Jackie Broon

Just had a read through the high court judgements and something I didn't realise was that letter the PL sent the club following it's decision in June 2020 is published in the background information. At the end of the letter it states: "if you disagree with either of these provisional conclusions, we would welcome your reasoned response. Following receipt of any submissions, we will fully consider them before reaching a final decision on the issues." So the PL said on 12th June that the believed the KSA would control the club and they were essentially giving the consortium a chance to respond before they make a final decision. At some point between then and the end of July they changed their mind and insisted on arbitration instead. That doesn't really look very consistent or reasonable behaviour from the PL.

I haven't seen that, but someone from the consortium did say: “The Premier League did not make a ruling. The offer of arbitration should come after a ruling. It’s an appeal process, not a decision-making process. “The terms were unclear because there was no ruling to appeal. “It was another tool to kick the can down the road and it felt like we were being pushed into having to walk away.”

I think there's a reasonable chance that we will. Still a lot of doubt and apprehension, but having looked a bit more into the structure of PIF in relation to the KSA I'm more confident that we'll win the arbitration than I was before. I also think it's not beyond the realms of possibility that PL will cave before the arbitration hearing in July, if they lose the CAT jurisdiction challenge.

It does seem horrifically anachronistic.

At the time the declaration was submitted these were the relevant parts (F.4 was amended in January of this year to remove any person taking control of a club and a new section relating to taking control added): The process starts with the submission of a declaration for each proposed director: F.4. If any Person proposes to become a Director of a Club (including for the avoidance of doubt by virtue of being a shadow director or acquiring Control of the Club): F.4.1. the Club shall, no later than 10 Working Days prior to the date on which it is anticipated that such Person shall become a Director, submit to the Board a duly completed Declaration in respect of that Person signed by him and by an Authorised Signatory, at which point that Person shall be bound by and subject to the Rules; F.4.2. within five Working Days of receipt thereof the Board shall confirm to the Club whether or not he is liable to be disqualified as a Director under the provisions in Rule F.1, and if he is so liable the Board will take the steps set out in Rule F.6; and F.4.3. he shall not become a Director until the Club has received confirmation from the Board pursuant to Rule F.4.2 above that he is not liable to be disqualified as a Director under the provisions of Rule F.1 The 'provisions in Rule F.1' include: F.1.1. in relation to the assessment of his compliance with Rule F.1 (and/or any similar or equivalent rules of The Football League or The Football Association) at any time, he has: F.1.1.1. failed to provide all relevant information (including, without limitation, information relating to any other individual who would qualify as a Director but has not been disclosed, including where he or they are acting as a proxy, agent or nominee for another Person); So the process so far is the club submits a declaration for each director it wishes to appoint (including anyone taking control of the club) the rules explicitly state the PL board shall confirm within 5 working days whether that person is liable to be disqualified as a director. The rules are completely silent on what happens if they ignore that timescale, so there is no consequence for the PL in not sticking to that timescale it but it is written in definite terms with no other option specified in Section F. In this case the board eventually decided in June that the KSA would be taking control of the club. Which means that the club/PIF had 'failed to provide all relevant information' either to disclose the KSA as a director or to demonstrate that they would not be, therefore PIF were 'liable to be disqualified as a director under the provisions in Rule F.1' The rules state that the Board 'will take the steps set out in Rule F.6' at that point. F.6. Upon the Board becoming aware by virtue of the submission of a Declaration or in the circumstances referred to in Rule F.5 or by any other means that a Person is liable to be disqualified as a Director under the provisions of Rule F.1, the Board will: F.6.1. give written notice to the Person that he is disqualified, giving reasons therefore, and (in the case of a Person who is a Director) require him forthwith to resign as a Director; and F.6.2. give written notice to the relevant Club that the Person is disqualified, giving reasons therefore, and (in the case of a Person who is a Director) in default of the Director’s resignation, it shall procure that within 28 days of receipt of such notice the Director is removed from his office as such. Again the 'provisions in F.1.' include simply failing to 'provide all relevant information' and 'upon becoming aware' is an immediate term. So my interpretation is that, yes, by the letter of their rules they should have disqualified PIF in June when they determined that the KSA would be a director. As you say, that is just an interpretation and other people could have other interpretations. But all interpretations are not equal, an interpretation has to be based on reasoned analysis I haven't really seen anything backed up by the rules that supports the PL not making a decision.

It's not directly relevant to the arbitration because that is only on whether the KSA meet the definition of control in Section A of the PL Handbook. The arbitration won't be considering whether the KSA would pass or fail the Owners' & Directors' test if it determines that they would be in control. Of course it would be reasonable for the PL to allow for the KSA to be declared rather than disqualifying the other directors immediately (although that's what the letter of the rules imply should happen) but if, as happened, the consortium refused to submit a declaration for the KSA and refused the offer of arbitration, the PL really should have just made a decision.

As far as I can see Jacobs was the one taking in absolutes, that they couldn't refuse on that basis, but they clearly could have. Whether that was correct for the PL to do is a matter for interpretation and debate, but he made an absolute statement that was shown to be incorrect.

Well, not really, he actually said the "EPL wouldn’t be following their own guidelines if they just said “it’s rejected due to names affiliated to the bid you don’t think are affiliated or haven’t listed.”" then he was presented with rule F.1.1.1, which says almost exactly that. That's not a matter of interpretation, that's just wrong. He was caught out not really knowing what he was talking about.

He might be right as in that's what happened, but he's wrong that the PL couldn't have disqualified PIF on the basis of F.1.1.1 or that it was a reasonable thing for the PL to do to require arbitration rather than make a decision that could be appealed. The two sides don't need to agree, the PL are the decision maker and are there to make a decision, if the club/consortium didn't agree with the decision they could then appeal it. Jacobs presents stuff in a convincing seemingly balanced way but if you actually look into what he's saying it often isn't correct, or there's a element of truth that has been twisted or overplayed. He definitely has an agenda.

"I'll be the CAT"

I have no legal expertise But that does seem to back up that PIF have complete autonomy in terms of their investments and the appointment of directors of companies they own.

I think the article was based on the letter he wrote to the PL under the instruction of NUST which can be found here: https://nufctrust.co.uk/wp-content/uploads/2020/07/NUST-Letters-with-PL.pdf The definition of control is referenced and it's implicitly clear that point 1 on page 4 is stating that the KSA would not meet that definition of control of PIF in relation to the PL's rules. This seems to indicate that PIF was made autonomous in 2014: https://aawsat.com/home/article/143736 I've also seen a breakdown of government scrutiny of various SWFs in an IMF report (I think, but I'm struggling to find again) where, unlike other SWFs, they had zero requirement to report to government. Btw, I'm as much trying to convince myself as anyone else that the PL don't have a watertight case.

There's a specific appeals process for disqualification of directors (set out in rules F.13-F.22 of the PL Handbook) which the club were denied access to because the PL refused to give notice under rule F.6 that the proposed directors were disqualified (under rule F.1.1.1). Reading through that it seems like it would be a much faster process than arbitration. Had the club failed in the appeal I suppose we could have ended up at arbitration anyway but it was completely unreasonable behaviour of the PL to block the club's access to O&D test appeal process.

It’s easy for someone like Jacobs to sound convincing when he’s talking about something that is actually very legally complex in terms of common sense unbound by that legal complexity. PIF is the sovereign wealth fund of Saudi Arabia, with MbS and other government ministers on the board so it must be under the ‘control’ of the state, obvious common sense. That argument sounds very convincing, however, it’s clearly not that simple. The very first section of the Santiago Principles (the international principles by which most sovereign wealth funs operate) deals with legal separation and that many SWF are established as having separate legal identities to the state and full capacity to act independently. It’s clearly well established the SWFs can be legally separate and autonomous from the state. From what I can gather PIF, unusually for even a legally separate SWF, seems to have virtually nothing in the way of requirement to report back to government and since 2014 was granted the right to act completely independently. But, MbS and other ministers are on the board right, so the state must actually be in control? Well, ministers can have other interest and jobs. Although in this county ministers are expected to have that as their sole job, if they were director of a company that wouldn’t make it state controlled because it would be a separate role. Plenty of MPs are also company directors, that doesn’t mean those companies are state controlled. The state is really in control of everything right? They could just legislate or instruct PIF to do what they want so they’re really in control. Well, in this country they wouldn’t be because Section 251 of the Companies Act 2006 excludes government ministers from being considered to be shadow directors in such circumstances. I’m not arguing that we will definitely be successful in the arbitration, I might not be legally correct with the stuff above, just trying to make the point that it is very easy to make it sound a forgone conclusion taking in terms of common sense, but it is not that simple.

If there were no prospect of the deal being revived there would be absolutely no logical reason for the request for an injunction in the CAT case to change the PL's decision and there would be no reason to the club to go ahead with the arbitration.

I've hated the rule since we were knocked out of the UEFA Cup by Bilbao. Good riddance.

JP Morgan did. https://www.telegraph.co.uk/football/2021/04/23/saudi-link-super-league-denied-jp-morgan-admit4bn-plot-misjudged/amp/

Not when they have explicitly asked for a decision to be made (which Staveley has said they did) and by refusing to make a decision the PL denied them the right to appeal. I deal with decision making processes that are in some distant ways similar in my job, if I were to act the way the PL have, refusing to make a decision and so denying the right of appeal, I would get absolutely torn apart by the ombudsman that regulates what I do. I see both sides of the argument in terms of the KSA being in control of the club. I'm probably about 50/50 on which way that argument will go (although I'm more confident that the PL will settle before it gets to that). But there's just no argument that the PL have behaved correctly in how they've gone about the decision making process.

That was a made up story that was instantly discredited. I wouldn't have any effect anyway because the legal issue is whether or not the KSA would control the club, that would have no impact upon whether they control the club or not, even if it weren't made up bollocks.

You haven't read the O&D test properly then, see F.1.1.1. The PL absolutely could and should have made a formal decision on that basis.

Nope, 'The Premier League wanted the country, Saudi, to become a director of the football club,' Staveley told The Athletic.

Actually, it's not about shadow directorships, that's something different, it's about 'control' as defined in the PL's rules. And it's not MbS that the PL are saying would be in 'control', it's the Kingdom of Saudi Arabia. Ultimately no one on this board is qualified or has the information before them to give a legal opinion on the whether the KSA would be in control of NUFC for the purposes of the definition in the rules. Least of all someone who doesn't get those crucial details correct. Both sides appear confident in their positions (although the PL side not confident to actually made a formal decision and defend an appeal on that basis). We will probably find out one way or the other in around August.

Dominic Cummings (I assume) also leaked Boris Jonson's conversation with Lord Lister on 7th September: Boris Johnson: “Any news from Saudi?” Lord Lister: “A call is being set up. “The Newcastle deal [with the Saudi consortium] will hopefully be signed this week.” Boris Johnson: “Brilliant.”

But it was more than a month between the PL coming to their conclusion over the ownership and PIF withdrawing, in which time Staveley has said they asked for a formal decision to be made and the PL refused to make one.

Ben Jacobs knows nothing but what he is fed from the PL's side. He has a highly questionable past, reportedly getting banned from working for the BBC for life. I think the only reasons Wraith has him on the show are mutual self promotion of possibly in the hope that he'll trip up and say something that can be linked to leaks from the PL.