The lawyer who represented Leicester City in their successful appeal has given his thoughts on the case and the Premier League’s ‘uncharacteristically critical’ response
The Premier League’s critical response to the appeal board’s judgement in Leicester City’s PSR case is of “concern”, the lawyer who represented the club has said.
After an appeal board ruled in City’s favour, that the Premier League did not have the jurisdiction to charge them with a breach of Profit and Sustainability Rules, the Premier League said they were “surprised” and “very disappointed” by the outcome. They went on to say the appeal board provided “limited reasons” for their decision and “failed to take into account the purpose of the rules”.
Leading sports lawyer Nick De Marco, who represented City, said the critical response from the Premier League was “uncharacteristic”, and that its harshness “risks undermining the independence and integrity of the Premier League’s own judicial process”.
City’s case was built around the wording in the Premier League’s own rules and De Marco was pleased the appeal board considered those and not the “unwritten intentions” of the Premier League. He advised the Premier League to take more care in drafting and reviewing such rules in the future.
Writing his thoughts in a post on the LawInSport website, De Marco said: “Following the publication of the decision the PL issued an uncharacteristically critical statement about the Appeal Board’s decision. It is not unusual for parties to feel ‘surprised and disappointed’ by decisions after they have lost a case, but it is of some concern that the PL, as regulator, expressed such forthright criticism of one its independent Appeal Boards, which was made up of three very senior and distinguished lawyers, two of whom were previously Court of Appeal judges.
“Just as government ministers are advised not to criticise the courts, so too sports regulators should be careful criticising panels when they don’t get the result they want. Such criticism risks undermining the independence and integrity of the Premier League’s own judicial process
“The case represents a further welcome restatement of the correct approach to contractual interpretation of sporting bodies’ rule. Those acting for regulators sometimes feel forced to fall back on a ‘just interpret these rules so they work for us’ argument, sometimes even relying on their own badly-drafted rules. But there must be limits to that submission. Rules cannot simply be made up as you go along, to suit each case as it arises. There needs to be clarity and certainty.
“These cases highlight some of the flaws in the drafting of financial rules in football, which will always be a difficult and complex area. It is often impossible to provide for all potential outcomes, but the failure to fully align the Premier League and EFL Championship PSR to deal with the inevitability of relegation and promotion is an obvious example of something missing.
“The fact that, in these recent cases, regulators cannot get away from the words of their rules by asking panels to read them so as to deal with the problem in hand, one might hope, might mean more care shall in the future be taken in the drafting (and review) of such rules.
“The author hopes that the PL, in particular, having been embroiled in so many expensive and distracting recent legal disputes about its PSR rules will carefully consider, and should not rush into, any new proposed financial regulatory rules.
“Those interested in fairness and consistency in sports law disputes can take comfort in the tendency of these recent decisions to apply (other than in exceptional circumstances) the words of the rules rather than the alleged post-facto unwritten intentions of those who drafted them.”
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