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”.
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.
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” (15). 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” (10). 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.
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.” (2)
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.
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?” (2)
Goldberg concluded “In my opinion, there is no question about it. West Ham received favourable treatment.” (2) 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.