Wednesday, 18 March 2009

Sham 46

Once more with feeling. Like a half forgotten film franchise that gets even more repetitive with each new release, muses Owen Gibson in today's Guardian, the backstory to the Mysterious Case of Carlos Tevez becomes more convoluted with each new development. Few can recall quite how it started and, increasingly, many of those outside the clubs concerned care little for how it ends. But for West Ham, in particular, it is a shadow that stubbornly refuses to shift from Upton Park and continues to cloud its future.

When Carlos Tevez inspired West Ham to victory at Old Trafford on the last day of the season in 2007, little did we realise he was lighting the fuse on a tortuously slow burning saga that could yet blow up in the east London club's face. By then, states the Guardian, the Premier League had already ruled against West Ham for fielding two players who broke its rules on third party influence, fining the club £5.5million but deciding against docking points. One independent tribunal that dramatically tilted the scales in Sheffield United's favour, one failed attempt to take the case to the Court of Arbitration for Sport, one negotiated settlement and one ongoing FA/Premier League investigation later and the loose ends are still very far from being tied up. Looking back on the case's history is an object lesson in how seemingly inconsequential decisions taken in haste can spiral out of control.

All attempts by both clubs to challenge those decisions in the courts have failed, and the League and West Ham are convinced that the process is legally robust. The club are adamant they will resist any attempts by Sheffield United players or Neil Warnock to seek compensation for their relegation from the Premier League in 2007. On Monday West Ham agreed to pay Sheffield United compensation of £15 million, and yesterday Neil Warnock, who was Sheffield United manager at the time of their relegation, claimed that he could also take legal action. "I just feel very bitter that I'm not a Premiership manager still," Warnock said. "If you only knew how hard work it was in the seven years to get the team into the Premiership, you'd realise the bitter disappointment, knowing Tevez shouldn't have been in the [West Ham] team the last few weeks. I don't think anything can compensate you for losing your Premiership status; everybody knows it was my dream job. I think we could have been an established Premiership side."

Around 20 members of the relegated Sheffield United squad have also threatened legal action, but West Ham yesterday made it plain that they will fight any such move – if it ever materialises – in order to prevent ‘legal anarchy’. Indeed, Sheffield United have agreed as part of their deal with West Ham not to support any action brought by players, and the Upton Park club are yet to receive any writs.

"Despite the extensive media coverage, West Ham United have received no formal legal claims from Sheffield United players or their previous manager relating to the so-called Tevez affair," a statement on the West Ham official website read. "The club have settled the matter of compensation, as ruled upon by Lord Griffiths, with Sheffield United and can see no basis for claims being brought outside of the arbitration process, established by the Football Association, which has now been brought to a close.

"However, it is now becoming clear that the ruling by Lord Griffiths has encouraged a potentially endless legal chain of claims and counter claims, which can only be damaging to English football. As a club we will strongly resist any attempts to prolong this matter through the courts both to protect our interests and those of the wider game. There is a lot more at stake than the finances of West Ham United and we will do all we can to stop this matter ending in a form of legal anarchy."

Perhaps wary of the money pot running dry before his own litigation is resolved, Alan Curbishley has blasted the Premier League's investigation into the Carlos Tevez affair and says the whole operation is 'fundamentally flawed'. The former United boss, who led the Hammers to safety in 2007 after guiding his side to seven victories from their final nine league games, reckons claims that Tevez saved the club on his own are ludicrous. "It's fundamentally flawed, I think, the argument that Carlos Tevez kept West Ham up," he said. "When you think about what goes on in a whole season for the judgment to say that Tevez kept us up, or was the main reason we stayed up, is wrong. Cast your mind back, Tevez didn't score for 20 games. In the run in in the last nine games we used 13 players which we never had the opportunity to do before because of injuries. People forget we scored a winning goal at Blackburn that didn't cross the line - so are they going to sue the linesman and the referee?

We kept a lot of clean sheets. I don't think any West Ham fans will ever forget the game at Arsenal when Rob Green made about a dozen saves. Bobby Zamora scored two winning goals at home to Everton and away to Arsenal. Bobby Zamora had been out injured and came in for the run-in and was nice and fresh. James Collins came in and was nice and fresh. We brought Mark Noble in and suddenly we had a different team. We managed to keep it together in terms of consistent team selection. It was a fantastic run-in and I always felt the side were good enough to stay up. It was a great escape and it wasn't down to just one person."

Over at the Times, European Football Correspondent Gabriele Marcotti is of a similar mind. Hey, here’s an idea, he states... Sheffield United are getting – depending who you believe – between £15 million and £25 million in compensation from West Ham because the Hammers fielded Carlos Tevez and his presence on the pitch supposedly caused the Blades to be relegated. Fine. So why don’t a bunch of clubs take legal action against Derby County? Back in 1999-2000, the Rams featured a striker named Esteban Fuertes. He only played in eight Premier League games (scoring one goal), but surely his presence somehow impacted the league, no? And surely the fact that he was working here thanks to a dodgy passport (Derby kicked him out when the truth emerged six months after his arrival) makes him an ineligible player, right?

Derby finished sixteenth that year, five points clear of relegation. But they did tally eleven points in the eight games in which Fuertes played, surely he was responsible for some of them? Heck, if Fuertes hadn’t been around maybe Wimbledon, who finished eighteenth, wouldn’t have been relegated. And maybe Roman Abramovich would have bought them instead of Chelsea. Or, if that sounds far-fetched, maybe they would have had enough cash in the bank to avoid turning into MK Dons.

I’m not joking, insists Marcotti. Fuertes is the obvious case, but it’s well known he wasn’t the only one getting around EU employment law thanks to a dubious passport. There are at least half a dozen cases; you can do your own research on them, the web is a great thing. As everyone supposedly jumps on the lawsuit bandwagon to make a few bob out of West Ham, it might be wise to ask why the East London club are paying for their supposed sins, but so many others got away scot free. It may be even wiser to leave the lawyers to crawl back under their rocks and leave civil justice to deal with non-sporting issues.

Speaking in the Telegraph, Professional Footballers' Association chief executive Gordon Taylor claimed that Sheffield United players do have a right to expect compensation, but indicated it should come from Sheffield rather than West Ham: "I think the very fact that you've had a judge, in arbitration, make it clear that West Ham did breach the rules and, as such, have a duty to a club that got relegated. And from that point of view that's been quantified. And in a similar way we'd expect the players to be similarly compensated. My expectation would have been was that should have been included in the sum that Sheffield have already got." It is understood that any claims made by players or Warnock will have to be carried out independently. "We've raised it with Sheffield and they said they were advised not to include the players," added Taylor. "I find that quite astonishing really because it can now lead to a claim from the players against their own club or, in some cases, the former club."

Watching Sky Sports News today, it has become difficult to tell the difference between the adverts punctuating the outbursts from Warnock and PFA chief Taylor. Had an accident at work? Found yourself in the bottom three after a string of inspirational performances by a diminutive Argentine? Call our team of friendly lawyers on a no win, no fee basis. There is undoubtedly a degree of ambulance chasing in the ongoing attempts by the Sheffield United players to win compensation, thinks Gibson. Yet on the face of it, they would appear to have a point. As Taylor says, the Sheffield United players had their salaries cut when they were relegated. Their club has now been compensated for its loss. Ergo, they should be too.

Unsurprisingly, he didn't ruminate on the likely public reaction of a bunch of millionaire footballers going after extra cash when the fans who pay their wages are facing plummeting house prices and the threat of redundancy. Nor did he ask where it might end. Can the hotdog seller outside Bramall Lane claim for reduced takings? What about the publicans serving fewer pints in the Sheffield area now that the team are on television less often? Will season ticket holders bring a claim for the emotional distress of relegation? The lawyer acting for the players maintains they have a strong case. Legal sources say they have a good negotiating position but that, legally, there has been no admission of culpability from West Ham. So far, the entire process has been handled within FA and Premier League regulatory processes and was settled before Lord Griffiths's tribunal was able to rule, with no legal precedent yet established. Partly, their claim for upwards of £3million looks like an exercise in establishing a negotiating position. They may be hoping that with West Ham desperate to move on so that they can concentrate on a sale of the club. But West Ham insiders insist the club will "not give an an inch".

Not even in the case of Scott Duxbury, the West Ham chief executive who was criticised by Lord Griffiths for providing a series of "oral cuddles" to the ultimate owners of Tevez and his team-mate Javier Mascherano, yet has consistently maintained his innocence, who is still in post. His opponents claim he would have walked long ago in any other industry, thus lancing the boil and allowing all to move on. Yet his reputation has been rehabilitated since by the job he's done in steering the club through the choppy waters of the January transfer window, installing Gianfranco Zola and Steve Clarke and getting the club to a position where it looks to end the season in good enough shape to prove attractive to prospective new owners.

And amid it all, there is the fascinating psychological side show of watching Sheffield United's former manager comprehensively fail to achieve closure. Neil Warnock has clearly failed to move on and holds one man in particular responsible, says Gibson. It's not Tevez, it's not Duxbury and it's not Kia Joorabchian. "I think [Premier League chief executive Richard] Scudamore is an absolute disgrace. I'd love to get him in a room on my own for an hour, no holds barred," he said. Now that would be one twist to this sorry saga that would be worth watching.

Especially for Oliver Holt, who insists the Carlos Tevez farce should be the end of Richard Scudamore. Now that West Ham have agreed to pay Sheffield United £15million and effectively admitted they cheated them out of a place in the Premier League, he declares, I don't blame Neil Warnock for at least thinking about pursuing the six-figure bonus he'd been promised for keeping Sheffield up that season. And why should Richard Scudamore who mishandled the affair from start to finish, now retain even a shred of credibility as Premier League chief executive?

Meanwhile that sulphurous reek presages Ken Bates's intervention into the Carlos Tévez affair last night, which is indicative of how the dispute has reached absurd lengths. The Leeds United chairman has reportedly sought legal advice about a claim for a loss in payments that his club would have received from Sheffield United. The money, which is thought to total about £500,000, is based on contingency payments written into the contracts of three players that Leeds had sold to their Yorkshire rivals. They are not the only ones reveals the Express. Other clubs who sold players to the Blades in that spell include Crystal Palace, Everton, Brighton and Sunderland and there could be more from past seasons.

The clauses would have been invoked had Sheffield United avoided relegation from the Premier League in 2007. Bates believes that Sheffield United could now be liable to pay the money after they reached an out-of-court settlement with West Ham United worth about £25million to end the wrangle over the eligibility of the Argentina forward to play for the East London club during the 2006-07 season. Any potential legal action would not be directed at West Ham.

Leeds's case is based on the sales to Sheffield United of Rob Hulse for £2.2million, Matthew Kilgallon for £1.75million and Ian Bennett's free transfer. "We sold a number of players to Sheffield United with contingencies," Bates said. "When they got relegated on the last day of the season we missed out on a substantial sum. That's what we lost and if they are being compensated for their loss, we believe we should be compensated for our loss. There are other clubs in the same boat who have similar claims. Ours is the biggest claim and it would be nice to collect that and strengthen our squad. We are currently taking advice on it and won't be commenting further at this time."

If you are still reading then you should probably adopt the brace position about now; Martin Samuel is about to explode...

'Ultimately, however, we have not found it necessary to come to a conclusion whether the cause of Sheffield United's relegation was (a) the number of points achieved by West Ham with Mr Tevez's assistance or (b) Sheffield United's poor performance. At most Sheffield United's poor performance was an equally effective cause. This is insufficient to displace the causation of another effective cause. The law is summarised in Chitty on Contracts (29th ed), Vol 1, paragraph 26-038 under the heading 'Two Causes': 'If a breach of contract is one of two causes, both co-operating and both of equal efficacy in causing loss to the claimant, the party responsible for the breach is liable to the claimant for the loss. The contract breaker is liable so long as his breach was "an" effective cause of his loss; the court need not choose which cause was more effective.'

Got that? Because you will be hearing a lot of it in the future. It is the reason the Carlos Tevez saga is not over and the Iain Hume saga may only just be beginning. It explains the emergence of hideous opportunists Relegation Lawyers 4U and may ultimately infest every facet of sporting competition, from the lowest Sunday league to the top of the Premier League. It may not stop at football, either.

Page 46 of the Lord Griffiths ruling, if you are interested. Except nobody was. Mostly, people were so busy bellowing about justice when the Football Association tribunal produced a decision out of left field - much like the original Premier League commission that did not deduct points from West Ham United because it was late in the season - that they did not examine the finer details, the precedents and principles on which the case had been won.

For here, on the penultimate page of his summary, using contractual law from a completely different area of commerce, Lord Griffiths, 85, brilliantly establishes that your league position is nothing to do with you. It is the work of that lot, them, whoever they are. All the other teams. And if one of them has acted in bad faith and you can link their action to your misfortune, then it is bonanza time. All the events, all the games that were within your control, cease to matter.

Now we can look at this two ways. We can continue the celebrations or examine the wider ramifications, because even if you think Sheffield United were gypped, this is dangerous territory.

Indeed, Sheffield United may be the first club to discover the extent of the legal minefield that has been planted if Barnsley are relegated and their directors chose to link their fall into League One to the elbow thrown by Chris Morgan, the Sheffield United captain, into the face of Hume, Barnsley's incapacitated striker and record signing.

More of that later. To begin with, Chitty on Contracts (29th ed), Vol 1, paragraph 26-038 under the heading 'Two Causes', the precedent cited by Lord Griffiths to pin the responsibility for Sheffield United's league position to a rival club. In other forms of industry, this is how it works. Say you and I are in business and I act in bad faith and break our contract. Your company then goes bust and we end up in court.

'Ah,' I say, 'but this firm was going to the wall anyway. The staff were useless, the management incompetent, it was a matter of time before it went toes up.'

According to Chitty on Contracts, this does not matter. You do not have to prove the viability of your business, only that by my actions I placed it in jeopardy. This is what Lord Griffiths applied in the Tevez case, except he used it with reference to a league table for which 20 clubs play 380 matches, which is not the same as a one-to-one arrangement.

Were Sheffield United and West Ham in a two-team league, yes, the principle would apply; but how could West Ham be responsible for what happened on April 17, 2007, for instance, when Neil Warnock, then the Sheffield United manager, chose to field a weakened team at Manchester United and lost 2-0? How can a single player at another club be responsible for Sheffield United having the worst away record in the Premier League that season? Who can quantify individual factors within so many variables? There were 19 other teams in the Premier League that season and Sheffield United lost to 16 of them.

On November 8, 2008, Barnsley striker Hume suffered brain damage as a result of a challenge from Sheffield United defender Morgan. The replays of this incident look horrendous. A yellow card was issued but no further action was taken by the FA.

Hume has not played since. It is sad but, under normal circumstances, there the matter would end. At most, there could be a personal claim by Hume against Morgan, which may still happen.

Yet what has changed as a result of the Lord Griffiths ruling is the dynamic between the clubs. Barnsley were 17th and safe when that incident occurred and, at the weekend, dropped into the relegation zone. Is that now the work of a Sheffield United employee? Would Hume have made the difference? Nobody knows, and before the Lord Griffiths ruling this uncertainty would have been enough to preclude legal action. Now it is not.

Warnock, who must hold a world record for games lost in which it was somebody else's fault, and his former Sheffield United players are preparing for legal action, because Tevez cut short their Premier League careers.

Yes, it was Carlos Tevez, then a West Ham striker, who caused Warnock's team to lose to Tottenham Hotspur and Fulham before he had even joined West Ham, plus Reading (twice), Everton, Birmingham (in the Carling Cup), Chelsea (twice), Manchester United (twice), West Ham (Tevez did not score and stormed away from Upton Park after being substituted on 66 minutes), Portsmouth, Manchester City, Middlesbrough, Swansea (in the FA Cup), Blackburn, Liverpool, Bolton, Newcastle, Aston Villa and Wigan that season.

Stands to reason, doesn't it? Says right here on page 46.
And the last word goes to Hammers goalkeeper Robert Green, who last night issued a blunt message to Blades players claiming his side had not deserved their survival. Stating he is relishing the prospect of them winning promotion, so the two clubs can settle their dispute on the pitch, Green said: "Their players can do what they like. But what I’ll remember is the staying up – and that is what our fans will remember."


Anonymous said...

I read it all Trilby and enjoyed it too, even the quotes from Chitty on Contracts - a very fine book.

I think it is also worth pointing out that Griffiths based his decision on his impression of what was said and understood during the meetings where 'oral cuddles' were said to have been given. Apart from being hearsay and normally inadmissible, if true these were verbal agreements that the PL has said would be acceptable as ‘gentleman’s agreements’ and not a breach of Rule U18. Sheffield had argued that their own verbal loan agreement for Nolan not to play against them was not a breach of the rule for this very reason.

However, our settlement of the arbitration does look on the outside as an admission of guilt and we’ll have to ride the storm of ambulance chasers that’s coming our way. The PL and FA should step in and bring this farce to an end, because if they don’t I’m sure others will bring similar actions and we’ll be arguing about relegations and promotions for years after they’ve happened.

John J

Anonymous said...

What happened to the Prem and FA rule about clubs not suing each other?
Also this can and will get right out of control if these boards dont say something soon. They have left West Ham to fend for themselves whilst in reality they should have helped their member club.
I think that the Prem should be investigated for breaches of law involving other clubs having players on "false" passports plying their trade here.
The Prem should hold their hands up and admit that they got it wrong and are therefore the ones who should be paying Sheff Utd.
Whats next on the list for these lawyers.......writs against the refs and linesman for poor decisions? Will Hull sue the lino for last nights gaff?
The Chelsea board should sue Sheff U for fielding a weakened team v Man U thus giving them the title.
Its a mess made from poor decisions by the FA and Prem. I believe West Ham tried the same system that Everon and Pompey used for their "3rd party" players........but got caught out and admitted it.

football gifts said...

What a shambles, if West Ham had kept their best players over the last few years, they would be a major force in the premier league now.


Copyright 2007 ID Media Inc, All Right Reserved. Crafted by Nurudin Jauhari