Ian Mallon: Premier League prosecution of City looks a little naive

So far we can only speculate as to what the Premier League’s case centres on, although it has deliberately obfuscated by issuing vague references to stated rules it says were breached.

Thu, 16 Feb, 2023 - 07:11

Ian Mallon: Business of Sport

A FORMER Manchester City financial advisor has called on the Premier League to articulate the details of the particular charges it is bringing against the club, instead of allowing speculation and guesswork to dominate proceedings.

Stefan Borson said that while “the inference is about as serious as it gets” – that the club’s board, finance team and sponsors all conspired dishonestly, over many years, to conceal and mislead the Premier League, Uefa and auditors – then the league must say that.

So far we can only speculate as to what the Premier League’s case centres on, although it has deliberately obfuscated by issuing vague references to stated rules it says were breached.

When the charges were announced in a shock statement on the league’s website on February 6, Borson tweeted: “Alarmist or not, the sheer extent of the PL charges are at a level that IF found proven, must lead to relegation."

The lawyer added this week, during an interview with The Pitch: “That is a big IF.”

Due to the sheer weight and severity of charges Borson says there is a huge public interest in the Premier League publishing more than vague references and numbered clauses and subsections of rules, as it has done so far - eg. (b) for Season 2010/11, Premier League Rules B.13, C.78, C.79, C.86 and C.87.

We can reasonably speculate that the Premier League case is based on an overturned Uefa investigation, where many of the details were taken from the Football Leaks files, issued in 2018 by Portuguese hacker and whistle-blower Rui Pinto.

”For now it’s mainly educated guesswork — we’re guessing that much of their case is built, initially on the Football Leaks files, but we just don’t know anything about the actual detail at this stage,” said Borson, who facilitated the club’s sale to Thaksin Shinawatra in 2007.

“In my view, given the obvious public interest and the likely seriousness of the allegations, it is not acceptable that the Premier League are not articulating the substance of their case beyond stating 115 rule breaches – but the inference is about as serious as it gets.

“The charges appear to allege that there were breaches of the requirements to provide, in utmost good faith, statutory accounts, forecasts and other financial details that give ‘a true and fair view of the club’s financial position’ in respect of nine consecutive seasons.

“In other words, consistent with the allegations made by UEFA, the club’s audited accounts were false specifically in respect of the sponsor revenues such as Etihad and Etisalat.

“Sponsor revenue appears to be the only area of investigation that would have a material impact on the published numbers.”

What the PL appears to claim, is that over nine years, a board comprising of influential and respected global business figures, leaders of a key trading partner with the UK (Abu Dhabi), the finance team and a number of sponsors - conspired to a system of corruption and dishonesty to conceal and wilfully mislead the Premier League, Uefa and auditors.

Borson believes that “it is very hard to see how the Premier League could prove that in an independent commission” of three adjudicators, of which only one must have a legal qualification or background.

Then there is the legal process itself, and the lack of transparency being initiated by the PL, where no timelines or future details are revealed: when the case will be heard, when judgement will be delivered and why the matter is behind closed doors.

Due to the hidden justice system adjudicated on by the Premier League – and football legal processes generally – disciplinary activities are opaque events, and the City case is no different, heard in private with the next public statement set to be the judgement itself.

In what other legal system (outside of family law or exceptional cases), do you have 115 alleged offences or charges – six have since been removed due to an error by the PL - made against a defendant without public or media scrutiny?

If such damaging allegations were made in the High Court, for example, there would be a clear imperative on the prosecutor to detail precisely what the charges are and for the court to clarify an expected timeline for that trial to proceed and conclude.

“The idea that fans, staff and commercial partners are now meant to wait an indeterminate time, with no details of the timetable or substance of the allegations, to learn about the outcome of the case is ridiculous – is it six months, two years, four years or whatever?” adds Borson.

“Fans and staff are expected just to wait for an announcement out of the blue?”

In the absence of certainty from the Premier League, we can speculate that their case – built by their legal representatives Bird and Bird – will have common elements from the Football Leaks revelations from 2018, and the subsequent Uefa action.

Ninety million documents – over four terabytes - formed the basis of Uefa’s case against City which found against the club and banned it from competing in Europe for two years.

That was eventually overturned by the court of arbitration in sport (CAS) due to the failure of UEFA to establish such serious allegations with some matters being deemed to be outside UEFA's time barring period.

Uefa’s probe by its club financial control body (CFCB) found that the Abu Dhabi United Group (ADUG) - through which Sheikh Mansour owns Manchester City (latterly City Football Group) - funded payments of £15m each year, reported as independent sponsorship deals from telecoms company Etisalat.

It also found that sponsorship investment from Etihad totalled only £8m, with ADUG funding the rest, which amounted to almost £60m in 2015-16.

There were records of secret bank accounts to pay coaching staff — which the PL does vaguely reference in its list of breaches — and claims of damning email records between executives.

One exchange from 2013 seems to suggest that the club’s CFO Jorge Chumillas emailed director Simon Pearce to check if was okay to change some contracts.

“Of course,” Pearce is reported to have replied. “We can do what we want.”

Stefan Borson believes that historic email exchanges may not be enough to prove guilt, however, but the sponsorship issue imay be the Premier League’s strongest card.

“As with CAS, the PL will need a lot more than seven historic, leaked emails,” he explains.

“But it is likely City will have to provide additional disclosure. City are briefing that they are confident and the hurdle is undoubtedly high for the Premier League but there’s no certainty on any case – all legal cases have significant litigation risk,” he said.

Borson thinks that the Premier League has taken a significant gamble in bringing so many charges, when it might have been better served narrowing the number of charges, to focus on the most serious allegation and the most winnable actions.

“I also think there is a bit of naivety here (from the PL),” ends Borson.

“Of course, they have had the highest quality legal advice from KCs (King’s Counsel for the Premier League) and major legal firms but I wonder whether they fully appreciate the consequences of this scale and breadth of allegations against one of its major clubs – whether they win or lose.”