Friday, 9 January 2009

Ghost In The Machine

"The moment of truth, the sudden emergence of a new insight, is an act of intuition. Such intuitions give the appearance of miraculous flushes, or short-circuits of reasoning. In fact they may be likened to an immersed chain, of which only the beginning and the end are visible above the surface of consciousness. The diver vanishes at one end of the chain and comes up at the other end, guided by invisible links."
Arthur Koestler

Officials at West Ham are ruing their decision to tell the withered old crone who turned up at Upton Park selling lucky heather and clothes pegs to sling her hook – the FA and Premier League are to investigate them for the 1,053rd time over that Carlos Tevez business.

It is the story that will not go away, no matter how desperately officials in high places want it to. The Carlos Tevez affair was already grumbling in the background at Upton Park, and adding to the club's financial woes, when it burst back on to centre stage with a vengeance yesterday, reports David Hytner. When the striker was announced as a transfer deadline-day signing in August 2006, together with his fellow Argentine Javier Mascherano, the ripples of shock could be felt around the game. Nobody, however, could have predicted the trail of mayhem that the deal would create. The trail is now burning with scalding intensity and, as they tried to take stock, West Ham had every reason to be extremely concerned.

The club, already contemplating a compensation bill of up to £50m and mired in financial difficulty, could in theory face the crippling prospect of further sanctions – beyond the £5.5m fine imposed by the Premier League in its initial inquiry – after the Football Association and the Premier League yesterday announced a fresh investigation into the protracted affair. If the Hammers are found to have misled the League they could be charged with a breach of rule B13, which requires clubs to act in good faith, and may face a new round of disciplinary hearings and the prospect of further fines. There is even the threat of a possible points deduction (to be made at the start of next season suggests a gleeful Daily Mail) although, speculates the Independent, the possibility of that happening is extremely remote.

The surprise move to launch a new joint inquiry, which will focus on the conduct of West Ham chief executive Scott Duxbury in the wake of the Premier League's original ruling on the matter, is an attempt by the governing bodies finally to draw a line under a damaging and messy dispute. In a statement, the two bodies said yesterday: "The joint inquiry will examine whether the conduct of West Ham United immediately after the independent disciplinary commission's decision of 27 April 2007 amounted to further breaches of Premier League or Football Association rules."

The Guardian states this latest move should be seen in the context of growing pressure from government on footballing authorities to transparently and effectively police the game. West Ham were originally fined £5.5m after admitting breaking Premier League rules relating to third-party ownership of players, but the independent panel convened by the Premier League in April 2007 did not impose a points deduction. After West Ham promised the League that his contract had been torn up, Tevez went on to play a key role in keeping West Ham in the Premier League and condemning a furious Sheffield United to the drop.

Following a series of failed attempts by Sheffield United to have the original verdict overturned, the pendulum swung their way in September when an FA-appointed panel chaired by 85 year old Lord Griffiths ruled that Duxbury had provided Kia Joorabchian, the leader of the consortium that "owned" Tevez and his Argentinian international ­colleague Javier Mascherano, and his lawyer Graham Shear with a series of "oral cuddles". Shear claimed that on two separate occasions, West Ham had agreed privately to honour the agreement they had publicly promised the Premier League they would tear up.

Asked if Duxbury assured Shear that they would not depart from the terms of their deal with MSI, Shear said: "Broadly, yes. West Ham were desperate to ensure that Mr Tevez played for the club in the critical last few games of the season. Whilst having no choice but to adhere to the Premier League's requirements, West Ham wanted to do everything possible to attempt to placate the rights owners."

Shear told the tribunal that West Ham continued to hold an agreement with third-party companies that owned the player’s economic rights. This was despite an assurance to the Premier League that the club had cancelled the contracts in accordance with a request made by the League on the same day that they had fined the club. West Ham were required by the League to terminate the agreement in order to allow the forward, who moved from Corinthians in August 2006, to play for the rest of the season.

Griffiths, in simple terms, branded West Ham liars for what they did after Bourne-Arton had fined them £5.5m and ordered them to rip up the illegal third-party ownership arrangement that they had in place concerning Tevez. Griffiths, who will rule in March on the compensation figure to be paid to Sheffield United in what is a separate civil case, said that Scott Duxbury, who is now West Ham's CEO, had promised to tear up the contentious agreement but privately honour it with Kia Joorabchian, the businessman who represented the third parties who owned Tevez.

"If the Premier League had known what Mr Duxbury for West Ham was saying to Mr Joorabchian's solicitor following the commission decision, we are confident that the Premier League would have suspended Mr Tevez's registration as a West Ham player," said Lord Griffiths' report. "We have no doubt that those [Tevez's] services were worth at least three points to West Ham over the season and were what made the difference between West Ham remaining in the Premier League and being relegated at the end of the season."

The case is complicated by the fact that the Premier League were aware that certain conversations had indeed taken place between Duxbury and the Joorabchian camp. But nobody will feel more uncomfortable than Duxbury if the joint inquiry concludes that Lord Griffiths and his colleagues uncovered evidence that is worthy of further examination. If that is the conclusion this new inquiry reaches, an independent commission would be appointed to examine the events that followed the decision to fine West Ham £5.5m in April 2007. If a commission then found that West Ham or an 'officer' of West Ham was at fault, they would theoretically fall under Premier League regulations.

The appeal panel in 2007, chaired by Sir Philip Otten, had grave reservations about West Ham's actions but they found no errant points of laws upon which to overturn Bourne-Arton's ruling. Sheffield United fought on and pursued West Ham for monies lost in their relegation from the Premier League in 2007 under the Football Association's rule K. In Griffith's subsequent arbitration which, unlike Otton, could take into account West Ham's behaviour immediately after the Bourne-Arton award, he found in favour of Sheffield United. Lawyers for the FA and the Premier League have since poured over Griffiths' findings and they will now consider whether to bring further charges against West Ham.

The Telegraph insist the decision to re-open a case that has been deeply uncomfortable for the Premier League comes as a surprise. Despite acute pressure from Sheffield United and Premier League clubs including Wigan, the League has long insisted that the matter was closed and that West Ham had satisfied the legal requirements of the Premier League rulebook. League sources say the decision to look again at the issue was taken on the advice of legal officials at the Premier League and the FA, but there is scepticism as to whether the inquiry will reach a definitive conclusion. The League also remain convinced that West Ham met the legal requirements of the rulebook by terminating the third-party deal. That prompted MSI to sue, and West Ham eventually settled out-of-court for £2 million, a move that satisfied the League that the club's assurances were genuine. Any ruling that undermined that view would be catastrophic for confidence in the leadership of the League.

The FA and Premier League have come to the view that the conclusions of the arbitration panel, led by Lord Griffiths, have left them with no option but to return to the matter. Their lawyers have written to those involved asking them for written statements and arranging face to face interviews. Those contacted include Shear, Duxbury, former West Ham chairman Eggert Magnusson and Kevin McCabe, the Sheffield United chairman who recently renewed his attack on the "poor governance" of the league over the issue. It is also understood that Joorabchian, who later sued West Ham but settled out of court, has also been contacted and welcomes the new inquiry as an opportunity to put his case.

West Ham say that they have “nothing to hide”. They believe that they are caught in a political battle between the FA and Premier League. The League are understood to have told the club that they would face no further charges, and the club continue to back ­Duxbury. Insiders reiterated yesterday that they remained confident that he had behaved properly. In fact, Griffiths' comments caused astonishment at West Ham – and within the Premier League – because there does not appear to be any documentary evidence to back up the claim. As no recordings of the meetings between Duxbury, Joorabchian and Shear appear to exist, it will be hard to prove who said what to whom and when.

West Ham are understood to be confident that they can prove they have committed no further wrong-doing and can provide the evidence to prevent any more action being taken and that they have acted properly since tearing up the third-party agreement. Indeed, sources would point to the legal action taken by Joorabchian to recover money from the club as an indication that they acted as they had promised while there is astonishment that an indication that Tevez could leave the club in the summer in some way represents being guilty of interference. Indeed, players are told all the time that they can move on at the appropriate time. Nevertheless, the investigation cannot be taken lightly and there is the possibility that, if any evidence is found, that individuals could face action.

"We have acted in good faith throughout the various inquiries and investigations into this matter and fulfilled the undertakings given to the Premier League following the initial penalty," said the club in a statement. "We have nothing to hide and will ensure that this is once again reflected in our evidence to the FA and Premier League."

In November, Sheffield United won a high court injunction over West Ham preventing the club from taking its appeal to the Court of Arbitration for Sport in Lausanne. The injunction lapses in March, when West Ham could try again. Meanwhile, having performed due ­diligence on Sheffield United's books, Lord Griffiths' tribunal is also scheduled to rule in March on the level of compensation due to Sheffield United. The Yorkshire club is claiming up to £50m in lost TV and ­sponsorship revenues, reduced transfer fees and lost gate receipts. Both parties are scheduled to meet to judge how close they are to agreeing a compensation figure, but the process could still linger on until the summer.

The inquiry is more bad news for Björgólfur Gudmundsson, West Ham’s Icelandic owner, who has put the club up for sale. Gudmundsson, who paid about £107 million for West Ham a little more than two years ago, lost hundreds of millions of pounds after the collapse of Landsbanki, the Icelandic bank of which he was chairman and a leading shareholder, in October. West Ham were already a questionable purchase in the short term, but the chances of concluding a takeover now appear dead. West Ham are already fighting off the predators during this month's transfer window on top the threat of a hefty compensation pay-out to Sheffield United. The decision by the Football Association and Premier League to open a fresh inquiry into the affair raises the prospect of the club being pressed further towards the abyss.

Yesterday Gianfranco Zola sought to accentuate the positives, most notably in relation to Craig Bellamy. The striker is the subject of interest from Manchester City and Tottenham but Zola hopes his bond with the Wales international will persuade Bellamy to stay at Upton Park. "I have not come across many players who speak more than Bellamy but I like him," Zola said. "He tells you the truth all of the time. I know that he's got good teams around him that are tempting him but we want him to stay with us. I have a very good relationship with Craig, he's the perfect professional. I hope that I'm giving him something that will feed his wish to improve. I have some players I consider very important for the club and the club knows that. We want to keep those players and Bellamy is one of them."

Scott Parker, Matthew Upson and Robert Green make up Zola's untouchables but West Ham's directors have even greater worries now that the FA and Premier League have decided to peer back into Pandora's box. The skies above the club's training ground yesterday were gloomy and a thin mist further added to the foreboding. However, Zola is one of life's optimists. Happily for him, results have picked up – back-to-back wins in the Premier League lifting the club to 10th position and the FA Cup victory over Barnsley on Saturday making it three in a row. He is pruning his squad; Matthew Etherington has joined Stoke City for £4m, while Calum Davenport is currently talking to Bolton Wanderers.

Similarly, Birmingham have completed the loan signing of midfielder Lee Bowyer until the end of the season. The 32-year-old will become Alex McLeish's fifth signing of the January transfer window after Keith Fahey, Robin Shroot, Scott Sinclair and Hameur Bouazza all joined the Coca-Cola Championship side. McLeish said: "Lee's a dynamic player and I want to bring a dynamic look back to the team. Roy Aitken, one of my assistants, has worked with him at Leeds and knows him as an attacking midfielder but he also knows that Lee can give a lot to the team as well.' Bowyer rejoined West Ham when he returned to the Boleyn Ground from Newcastle in June 2006 but so far this campaign has featured in only seven games for the Hammers, scoring one goal - in the club's 4-1 Carling Cup win over Macclesfield.

And all the while Zola hopes to keep his big names and it is just still possible to discern optimism even as the ghost of Carlos Tevez could be heard to howl once again.


Wes said...

Nice writeup of the situation.

Everything I read seems to show there is no tangible proof of further wrongdoing. The timing is killing me though.

Anonymous said...

The clause removed from the contract by the insistance of FAPL was removed without consequence due to it being against employment law and therefore unenforceable.

If against employment law and unenforceable then how was it ever within Duxburys power to give anybody verbal assurances that it would be honoured ?

Anonymous said...

Great job in explaining what's going on. Absolutely ridiculous situation.

Half The Story said...

The issue is West Ham were treated one way due to the promises made and acted against that.

Ergo they were in secondary breach..........

Anonymous said...

it makes no difference if Duxbury lied and privately verbally agreed to honour the third party agreement. What it boils down to is one mans word against another, there is no actual written proof at all.

Remember the Premier League have already said, (in the case of Tim Howards non-appearance for Everton against Manchester United), that no charges could be made where agreements are made verbally, with nothing in writing.

I hope West Ham's lawyers remember this precedence.

HeadHammerShark said...

Nice summary. I especially love the irony of opening up a case to investigate the POSSIBILITY of 3rd party interference (Kia selling Tevez without West Ham's knowledge) and ignoring ACTUAL 3rd party interference (Sheffield United preventing Steve Kabba from playing against them).

I'm guessing Sheff Utd weren't aware of this one by the way. Rent a quote McCabe has yet to comment..

Anonymous said...

I'm wondering..... If the fa and pl can't prove anything this time round, west ham will surely go back to the high court, and then clearly be allowed to appeal against the verdict of an 85 year old(!) (who was obviously sent to Sheffield during the war!) whu will then get the decesion over turned and not have to pay sheff utd a penny. Maybe, that's the plan, cooked up by whu, the fa and the pl, to clear this mess up once and for all. Works for me!

Bally said...

Great post.
Can you please explain to me the differance with Man U's ownership of Tevez and our's. Also is it true that WHU employ Jerabchian on some kind of advisery roll and if so does this mean a conflict of interest between both clubs and Jerabchian. WHU employ Jerabchian,he owns Tevez and rents him to Man U.

Anonymous said...

Surely if Duxbury had agreed to keep the third party inplace orally this could be interpruted as a gentlemans aggreement!! lets have a look at other teams which have done the same thing!! man u with howard, blades, lpool and the fa stance on that is its nothing to do with them!!

rapidhammer said...

I think this inquiry could be in West Ham's favour. If the Duxbury-agreement cannot be proved bhere because there is no real evidence of such an oral agreement (I think that MSI had to sue West Ham in order to make his move to ManU possible proves that there was NO agreement), West Ham's chances to overturn the panel's judgement at the High Court would increase. I hope that West Ham still is able to fight the panel's verdict before the High Court. (I'm not sure if such a claim is pending...)


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