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Post arbitration panel thoughts


Filed: Thursday, 5th July 2007
By: East Stand Martin


Over the past couple of months West Ham fans up and down the country have been fighting their corners against just about every other fan of another Premier League club about the rights and wrongs of the Carlos Tevez affair.

I found myself arguing about whether points should have been deducted in a hotel bar in Las Vegas last week at about 3 am. There’s no doubt that passions have been high on this and the decision of this week’s Arbitration Panel had been keenly awaited.

At the time of the original judgement, my take on it was that the previous regime running or club had brought shame upon every West Ham fan in this country with their deceit and greed. Additionally, they had knowingly and recklessly put our great club at risk with their sordid and underhand dealings. There was little doubt that our club had deliberately concealed the truth from the FAPL regarding the side deals on Tevez and Masherano and had then gone on to mislead the FAPL when further assurances had been sought.

Calculating

The action of our club at the time was clearly calculating and disingenuous; particularly since we had actually approached the FAPL asking if ‘third party’ deals in contracts might be acceptable. The fact that we had been told that such deals were not acceptable and did not take a blind bit of notice, made our subsequent behaviour even less defensible.

The conduct of our club’s former senior officials didn’t exactly come as a great shock to those of us who had been observing their performance over the past few years. The same individual that had told us that there would be no ‘fire sale’ after the club’s relegation, was the self same individual that told FAPL Chief Executive Peter Scudamore on 8th September last year that he had all of the documentation which existed in relation to the transfer arrangements concerning the Argentineans. Honest, Peter.

Like the original judgement of the Disciplinary Commission, Tuesday’s arbitration decision makes for fascinating reading for anybody interested in the administration of the modern game.

The first part of the decision of the Arbitration Panel revolved around the issue as to whether Sheffield United and Fulham had a right to challenge the Disciplinary Commission’s decision through arbitration. Without going into too much of the legal argument, it was concluded that they did have that right and that the Arbitration Panel needed to decide whether the Commission had acted lawfully and exercised its judgement or discretion within acceptable limits.

Reasonable or not?

Having established that as a point of principle, the Panel looked at the heart of the matter: had the Commission in deciding that West Ham was guilty of the breach of the rules come to an unreasonable decision about the penalty imposed?

In trying to assess this, the Panel accepted that the FAPL was able to deduct points for a breach of its rules. Not only that, but such a deduction would be a ‘normal’ penalty. Flowing from this, the Panel turned its attention as to whether the reasons why the FAPL had not deducted points were reasonable or not.

This is the area which I personally found the most unconvincing in the decision of the Commission when I first saw it as it revolved around 7 reasons why they felt that a large fine of £5.5 million was a more just penalty than a points deduction.

The Arbitration Panel said that Sheffield United’s Counsel launched a forceful and spirited attack on the 7 reasons and it is not difficult to see how he was able to do so.

Seven reasons not to deduct points

The first reason was that we had pleaded guilty. Not a great reason in itself to let us off the hook, let’s face it.

The second reason revolved around the fact that the previous owner had departed the scene, although Scott Duxbury, who had apparently been economical with the truth was still in post. Amazingly, the Commission concluded on this that the fact that Eggy had not “cynically” sacked Duxbury was something to be commended. Again this was not a convincing argument as the club had clearly broken the rules and you wonder why the arrival of a new owner who had not been involved made any difference to that. I’m still wondering if Duxbury should have been kept on.

The third reason was that if the third party agreements had been disclosed in time, then the situation could have been put right, just had been done with the eventual transfer of Mascherano to Liverpool (unbelievably it appears that Joorabchian attempted to set a similar side deal up with Liverpool, which was rejected). A strange argument this one, as it appeared that we had asked about the acceptability of a side deal with a third party and had signed up this even after we had been told that it would not be acceptable to the FAPL.

Fourth, the delay in dealing with this matter meant that deduction of points would almost certainly lead to relegation. This might be true , but seemed irrelevant in reaching a view on a just punishment.

Fifth, Tevez had continued to play after the breach of the rules had been discovered and that the proceedings which followed prevented the FAPL and West Ham sorting the situation out. Hmmmmm. Run that one by me again. I just don’t get it.

Sixth – and this was the most unbelievable argument of all – it would be wrong to punish the players and the fans of West Ham during the relegation battle. True, neither the players nor the fans were part of the web of deceit, but the Commission was dealing with the club, not the players and the fans. Looking at it impartially you also have to concede that the players and the fans of other clubs were not being considered on a level playing field. Why did we deserve better consideration?

Finally, it was said that some recognition should be given to the fact that West Ham had owned up to the breaches. Fair enough, but any ethical new owner would have done the same or risk later discovery that would have irretrievably damaged his reputation. If you discover dodgy dealings then you have to reveal them or suffer the consequences later.

Points deduction would have been right

It is no real surprise when you look at this in the cold light of day that the Arbitration Panel concluded that if they had been the Commission then they would have deducted points. Personally I will not and cannot defend the disgraceful conduct of the Brown regime and I think that it is time to concede that we did get off lightly. I say that as a West Ham fan who was desperate to see us survive in the Premiership and was jubilant at Old Trafford when we pulled it off, thanks to that Tevez goal.

What saved us was not the facts of the situation but case law which requires there to be clear evidence that a decision was unreasonable. The deduction of points was ‘normal’, but it was not obligatory. There was no tariff for punishment and the penalty was at the discretion of the Commission. The Arbitration Panel could not therefore rule that the Commission had been unreasonable. Case over. Although it is hardly surprising that Sheffield United are thinking of taking this to court. After all, this now hinges on the definition of what is unreasonable or not.

How come he’s still playing?

The second part of the decision of the Arbitration Panel concerned the issue about whether Tevez should have been allowed to play for West Ham after the Commission’s ruling. This was all about his availability for the Wigan away game and the key matches which followed (where he played a critical role on the pitch).

What happened here was that after the Commission’s ruling, West Ham told Joorabchian that as far as we were concerned the side deal was terminated. The problem was that it was apparent that Kia did not accept this and still does not to this day. The question for the Panel was therefore whether it was sufficient that West Ham had cancelled their agreement from their side.

There was a lot of toing and froing between West Ham and the FAPL on this point, but at the end of the day, it was concluded that West Ham’s tearing up of the side deal was sufficient to allow Tevez to play, even though Joorabchian could have gone to the courts to seek the continuation of his contract. The Panel accepted this.

Third party control in reality

The point which still remains the most convincing for me in terms of the application of the rules is that although the side deal did potentially allow Joorabchian to influence the policy or performance of West Ham, there has never been any actual attempt by him to do so. In actual fact, there have been many more examples where third parties through clauses in loan deals have been able to influence the policy or performance of another club. Routinely players are prevented from playing against the clubs that have loaned them.

In this latter respect, you can appreciate why we should not have had a points deduction as our ability to offend was only hypothetical. This was never really conceded by the FAPL as they did not want to admit that their rule was in fact somewhat flawed and inconsistent. The logic of that is that the loans system should be abolished or that conditions should be set on loans that prevents interference in another club’s affairs.

Facing the facts

The problem that remains for all of us who want to argue why a fine was more just than a points deduction still comes back to the fact that West Ham United FC deliberately and knowingly concealed the truth from the FAPL. Next time you have an argument with a fan from another club about that, ask yourself whether you feel comfortable about defending the lies of Brown and Aldridge. I don’t and it is for that reason that I find it hard to disagree with the Arbitration Panel’s view that points should have been deducted. It’s not easy to say that as the pain of relegation would have been even more intense than last time. We all know what it’s like down there.

This is not about betraying our club or not fighting our corner, this is about recognising just how distasteful and duplicitous the behaviour of our club was before we were rescued by Eggy and his Icelandic cash. The good news is that we have entered a new era, although it has been at some cost to the good name of our club. We will see our reputation repaired but it will take some time.


Please note that the opinions expressed in this article are those of the author and do not necessarily represent the views of, nor should be attributed to, KUMB.com.







Your Comments


by Robert Carlisle
02:56PM 24th Sep 2008
''Seems about right to me. Good article.

We lied and were punished and we lied again and now we have been punished again.

''

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