Friday, 11 May 2007

Walk A Mile In My Shoes

Innocence always calls mutely for protection when we would be so much wiser to guard ourselves against it: innocence is like a dumb leper who has lost his bell, wandering the world, meaning no harm.
Graham Greene
'Try walking a mile in his shoes' seems to be the message of the latest Carlos Tevez related article in The Guardian. The shoes in question belong to Premier League's chief executive, Richard Scudamore, a man who has endured the rockiest week of his eight year tenure. Since West Ham were fined £5.5m rather than docked points for entering into third-party agreements with the agent Kia Joorabchian in the purchase of Carlos Tevez and Javier Mascherano, the howls of protest have increased almost daily. A week ago today Whelan and McCabe joined their counterparts from Fulham and Charlton to discuss a legal challenge to the ruling made by an independent disciplinary panel. The Premier League is certain that the panel's ruling is bulletproof. The clubs are signatories to the league's rulebook and approved every stage of the process and any legal action would in effect be brought against themselves.

"The Premier League were always very confident that their rules have been adhered to in terms of how the [three-man independent] commission was convened and how the whole issue was resolved," he said. "That commission have decided on the punishment. West Ham pleaded guilty to the charges and the commission, independently of the [Premier League] board, have made that decision. There is no doubt that in terms of the process the rules have been followed and that is the end of the matter." Usually sure-footed and in tune with the mood among his member clubs, the prospect of a fifth of his members rising up in protest was not one he relished. Privately, at least, there is no question that Scudamore and his colleagues are angry at what they see as misinformation spread by desperate clubs.

One of those clubs is Sheffield United where today Kevin McCabe accused the Premier League of treating "like lepers" the clubs threatening legal action over the West Ham affair. "It's as if we're the ones doing something wrong when all we've done is act in a proper and professional way," he said. "Why should we be isolated and described as 'moaning'? Why don't the Premier League stand up and say: 'We've got it wrong'? Instead, they seem to have put a barrier around themselves after plainly getting it wrong." The 'Gang of Four', who plan to hold a second strategy meeting in the next 36 hours, sent a legal letter to the Premier League yesterday demanding evidence that the third party agreement between West Ham and Joorabchian had been terminated. McCabe added: "There's still a big question mark on Tevez's contract. I've read that Mr Joorabchian is saying that he still has the player. If that contract has been terminated, Tevez must have got a new contract. But how can you get a contract outside of the transfer window? What a cock up. I know Richard Scudamore and Sir Dave Richards. They are fine people. If they've got it wrong, why not just apologise and then reconsider."

In a seperate piece in The Times, Gary Jacob states he has witnessed the letter in which Wigan Athletic, Sheffield United, Charlton Athletic and Fulham have formally asked the FA Premier League to provide the proof that Tévez has been eligible to play in the past two matches after the FA hearing into his transfer. The clubs also asked whether the League has contacted Media Sports Investment (MSI) and Just Sport (JSI), who own the rights to Tévez, to ascertain whether the companies have given permission for the contract to be terminated. "Have you obtained confirmation from a suitable independent legal source that West Ham’s assertions are well founded?" the clubs said. "Have you required sight of all relevant correspondence between the parties? Have you been given access to all relevant documentary materials, including any statements of the position of MSI and JSI?"

Scudamore and the league's chairman, Dave Richards, stated in a letter to the gang of four on Tuesday that their organisation "is perfectly satisfied that since the date of the hearing West Ham has taken all necessary steps to ensure that the third-party arrangements which gave that third party the ability to materially influence West Ham's policies and the performance of its teams in league matches have been expunged". West Ham did so on April 27, with a letter mailed by hand and faxed to offices of Media Sports Investment, the company that brought Tevez to the Premiership. On the same day the club forwarded their proof of receipt of the fax to the Premier League. The league accepted that this accorded with its demand that the third-party agreements governing Tevez be ripped up, since it takes only one party to break a contract. The club's legal advice states that, since the gang of four are not party to any specific contracts with the Upton Park club, there would be no basis for them to bring a civil action against the Hammers. The league's letter added that it "is not right to suggest the Premier League has been in breach of its duties to investigate breaches of its rules".

The view in legal circles lends strength to the stance taken by the Premier League. As if to hammer home the point, Frances Gibb, Legal Editor of The Times, has penned an article describing why clubs threatening legal action for breaking regulations over the ownership of Carlos Tévez have little prospect of success. One QC specialising in this field said: "In the first place, the Premier League is not in law a ‘public body’, which means it is not susceptible to a judicial review challenge." Like other sports regulatory bodies, its decisions cannot therefore be challenged as unreasonable, or outside its powers or on other procedural grounds, he added. The only legal remedy would be for breach of contract because the League has contracts with its clubs. "Courts have ruled that contracts in this area have implied terms which are similar to the duties on public bodies – that is a duty to act fairly, responsibly and proportionately," the QC said.

Such an action would be brought in the High Court, but he predicted that any such action would fail because the decision to fine West Ham was taken by an independent panel after proper processes and headed by a QC, Simon Bourne-Arton, not by the League. “It is difficult to see how a decision taken by this panel – however unpopular – could be deemed in law not to be one that it could reasonably take, having reached it after a proper process," the QC said. "No court is going to overturn that. Rather, the courts would allow the broadest of discretion to an independent quasi-judicial body of that sort acting independently and forming a view." Dan Tench, a sports and media law partner with a London law firm, agrees. First, the clubs had to show that they had the legal "standing" or relationship to justify a challenge. "It is clear that West Ham does, but less clear with the others," Tench said. If the “Gang of Four” surmounted that hurdle, then, he suggested, they could go to the arbitration procedure run by the FA and even then the chances of success would be remote. "It would be looked at on the same basis as a judicial review – whether it was erratic in some way or unreasonable. And any reviewing court would give very broad discretion to the original decision that was made. It would be very hard to undermine."


Marky said...

This all is very true. A group challenge is bound to fail. But Wigan have asked for proof that the player was indeed eligible for their game with West Ham. This is a separate issue as it was after the judgement. If the player's registration was still in breach of PL rules then this could constitute a different challenge. But I would not bet my mortgage on it succeeding even if it was valid. The FA and Premier League do not make mistakes!! They are more omnipotent than the diety.

Geordie John said...

I still believe that this was "set up" some time ago at the time of the Tim Howard (Man U/Everton) situation. If points were deducted from West Ham they might also have to be deducted from Man U when things are unravelled. Now what a fuss that would create! A fine means "precedent set" and Man U are OK, until next season when the FA make it 100% clear that points will be deducted from then on.


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