October 2024 Roundup

A roundup of football law news and decisions from October 2024:

Paul Pogba successful in appeal to Court of Arbitration for Sport

As explained in Football Law’s February 2024 Roundup, Paul Pogba (“PP”) had been suspended for four years following an anti-doping charge against PP being proven in respect of a urine sample provided by PP testing positive for the presence of non-endogenous testosterone metabolites.

On 4 October 2024 it was announced that PP had succeeded in an appeal to the Court of Arbitration for Sport (CAS), reducing his suspension to 18 months (backdated to 11 September 2023, which is understood to be the time when PP’s provisional suspension began).

The CAS’s media release in respect of the decision identifies, in summary, that PP had been successful in his appeal for the following reasons:

‘The CAS Panel based its decision on the evidence and legal arguments made that Mr Pogba’s ingestion of DHEA, the substance for which he tested positive, was not intentional and was the result of erroneously taking a supplement prescribed to him by a medical doctor in Florida, after Mr Pogba had been given assurances that the medical doctor, who had claimed to treat several high level US and international athletes, was knowledgeable and would be mindful of Mr Pogba’s anti-doping obligations under the World Anti-Doping Code. Mr Pogba sought a sanction of only 12 months in recognition of the presence of some fault on his part (he did not seek a determination of no fault or negligence from the CAS Panel). ”NADO Italia argued that the Player’s recklessness was serious and justified a 4-year ban. Mr Pogba’s case was supported by several experts. Much of the evidence provided by Mr Pogba was unopposed. The CAS Panel determined, however, that Mr Pogba was not without fault and that, as a professional football player, he should have paid a greater care in the circumstances’.

The operative part of the decision can be found here, but the CAS Panel’s full written reasons are awaited.

Many congratulations to the team at Morgan Sports Law who represented PP in his appeal.

Southampton FC’s Jack Stephens sanctioned

Southampton FC’s (“SFC”) Jack Stephen’s (“JS”) has been sanctioned with a two-match ban and a £50,000 fine following his conduct during SFC’s match against Manchester United FC on 14 September 2024 which, JS admitted, amounted to 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 are available here.

JS was charged by the FA for a breach of the FA Rules, r. E3.1 following foul and abusive language used by JS once towards Stuart Attwell, the Match Referee, and twice towards Gavin Ward, the Fourth Official, following JS being sent off for a foul he committed during the 79th minute of SFC’s match against MUFC (“the Charge”).

The matter was designated as a non-Standard Case, and therefore the Regulatory Commission was not limited to imposing any otherwise applicable standard penalty (see FA Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 2, para. 12, and the FA’s Standard Penalty Guidelines).

As indicated, JS admitted the Charge, and JS’s evidence explained that what he said to the Match Referee and Fourth Official was ‘in the heat of the moment’. JS apologised for his conduct, both before the Regulatory Commission and by way of a written apology to the Match Referee and Fourth Official. JS also relied upon his good disciplinary record (see paragraphs 12-16 of the written reasons).

The Regulatory Commission noted JS’s position as captain of SFC as an aggravating factor and that his conduct ‘undermined the values of the professional game’ (see paragraphs 25 and 26 of the written reasons). The Regulatory Commission also noted that JS would have been aware of the Participant Charter.

The Regulatory Commission considered a three-match suspension was appropriate but reduced the same to a two-match suspension considering the above-stated points raised on JS’s behalf in mitigation (see paragraph 27). The Regulatory Commission also noted that had JS been sent off for his foul and abusive language, then the automatic suspension for such an offence would have been a two-match suspension (see FA Disciplinary Regulations, Part D – On-Field Regulations, Section One, para. 30-31 and Table 2).

The Regulatory Commission also considered a fine of £60,000 was appropriate considering JS’s financial information but again reduced the same to £50,000 considering the above-stated points of mitigation.

Whilst the FA submitted that the Charge should be considered as two separate Charges and/or incidents that should be sanctioned individually (see paragraph 10 of the written reasons), it appears that the Regulatory Commission did not adopt this approach (see paragraph 26).

Preston North End FC’s Milutin Osmajic sanctioned

Preston North End FC’s (“PNEFC”) Milutin Osmajic (“MO”) has been sanctioned with an eight-match ban and fined £8,000 following his conduct during PNEFC’s match against Blackburn Rovers FC (“BRFC”) on 22 September 2024 which, MO admitted, amounted to a breach of the FA Rules, r. E1.1:

‘The Association may act against a Participant in respect of any Misconduct, which is defined as being a breach of the following:

E1.1 the Laws of the Game’.

In particular, it was alleged that MO’s conduct breached law 12 of the Laws of the Game.

The FA Regulatory Commission’s written reasons for the decision imposing the above-stated sanctions are available here.

MO’s conduct – biting BRFC’s Owen Beck (”OB”) during the 87th minute of PNEFC’s match against BRFC – was not seen by the Match Officials, and therefore the charge against MO was brought pursuant to the FA’s Disciplinary Regulations, Part E – Fast Track Regulations – Fast Track 1 – Not Seen Incidents (“the Charge”).

MO’s conduct to which the Charge relates can be seen here.

As indicated, MO admitted the Charge. MO explained that he bit OB in ‘the heat of the moment’ but the Regulatory Commission rejected this submission (see paragraph 11 of the written reasons).

The Regulatory Commission considered MO’s conduct to be disproportionate, aggressive and intentional, and noted that the match between PNEFC and BRFC was televised and therefore had a wide audience (see paragraphs 11 to 13). Each of these points were considered aggravating factors.

Whilst the Regulatory Commission accepted MO’s mitigating factors of his apology and early admission, the Regulatory Commission proceeded to impose the above-stated sanctions.

It is noted that the Regulatory Commission’s written reasons do not provide any analysis or explanation for why the above-stated sanctions were imposed. By way of comparison, in respect of the suspension imposed, it is noted that previous instances of players being found to have bitten another player have resulted in a six-match ban (The FA v Jefferson Lerma (26 May 2021)) and a ten-match ban (The FA v Luis Suarez (25 April 2013)). Comparatively, it is noted that if a player is sent off for spitting at an opponent or any other person, the automatic suspension for such an offence is six matches (see FA Disciplinary Regulations, Part D – On-Field Regulations, Section One, para. 30-31 and Table 2; it also being noted that law 12 of the Laws of the Game groups ‘bites or spits at someone’ as an offence under law 12).

Nottingham Forest FC’s owner Evangelos Marinakis sanctioned

Nottingham Forest FC’s (“NFFC”) owner Evangelos Marinakis (“EM”) has been sanctioned with a stadium ban for NFFC’s next five first team matches following his conduct at the end of NFFC’s match against Fulham FC (“FFC”) on 28 September 2024, which, an FA Regulatory Commission found to be in breach of the FA Rules, r. E3.1.

EM was charged by the FA for a breach of the FA Rules, r. E3.1 following EM spitting on the floor as Match Officials walked past EM at the end of NFFC’s match against FFC (“the Charge”).

EM denied the Charge. The Regulatory Commission, whose written reasons are available here, found, on the balance of probabilities, that the Charge was proven (see paragraphs 38 and 44 of the written reasons; see also FA Disciplinary Regulations, Part A – General Provisions, Section One: All Panels, para. 8).

The Regulatory Commission did not accept EM’s explanation that he needed to ‘expectorate’ (or for anyone not living in a Dickensian world: spit or cough) because he smokes two or three cigars a day and had a cough at the relevant time, and, in particular, that he coughed when walking past the Match Officials which may have caused phlegm to leave his mouth and land on the floor (see paragraph 29). The Regulatory Commission found EM’s version of events to be ‘completely implausible’ (see paragraph 44).

The Regulatory Commission accepted the evidence of the Match Officials, which included Extraordinary Incident Reports produced on 29 and 30 September 2024 referring to EM having ‘spat on the floor next to my left foot’ and ‘making a spitting action as the match officials walked past him’ (see paragraph 27). The evidence also included an email from one of the assistant referees explaining that, in the moments immediately after the incident, the Match Referee informed an assistant referee that ‘[EM] had spat on the floor in his direction as he walked past’. This contemporaneous or near-contemporaneous evidence appeared to be particularly persuasive in the Regulatory Commission’s assessment of the evidence (see paragraph 34).

The Regulatory Commission considered EM’s conduct to be a ‘disrespectful and disgusting display of contempt towards the match officials’ (see paragraph 47).

The matter was designated as a non-Standard Case, and therefore the Regulatory Commission was not limited to imposing any otherwise applicable standard penalty (see paragraph 48; see also FA Disciplinary Regulations, Part E – Fast Track Regulations, Fast Track 2 (“FT2”), para. 12, and the FA’s Standard Penalty Guidelines).

The Regulatory Commission imposed the above-stated sanction without reference to any comparable cases but upon its own assessment of the case (see paragraph 53 of the written reasons). In imposing the above-stated sanction, the Regulatory Commission noted the following at paragraph 51 of its written reasons:

‘[The incident] was after the game had ended. There is no excuse for it. EM’s position as the owner of a football club aggravates the situation. His conduct was entirely unacceptable and deserving of a serious punishment. We also regard his implausible attempt to explain his conduct as aggravating’.

Aside from dealing with the substance of the Charge, the Regulatory Commission also provided some observations on procedure.

Firstly, the Regulatory Commission noted that FT2, para. 5 states the following in respect of steps that may be taken before a charge is issued under FT2:

‘In certain cases, particularly those concerning media comments, as a preliminary step a Participant may be required by the Association to provide their observations’.

The Regulatory Commission explained that FT2 provides the FA with a wide discretion on whether to obtain any preliminary observations from the Participant who may be charged and that there was no obligation on the FA to obtain EM’s observations before issuing the Charge (see paragraphs 7-14 of the written reasons).

Secondly, the FA had sought to rely upon ‘further material which had not been served by the FA in support of the charge’ (see paragraph 15), which consisted of a ‘press report in a newspaper which quoted an unnamed ‘senior Forest source’ criticising the standard of refereeing’ (see paragraph 16(d)). The Regulatory Commission did not know whether the FA was aware of the further evidence at the time of the Charge and the FA did not provide any explanation in respect of the same (see paragraphs 21 and 23). The Regulatory Commission also noted FT2, para. 6 (see paragraph 17 of the written reasons), which states:

‘A Charge shall be issued which shall be accompanied by all evidence, documents and written submissions upon which The Association intends to rely’ (emphasis added).

While acknowledging that the FA also had the right to provide a response to any Reply to the Charge provided by EM (see FT2, para. 19), the Regulatory Commission decided that in the circumstances of this case (particularly the lack of explanation of whether the FA knew of the further evidence at the time of the Charge) the FA should not be permitted to rely on the further evidence, as the FA ought to have supplied ‘all evidence’ at the time of the Charge (see paragraph 23).

It should be noted that FT2, para. 19 states the following in respect of the FA providing a response to any Reply to a charge:

‘Written submissions, evidence and any other relevant material not submitted within this time limit [for a Reply] may not be considered by the Regulatory Commission’ (emphasis added).

The full wording of FT2, para. 19 suggests there is no hard and fast rule about ‘all evidence’ as suggested in the Regulatory Commission’s decision.

In any event, as the Regulatory Commission also noted (see paragraph 16(c)), the FA Disciplinary Regulations, Part E – Fast Track Regulations, General Principles, para. 3 permits the following:

‘The directions set out in these Regulations may be deviated from at the discretion of the Judicial Panel Chairman or the Regulatory Commission dealing with any given case if the circumstances of that case so dictate’.

Manchester City FC v Premier League – Associated Party Transactions

As explained in Football Law’s June 2024 Roundup, Manchester City FC (“MCFC”) had brought a claim against the Premier League (“PL”) in respect of the PL’s rules on associated party transactions (“APTs”).

The PL released a statement on 7 October 2024 which, inter alia, provided a copy of the arbitration tribunal’s decision. MCFC also released a statement in respect of the decision.

The decision identifies that MCFC’s claim sought, inter alia:

‘[…] a declaration that Rules E.55-79 of the Rules which concern [APTs] are unlawful and an order that two decisions of the Board of the PL (“the Board”) concerning APTs to which MCFC were party should be set aside. The APT Rules were introduced in December 2021 and were amended in February 2024 (“the Amended APT Rules”). The challenge is to both the APT Rules and the Amended APT Rules.

The grounds of the challenge to the APT Rules and the Amended APT Rules are that they breach sections 2 […] and 18 […] of the Competitions Act 1998 (“the 1998 Act”) and the requirements of public laws as to procedural fairness.

The grounds of the challenge to the two decisions are that the Board erred in principle in its application of the APT Rules, that the Board failed to act with procedural fairness and that the Board reached a decision which could not have been reached by a reasonable Board which had applied its mind properly to the issues to be decided. In addition, it is said that the length of time taken to reach the two decisions (and a third decision) did not comply with the APT Rules’ (see paragraphs 4-6 of the decision).

This article from Samantha Haigh, Mark Crane, Polly Sprenger, Patrick Lloyd and Ross Lennox at Addleshaw Goddard provides an excellent (and thankfully succinct) explanation of the issues before the tribunal, the declaratory relief ordered, and what can be expected following the decision.

Nottingham Forest FC sanctioned

NFFC has been sanctioned with a £750,000 fine for comments that NFFC posted on X after NFFC’s match against Everton FC on 21 April 2024. The X post can be seen here, which stated:

‘Three extremely poor decisions – three penalties not given – which we simply cannot accept.

We warned the PGMOL that the VAR is a Luton fan before the game but they didn’t change him. Our patience has been tested multiple times.

NFFC will not consider its options’.

NFFC was charged with a breach of the FA Rules, r. E3.1 for its post on X (“the Charge”). NFFC denied the Charge but the same was found proven. The FA Regulatory Commission’s written reasons for its decision on liability are available here (“the Liability Decision”), and its written reasons for its decision on sanction are available here (“the Sanction Decision”).

As seen recently in The FA v Mikel Arteta (11 December 2023), The FA v Marco Da Silva (29 January 2024) and The FA v Nuno Espirito Santo and Neco Williams (22 August 2024), the applicable test when considering whether such comments amount to a breach of the FA Rules, r. E3.1 is as follows:

‘Would the “reasonable bystander” armed with some general knowledge of the sport which might be attributable to a follower of Premier League football, conclude that the post in question was improper and, as such, amounted to misconduct, whether by implying buas, attacking the integrity of a match official, or match officials generally, or whether they bring the game into disrepute?

A further and alternative way of putting the same test is by asking whether, objectively considered as above, the post ‘crosses the line’ between legitimate, if forcefully expressed, criticism and that criticism which (i) might damage the wider interests of football, (ii) might damage the image of the game or (iii) in some other way, bring the game into disrepute or otherwise not be in the best interests of the game’ (see paragraphs 7-8 of the Liability Decision.)

The Regulatory Commission emphasised that the test is ‘an objective one’ and ‘cannot be assisted by the gloss which NFFC, by virtue of subsequent [X] posts, seek to put on any objective interpretation of the first [X] post […] it is to be considered in isolation from those which followed it, unless such consideration is necessary to inform the mind of the “reasonable bystander”’ (see paragraph 20 of the Liability Decision).

In respect of obtaining the viewpoint of the reasonable bystander ‘armed with some general knowledge of the sport […]’, the Regulatory Commission stated the following:

‘We have no difficulty in concluding that the reasonable bystander is well aware of the problems which have been caused by VAR in its technical operation, and the inability to correct errors retrospectively – this has led to much frustration amongst all concerned caused by delays and basic errors. As pointed out above, however, that is not what this case – or this post – was about. We have considered at length whether this justifiable concern extends to questions – or a ‘discussion to be had’ […] about the propriety or otherwise of someone who might be perceived as having an interest in the outcome of a particular fixture being allowed, or selected to act as VAR thereat. In our judgment, quite simply there was no evidence before us that this is an issue which has been a topic of such (or indeed any) discussion within the ambit of the reasonable bystander’ (see paragraph 23 of the Liability Decision).

Applying that approach, the Regulatory Commission considered that a reasonable bystander reading NFFC’s X post ‘would inevitably conclude that the decisions which “went against” NFFC were clearly linked to the VAR being a Luton fan and, as such, inevitably involved an implication of actual bias on his part against NFFC, and we so find on the balance of probabilities. It follows, in our judgment, that as the integrity of a match official has been called in to question in this way, this was improper conduct, and thus, we find the charge proved’ (see paragraph 26 of the Liability Decision).

The Regulatory Commission approached sanction by considering the seriousness of NFFC’s breach of FA Rule, r. E3.1, to be determined by reference to two factors: culpability and harm (see paragraph 13 of the Sanction Decision).

In respect of culpability, the Regulatory Commission accepted the following scale for the determination of culpability (a comparable scale has previously been applied in cases concerning breaches of what is now FA Rules, r. E21 in respect of a Club’s control of its supporters attending any match):

‘a. Very High - Deliberate intention i.e. a deliberate, pre-meditated and calculated decision by the Club as a collective organisation to explicitly allege actual bias against an official and/or bring the game into disrepute, with full foresight, acceptance and contemplation of the actual and obvious consequences that arose;

b. High - Reckless disregard - here, for the content of social media posts, such that the Club did not properly regulate the content at all, or indeed did not care one way or the other whether bias was implied or not, with little or no thought given to what was a real risk in terms of the foreseeable potential consequences of such comments;

c. Medium - Gross negligence – a serious lack of care in assembling social media posts, such that there was insufficient oversight, thought or care when they were assembled, creating a foreseeable risk in terms of both imputing bias, bringing the game into disrepute and/or the extent of the potential consequences of the post;

d. Lower - Simple negligence – a lack of care in assembling social media posts, such that there was a risk they would impute bias or bring the game into disrepute, though only limited appreciation at the time of the potential consequences of the post;

e. Lowest - Cases which only just ‘cross the line’ in terms of being impermissible comments, with little or even no appreciation that the comments may have that effect’ (see paragraphs 15-16 of the Sanction Decision).

The Regulatory Commission noted that culpability is not increased because the Participant charged is a football club rather than an individual but acknowledged that ‘the fact a corporate entity is the respondent to these proceedings will be reflected in sanction due to the […] far greater financial income and resources than an individual (see paragraphs 20-21 of the Sanction Decision). Further, culpability was also not increased because of NFFC’s failure to identify the author of the X post, and there being no deliberate concealment in respect of the same (see paragraphs 22-23 of the Sanction Decision). Further again, culpability was not increased by NFFC not deleting the X post (see paragraph 25 of the Sanction Decision).

Further, the Regulatory Commission considered that NFFC’s X post ‘was an imputation of actual bias rather than an express allegation of bias and, further that there was no incitement to followers of NFFC on X’ (see paragraph 29 of the Sanction Decision).

Considering those factors, that the X post was made against a readily identifiable individual, the viral reaction to the X Post and ‘a reckless disregard to the consequences or impact of the [X] post’, the Regulatory Commission decided that the case fell into the category of “high culpability” (see paragraph 33 of the Sanction Decision).

This author considers NFFC’s X post must have been a gnat’s whisker away from tipping into the category of “very high culpability”; the Regulatory Commission’s assessment that the X post was ‘an imputation of actual bias rather than an express allegation of bias’ is doing a lot of heavy lifting.

In respect of harm – although there was no similar scale or formula to guide the Regulatory Commission – the Regulatory Commission considered the harm caused to be ‘at least high’ considering the c. 40 million impressions NFFC’s X post received, the impact the X post had on Stuart Attwell (the VAR subject to NFFC’s X post), and that the X post had the potential to serve as a ‘green light to those who seek to abuse officials and normalises questioning the integrity of all Referees’ (see paragraphs 36-46 of the Sanction Decision).

The Regulatory Commission also noted that the absence of any apology from NFFC and failure to delete the X post were relevant to the level of financial penalty to be imposed (see paragraph 49 of the Sanction Decision).

Elaborating upon the ‘corporate entity’ and financial resources point referred to above, the Regulatory Commission developed this point further by adding that a greater financial sanction would be imposed than that seen in cases concerning individuals because NFFC ‘is accepting collective responsibility for the actions of those persons responsible for the post’ (see paragraph 59 of the Sanction Decision).

Whilst noting that this case was the first of its type (see paragraphs 53 and 55 of the Sanction Decision), the Regulatory Commission noted the need for consistency in approach, for any sanction to be proportionate to the culpability and the harm present, and the need to deter other clubs from behaving similarly (see paragraph 60 of the Sanction Decision).

Bringing those threads together, the Regulatory Commission sanctioned NFFC with a £750,000 fine, a warning, and an order to pay the Regulatory Commission’s costs (see paragraph 73 of the Sanction Decision).

FC Barcelona lose appeal against UEFA

FC Barcelona (“FCB”) failed in its appeal to the Court of Arbitration for Sport (CAS) against a UEFA Club Financial Control Body Appeals Chamber’s decision to sanction FCB with a €500,000 fine for FCB’s ‘misclassification of […] profit from the disposition of audiovisual rights in the amount of EUR 267,089,000 for the reporting period ending in 2022’.

The CAS panel’s decision is available here.

New Football Governance Bill

Further to Football Law’s July 2024 Roundup where it was explained that the King’s speech showed the Labour government’s commitment to proceed with the introduction of an independent football regulator, the Labour government has now introduced a ‘Strengthened Football Governance Bill in the House of Lords’.

This Government press release provides a summary of the new Football Governance Bill (“FBG”), and the FGB can be accessed here.

Commentary from Nick de Marco KC of Blackstone Chambers, David Thorneloe and Gabrielle Armstrong of Pinsent Masons, Simon Orriss and Harry Bambury of Mills & Reeve, and JJ Shaw of Lewis Silkin provides valuable insights into the FGB.

The PL’s statement released in respect of the FGB says that the PL ‘remain concerned about the regulatory framework’, whereas the English Football League’s statement enthusiastically expressed its belief that ‘the [FGB] has been framed in a way that will enable the new Regulator to protect and achieve the sustainability of Clubs across the entire football pyramid’.

The FGB will now go through the legislative process, with the first reading in the House of Lords having taken place on 24 October 2024, and the second reading due to take place on 13 November 2024. The FGB can be tracked here.

Court of Justice of the European Union gives decision in Lassana Diarra case

The Court of Justice of the European Union has decided that articles 9.1, 17.2 and 17.4 of FIFA’s Regulations on the Status and Transfer of Players are contrary to (subject to any justification) articles 45 and (subject to any permitted exemption) 101(1) of the Treaty on the Functioning of the European Union.

Analysis of this decision will be available on Football Law next week (w/c 11 November 2024) in an article by Thomas Horton (founder of Football Law and barrister), Kat Pijetlovic (Assistant Professor of Law at Católica Global School of Law and Católica Lisbon School of Law, and Head of Palestine Football Association Legal Department) and Christopher Flanagan (Associate Editor at the International Sports Law Journal and Head of Legal at Future). Please check back soon.

FIFA releases interactive transfer window tool

FIFA has released an interactive transfer window tool, providing a clear representation of when member associations’ registration periods (transfer windows) are open and closed. The tool can be accessed here.

FIFPRO and UEFA sign Memorandum of Understanding

FIFPRO Europe and UEFA have signed a Memorandum of Understanding (“MoU”), which includes provision for a FIFPRO Europe representative to join the UEFA Executive Committee, and for UEFA’s commitment to involving FIFPRO Europe in any decision ‘that could affect players’ employment conditions, or any potential competition reform that could impact players’ workload’.

FIFPRO’s statement on the MoU is available here, and the MoU is available here.

Confirmation of FIFA facing second legal action in respect of FIFA Club World Cup 2025

As was indicated in Football Law’s July 2024 Roundup, FIFPRO Europe and European Leagues (and La Liga) have now filed a complaint to the European Commission over FIFA’s imposition of the International Match Calendar. It is understood that the complaint ‘explains how FIFA’s imposition of decisions on the international calendar is an abuse of dominance and violates European Union law’, and that the complaint ‘focuses on the men’s international match calendar, including the FIFA World Cup 2026 and the decisions relating to the FIFA Club World Cup 2025’. FIFPRO Europe’s statement on the complaint also states:

‘FIFA’s rules and conduct fall well short of what is required by EU law, and harm the economic interests of national leagues, and the health and safety of players in European football. A legal challenge before the European Commission has become a necessary course of action to safeguard the European football sector which is a global cultural and entertainment powerhouse’.

4 November 2024