November 2023 Roundup
A roundup of notable football law news and decisions from November 2023:
Jack Simpson sanctioned
Former Cardiff City FC (“CCFC”) player Jack Simpson (“JS”) has been sanctioned with a six-match suspension, fined £8,000 and ordered to attend a face-to-face education programme for an aggravated breach of the FA Rules, rule E3.1 following racist language he used against a teammate during a pre-season tour with CCFC in Portugal in July 2023.
JS admitted the charge against him. The FA Regulatory Commission deciding on the appropriate sanction for JS’s Misconduct, noted that JS’s racist language was unprovoked and would have been extremely insulting to JS’s then teammate (see para. 33 of the written reasons).
The Regulatory Commission considered that the starting point for JS’s sanction was an eight-match suspension and a fine of £10,000, notably higher than the Standard Minimum sanction of a six-match suspension.
However, the Regulatory Commission then considered JS’s mitigating factors (as required pursuant to the FA’s Disciplinary Regulations, Part A – General Provisions, Section Two, para. 42.2 and 47, and Appendix 1) such as JS’s admission of his charge, his attempt to apologise to his teammate on the day of the incident, JS’s remorse, his previously clean disciplinary record, and the financial consequences of his contract with CCFC being terminated by ‘mutual consent’ following the incident (see para. 35-41 of the written reasons).
Considering that mitigation, the Regulatory Commission considered that a six-match suspension, an £8,000 fine and attendance at an education programme was the appropriate sanction.
To reflect that JS is currently without a club, the Regulatory Commission stipulated that JS’s six-match suspension will take effect upon ‘JS having become eligible to play in a Category 1 domestic club football match’ (see para. 42(e) of the written reasons). ‘Category 1’ includes clubs in the Premier League, the EFL leagues and the National Leagues.
Everton FC
As noted in Football Law’s October 2023 Roundup, the hearing of charges against Everton FC (“EFC”) for alleged breaches of the Premier League’s profitability and sustainability rules (“PSR”) (found in section E of the Premier League Rules) was held at the end of October 2023.
On 17 November 2023, it was announced that an Independent Commission had found EFC to have breached the PSR and sanctioned EFC with an immediate ten-point deduction.
A statement from the Premier League identified that EFC admitted that it had breached the PSR for the period ending Season 2021/22 but disputed the extent of that breach. The statement also identified that the Independent Commission found that EFC’s losses for the relevant period were £124.5 million, exceeding the £105 million threshold permitted under rule E.51 of the PSR.
The Independent Commission’s written reasons dated 17 November 2023 are available here. EFC and the Premier League have since confirmed that EFC has appealed against the sanction imposed by the Independent Commission.
An article considering the Independent Commission’s approach to sanction will be published on Football Law soon.
Written reasons for a decision made by David Phillips KC dated 9 May 2023 (“the Application Decision”) were also released on the same day and identifies that one or more of five applicant clubs (Leeds United FC, Nottingham Forest FC, Southampton FC, Leicester City FC and Burnley FC) may be awarded compensation in respect of EFC’s breaches of the PSR pursuant to rule W.51.5 of the Premier League Rules (“PL Rules”) (see para. 20).
The Application Decision provides helpful clarification that clubs affected by another club’s alleged breach of the PSR will not be joined as parties to the proceedings against that club charged with a breach of the PSR (see paragraphs 3-10 and 12). The proper procedure in such circumstances is, firstly, for there to be a determination of whether the charge is proven. If so, and secondly, the Independent Commission can then give directions to those affected clubs in respect of the assessment of any compensation payable to them by the club found to be in breach of the PSR (see rules W.27, W.38.9 and W.51.5 of the PSR).
Reading FC
Reading FC features yet again in a monthly roundup. The club has been referred to an EFL Independent Disciplinary Commission for non-payment of monies owed to HMRC.
The EFL’s statement on the referral also indicates that Mr Yongge Dai’s hearing before an Independent Disciplinary Commission took place at the end of November 2023 in respect of his previous failure to comply with a sanction requiring Mr Dai to deposit an amount equal to 125% of the Club’s forecast monthly wage bill in a designated account.
There is no still no update on the winding-up petition served on Reading FC as referred to in Football Law’s October 2023 Roundup.
Pontypridd United FC charged by FA Wales
FA Wales has issued 18 charges against Pontypridd United FC in relation to alleged offences that occurred during the 2022/23 and the current 2023/24 season concerning non-payment of players’ wages, failure to register players and playing ineligible players.
FA Wales’ statement on the charges is available here. The club released a statement stating that it intends to defend the charges.
Barnsley FC removed from 2023/24 FA Cup
On 22 November 2023, the FA announced that Barnsley FC had been removed from the 2023/24 FA Cup for fielding an ineligible player during their first round replay match against Horsham FC on 14 November 2023, contrary to rule 103 of the Rules of the FA Challenge Cup.
The decision was made by a Professional Game Board Sub-Committee pursuant to rules 12, 13, 15 and 16 of the Rules of the FA Challenge Cup.
FA Women’s Super League (“FAWSL”) and Women’s Championship (“FAWC”) clubs agree on NewCo
The FAWSL and FAWC clubs have voted in favour of creating a new organisation, NewCo, for the running of those competitions and which sees a breakaway from the FA’s operation of those competitions.
The NewCo will see the clubs competing in the FAWSL and the FAWC become shareholders of the NewCo, and it is anticipated that the competitions will transition to the NewCo for the start of the 2024/25 season.
For an explanation on the current operation of the FAWSL and FAWC, please see Football Law’s overview of the FAWSL and the FAWC here.
Premier League vote on loaning players
A proposed amendment to the Premier League’s Rules to ban clubs loaning players between clubs under the same ownership did not receive the required number of votes from the Premier League’s clubs (the shareholders of the Football Association Premier League Limited). Amendments to the Premier League’s Rules requires the support of 14 or more clubs (as explained in Football Law’s overview of the Premier League).
It has been reported seven clubs voted against the proposed amendment, and that those seven cubs were Newcastle United FC, Sheffield United FC, Manchester City FC, Chelsea FC, Everton FC, Wolverhampton Wanderers FC and Nottingham Forrest FC.
The issue highlights the complexities, and potential advantages, involved in multi-club ownership. It should be remembered that the prohibition on bridge transfers (article 5bis of FIFA’s Regulations on the Status and Transfer of Players and the FA Rules, r. C58) offers some protection against abuse of player loans between clubs under the same ownership.
FIFA Football Agent Regulations (FFAR)
Another appearance for the FFAR in a Football Law monthly roundup.
On 6 November 2023, it was reported that the Commercial Court No. 3 of Madrid, Spain approved an interim injunction request made by a group of Spanish football agents regarding the applicability of the FFAR in Spain by the Real Federación Española de Fútbol (RFEF).
This article by the law firm Garrigues, who acted for the group of Spanish football agents, provides a summary of the decision which has the effect of ordering FIFA to refrain from applying the commission cap in article 15 of the FFAR in Spain.
Additionally, on 30 November 2023, the FA announced that the FA Rule K arbitration between agencies CAA Base, Wasserman, Stellar and ARETÉ and the FA in respect of the FA’s National Football Agent Regulations (NFAR) (which implement the FFAR at the domestic level) had finished, with a declaration being made that the ‘the Fee Cap and the Pro Rata Payments Rules in the NFAR… will be in breach of the Competition Act 1998’.
The FA Rule K Tribunal’s decision remains confidential for now.
There has been no response by FIFA to these updates. The list of FIFA’s Member Associations that have now not fully accepted / having in place injunctive measures against the FFAR is England, Spain, Germany, France, and Italy.
Updated commentary on FIFA’s Regulations on the Status and Transfer of Players (RSTP)
FIFA has released updated commentary to the RSTP, providing a valuable resource on the interpretation of the RSTP and previously decided cases. The updated commentary is available here.
Football Governance Bill
King Charles III’s first King’s Speech identified that the Government will introduce the Football Governance Bill which will provide for an Independent Regulator for English Football (IREF)
As highlighted in Football Law’s September 2023 Roundup, the proposed bill will reflect those recommendations made by the Culture, Media and Sport Committee’s earlier this year. The proposed bill will establish IREF’s powers and responsibilities in accordance with the following:
‘The Independent Regulator for English Football (IREF) would grant licences to clubs after routine inspection covering various areas, allowing them to participate in established leagues and competitions.
The threshold conditions for licences have been suggested by the Government but will be outlined in future legislation. What will appear in the legislation is yet to be outlined concretely or in full.
IREF will operate an owners and directors test and only those who pass the test will be allowed to buy clubs or serve as senior leaders. Sales of clubs to prospective owners who do not pass the test can be halted by IREF.
IREF will be given statutory powers to mediate between organisations in the football pyramid to help reach financial deals between, for instance, the Premier League and the EFL, where self-regulation fails. If mediation is not enough, IREF will have statutory powers to intervene and arbitrate a solution that organisations will be compelled to accept.
IREF will set minimum limits for fan engagement by clubs, which will include consulting with fan groups on “key decisions” at the club as well as decisions on “heritage” such as club crests, colours and the protection of key assets including stadia. It will monitor compliance with fan engagement targets through its licencing process.
IREF will not cover the women’s game nor will it mandate for club compliance with any EDI targets (statutory or otherwise). IREF will also avoid regulating money-laundering or crime in football, as well as not making “unilateral judgements that risk straying into foreign policy” such as where people with ties to foreign governments attempt to buy football clubs’.
6 December 2023