August 2024 Roundup
A roundup of football law news and decisions from August 2024:
Nottingham Forest FC’s Nuno Espirito Santo and Neco Williams sanctioned
Nuno Espirito Santo (“NES”) has been sanctioned with a one-match touchline ban, suspended until 31 May 2026 on condition of no further breach, and a £40,000 fine, and Neco Williams (“NW”) has been sanctioned with a £24,000 fine, each for a breach of the FA Rules, r. E3.1:
‘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’.
The FA Regulatory Commission’s written reasons for the decision imposing the above-stated sanctions on NEW and NW are available here.
NES and NW were each charged by the FA for a breach of the FA Rules, r. E3.1 following comments made by NES and NW about refereeing decisions during Nottingham Forest FC’s Premier League match against Everton FC on 21 April 2024 (“the Match”).
NES’s and NW’s comments about the refereeing decisions during the Match are detailed in paragraphs 13-14 of the written reasons, and the particular comments relied upon for the purposes of NES’s and NW’s breaches of FA Rules, r. E3.1 are detailed in paragraph 16 of the written reasons.
NES and NW admitted that their comments amounted to ‘improper conducted’ but disputed that their comments ‘implied bias and/or attacked the integrity of the referee or referees generally’ (see paragraph 18(i)).
Applying the accepted, objective “reasonable bystander test” (see paragraph 24 of the written reasons), the Regulatory Commission decided in respect of NES that:
‘[…] the Commission is satisfied on the balance of probabilities that the reasonable bystander would conclude that the remarks, considered as a whole, went far beyond mere bafflement and an unfortunate adoption and use of the word ‘conspiracy’ (see paragraph 28; see further paragraph 29-35).
Similarly, the Regulatory Commission decided in respect of NW:
‘On the balance of probabilities, the Commission is satisfied that NW’s comments left no room for any reasonable inference other than that they implied match officials were biased against lower-placed league teams generally, and NFFC in particular’ (see paragraph 39).
When considering the proportionate sanction to impose on NES, it is noteworthy that the Regulatory Commission stated the following when considering whether there is a ‘clear and compelling reason’ to suspend a penalty to be imposed (see FA Disciplinary Regulations, Part A – General Provisions, Section 2: Regulatory Commissions, para. 44):
‘The Commission concludes that the wording of the regulation (taken in its entirety) probably precludes the Commission from considering mitigation which has already been taken into account in determining the appropriate penalty for the breach and that this was the intention of the draftsperson of the rules’ (see paragraph 61).
There appears to be some growing inconsistency on this issue, as identified in Football Law’s May 2024 Roundup when considering the decision in The FA v Huw Lake compared to the decisions in The FA v Harry Toffolo and The FA v Sandro Tonali on the issue of what can amount to a ‘clear and compelling reason’. Regulatory Commissions and those advising in respect of FA disciplinary matters would benefit from guidance or clearer rules from the FA on this point to avoid further inconsistences in approach to sanction.
Paul Conway and Chien Lee sanctioned
An EFL Disciplinary Commission has sanctioned former directors of Barnsley FC (“BFC”) Paul Conway (“PC”) and Chien Lee (“CL”) with fines of £100,000 and £75,000 respectively for, in their position as ‘Officials’ of BFC, causing BFC to not provide to the EFL ‘notice of the relevant details of the Significant Interest in the Club held... by Pacific Media Group (“PMG”) and/or… by the Undisclosed Shareholders’ in breach of EFL Regulations 2017/18, reg. 109.1 and 109.5 (see EFL Regulations 2024/25, reg. 114.1 and 114.4 for the current versions of these regulations) (“the Charge”).
The Disciplinary Commission’s written reasons, available here, identify that PC and CL were charged with causing BFC to commit several breaches of the EFL Regulations (see paragraphs 15-17 of the written reasons), including the breach identified in the Charge above, in the following circumstances:
‘In summary, the charges arise out of the uncontested fact that the League was unaware at the time of the acquisition of [BFC] by [BFC Investment Company Limited (“BICL”) on 19 December 2017] that there existed an Investment and Nominee Agreement dated 21 November 2017 (“INA”). The League believed prior to acquisition that [PMG], being a company registered in Hong Kong, and [CL] each owned 27.5% of the issued share capital of BICL. That was correct in respect of legal title only. However the INA is said by the League to have constituted PMG as nominee as bare trustee of 20% of the shares in BICL for the benefit of [the Undisclosed Shareholders]. The effect of the INA was that PMG and [CL] owned only 17.5% of the shares in BICL beneficially’ (see paragraph 3 of the written reasons).
The Disciplinary Commission found the Charge proven (see paragraphs 38-43 and 50).
While BFC’s non-disclosure of the INA would not have altered the EFL’s subsequent approval of BICL’s acquisition of BFC (see paragraphs 4, 19, 51 and 54 of the written reasons), the non-disclosure caused the EFL to lose ‘the opportunity to investigate matters’ (see paragraphs 4, 14, 18 and 25 of the written reasons).
The decision provides a reminder of the need for clarity and transparency from those acting as an ‘Official’ of a Club (see paragraph 43 of the written reasons), even in circumstances where there is no ulterior motive in the non-disclosure and the undisclosed information would not have ultimately altered the EFL’s approval in respect of a Club’s acquisition. Obtaining legal advice from those familiar with the EFL Regulations is crucial when dealing with situations where a person is acquiring ‘Control’ or a ‘Significant Interest’ in a Club and/or is assuming the position of an ‘Official’ (see paragraphs 9 and 56 of the written reasons).
West Bromwich Albion FC to adhere to business plan
It has been reported that EFL Championship club West Bromwich Albion FC (“WBAFC”) has been required to submit, agree and adhere to a business plan to assist with WBAFC’s compliance with the Upper Loss Threshold (“ULT”) set by the EFL’s Championships Profitability and Sustainability Rules (“CPSR”) (see EFL Regulations, Appendix 5, Part 1). It is understood that from the current financial year going forward, the ULT for WBAFC will reduce to £39 million considering the time that has elapsed since WBAFC was last in the Premier League (CPSR, r. 3.1).
Generally, the CPSR requires a club to submit, agree and adhere to a business plan in the following circumstances:
‘Where the League considers, acting reasonably, and after consideration of any information available to it by whatever means, that a Club is at risk of breaching the Upper Loss Threshold (for example where the Club is reliant on future player sales to avoid a breach) in ARP, ARP+1 and/or ARP+2, the League will consider whether it is necessary to require the Club to operate in accordance with the terms of a business plan.
The business plan could include, by way of example, requirements relating to player acquisitions, disposals, reduction in player costs (i.e. wages) and, where the Club thinks it is achievable, uplifts in revenue) to bring the Club back into compliance with the Upper Loss Threshold for ARP, ARP+1 and/or ARP+2’ (see guidance to CPSR, r. 2.13 found at pg. 445 of the EFL Handbook 2024/25).
Southend United FC successful in appeal
As explained in Football Law’s June 2024 Roundup, the National League (“NL”) had requested that Southend United FC (“SUFC”) deposit £1 million into an escrow account following concerns the NL had about SUFC’s ‘ability to fulfil its financial obligations for the forthcoming National League Season’ (“the Bond”). SUFC faced sanctions if they failed to comply with the Bond.
As also explained, SUFC had the right to appeal against the Bond pursuant to rule 4.3 of the FA Standardised Rules (see also the National League Rules), such an appeal to be made to an FA Appeal Board and in accordance with the FA Disciplinary Regulations, Part C: Appeals – Non-Fast Track.
On 12 August 2024, SUFC released a statement identifying that SUFC had successfully appealed against the NL’s conditions underlying the Bond, and that SUFC and the NL had reached an agreement in respect of the Bond (the details of which are unknown save that SUFC’s statement identifies that ‘the requirement for [SUFC] to provide a £1m bond has been formally withdrawn).
The FA Appeal Board’s written reasons are available here.
The written reasons provide helpful guidance on the correct procedure for the NL to follow when it has granted an Unconditional Licence to a Club for its membership of the NL but has concerns about a Club’s financial circumstances that existed at the time that Unconditional Licence was granted (see paragraphs 40-44), and the circumstances in which it is more appropriate to grant a Conditional Licence rather than an Unconditional Licence (see paragraph 46-52 of the written reasons).
Women’s Professional Leagues Limited (“WPLL”) takes control
On 15 August 2024, the FA announced that the WPLL had assumed responsibility for the Women’s Super League and the Women’s Championship from the FA.
Each club participating in the WSL and the WC is now a shareholder of WPLL, taking a similar structure to that seen with the Premier League and the EFL.
WPLL’s articles of association are available here.
Updated handbooks
Updated handbooks are now available for the 2024/25 season. The Premier League’s handbook is available here, the EFL’s handbook is available here, and the FA’s handbook is available here.
It is noted in the EFL Handbook that there have been several amendments to the CPSR, r. 2 (see EFL Regulations, Appendix 5, Part 1), which appear largely to address the issues arising from the decision in Leicester City Football Club Ltd v EFL Club Financial Reporting Unit, Club Financial Reporting Panel (Ch. Jonathan Bellamy), 16.1.2024, as discussed in Football Law’s article ‘EFL Outfoxed, For Now’.
FIFPRO releases Postpartum Return to Play Guide
FIFPRO has released a Postpartum Return to Play Guide, aimed at helping professional footballers, as well as their families, clubs and other stakeholders better understand and manage pregnancy and the phase after childbirth. The guidance is to be used alongside compliance with article 18quarter of FIFA’s Regulations on the Status and Transfer of Players.
The guide is available here.
2 September 2024