Jackie Broon

There isn't one, quite the opposite. It's clear that the test starts on submission of the declaration: F.4.1. "submit to the Board a duly completed Declaration" "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 of Rule F.1 and if he is so liable the Board will take the steps set out in Rule F.6" Rule F.1 includes having failed to provide "all relevant information relating to any other individual who would qualify as a Director but has not been disclosed" Rule F.6 states that "upon the Board becoming aware by virtue of the submission of a Declaration... that a Person is liable to be disqualified as a Director under the provisions of Rule F.1, the Board will give written notice to the Person that he is disqualified, giving reasons therefore." "at which point that Person shall be bound by and subject to the Rules" is immediate and unequivocal. "within five Working Days of receipt thereof" is unequivocal with no alternative given. "upon the Board becoming aware by virtue of the submission of a Declaration" is an immediate and unequivocal. The rules are clear and unequivocal, there is no room for interpretation, the test starts when the declaration is submitted and should be completed within five working days. The PL have chosen to ignore that and do it their own way, and there is no easy way for the club to have required them to follow their own process as set out. But it is absolute clear that they have not properly followed their own rules. Before, Penn of whoever it is behind the Fantail Linton accounts says "well they didn't provide enough information to make a decision". This is a civil law decision, balance of probabilities is the standard of proof, such decisions can and should be made on the basis of the information available at the point the decision needs to be made.

I've already explained why that is incorrect. I know that's how the PL looked at it, they were just very clearly wrong to do it that way. That almost certainly won't have any impact on the arbitration, but it will look very bad for them in the CAT case.

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 Now why are you so keen to make excuses for the PL?

Again, making excuses for the PL, why would a balanced independent journalist feel the need to do that? What he is saying makes no sense. There is no "who to test part", if someone hasn't been disclosed it's clear that the PL has to disqualify the disclosed directors immediately as they are liable to be disqualified under F.1.1.1. They can then either disclose again including the people the PL want or appeal under F.13. 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,

This is what makes Ben Jacob's stuff particularly fishy, for someone who claims to be balanced he seems incredibly keen to defend how the PL have handled the process. Whether or not they have a strong case in the arbitration, it's abundantly clear that they didn't follow their own rules and used delay tactics to try to make the consortium give up and go away.

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 Nothing, absolutely nothing, in the rules states anything that could be interpreted to say that the test doesn't start until all people that the PL think will be directors have been disclosed. Quite the opposite, it's clear from the rules that the O&D test in section F applies to those people declared from the point they are declared.

The whole test not starting thing was clearly a deliberate delaying tacking. There's absolutely nothing in the O&D test rules that supports the PL's position of not starting it, in fact the wording of the rules completely contradicts that position.

Also, although they publicly walked away in July they obviously came back after that because deal was potentially going to go through in early September.

I'd be very happy to be run in a sustainable way, maximising the club's income and sensibly spending what the club generates. But, they're hardly going to say they're going to spunk cash left right and centre when a) that's one of the things the PL are really worried about and b) that'll just lead to selling clubs adding a zero to any fee.

I get the feeling that any inside knowledge that Kennedy / Patterson might have had has dried up now the CAT case has been launched and they're just desperately trying to stay relevant.

The deadline for disclosure in the arbitration was 26th May (if the extension the PL requested was agreed). The deadline for evidence in the arbitration is 9th June (if the extension the PL requested was agreed). The deadline for submission of the PL's CAT jurisdiction challenge is 11th June. I think the next think we will probably hear is the outcome of the CAT jurisdiction challenge, maybe sometime around the end of this month. I think the takeover probably hangs on the outcome of the arbitration, the CAT case would take too long, it might just be there at this stage mostly to put pressure on the PL to settle the arbitration.

Yeah, the arbitration is only on whether the KSA meets the definition of control in Section A, it doesn't relate to section F at all. Although, I think the arbitrators will probably look at that letter and wonder why the PL are at arbitration in the first place, after they said they were in a position to make a final decision. Even if the consortium didn't put its reasons for disagreeing with that preliminary conclusion it would hardly put them in less of a position to make that final decision. It also make me think even more than before; if they're so confident in their position, why didn't they just make that final decision? It seems like either the consortium submitted a response that made them think that arbitration was necessary to decide it, or they weren't confident in winning an appeal and chose to kick the can further down the road with arbitration.

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.