January and February 2025 Roundup
A roundup of football law news and decisions from January and February 2025:
Norwich City FC’s Kenny McLean sanctioned and loses challenge
On 5 February 2025 the FA released a statement and written reasons in respect of two decisions relating to Norwich City FC’s (“NCFC”) Kenny McLean (“KM”).
The first decision was an FA Regulatory Commission’s decision dated 10 December 2024 (the outcome of which had been announced at the time) suspending KM for four matches following an unseen incident that occurred during NCFC’s EFL Championship match against Queens Park Rangers FC (“QPR”) on 7 December 2024.
‘Not Seen Incidents’ are defined the FA’s Disciplinary Regulations, Table 10 as:
‘Incidents of Misconduct concerning one of the below incidents occurring on or around the field of play (excluding the tunnel area) falling within Law 12 of the Laws of the Game which were not seen and dealt with by Match Officials but were caught on video: (i) serious foul play; (ii) violent conduct; (iii) spitting at an opponent or any other person; or (iv) offensive, insulting, abusive language or gestures’ (emphasis added).
As a Not Seen Incident, the matter proceeded under the FA’s Disciplinary Regulations, Part E – Fast Track 1: Not Seen Incidents and Successful Deception (“FT1”).
A video of the incident is available here (the Regulatory Commission had more and clearer videos of the incident).
The Regulatory Commission noted that, Anthony Backhouse, the referee during the match between NCFC and QPR, had ‘confirmed by email that neither he nor his colleagues had witnessed [the incident] in real time’ (see paragraph 8 of the written reasons). FT1, para. 5 states:
‘5.1 A written statement by Match Officials that they did not witness a particular incident shall be conclusive evidence of that fact.
5.2 Where one or more Match Officials sees only part of an incident, an act of Misconduct that occurs during or immediately after that incident may be regarded as not seen by the Match Officials where, without limitation:
5.2.1 an act of violence occurs secondarily to a challenge for the ball, and so is not seen as the Match Officials are concentrating on the challenge for the ball; or
5.2.2 the Match Officials’ view of the incident was such that none of them had an opportunity to make a decision on any act of Misconduct that took place within it’.
In KM’s reply to the FA’s charge in respect of the incident, the Regulatory Commission noted that NCFC had raised the following issue:
‘There was an issue raised by [NCFC] that the Match Referee had stated in his communication with his colleagues at the time that there had been minimal contact. Therefore, The FA should have been estopped from bringing the charge due to the fact that the Match Referee spoke to the players about the incident. It was submitted that this demonstrated that he had seen the incident and dealt with it at the time, precluding The FA from bringing the charge. For completeness, Mr Backhouse stated that this communication to the players was an assumption and reading the reaction of the players looking to avoid any escalation’ (see paragraph 8).
In respect of the incident, the Regulatory Commission decided:
‘[KM] was aware of the opposing player’s movement and any attempt to get behind him. It was not accepted that this was simply an attempt to block the player. Mr McLean knew what he was doing. It was a clear, deliberate act with Mr McLean striking the opposing player in the face with his left arm, all before the throw in was actually taken. The force used was excessive. It is difficult to reconcile how this could be considered as anything other than an act of violent conduct’ (see paragraph 13).
The Regulatory Commission sanctioned KM with a four-match ban, comprising the standard punishment for violent conduct of a three-match ban (FT1, para. 8.1 and 18.1; FA Disciplinary Regulations, Table 2), plus an additional one-match ban as KM had previously been sent off and suspended during this current 2024/25 season (FT1, para. 3; see paragraph 19 of the written reasons).
It should be noted that FT1, in the circumstances of KM’s case, provided no grounds to appeal against the Regulatory Commission’s decision (cf. FT1, para. 30-31).
The second decision was a decision in a FA Rule K arbitration claim made by KM and NCFC against the FA seeking the interim relief of a stay of KM’s suspension and ultimately challenging the validity of the Regulatory Commission’s decision (see paragraphs 1, 4 and 28). FA Rules, r. K1.4 states:
‘Rule K1.1 shall not operate to provide an appeal against the decision of a Regulatory Commission or an Appeal Board under the Rules and shall operate only as the forum and procedure for a challenge to the validity of such decision under English law on the grounds of ultra vires (including error of law), irrationality or procedural unfairness, with the Tribunal exercising a supervisory jurisdiction’.
KM and NCFC’s application for interim relief and the substantive claim focused on (i) the absence of “and dealt with” in the FA’s charge against KM (as is a part of the definition of ‘Not Seen Incidents’ as quoted above), and (ii) the allegation that ‘the Regulatory Commission failed to deal with KM’s contention that the match referee dealt with the incident and that there was therefore a contractual estoppel’ (see paragraphs 14 and 27 of the written reasons).
The arbitrator dismissed KM and NCFC’s arguments in respect of point (i), referring, inter alia, to paragraph 8 of the Regulatory Commission’s written reasons (quoted above) which addressed whether the referee had ‘seen the incident and dealt with it at the time’ (emphasis added) (see paragraph 30 of the arbitrator’s written reasons).
The arbitrator also dismissed KM and NCFC’s arguments in respect of point (ii) and contractual estoppel. The arbitrator emphasised FT1, para. 5 (quoted above); Mr Backhouse’s statement that he had not seen the incident was conclusive of that fact, and an incident can still be classified as a Not Seen Incident where one or more of the Match Officials sees only part of an incident at the time such that they did not have an opportunity to make a decision on whether an act of Misconduct occurred (see paragraph 31 of the arbitrator’s written reasons). The arbitrator also reiterated the Regulatory Commission’s observations at paragraph 8 of its written reasons (see paragraph 33 of the arbitrator’s written reasons).
It is unclear to this author how or why ‘contractual estoppel’ was being relied upon by KM and NCFC. In reality the question being raised by KM and NCFC was simply whether the incident had been seen and dealt with by the match officials. That is not an issue of contractual estoppel. Contractual estoppel focuses on a contractually agreed state of affairs forming the basis of a subsequent or coinciding contract. Contractual estoppel acts to prevent one party denying the contractually agreed state of affairs to bring a claim in respect of the subsequent or coinciding contract (Peekay International Ltd v ANZ [2006] EWCA Civ 386).
Rubiales’ appeal against FIFA’s ban fails
As explained in Football Law’s October 2023 and January 2024 Roundup, FIFA banned Luis Rubiales from all football-related activities at national and international levels for three years following his inappropriate, uninitiated, and uninvited conduct at the FIFA Women’s World Cup 2023 final on 20 August 2023, and Mr Rubiales’ appeal to the FIFA Appeal Committee against that sanction failed.
On 21 February 2025, it was announced that Mr Rubiales’ further appeal to the Court of Arbitration for Sport (CAS) had also failed.
The CAS’s media release announcing the decision is available here, and the Panel’s full decision is available here.
Premier League drop outstanding element of Profitability and Sustainability Rules (“PSR”) charge against Everton FC
On 17 January 2025 the Premier League (“PL”) announced that it has dropped the remaining outstanding element of a PSR charge brought against Everton FC (“EFC”) on 15 January 2024 for the period ending season 2022/23 (“the Charge”).
Those elements of the Charge that were admitted by EFC and for which EFC was sanctioned were analysed in this Football Law article: ‘Everton’s Double Trouble’. As explained in that article, the remaining element of the Charge related to EFC’s capitalisation of interest in financial years ending 30 June 2021, 2022, and 2023.
However, the PL’s statement released on 17 January 2025 explains:
‘After considering the further information and documents provided by the Club in detail, the Premier League Board has concluded that it would not be appropriate or proportionate to continue to pursue the second part of their complaint.
The Club and the League agree that this brings to an end all proceedings between the League and the Club in relation to the Club’s breaches of the PSR for the financial years ending 30 June 2022 and 30 June 2023’.
The Premier League Commission’s consent award dated 16 January 2025 reflecting the PL’s and EFC’s agreement, and which provides some background information leading to the same, is available here.
Manchester City FC v PL – Associated Party Transactions (“APT”)
As explained in Football Law’s October 2024 Roundup, Manchester City FC (“MCFC”) succeeded in part of its challenge against the PL’s APT Rules (versions December 2021 and February 2024), and the PL succeeded in opposing part of MCFC’s challenge.
The arbitration tribunal’s decision on MCFC’s challenge dated 25 September 2024 resulted in, inter alia, declarations that (i) both versions of the APT Rules are unlawful for excluding from their scope shareholder loans and the same amounting to an object restriction of competition and an abuse by the PL of its dominant position; and (ii) both versions of the APT Rules are procedurally unfair for not allowing PL clubs access to comparable transaction data relied upon by the PL before the PL determines whether a transactions is not at fair market value (“the First APT Decision”).
On 14 February 2025, the PL released a statement identifying that the arbitration panel had also decided in a decision dated 13 February 2025 that the effects of the above-stated declarations could not be separated or severed from the remaining provisions of both versions of the APT Rules and that the same are therefore void and unenforceable (“the Second APT Decision”).
Insofar as declaration (i) above is concerned, the Second APT Decision identified (see paragraphs 25 and 38-40), inter alia, that the consequent inclusion of shareholder loans within the scope of the APT Rules represented a ‘major change’ in the APT Rules. Insofar as declaration (ii) above is concerned, the Second APT Decision identified (see paragraphs 23 and 65), inter alia, that the ‘blue pencil test cannot be satisfied’, meaning that the unlawful provision is not ‘capable of being removed without the necessity of adding to or modifying the wording of what remains’.
The Second APT Decision also identified (see paragraph 69) that MCFC has commenced a further challenge to the amended APT Rules introduced by the PL and its clubs in November 2024 (these amendments were explained in Football Law’s November and December 2024 Roundup). MCFC’s challenge to the latest APT Rules was also explained in this article by Paul MacInnes for the Guardian. It is not yet known when MCFC’s latest challenge will be heard.
La Fédération Algérienne de Football (“FAF”) successful in CAS Appeal
The FAF has succeeded in its appeal to the CAS in respect of the Confederation of African Football’s (“CAF”) Appeals Jury’s decision maintaining the CAF’s approval of RS Berkane’s shirt for the 2023/24 CAF Confederation Cup that contained a display of a map of Morocco including the territory of Western Sahara.
An image of RS Berkane’s shirt is available in this BBC Sport article, which together with this BBC News profile on Western Sahara provides a helpful summary of the political issues relating to this case.
The CAS’s media release dated 26 February 2025 identifies that the CAS considered the image on RS Berkane’s shirt depicted ‘a message, a demonstration or propaganda of a political nature as it represents the assertion of a territorial dispute that is contested and still unresolved as of today’. The media release identifies that article 1.03 of CAF’s equipment regulations (copy unavailable) and Law 4 of the IFAB’s Laws of the Game (see current law 4.5 in particular) prohibit the conveyance of any content of a political nature on all equipment, including shirts. Further, the media release also identifies that article 2 of the CAF Statutes and article 49 of the Regulations Governing the Application of the CAF Statutes (contained in the CAF Statutes document) requires CAF to respect and implement ‘the duty of political neutrality’.
The CAS Panel’s full decision is not yet available.
Italy considering repealing ban on gambling sponsors
The Italian government is considering repealing a ban on gambling sponsors in sports imposed in 2019, which, if passed, could provide a significant financial boost for Italian football clubs. News articles available here and here provide some background and updates.
FIFA publishes CAS & Football Annual Report 2024
FIFA has published the CAS & Football Annual Report 2024, detailing the activities of the CAS in football-related matters worldwide and, specifically, regarding the appeals submitted against FIFA decisions during that time.
The report is available here, and includes very helpful summaries of significant cases in 2024.
FIFPRO partners with Sports Data Labs to provide consent-based technology platform for professional footballers
A statement from FIFPRO on 11 February 2025 announced the following:
‘FIFPRO Technologies BV, a new division of FIFPRO dedicated to fostering the benefits of technology among professional football players, is today announcing a long-term partnership with Sports Data Labs Inc (SDL) to launch a global technology platform for players that will enable them to collect, control, and monetise their data collected both on and off the pitch.
The data-agnostic platform will allow footballers worldwide to safely and securely store, access and share their personal data and other player information gathered from across their careers via one, union and player-controlled data repository. This includes tracking data, physiological data, medical records, genetic data, and other information – including statistical and contextual information – gathered from wearable devices, optical tracking technologies, Electronic Medical Record (EMR) systems, and other sources.
Using state-of-the art, AI-based technologies designed for the benefit of the players and based on their preferences and consent, the platform will enable them to host, manage, and exploit such data on both an anonymised and identifiable basis’.
The statement also states:
‘Use of the platform will be free for all professional footballers and FIFPRO union members. It will also act as an authoritative centralised clearinghouse for all third-party uses of their personal data, enabling players to establish their terms, conditions and permissions for how they want their data to be used. Players will participate in a revenue share for any commercialisation opportunities with their data that they elect to participate in through the platform’.
No corresponding announcements have been made by continental confederations, national associations or competition organisers in response to FIFPRO’s statement. As a starting point in England, any players that use the platform will need to consider the terms of their playing contracts (and any associated image rights deals), and, going forward, an amendment will be required to the general “personal data term” in the PL’s and EFL’s standard player contract (see clause 21 and 20.4 respectively).
Livida Sport releases second edition of ‘A Global Guide to Football Transfers’
For January’s registration period / the winter transfer window, Livida Sport released the second edition of its ‘A Global Guide to Football Transfers’, which is tremendously useful guide for all those involved with player transfers.
The guide is available here.
10 March 2025