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Gästblogg: En olycka kommer sällan ensam

Idag debuterar alltså Mark Hughes som QPR-manager när man beger sig till Newcastle och St James’ Park (ja, jag vet, men jag vägrar) för att försöka få med sig värdefulla poäng hem till London.

Det har ju skrivits och bloggats spaltmeter om det jobb som Hughes har framför sig och vad han måste göra för att lyckas. Ett exempel bland flera går ju att länka här:

https://www.telegraph.co.uk/sport/football/teams/queens-park-rangers/9005335/QPRs-new-manager-Mark-Hughes-faces-a-daunting-to-do-list-at-Loftus-Road.html

Det är med andra ord sällan så särskilt mycket mer djuplodande än att ”bli bättre framåt och starkare bakåt”, samt några käcka kompletterande punkter för läsarens välbefinnande.

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Mitt intryck från QPR-sfären på nätet är att stämningen är tämligen positiv när det gäller Mark Hughes, de flesta ser det som ett bra alternativ, vilket i alla fall antyder att Hughes inte har drabbats av någon fall-out av något eventuellt missnöje med att styrelsen valde att sparka Neil Warnock.

Jag tänker inte ge mig in i någon djupare diskussion om bra eller dåligt med Mark Hughes i sig. Men en sak, som få reflekterat över, som jag inte är säker på är till QPR:s fördel är den koppling man nu får med Kia Joorabchian, Mark Hughes agent.

Kia Joorabchian har sedan han gjorde sig ett namn inom engelsk fotboll för runt fem år sedan rört sig från klubb till klubb likt en parasit och mjölkat ut pengar till sig själv och sina klienter efter allra bästa förmåga. Först i West Ham, därefter via Man Utd till den mest lukrativa värdorganisationen av dem alla, Man City.

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Nu är det alltså QPR:s tur, kan vara det något dystra perspektivet på det hela.

Som en påminnelse om bara något som Kia Joorabchian har ställt till med inom engelsk fotboll så kan vi gå tillbaka till början och den härva med West Ham i förgrunden som i slutänden drabbade Sheffield United hårt. Daniel Nordin har skrivit, när det begav sig, en engelsk sammanfattning av det ärendet, och det får fungera som gästblogg idag. Texten har tidigare publicerats på Svenska Fans hemsida.

Vilket också har fördelen att jag får en vilodag med bloggandet. Tack för det, det behövs.

Trevlig läsning!

Peter

:::

What happened?

On August 30th 2006 “West Ham entered into what was called a private agreement with Mr Tevez and MSI Group Limited (MSI) and Just Sports Inc”. Under clause 2 of this contract, “Tevez fully acknowledged that the companies had the sole, exclusive and unilateral right, upon serving written notice to the club during the transfer window, to terminate his contract with West Ham upon payment to the club of £2 million”. Further clauses in the contract, 4, 5, 6, 7, 8, 9 and 10, all reinforced the control MSI would have over Tevez’ “players rights”.

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This contract, and the one signed with Javier Mascherano the following day, were a clear breach of Premier League rule U18 which states that “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 team”.

In the subsequent hearing of April 27th it emerged that Scott Duxbury, legal and commercial director of West Ham, had contacted Jane Purdon, Premier League company secretary, to confirm whether “that arrangement (namely the third party clauses referred to above) could be in the contracts between the club and the players”. Purdon claims that she told Duxbury “that such an arrangement would not be acceptable, due to Rule 18”, Duxbury however, says “there was no reference at all to that Rule”. Amazingly for the legal and commercial director of a Premier League football club, Duxbury claimed to be “ignorant” of U18.

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Duxbury spoke to Paul Aldridge, West Ham’s chief executive officer, and passed on what Purdon had said to him. Aldridge “told him he would place the fact of the third party ownership into what he called side agreements, which he said he would not disclose to the FAPL (Premier League)”. Just to be on the safe side Duxbury “again checked the rules to satisfy himself that such non disclosure would be permitted”. Shockingly, “He again failed to look at Rule U18, and was of the view that non disclosure was permissible”.

This train of events careered off the rails on September 1st when mounting media speculation as to the nature of these deals prompted Purdon to phone Duxbury. “She asked him if the club had entered into any arrangements with any third parties. Ms Purdon says that his answer was an unequivocal ‘no’. Mr Duxbury says that he essentially ducked that question”.

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A week later Aldridge met Premier League chief executive Richard Scudamore. “He (Scudamore) wanted to know how the clubs had got these players so cheaply and whether or not there was any documentation of any sort in respect of these players which the FAPL had not seen. He received a categorical assurance that there was no such documentation…”

Reflecting on all this the Premier League delivered as damning a verdict as possible; “What we believe to have occurred here is that Messrs Brown, Aldridge and Duxbury were anxious to complete the registration of these players by the deadline of 31st August. They knew that the only means by which they could acquire them would be by entering into the third party contracts. Equally, they were aware that the FAPL, at the very least, may not – and in all probability would not – have approved of such contracts. They determined to keep their existence from the FAPL.”

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The decision

So far so crooked. At the hearing held on April 27th it was found that West Ham United were guilty of “an obvious and deliberate breach of the Rules”, “a grave breach of trust as to the FAPL and its constituent members” and that “the club has been responsible for dishonesty and deceit”. Entering into the third party contracts was a breach of U18. Lying about them was a breach of rule B13 which states that “In all matters and transactions relating to the league, each club shall behave towards each other club and the league with the utmost good faith.” As the hearing noted, “an officer of the club, its chief executive officer, told Mr Scudamore a direct lie, namely there was no documentation of whatever kind in respect of these players which the FAPL had not seen”.

But, to general amazement, West Ham were not docked points but were punished with a record breaking fine of £5.5 million pounds. Whilst acknowledging that a points deduction “is a course that we consider would normally follow from such a breach of these rules” and that “some breaches will be of such a serious nature that only a deduction of points would be appropriate”, the hearing managed to reach the conclusion that “a deduction of points would not be proportionate punishment”.

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The hearing gave a number of reasons for choosing a fine over a points deduction. One was that “the club is under new ownership and management”. In actual fact Scott Duxbury, who the hearing concluded had “misled Ms Purdon”, had actually been promoted by West Ham’s new chairman Eggert Magnusson to Deputy Chief Executive.

Either way this argument is torpedoed by basic company law and as a Public Limited Company West Ham United PLC is subject to this. Among other things a company is defined as “a legal entity which has a separate legal identity from its members”. The members include the previous regime of Terence Brown and Aldridge and the current owners such as Magnusson. But the PLC has a separate legal identity apart from these people. As an example, debts incurred by a company are not wiped when a new owner comes in. In the same way, the PLC is still the same body which was represented by Aldridge and Duxbury and is liable for any punishment they incur from actions undertaken as representatives of West Ham United PLC. It is the identity of West Ham United PLC which is important, not Aldridge and Magnusson.

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A further reason given for not docking points was the “delay between the discovery of these breaches and these proceedings”. The hearing concluded that “a points deduction, say in January, whilst unwelcome, would have been somewhat easier to bear than a points deduction today which would have consigned the club to certain relegation”. These breaches came to light on January 24th but it wasn’t until April 27th, three months later, that the hearing delivered its verdict. Given the ramifications of this delay, so important that it impacted on the decision not to impose a points penalty, it could well be asked whose fault it was. The Premier League hearing was as vague as Scott Duxbury on this point, claiming simply that it was “no party’s fault”.

In truth, the delay which was given as a prime reason for West Ham not being docked points was not “no party’s fault”, but was primarily the fault of West Ham United PLC. By covering up the third party agreements from August to December and then by pleading not guilty until the very last minute, West Ham managed to spin the hearing out until the eve of the end of the season. A letter sent out by the Premier League on May 15th to explain its decision recorded that “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”. Even as late as late as April 26th, the day before the hearing, Magnusson was still saying “that the club will appeal if found guilty”. The fact that the hearing didn’t deliver its verdict until “the eve of the end of the season” was solely down to the actions of West Ham United and the Upton Park club benefited from the delay they had caused.

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In a theme which will emerge more strongly, it is clear that the Premier League’s prime concern in reaching its decision was not to uphold its own laws but to be ‘fair’ to West Ham, a club it had just found guilty of “dishonesty and deceit”. Mel Goldberg, a lawyer for Max Bitel Greene who specialises in sport, admits he found those reasons for the penalty baffling from a legal standpoint. “The timing of the case being presented is also irrelevant.”
This shows up another glaring flaw in the hearings judgement, namely that “we have taken into account and given West Ham credit for the pleas of guilty”. This might be fair enough if West Ham had accepted guilt and thrown themselves at the mercy of the hearing in January but, as we have seen above, Eggert Magnusson was pleading not guilty until the very last minute ensuring that the verdict would be delivered as close to the end of the season as possible.

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The hearing engaged in more questionable reasoning when it stated that a further reason for choosing a fine over a points penalty was that “Tevez has continued to play for the club after the discovery of these breaches”. So, for three months after “the discovery of these breaches” Carlos Tevez had continued to play for West Ham despite the hearing admitting that “The FAPL had the power to have then terminated his registration”. The hearing said “For understandable reasons, they did not”. The reasons were, presumably, so “understandable” that they didn’t need to be given.
But perhaps the most controversial reasoning behind opting for a fine was the hearings contention that “we have considered the position of the players and the fans. They are in no way to blame for this situation”. This quite bizarre line of sentimental, non legal reasoning was explained further; “the fans and the players have been fighting against relegation. They have been doing so from January to April. They have been doing so against the ever present threat of a deduction of points. Those efforts and that loyalty would be to no avail were we to now, on what might be termed the eve of the end of the season, to deduct points.” It appears to have escaped the hearings attention that several other clubs and their fans had been “fighting against relegation” from “January to April”. The difference was that those teams had not committed “an obvious and deliberate breach of the Rules” to secure a world class player to help them. Mel Goldberg said that “In law, the fans have no bearing on the case. It’s no good saying ’we don’t want to upset the fans’. What about the Wigan fans?”

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Goldberg concluded “In my opinion, there is no question about it. West Ham received favourable treatment.” In short, the hearing had admitted that a points deduction “is a course that we consider would normally follow from such a breach of these rules”, but had instead decided to cobble together a series of spurious points in an effort to get West Ham United off the hook and cover up its tardiness.

Other points

Subsequently the question of the “influence” referred to by U18 became important. It was argued, and the Premier League accepted, that “there is here no suggestion, no evidence either, that there was such influence, nor any attempt to exert such influence”. The Premier League based this on the evidence of Eggert Magnusson and manager Alan Curbishley, though it’s interesting to wonder what sort of statement they might have been expected to give. Nevertheless, this was a red herring anyway as the offence, as laid out in U18, was to “enter into a contract”. Whether any influence was then exerted is irrelevant.

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It was also claimed that there was no precedent for a points deduction. The cases of Bury and AFC Wimbledon (kicked out of the FA Cup and docked points respectively for fielding ineligible players) were not deemed to be relevant as the issue was not whether Tevez was eligible (he was) but whether the third party contracts were legal (they weren’t). Likewise, the case of Middlesbrough, docked three points and subsequently relegated from the Premiership in 1997, was irrelevant as that penalty was imposed for failure to fulfil a fixture.

But the argument that no precedent for points docking existed is as spurious as any other. The hearing itself admitted that a points penalty “is a course that we consider would normally follow from such a breach of these rules” before going on to make a number of fatuous arguments for not doing exactly that.

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Another common defence of the fine over a points penalty was that ‘matters should be settled on the football pitch’. Gordon Taylor, chief executive of the PFA, spoke for very few when he said “Fans of other clubs may not be (happy with the verdict) but if you need to stay in a division because another club has been deducted points it’s not the sporting ethos you would want. I can’t believe anyone would want to stay up that way.” For Taylor to call into question the “sporting ethos” of other clubs while defending the “favourable treatment” of a club who had just been found guilty of “a grave breach of trust as to the FAPL and its constituent members” was particularly rich.

Indeed, matters should be settled on a football pitch. I would much rather be writing about Rob Hulse’s heroic efforts, Phil Jagielka’s blossoming as a player and Nick Montgomery’s whole hearted commitment than about the grubby “dishonesty and deceit” at Upton Park. But matters can only be settled on the pitch if that pitch is a level playing field. If one team has committed “an obvious and deliberate breach of the Rules” in order to secure the services of “gifted” Argentinian footballers because “They knew that the only means by which they could acquire them would be by entering into the third party contracts” then the ‘sporting ethos’ which Taylor prattles on about is holed below the water line right from the off. To look at it another way, if someone won the Tour de France on a motor bike would we simply shrug our shoulders and say ‘Matters should be settled on the road’?

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As West Ham won seven out of nine games at the end of the season, Carlos Tevez, a player whose services had been secured in circumstances which were “of such a serious nature that only a deduction of points would be appropriate”, scored six goals.

After the hearing

But if the deal that had brought Carlos Tevez to Upton Park had been such “an obvious and deliberate breach of the Rules” that it had warranted a record £5.5 million fine, why was he allowed to play on in the final games of the season?

Quite simply West Ham tore up the third party agreement. As the Premier League put it, West Ham have “acted in a manner that is consistent with them having terminated the offensive third-party agreement”. Dan Johnson, a spokesperson for the Premier League, elaborated, claiming that “On the day of the inquiry’s judgment, West Ham chose to terminate the third-party agreement with Joorabchian. They presented the Premier League with written evidence of the new arrangement.”

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Or did they? According to the letter of May 15th,

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

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.

A letter from the legal representatives of MSI and JSI acknowledging receipt (my italics) of the above letter

A letter confirming that the above letter had been served on Carlos Tevez personally.”

However, during the subsequent tribunal it emerged that the reply from Joorabchian’s legal representatives stated that “all my clients rights remain fully and expressly reserved”. Joorabchian subsequently asserted that West Ham had “unilaterally terminated the agreement and I have left it in the hands of my lawyer”. Furthermore, when Tevez was handed his copy of the termination the tribunal recorded that he “had declined to countersign the termination letter, and was not even prepared to do so in order to acknowledge that he had received it”. Indeed, when Sky Sports News asked Eggert Magnusson to produce the documentary proof he claims to have of the termination of the third party agreement, he declined.

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The fact that Tevez is being hawked around Europe’s top clubs, notably Chelsea and Real Madrid, seemingly against the wishes of West Ham suggests that the third party clauses are still a problem. The April 27th hearing expressed the concern that “The third party may be able to determine when and to whom the player may be transferred, which may not coincide with the wishes and interests of the club for whom the player is playing…” Johnson claimed that “The only problem we had with the deal was the existence of a clause in the agreement which would allow Joorabchian to sell the players to another club at any time”. That still appears to be the case.

The tribunal

On May 23rd the Premier League announced the setting up of an arbitration tribunal commencing on June 18th to look again at the Tevez fiasco. While admitting that Sheffield United had the right to request such a tribunal, the Premier League then took the extraordinary step of announcing that the Blades were “wasting their time and money”, in effect prejudicing in advance the very procedure Sheffield United had the “right” to ask for.

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Initially it was claimed that the tribunals remit was to look at the “process of the independent commission, not the decision itself” although a statement released by the arbitration panel itself said, “Sheffield United are asking the arbitral panel to determine two matters. The first is whether the decision by the independent disciplinary commission on April 27th to fine West Ham, rather than dock points, was legally flawed such as to require the issue to be determined afresh by a disciplinary commission at some point in the future. The second is whether the Premier League acted unlawfully by not de-registering Tevez. Fulham are seeking similar relief”.

There was a further development on the eve of the tribunal when the Premier League announced it would be looking into the deal that saw Steve Kabba leave Sheffield United for Watford but miss the match against the Blades at Bramall Lane. This recalled the situation when Manchester United sold Tim Howard to Everton but the keeper was not picked to face the Old Trafford side when they played at Goodison Park in May. After a typically perfunctory ‘investigation’ into the Howard affair, the Premier League announced that “As a result of recent comments we had sought further clarification from both clubs and are satisfied that it remains the case that there were no agreements that breached any of our rules.”

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Indeed, the news of the Premier League’s investigation came as news to Watford who said “We have yet to receive any notification or requests from the Premier League regarding the transfer of Steve Kabba to Watford Football Club from Sheffield United” before puncturing the whole thing anyway by saying “We can confirm that there was no written clause in any documentation relating to Steve Kabba that stipulated he could not play against Sheffield United…All contracts are vetted and approved by the Premier League prior to the player’s registration”.

On July 3rd the tribunal produced its verdict. In the matter of the fine being chosen over a points deduction it had much sympathy with Sheffield United, claiming that “SUFC have now been relegated. They have done nothing wrong to merit this outcome. WHU on the other hand were found by the Disciplinary Commission to have been deliberately deceitful and yet they remain in the FAPL”. It went on to say “We would go as far as to say that this tribunal would in all probability have reached a different conclusion and deducted points from WHU”. In the second matter, Tevez’ continuing presence in the West Ham side after the April 27th hearing, the tribunal found that “It is obvious that the possibility of the third parties’ ability materially to influence was not entirely excluded. Indeed it may still exist” and that “the arrangement may not have been legally watertight”. Nevertheless, the tribunal found against Sheffield United on both counts.

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Make no mistake, Sheffield United suffered from all this “dishonesty and deceit”. As the April 27th hearing stated, “They (West Ham) knew that the only means by which they could acquire them (Tevez and Mascherano) would be by entering into the third party contracts”. Sheffield United, on the other hand, played by the rules and toiled honestly with Rob Hulse and Jon Stead. The effect is that, even after the £5.5 million fine is taken into account, West Ham United will still stand to gain around £50 million.

Honest Sheffield United meanwhile, face up to life in the Championship.

Publicerad 2012-01-15 kl 06:00

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