notion that Uefa could not prosecute the club when over five years had passed, but argued that the definition of “prosecution” was not what Uefa thought it was.
As a result of these various engagement with the dictionary Uefa has now changed its procedural rules, meaning for example that some cases relating to the exclusion of clubs from its competitions cannot be appealed at all. They are also stopping clubs from restructuring themselves in order to clean up their accounts just before Uefa starts an investigation – another trick that it seems more and more clubs are looking at trying.
In another round of arguments Manchester City suggested that in the Financial Fair Play case brought against it the court was not impartial. The change in the rules is a bit complex (or at least looks a bit complex to me, given that I am not a lawyer versed in proceedings between a football club and the controlling sports body), but I think it says. this….
The rules now say that before the case begins there needs to be a disclosure of conflicts which may “be of such a nature as to compromise the impartiality or independence of such member in the eyes of any of the parties”. In other words, as I read it, there is no further chance to let the whole case go through and then claim that one of the parties hearing the case had a conflict of interest. You have to do your homework before the case, and make the appeal then.
Another significant amendment to the information gathering provisions of the Procedural Rules relates to a new express right for the Club Financial Control Body (a Uefa organisation) to draw adverse inferences in a case in which a club fails to co-operate in the normal manner with the Club Financial Control Body.
I take this to mean that if requests for financial details are normally answered within a month, the CFCB can draw a negative inference if the club takes six months to hand over details, or if the details handed over are deemed to be inadequate or subsequently found to be wrong.
This is particularly interesting because in the Manchester City v Uefa case there was a finding that Manchester City failed to co-operate by providing documents in a timely manner. Previously no negative inference could be drawn from the fact that Manchester City repeatedly failed to provide documents required, claiming financial confidentiality or that Uefa’s demands for documents were unreasonable. Indeed originally the Committee of Arbitration in Sport argued “no adverse inferences” could be drawn from City’s failure to produce evidence. Now that is seemingly no longer the case.
Put these changes together and it looks as if Uefa is not giving up in its fight – and that CAS has started to get fairly miffed as well.
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