September 2023 Roundup
A roundup of notable football law news and decisions from September 2023:
FIFA Legal Handbook
FIFA released the 2023 edition of the FIFA Legal Handbook, which is available here.
FIFA Football Agent Regulations (FFAR)
On 29 September 2023 FIFA announced that its new FFAR were to fully enter into force as of 1 October. However, FIFA’s headline does not tell the full story.
As explained in these helpful articles from the sports law teams at Walker Morris LLP and Onside Law LLP, and following the FA’s announcement on 27 September 2023 that the implementation date of the National Football Agent Regulations (NFAR) (i.e., those implementing the FFAR at a national level in England for domestic transfers, but which still have not been published) would be delayed until the earlier of ‘(a) 30 November 2023 or (b) the handing-down of the Tribunal’s award’, the full implementation of the FFAR/NFAR in England, Germany (or to transfers ‘with a link to the German market’), France and Italy (four of the biggest transfer markets) is in doubt.
The outcomes of the Rule K arbitration in England challenging the implementation of the NFAR (expected before the end of this year as indicated above), and of the European Court of Justice’s decision on the compatibility of the FFAR with European Union competition law (unlikely to be given until next year) are eagerly awaited. FIFA may yet have to revisit the FFAR or risk inconsistent regulations, being the opposite of what the FFAR hoped to remove.
Independent regulator for elite football
Following the Department for Culture, Media and Sport’s (DCMS) publication of its white paper ‘A sustainable future – reforming club football governance’ in February 2023, the DCMS published its consultation response on 7 September 2023.
Following the Culture, Media and Sport Committee’s (CMS) (a cross-party committee that scrutinises the work of the DCMS) publication of its Ninth Report of Session 2022–23, Football governance, on 30 June 2023, the Government provided its response to the same on 15 September 2023, signalling its intention to bring forward legislation to put the Independent Regulator for English Football on a statutory footing as soon as parliamentary time allows.
An English Football League statement released on 28 September 2023 explained that discussions between the Premier League and the EFL were ongoing, reflecting the Government and CMS’s call for the same to reach an agreement on financial distributions.
Premier League – Profitability and Sustainability Rules – Standard Directions
The Premier League’s rules have been updated to provide standard directions in respect of disciplinary proceedings against clubs charged with a breach of the Premier League’s profitability and sustainability rules (see Premier League Rules, rules E.47-51).
Premier League Rules, rule E.51 now states:
‘If the PSR Calculation results in losses of in excess of £105m:
E.51.1. the Board may exercise its powers set out in Rule E.16; and
E.51.2. the Club shall be treated as being in breach of these Rules and accordingly
the Board shall refer the breach to a Commission constituted pursuant to Section W (Disciplinary) of these Rules, which shall be determined in accordance with the Profitability and Sustainability Rules – Standard Directions [(“PSR Standard Directions”)] set out at Appendix 1 to these Rules’.
Paragraph 15 of the PSR Standard Directions states:
‘Any PSR Complaint referred to a Commission by the Board must be determined by the Commission at a single hearing… to be listed for between one and five days, so as to conclude the Commission proceedings (by the Commission’s decision, together with written reasons) within 12 weeks (84 days) of the serving of the PSR Complaint on the Respondents by the Board pursuant to Rules W.23 to W.25…’
While there is some discretion to vary the timetable provided in the PSR Standard Directions (see paragraph 6), there is an ultimate ‘Backstop Date’ to ensure that proceedings, including any appeal, are concluded before ‘1 June following the submission of the relevant Club’s Annual Accounts’.
The introduction of the PSR Standard Directions should help to prevent delays in determining charges brought for a breach of the Premier League’s profitability and sustainability rules, albeit this still depends upon the Premier League promptly bringing a charge against a club in the first instance.
Scottish FA and Scottish women’s national team’s players settle claim
32 members of the Scottish women’s national team brought claims of direct and indirect sex discrimination against the Scottish FA (SFA), relying upon comparisons with the men’s team’s pay and treatment.
The SFA announced on 14 September 2023 that the SFA and the players had settled the claim on the day that the hearing of the claim was due to start. The details of the settlement are unknown.
Reading FC points deduction and transfer embargo
As explained in Football Law’s August 2023 roundup, following Reading FC’s failure to pay players’ wages in time on three occasions, on 15 August 2023 the club was sanctioned with a one-point deduction effective immediately and a three-point deduction for the 2023/24 season suspended on condition that (i) the club’s owner, Mr Yongge Dai, pays 125% of the club’s forecasted monthly wage bill into a deposit account within 28 days of the sanction decision, and (ii) that there is no further failure to pay players’ wages between 15 August 2023 and 30 June 2024.
On 13 September 2023 the English Football League (EFL) announced that Mr Dai had failed to comply with condition (i) above, and the suspended three-point deduction had been activated. On 20 September 2023, the EFL also announced that Mr Dai had been charged with misconduct for his failure to comply with condition (i) above.
Additionally, on 29 September 2023 the EFL updated its “Current Embargoes” list, identifying that Reading FC had been placed under a player registration embargo pursuant to EFL Regulations, reg. 17.3, and therefore relating to the club’s failure to pay a liability to HMRC. The details of this liability are unknown, and it is also unknown whether HMRC will present a winding-up petition against the club in respect of this debt. EFL Regulations, reg. 17.3 explains the effect of the embargo:
‘… a Club… shall not be permitted to register any Player with that Club without the prior written consent of The League for the period that the Club is subject to a Default Event’.
Harry Toffolo
Nottingham Forest FC’s Harry Toffolo was sanctioned for breaching the FA’s betting rules by placing 375 bets between January 2014 and March 2017. Mr Toffolo was sanctioned with a (i) warning; (ii) a fine of £20,956.22; and (iii) a five-month suspension from all football and football-related activities suspended on condition that he commits no further breach of the FA Rules, rule E8 before the end of the 2024/25 season.
This article for Football Law provides a case summary of the Regulatory Commission’s decision on sanction, provides a comparison with the recent, comparable case involving Ivan Toney and identifies key practical takeaways from the decision.
Andy Mangan
Bristol Rovers FC’s assistant manager Andy Mangan was found to have not committed an aggravated breach of the FA Rules, rules E3.1 and E3.2 following a charge that he had used homophobic language during the club’s match against Plymouth Argyle FC on 22 October 2022.
Mr Mangan was found to have committed a standard breach of the FA Rules, rule E3.1, and sanctioned with a warning and a fine of £1,200.
The Regulatory Commission’s written reasons provide a helpful reminder of the applicable test when determining an aggravated breach of FA Rules, rule E3.1 and E3.2 (see para. 7-8).
The Regulatory Commission found that the accepted words spoken by Mr Mangan (quoted below at lines b, d and e) were ‘clearly and objectively abusive and insulting’ (para. 43) but did not have a ‘sufficiently clear implied reference to sexual orientation to make out the element of aggravation relied on by the FA’ (para. 49):
‘b. Male (Scouse accent): What are ya? A peeping Tom? Bit weird that filming outside our room init?
c. Male: I’m filming them.
d. Male (Scouse accent): Think it’s dead weird that, you haven’t got a bird have ya.
e. Male (Scouse accent): One of the weirdest things I’ve ever seen that, mate. I’d burst into your house and check your computer. Filming outside our room’.
Paul Pogba provisionally suspended
Paul Pogba has been provisionally suspended by Italy’s national anti-doping organisation after a urine sample he provided after a match in which he was an unused substitute tested positive for the presence of non-endogenous testosterone metabolites.
Mr Pogba could face a suspension of up to four years if found to have committed an anti-doping rule violation involving the presence of testosterone. This thread on X (formerly Twitter) provides an explanation of how the case could unfold.
Antony Investigation
Fresh off the back of having to deal with Mason Greenwood, Manchester United FC placed Antony on a leave of absence to allow the Brazilian international to address allegations of violence against women. The club released two short statements about the situation, available here and here in respect of the same. Antony is currently under investigation by Greater Manchester Police, as reported by the BBC and the Guardian.
On 29 September 2023, the club announced that Antony will resume training and be available for selection while police inquiries proceed.
European Club Association (ECA) and FIFA announce new Memorandum of Understanding
The ECA and UEFA’s new Memorandum of Understanding ‘extends the agreement and partnership between European football’s governing body and ECA, as the sole body representative of clubs at European level, until 2030’.
The ECA’s announcement stated:
‘The renewed MoU guarantees that, for the entire duration of the agreement until July 2030, ECA will continue to recognise UEFA as the governing body of football in Europe and UEFA will continue to recognise ECA as the sole body representative of clubs at European level’.
UEFA’s announcement stated:
‘The MoU pools resources and expertise to shape the game's future and strengthen the core principles of the European football pyramid championed by fans across Europe. These include the open system of promotion and relegation that is the basis of qualification for European competitions.
[…] the agreement also heralds the introduction of a new revenue distribution model for the 2024-27 club competition cycle that will provide record levels of solidarity payments to clubs in domestic league competitions, including the clubs not participating in the league phase of UEFA competitions.
The MoU also covers the evolution of UEFA Club Competitions SA – the joint venture between UEFA and the ECA – to further drive the commercial development of UEFA's club competitions’.
Brain Health Fund
The Professional Footballers’ Association announced the creation of the Brain Health Fund to assist former players, and their families, who have been impacted by dementia and other neurodegenerative conditions. Former professional footballers who have been members of the PFA and have a diagnosed neurodegenerative disease will be able to make applications to an independent panel who will decide on the financial assistance to be provided.
The PFA’s statement announcing the Brain Health Fund is available here. The fund is supported by the Premier League.
2 October 2023