April 2024 Roundup
A roundup of football law news and decisions from April 2024:
Vincent Kompany sanctioned
The FA charged Burnley FC’s (“BFC”) manager Vincent Kompany (“VK”) with a breach of the FA Rules, r. E3.1 following his conduct during BFC’s match against Chelsea FC on 30 March 2024 (“the Charge”).
FA Rules, r. E3.1 states:
‘A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour’.
A clip of this incident is available here.
VK admitted the Charge, and therefore the only matter for the Regulatory Commission to determine was the appropriate sanction.
The Regulatory Commission sanctioned VK with an immediate one-match ban and a suspended one-match ban (suspended on condition of no similar breach being committed by VK before 31 December 2024), and a fine of £10,000.
The Regulatory Commission’s written reasons are available here.
The written reasons identify that VK repeatedly called referee Darren England a ‘cheat’ (see paragraphs 8-10 of the written reasons).
In mitigation, VK submitted that the ‘"red mist” had overtaken him’ and relied upon the Premier League Match Incidents Report which identified that the decision to which VK reacted to had been incorrect, and therefore explained VK’s actions (see paragraphs 14 and 15 of the written reasons). VK also relied upon his actions after the incident, including apologising to Mr England after the match (see paragraph 21-23 of the written reasons).
VK also indicated his desire for a ‘more constructive dialogue’ with referees and that ‘he wanted to be part of the solution rather than part of the problem’ (see paragraph 20 of the written reasons).
The FA submitted that the Premier League Match Incidents Report relied upon by VK was published after BFC’s match, and therefore VK would not have known whether Mr England’s decision was incorrect or wrong at the relevant time and the same could not explain VK’s actions. The FA also submitted that VK repeatedly calling Mr England a cheat should amount to an aggravating factor (see paragraph 29 of the written reasons).
The FA’s position was that this case should be dealt with as a Non-Standard case, therefore permitting the Regulatory Commission to impose a sanction greater than the applicable Standard Penalty in a Standard Case (see paragraph 28 of the written reasons; see also The FA Disciplinary Regulations, Part E: Fast-Track Regulations, Fast Track 2: Incidents on or Around the Field of Play etc., para. 9-12).
The Regulatory Commission noted ‘it is not uncommon for there to be disputed [referee] decisions and this cannot be seen as legitimising participant misconduct’ (see paragraph 32 of the written reasons).
The Regulatory Commission agreed with the FA that the case should be dealt with as a Non-Standard case (see paragraph 36 of the written reasons).
The Regulatory Commission also referred to the Participant Charter (introduced for the 2023/24 season), noting that ‘[as] the game evolves and new measures are introduced to protect match officials then naturally the Commission are required to look at the set of facts as presented uniquely within each new case’ (see paragraph 37 and 40 of the written reasons).
The Regulatory Commission then arrived at the above-stated sanction and noted that the suspended element of VK’s suspension was suspended because of the ‘clear and compelling reason’ that VK indicated he wanted to have a more constructive relationship with referees (see paragraphs 41 and 42 of the written reasons; see also FA Disciplinary Regulations, Part A – General Provisions, Section 2 – Regulatory Commissions, para. 44).
Everton FC sanctioned
Everton FC has been sanctioned with an immediate two-point deduction following its admitted breach of the Premier League (“PL”) Profitability and Sustainability Rules (“PSR”) (found in section E of the PL Rules). This takes EFC’s total points deduction for the 2023/24 season to eight points.
See this Football Law article providing analysis of the Commission’s decision: ‘Everton’s Double Trouble’.
EFC has submitted an appeal against the decision, the outcome of which is expected before the end of the 2023/24 season.
Fulham FC sanctioned
Fulham FC (“FFC”) has been sanctioned with (i) a £75,000 fine and (ii) a six-month ban on registering Academy Players (as defined in the Premier League’s Youth Development Rules, r. 1.11) currently or previously registered with another club, suspended for one year on condition that FFC does not commit any further breach of the PL Rules, r. U.38.
The sanction was imposed by way of a Sanction Agreement under PL Rules, r. W.3.7 following FFC’s payments to clubs that were not a Transferor Club (or a Transferee Club), and which had otherwise not been agreed by the PL Board pursuant to PL Rule, r. 38:
‘U.38 Unless otherwise agreed by the Board […] a Club may only make or receive a payment or incur any liability as a result of or in connection with the proposed or actual registration (whether permanent or temporary), transfer of registration or employment by it of a Player in the following circumstances:
U.38.1 by payment to a Transferor Club or receipt from a Transferee Club of a Compensation Fee, Contingent Sum, Loan Fee or sell-on fee’.
The Sanction Agreement is available here (with redactions).
Sheffield United FC sanctioned
On 11 April 2024 the EFL announced that Sheffield United FC (“SUFC”) will, when it returns to the EFL, receive an immediate two-point deduction and a further two point deduction suspended on conditions.
The EFL’s statement identifies that the sanction was imposed in respect of SUFC’s failure to pay sums due to other clubs in breach of EFL Regulations 2022/23, reg. 52.2.3 and 52.2.4.
The Consent Award of the Disciplinary Commission is available here, and which identified that the matter related to sums totalling c. £8 million to three clubs (see paragraphs 8 and 16 of the Consent Award).
The Consent Award identifies that there had been a determination of a preliminary issue on whether the EFL had jurisdiction to make a referral to a Disciplinary Commission when it did so on 19 April 2023, considering that SUFC had ‘achieved promotion to the Premier League [on 26 April 2023] and by consequence left the EFL’s jurisdiction upon such promotion’ (see paragraph 10 and 19-21 of the Consent Award).
Because the EFL and SUFC agreed the resolution of the matter by the Consent Award, and because the Disciplinary Commission had reserved its reasons on the preliminary issue of jurisdiction to its final decision, written reasons on this issue are unavailable.
Leicester City FC and the EFL
As explained in Football Law’s March 2024 Roundup, Leicester City FC (“LCFC”) had issued urgent legal proceedings against the EFL and the PL in respect of actions taken against LCFC for breach of the respective competitions’ financial fair play rules.
An EFL statement released on 12 April 2024 identified that part of those legal proceedings was an application by LCFC for ‘an interim injunction to prevent the EFL from imposing a sporting sanction in the current 2023/24 season’.
The EFL’s statement further identified:
‘The core issue in question was whether the EFL has the ability under its Regulations to apply a points deduction in its competition if ordered by a Premier League Disciplinary Commission.
Having taken legal advice, the EFL has confirmed to all parties that whilst it would want to respect any decision of a Premier League Disciplinary commission (and vice versa) to deduct points in the EFL, it does not have the power under the Regulations as currently drafted.
On the basis of that confirmation, the League Arbitration Panel held that the Club’s application for an interim injunction was neither necessary nor appropriate. The League Arbitration Panel dismissed the Club’s application accordingly’.
The League Arbitration Panel’s written reasons are available here.
Whilst LCFC’s application for interim relief has been dismissed, LCFC’s underlying claim continues, which, inter alia, seeks the following relief (see paragraphs 9 and 17-18 of the written reasons):
‘[…] A declaratory order that: […] The EFL has acted unlawfully by conspiring with the PL to use unlawful means and/or to procure or induce a breach of contract by the PL, and has in any event acted unreasonably, arbitrarily, perversely, irrationally, capriciously or otherwise outside its powers as aforesaid.
[…] Insofar as any loss ensues, damages in respect of the PL’s unlawful conduct as aforesaid’.
The written reasons also identify that proceedings in respect of the PL’s charge against LCFC for breach of the PSR during the period ending season 2022/23 will no longer be concluded before 4 May 2024 (see paragraphs 10 and 16(v) of the written reasons).
Morecambe FC sanctioned
On 11 April 2024, the EFL announced that Morecambe FC (“MFC”) had been sanctioned with an immediate three-point deduction following its failure to comply with the terms of an Agreed Decision dated 17 August 2023 (as explained in Football Law’s August 2023 Roundup).
The breach of the Agreed Decision occurred following Mr Jason Whittingham’s (MFC’s owner) failure to maintain 125% of the club’s forecasted monthly wage bill in a deposit account. Mr Whittingham’s breach activated the previously suspended three-point deduction provided by the Agreed Decision.
Mr Whittingham was also sanctioned with an immediate fine of £10,000 and a fine of £20,000 suspended on condition that Mr Whittingham tops up the deposit account to the required level by 31 May 2024.
The EFL Disciplinary Commission’s written reasons are available here.
On 26 April 2024, MFC released a statement indicating that the MFC had been unable to pay players’ wages on time for April 2024, putting MFC at risk of further sanctions.
Gateshead Football Club refused to participate in National League play-offs
On 21 April 2024, the EFL announced that Gateshead Football Club (“GFC”) ‘will not be permitted by the National League to participate in this season’s Play-Offs as the terms of the Club’s occupation at the Gateshead International Stadium, owned by the Borough Council of Gateshead, does not meet the relevant qualifying criteria to enable the Club to become a Member of the EFL’.
EFL Regulations, reg. 7.1.5 requires National League clubs applying to be (or potentially be) a member of the EFL to provide evidence that, inter alia, it will ‘with effect from the date of acceptance as a Member Club, comply with Regulation 13 (with the proviso of security of tenure of not less than 10 full Seasons following promotion)’.
GFC failed to meet this requirement in its application, and the EFL therefore rejected GFC’s application.
GFC appealed against the EFL’s decision pursuant to EFL Regulations, reg. 96.4, but the appeal was dismissed by a League Arbitration Panel. The League Arbitration Panel’s written reasons are available here, and identify that ‘the EFL Board properly, reasonably, and fairly followed the EFL Regulations, took into account relevant considerations, did not take into account irrelevant considerations and acted reasonably and rationally in reaching its decision’ (see paragraph 25 of the written reasons).
A statement from the National League on 21 April 2024 expressed its disappointment in respect of the decision.
Torquay United FC deducted one point
On 12 April 2024, Torquay United FC (“TUFC”) announced that it had been sanctioned with a one-point deduction for fielding an ineligible player in breach of rule 6.9 of the FA Standardised Membership Rules.
As explained in Football Law’s March 2024 Roundup, TUFC had already been sanctioned with a ten-point deduction upon suffering an ‘Insolvency Event’ and pursuant to rr. 1.1 and 13.A.1 of the FA Standardised Membership Rules.
Thankfully, TUFC’s positive end to the season resulted in the club’s survival in the National League South, and the club’s administrators have since announced that a sale of the club is expected to progress in the near future.
FC Barcelona sanctioned by UEFA
FC Barcelona (“FCB”) has been sanctioned with a €25,000 fine and a suspended ban on selling tickets to its away supporters for its next UEFA competition match following FCB’s fans’ racist behaviour during FCB’s UEFA Champions League quarter-final match against Paris Saint-Germaine on 10 April 2023. The ticket-selling ban is suspended for ‘a probationary period of one year’, presumably on condition that there is no future breach.
Testing times for FIFA’s Clearing House
A recently published decision from the Court of Arbitration for Sport (CAS 202/A/9682 Tuzlaspor AS v FIFA, U.S. Thionville Lusitanos, CS Orne Amnéville & Arnouville F.A.S) considers the procedures under the FIFA Clearing House Regulations (“FCHR”), when a club can waive its right to Training Compensation, and a club’s challenge to an approved Allocation Statement.
The decision emphasises the need for rigorous application of the FIFA Clearing House Rules and cooperation between Member Associations and relevant clubs for the effective operation of the FIFA Clearing House (see paragraphs 87 to 91 of the decision). However, the decision also identifies that there may be circumstances where deadlines under the FCHR may be extended (see paragraphs 84 and 94).
Premier League clubs agree to introduce new financial rules
As explained in Football Law’s March 2024 Roundup, the PL ‘[had] agreed to prioritise the swift development and implementation of a new League-wide financial system’.
On 11 April 2024, news reports indicated that PL clubs had further agreed in principle to replacing the current PSR. Reports indicate that the amendments would remove the permitted loss threshold scheme currently in place.
On 29 April 2024, it was reported that Premier League clubs had agreed in principle to replace the PSR with a spending cap or “anchoring” system linked to the PL club with the lowest earnings from broadcast revenues. Known details of the proposed new system are considered in this article and in this episode of the Price of Football Podcast.
It is understood that a final vote on the proposed new system will take place in June 2024.
Separately, the Professional Footballers’ Association has indicated that it would ‘oppose any measure that would place a hard cap on player wages’, taking a similar approach that was the downfall to the EFL’s attempt to introduce a hard spending cap in League One and League Two in 2020 (as explained in this article by Nick De Marco KC of Blackstone Chambers and this Football Law article: ‘EFL Salary Caps and the PFA’s Challenge’).
3 May 2024