The Manchester City award is out.
At 175 pages, it is enormous. We all – sports lawyers, journalists and fans – will need a while to read and process it properly.
But here is a breakdown of some key points that stand out.
At 175 pages, it is enormous. We all – sports lawyers, journalists and fans – will need a while to read and process it properly.
But here is a breakdown of some key points that stand out.
1. To begin with: the fact that the award is publicly available is great news in and of itself. Too often have decisions of sports arbitration tribunals remained unpublished in the past. The trend towards greater transparency is welcome.
2. The case deals with two issues: (1) the legality of the Associated Party Transaction rules and (2) their application to specific transactions of City Football Group. While there are some interesting problems under (2), it is (1) that really matters.
3. A few days after Diarra, this decision again heavily focuses on EU competition law. In a post-Brexit world, the tribunal diligently applies the principles established by the CJEU in Superleague. EU sports lawyers, take notice!
4. The APT rules are found to be, for the most part, compatible with competition law. The award accepts that they were adopted to make the Profit and Sustainability Rules effective, which seek to promote financial sustainability and competitive balance.
5. One exception: the shareholder loan exclusion. Why? It is “at odds with the whole rationale of PSR”. The “effect on competition... is the same whether the money is received in a transparent manner from the owner or in a non-transparent way from a third party”. Ouch.
6. Other than that, the tribunal criticises how the fair market value determination is made under the new APT rules (too many false positives) and the inability for clubs to access the Databank before Board of the PL makes its assessment. Minor quibbles. The rest is fine.
7. The “tyranny of the majority” argument did not fly. Also, the Man City team did not manage to convince the arbitrators that the ATP rules limit the ability of clubs to engage in – wait for it – “dynamic competition on the merits” through “extensive multi-club models”.
8. So who won? Both parties claim victory. However, in the case of Man City this feels distinctly pyrrhic. Yes, some transactions were unfairly assessed by the PL. But: the APT system has survived. In fact, its rules need to be expanded and tightened. "All other challenges fail".
9. Once again, football is shaped in the courtroom, not on the pitch. More to come.
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