Tuesday, 22 May 2007

Scudamore's Letter

In response to several requests here is a copy of the letter (in full) as sent out by Richard Scudamore to all 20 Premiership clubs. Having read it through carefully several times I am genuinely mystified as to why Sheffield United would want to take this case any further.

Dear Chairman / Chief Executive

Independent Disciplinary Commission Decision relating to West Ham United

We write as promised yesterday in order to lay out what we believe to be the most pertinent facts in this matter, primarily to ensure that all Clubs have more clarity around what is clearly a complex matter.

The Charges
West Ham United were charged under Rule B13 which requires each Club to behave towards each other Club and the League with the utmost good faith and also with a breach of Rule U18 reproduced here in full: “No Club shall enter into a contract which enables any other party to that contract to acquire the ability materially to influence its policies or the performance of its teams in League Matches or in any of the competitions set out in Rule E10.”

At no point were West Ham United charged with playing an ineligible player – both Tevez and Mascherano were registered on 31 August. All the required documentation was received by the Premier League and the usual confirmations received and sent – a process you are all very familiar with. Registration is definitive as to the status of the player. At no time has Mr Tevez’s registration been revoked or terminated and at all times he has been eligible to play for West Ham.

This was the first time that Rule U18 had ever been applied and tested in this way. The arguments around the intention and application of the Rule as it relates to players’ contracts are, at the least, complex and contentious. The Board acted on its objective interpretation of both the Rules and the potential breach.

The Case
Central to the case are the “third party contracts” entered into by West Ham United and MSI/JSI. These did not come to light until West Ham sent them to the Premier League on 24 January 2007.

It is only at that point that the Board had prima facie evidence that a breach of rules had taken place. Even having submitted them West Ham United continued to argue that these agreements did not influence its policies or performance of the team and therefore were not in breach of Rule U18. The timing of subsequent events was then driven by procedures as laid down in our Rule book – giving all parties reasonable time to respond – a practice that all Clubs will be familiar with.

Much speculation exists as to why the Board did not identify these breaches in September 2006. We made all reasonable attempts to establish if any such agreements existed and the facts have now been established that we were deceived. The League can only function if good faith exists between Clubs and again all of you who have regular dealings with the League will recognise and agree that this is the way it works. More detail is provided in the Independent Commission’s judgement which is attached for your reference in a clearer, more legible form. (Attachment 1)

The Independent Commission
This was appointed from the Panel and convened strictly in accordance with the Rules as agreed by all Member Clubs.

Its chair, Simon Bourne-Arton QC, acted very promptly and properly, laying out directions for the hearing in the shortest possible timescale. This involved, amongst other things, an exchange of witness statements and skeleton arguments from both sides.

The Board insisted on the earliest possible hearing date, conscious that time must be available to hear any appeal prior to the 31 May AGM when the 2007/8 League officially forms. The dates for the hearing set by the Independent Commission Chairman were fixed at the only possible time allowing for all these considerations.

The fixture list (as it sometimes can) conspired to match Wigan v West Ham United on the day after – clearly not ideal but unavoidable. For the above reasons, neither the hearing nor the judgement was nor should have been delayed for any artificial reasons.

The Hearing
On the morning of the hearing West Ham United pleaded guilty to both charges. They then entered a plea in mitigation. The Premier League’s counsel in response to the matter of sanction told the Commission that it considered it to be a most serious offence, reminding them that it had the full range of sanctions available to it under the Rules (Section R).

The Judgement
We are sure you have all read this document and in the light of subsequent events we would ask that you do so again. Whilst those aggrieved by it have concentrated on certain phrases and elements, it contains or generates some very relevant facts:

• The Commission considered it no part of their remit to determine whether third party contracts are in the interests of football generally.
• However, they did lay out some rationale as to why they saw force in the arguments that such agreements could be construed as to be in breach of Rule U18 – in summary, because certain clauses in them were inconsistent with clauses in the Standard Players Contract. In any event, West Ham United had admitted they were in breach.
• The judgement also made comments about the Commission’s view of the enforceability of the third party contracts in question. West Ham United argued that they were not enforceable, the Commission was minded to agree, but West Ham United could not use this as a defence as they had acted as if they were enforceable in the first place.

The Sanction
You will all have formed a view about the sanction. The terms of the judgement made it clear that the Independent Commission considered very seriously the possibility of points deduction. You are well aware by now that our Rules provide no tariff of sanctions for particular offences. In the end, having had the benefit of reading all the witness statements and skeleton arguments; having listened to the plea in mitigation and the Premier League counsel’s response on sanction, they – and only they – decided on fines: £2.5m for breach of Rule U18, £3m for breach of Rule B13.

The media, and of course those aggrieved by the decision, have analysed the seven reasons given by the Independent Commission for not deducting points and concentrated on those that to them seem the least convincing. However, there are others that have a less convenient truth, particularly the one that says “had the Club in time made disclosure of the third party contracts to the FAPL, then, in all probability, contracts could have been entered into which would not have offended the rules”. We will refer back to this statement later.

In summary, the Independent Commission carried its work out fully in accordance with our Rules, having adopted practices entirely consistent with formal judicial proceedings. In reaching their decision the Independent Commission clearly considered the matter very carefully and did not deliver an irrational or extreme judgement and delivered the sanction that only they (having considered the matter fully and in light of copious evidence) deemed to be proportionate and appropriate.

West Ham United as Respondents were the only party entitled to appeal. This is a deliberate construct of our Rules. Any Club that has faced a properly convened Independent Commission having had “their day in court” cannot be “re-tried” by the Board or group of aggrieved Clubs.

This has to be right as otherwise the Board could be subject to intense lobbying from some. Also, the League could not function if other Clubs could effectively intervene in an attempt to overturn decisions not to their liking – not those of the Board – those of an Independent Commission convened in strict accordance with the Rules previously agreed by all Clubs.

We also attach advice on the matter of appeal received from our own Legal Working Party. (Attachment 2)

Actions of the Board since 26 April 2007
We sense that this is where much of the concern even amongst a wider group of Clubs exists and so we will expand upon our actions since the hearing.

The Independent Commission declared that the registration of Carlos Tevez could be terminated by the FAPL.

The FAPL Board convened later that day to consider this matter. The Board minutes from this meeting are attached for your reference. (Attachment 3)

The Board was fully aware of the need to proceed very carefully and precisely, seeking constant advice from DLA Piper (our external lawyers) at all times.

It must be restated that this registration had been in place in full accordance with the requirements of our Rules relating to player registrations since 31 August 2006.

Having reached its decision the Board conveyed this to officials of West Ham United As contained in our note to you all of 8 May, the Premier League made it very clear to West Ham that unless it could be satisfied that all trace of any third party ability to influence West Ham's policies or the performance of its team was removed, Mr Tevez's registration would be terminated.

We would not normally disclose – and neither would you want us to – confidential information contained in Club contracts. However, we sense the need to reassure Clubs and so have gone further than we might in these unusual circumstances.

Prior to the deadline set of noon on 28 April, the Premier League Board received the following documents:

i) A letter from West Ham United sent to Carlos Tevez, MSI and JSI terminating the private agreement between them dated 30 August 2006 and notifying those parties that the private agreement shall cease to have any further force or effect.
ii) A letter from the legal representatives of MSI and JSI acknowledging receipt of the above letter.
iii) A letter confirming that the above letter had been served on Carlos Tevez personally.

The Board was fully conscious that it had to ensure that West Ham United could not continue to, or repeat a, breach of Rule U18.

In order to protect the League and all Clubs the Board sought additional undertakings from West Ham United. Again, these were in writing and commit West Ham United to the following:
1. copy the Premier League in on all correspondence (including any proceedings served) between the Club and any of Tevez, MSI and JSI (or any of their respective representatives or advisers) in relation to Tevez;
2. continue to contend that the Private Agreement is invalid and unenforceable and, from the Club’s perspective, terminated, and the Club will not perform in accordance with it; and
3. not act in a manner which is inconsistent with the confirmation given at paragraph 2 above and, for the avoidance of doubt, no settlement or resolution (or discussions or negotiations leading up to any such settlement or resolution) will include any concession by West Ham that the Private Agreement was valid and enforceable.

In summary, West Ham United, having considered all the alternatives, chose to terminate the offending third party agreement. The Board only regulates West Ham United – not third parties – and it has secured written undertakings that West Ham United can only act in a way that is consistent with its having terminated the offending agreement.

It is only because of these written undertakings that Tevez’s registration was not terminated. If the Board suspects or has evidence that these undertakings are false or have been breached, then it will take all necessary steps to enforce Premier League Rules.

In making these undertakings to the Premier League it could be that West Ham United has exposed itself to further legal challenge from third parties who may contest the legality of that termination. That is a matter for them and them alone as, again, we have no jurisdiction over third parties.

Given the complexities around this, we would ask you to step back from the detail and consider the matter in more general terms:
1. Tevez has been properly registered to play for West Ham United since 31 August 2006. The Board, under our Rules, is charged with the authority to determine this.
2. He continues to be registered with West Ham United.
3. This is a case without precedent and certainly cannot be compared with Clubs who have played unregistered players or players ineligible through suspension.
4. On 26 April West Ham United admitted to breaches of Rules B13 and U18 – for which they have been fined in accordance with our Rules.
5. The offending third party agreement has been terminated by West Ham United and therefore they are not continuing to be in breach.

On a wider basis:
1. Under cross-examination (though the hearing did not proceed) the Premier League witnesses would have had to state that in all probability had West Ham United submitted the third party agreement in August 2006, the Premier League would have highlighted the offending clauses and worked with the Club in an attempt to shape the agreement into compliance with the Rules. This is a common occurrence all Clubs are aware of as the League seeks generally to help Clubs register players not prevent them. This has happened in all previous known cases of this nature.
2. Third party agreements exist in many varied forms throughout football – banking or finance agreements, players’ commercial arrangements, agency or representative agreements – many of which do not fall under the Premier League’s jurisdiction and do not contravene our Rules. The Premier League applies the same objective tests to any agreements – an interpretation of U18 as determined by the Board acting in the utmost good faith at all times.
3. We are the only league to our knowledge that has such a Rule – neither the Football League, FA nor FIFA have one.

Ultimately the proper functioning of this League only operates with trust between Member Clubs, the Board and officials. This case demonstrates the difficulties we run into if this is not adhered to. We can absolutely assure you that the Board has acted in good faith at all times – implementing Premier League Rules using judgement, impartiality and consistency.

We believe we were right to bring the charges (even though we know some Clubs do not actually agree that these third party agreements breach Rule U18).

We believe the Independent Commission was properly convened, its judgement was rational and the sanction was one that it was entitled to make within its powers (even though some clearly do not agree with it).

We also consider Tevez was at all times registered to play for West Ham United and that they are bound to act in a manner that is consistent with them having terminated the offensive third party agreement.

These three elements are within our jurisdiction and we have acted in accordance with the Rules operating for the purposes of the 2006/7 season. We have no wider remit – and neither should we.

As you are well aware, we will have the chance to debate the wider implications of this at our Summer Meeting in two weeks’ time. The Board will be giving careful consideration – as we are sure all Clubs will – to how we might learn lessons from this situation to protect the future interests of the League and all its Member Clubs. Any resulting changes to the Rules will be approved by Clubs in the usual manner.

To reassure you further, we attach a letter from our legal advisers confirming that the contents of this letter are entirely consistent with the advice they have been giving the League throughout this matter. (Attachment 4)

As always, we appreciate your consideration and support and will be pleased to answer any follow-up questions you may have.

We really do look forward to seeing Member Clubs at the Summer Meeting.

Kind regards,

Richard Scudamore Sir David Richards
Chief Executive Chairman

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