In all the discussion of the possible consequences of the findings against Manchester City by the Premier League, it interests me that there has been no reference to competition law. I am not a lawyer, but I have studied competition policy in various jurisdictions over the year (principally the UK, US, Canada and the EU). I have written up the results of interviews and documentary searches in various publications (including ones on football) and no one has said my interpretations are invalid.
Governance arrangements in football ran foul of EU competition policy. After some heavy lobbying by Tony Blair among others, a settlement was eventually reached. One consequence was the introduction of windows for transfers.
Britain is no longer in the EU, but we have our own quite stringent competition policy. Largely created in its present form under New Labour, it drew on American anti-trust legislation but had to be compatible with EU policy.
To my untutored eye, the Premier League governance arrangements show some of the symptoms of a cartel, or at least they encourage cartel-like behaviour (the 'Big Six'). As I recall, QPR did use the possibility of a competition law referral when they were in dispute with the football authorities.
In any event, the next step will be a sanctioning process and the commission will be able to impose a range of penalties. City are able to appeal the verdict, as Everton and Nottingham Forest both did when found to have breached PSR in the last three years.
“Unless it can successfully argue otherwise, the appeal would operate as a review of the first instance proceedings, not a full rehearing,” Alex Goodchild, Associate at specialist entertainment and sports law firm Bray & Krais told the New York Times. “And given the exceptional scale of the case, with the original hearing spanning 12 weeks and covering nine seasons of evidence, it is hard to see the Appeal Board granting leave to adduce fresh evidence.
“If the appeal fails, the only remaining avenue would be an arbitration challenge on very limited grounds — such as the decision being ultra vires, tainted by bad faith, arising from serious procedural error, or irrational – each of which carries a very high bar. Subject to narrow exceptions, that tribunal’s decision would be final.”
There is also the very real prospect of City’s rivals taking their own action if the appeal process does not see verdicts overturned. Clubs including Liverpool and Manchester United missed out on Premier League titles during the years of City’s alleged breaches and the financial rewards that come with it. Others might consider City’s actions had blocked them from lucrative European qualification and seek their own compensation.
Burnley’s recent case against Everton will certainly embolden those clubs. A commission awarded Burnley £26m in damages, plus a further £9m in interest, after it was argued that Everton’s PSR breach in the 2021-22 season impacted Burnley’s attempts to avoid Premier League relegation. Everton will appeal that financial penalty but there is now a clear precedent for aggrieved clubs to pursue compensation.
All power to the sports lawyers!
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