Takeover Thread - July 1st statement, Staveley letter to Tracey Crouch (and response) in OP

[B-more Mag]

I'm a U.S. lawyer, not a UK lawyer, so discount accordingly  , but by far the most interesting thing in the judgments, at least to me, is this:

 

4. By a decision letter dated 12 June 2020 (the "decision letter"), PLL concluded that KSA would become a Director of NUFC as that term is defined in Section A of PLL's Rules by reason of the Control (as that term is defined in Section A of PLL's Rules) that was or would be exercised by KSA over PZ Newco Limited via PIF. It was not suggested that it had decided that KSA had been or would be disqualified from being a "Director" or that it would refuse to agree the proposed change of control. I set out the material parts of the Rules later in this judgment. The decision letter set out the substance of PLL's reasoning in these terms:

 

    "… PIF expressly recognises that it will fall within the definition of "Director" under [PLL's] Rules, even though it would not be formally appointed as a director of [NUFC]. [PLL] agrees. Having taken external legal advice, [PLL] is also provisionally minded to conclude that KSA would become a Director under the Rules as well.

    Pursuant to [section A], the definition of "Director" includes any "Person" (as defined under [section A]) that will have "Control" over [NUFC] (as defined in [section A]). [PLL] has accordingly been considering the scope of those two words, "Person" and "Control", under the Rules.

 

    The definition of "Person" under [section A] includes "any … legal entity". [PLL]'s provisional view is that KSA … is a legal entity under English law. As such, it is a Person under the Rules, and thus capable of being a Director. If you disagree, [PLL] would welcome a reasoned explanation.

 

    The definition of "Control" in [section A] includes either effective management control or beneficial ownership, or both. In particular, the relevant parts of the definition describe "Control" as "the power of a Person to exercise … direct or indirect control over the policies, affairs and/or management of a Club … and, without prejudice to the generality of the foregoing, Control shall be deemed to include: (a) the power (whether directly or indirectly … ) to appoint and/or remove all or such of the members of the board of directors of the Club as are able to cast a majority of the votes capable of being cast by the members of that board; and/or (b) the holding and/or possession of the beneficial interest in, and/or the ability to exercise the voting rights applicable to, Shares in the Club (whether directly, [or] indirectly …) which confer in aggregate on the holder(s) thereof 30 per cent or more of the total voting rights exercisable at general meetings of the Club".

 

    From the information you have provided, [PLL] is provisionally minded to conclude that KSA satisfies both elements in the test for "Control" over [NUFC] through its control over PIF (which, as noted, recognises that it will be a Director). In summary:

 

    1. As to management, … PIF's directors are appointed by Royal Decree, and its current board is almost exclusively composed of KSA Government Ministers. The PIF Law puts [it] expressly under the direction of … a KSA Government Ministry. Its function is to serve the national interest of KSA.

 

    2. As to ownership, it would appear that PIF is state-owned, and that it manages only state-owned assets.

 

    Again, if you disagree with either of these provisional conclusions, we would welcome your reasoned response.

 

    Following receipt of any submissions, [PLL] will fully consider them before reaching a final decision on the issues.

 

    If [PLL] then decides that KSA will not become a Director, then it will proceed to a decision on the application of Section [F] to the individuals who have been declared, including PIF. However, should the Board decide that KSA is also to be regarded as a future Director, then there will have to be a declaration in respect of KSA and the Board's decision on the application of [section F] will have to be made in respect of KSA also."

5. NUFC disputes this conclusion and the lawfulness of the process by which it was arrived at by PLL. It is this dispute that is the subject of the reference with which these proceedings are concerned.

It is submitted by PLL, and I accept, that the decision contained in the decision letter was one that is concerned exclusively with the question whether KSA would be a "Director" under PLL's Rules and not with the question whether if KSA was a "Director" it would be disqualified under Section F of PLL's Rules. As the decision letter makes clear, no decisions under Section F of PLL's Rules had been made at that stage. This is important because, as I explain below, one of the grounds on which NUFC relies in support of the Section 24 Application to remove the second defendant is that he had previously advised PLL in relation to Section F of PLL's Rules. PLL maintains this point does not withstand scrutiny because the arbitration can only be concerned with the decision actually taken by PLL, which was that KSA would be a Director applying Section A of its Rules if the disposal proceeded. The second defendant's advice (which was given jointly to PLL and the English Football League ("EFL")) was concerned with Section F not Section A of PLL's Rules. NUFC submits that this is wrong because the second defendant could not have advised in relation to Section F without considering the definitions in Section A. I return to this issue further below.

 

This confirms that one of the issues in the arbitration is the PL's "provisional" decision that KSA would be a director, which NUFC, et al. don't agree with.  I also confirms that, in light of that impasse, things never reached a point where it was decided whether KSA, as a director, would be disqualified.

 

Nothing necessarily new that hasn't already been assumed by many -- but it does provide some confirmation and clarity.

 

 

[Pixelphish]

Thanks B-More

[Fantail Breeze]

 

[Pokerprince2004]

Godfather of Sports Law vs Lionel Messi of Sports Law

[Fantail Breeze]

If he wasn’t biased before this, surely he will be a bit cheesed off now we’ve taken to the High Court to try and remove him from the panel?

[Wandy]

If he wasn’t biased before this, surely he will be a bit cheesed off now we’ve taken to the High Court to try and remove him from the panel?

 

Exactly what I was thinking. 

[Robster]

Sorry if I've missed it but why would NUFC thing Michael Beloff was biased ?

[manorpark]

If he wasn’t biased before this, surely he will be a bit cheesed off now we’ve taken to the High Court to try and remove him from the panel?

 

Exactly the opposite of this.

 

His possible bias (and I do not think he would have ever been so) has been totally exposed into the public domain by De-Marco . . so (if anything) he will have to show to the maximum externt that he has bent over backwards to NOT be biased.

 

Great move by De-Marco, probably everything he wanted . . ie, far better than having another 'unknown quantity' as a replacement Chairman.

 

Brilliant.

[B-more Mag]

The ruling also confirms that the arbitration is being conducted as a "Board Dispute" under the EPL rules.

 

The arbitration provisions contained within section X of PLL's Rules ("the Arbitration Code") requires that any dispute between its members, or between a member or members and PLL, be referred to and resolved by arbitration in accordance with the detailed rules contained in the Arbitration Code. The dispute identified in paragraph 4 above is a "Board Dispute" within the meaning of the Arbitration Code. This limits the grounds of review available under PLL's Rules. On 10 September 2020, NUFC referred the dispute to arbitration in accordance with the Arbitration Code.

 

Here are the available grounds for review in a Board Dispute:

 

Section XX.5. In the case of a Board Dispute, the only grounds for review shall be that the decision:

 

    X.5.1. was reached outside the jurisdiction of the Board;

 

    X.5.2. could not have been reached by any reasonable Board which had applied its mind properly to the issues to be decided;

 

    X.5.3. was reached as a result of fraud, malice or bad faith; or

 

    X.5.4. was contrary to English law; and

 

directly and foreseeably prejudices the interests of a Person or Persons who were in the contemplation of the Board at the time that the decision was made as being directly affected by it and who suffer loss as a result of that decision.

[gdm]

If he wasn’t biased before this, surely he will be a bit cheesed off now we’ve taken to the High Court to try and remove him from the panel?

 

Exactly the opposite of this.

 

His possible bias (and I do not think he would have ever been so) has been totally exposed into the public domain by De-Marco . . so (if anything) he will have to show to the maximum externt that he has bent over backwards to NOT be biased.

 

Great move by De-Marco, probably everything he wanted . . ie, far better than having another 'unknown quantity' as a replacement Chairman.

 

Brilliant.

 

[Miggys First Goal]

So arbitration begins soon and we #wait for the breaking news banner on SSN whenever?

[B-more Mag]

Sorry if I've missed it but why would NUFC thing Michael Beloff was biased ?

 

He had been an arbitrator in 12 proceedings with the PL's lawyers in the last 3 years and had been appointed as arbitrator by the PL's lawyers in 3 of those; and he had previously given legal advice to the PL, including advice about potential changes to the officers & directors test:

 

On 23 October 2020, PLL's solicitors (Bird & Bird LLP ("BB")) disclosed to NUFC's solicitors (Dentons UK and Middle East LLP ("Dentons")) that (i) in the last three years, BB had been involved in 12 arbitral proceedings in which the second defendant had been an arbitrator, in three of which he had been appointed by BB but with 2 of those appointments being made after the second defendant had accepted his appointment in the arbitration with which these proceedings are concerned and (ii) the second defendant had advised PLL on four separate occasions all in excess of two years prior to the appointment under challenge in these proceedings including in March 2017 (more than three years prior to the appointment under challenge in these proceedings) when he provided an advice in relation to a potential amendment to Section F of PLL's Rules ("2017 Advice"). None of this had been disclosed by the second defendant prior to his appointment. NUFC maintains that had it been informed of these facts and matters prior to the second defendant's appointment it would not have consented to his appointment. It is not suggested that either the third or fourth defendants knew of any of these facts and matters at any time prior to the disclosure by BB.

[Candi_Hills]

Beloff is Jewish. Perhaps Jamie Reuben could soften him up over a dinner.

 

 

[Robster]

Cheers B-more Mag[/member] 

Seems reasonable grounds for us to complain.

[andyc35i]

The full judgements are very revealing and I recommend people have a good read purely for entertainment purposes.

 

I am neither optimistic or pessimistic about a takeover after reading this and still hold the same judgement as last year. If KSA are deemed a director with control as the Premier League state, then how the hell does his progress any further.... Are they seriously asking for the king and prince to be subjected to the ownership test even if the piracy issue is sorted or will they drop it once the piracy is sorted

[arnonel]

Has anyone let Luke Edwards know takeover is still on?

[Away Toon]

IMO until the piracy issue is fully resolved this takeover will never happen. Unless PIF can prove that they are free of the influence of KSA which is never going to happen this takeover won't happen. If the Saudi's are prepared to buy NUFC through an alternative company with other partners maybe this might happen.

[cubaricho]

I'm a U.S. lawyer, not a UK lawyer, so discount accordingly  , but by far the most interesting thing in the judgments, at least to me, is this:

 

4. By a decision letter dated 12 June 2020 (the "decision letter"), PLL concluded that KSA would become a Director of NUFC as that term is defined in Section A of PLL's Rules by reason of the Control (as that term is defined in Section A of PLL's Rules) that was or would be exercised by KSA over PZ Newco Limited via PIF. It was not suggested that it had decided that KSA had been or would be disqualified from being a "Director" or that it would refuse to agree the proposed change of control. I set out the material parts of the Rules later in this judgment. The decision letter set out the substance of PLL's reasoning in these terms:

 

    "… PIF expressly recognises that it will fall within the definition of "Director" under [PLL's] Rules, even though it would not be formally appointed as a director of [NUFC]. [PLL] agrees. Having taken external legal advice, [PLL] is also provisionally minded to conclude that KSA would become a Director under the Rules as well.

    Pursuant to [section A], the definition of "Director" includes any "Person" (as defined under [section A]) that will have "Control" over [NUFC] (as defined in [section A]). [PLL] has accordingly been considering the scope of those two words, "Person" and "Control", under the Rules.

 

    The definition of "Person" under [section A] includes "any … legal entity". [PLL]'s provisional view is that KSA … is a legal entity under English law. As such, it is a Person under the Rules, and thus capable of being a Director. If you disagree, [PLL] would welcome a reasoned explanation.

 

    The definition of "Control" in [section A] includes either effective management control or beneficial ownership, or both. In particular, the relevant parts of the definition describe "Control" as "the power of a Person to exercise … direct or indirect control over the policies, affairs and/or management of a Club … and, without prejudice to the generality of the foregoing, Control shall be deemed to include: (a) the power (whether directly or indirectly … ) to appoint and/or remove all or such of the members of the board of directors of the Club as are able to cast a majority of the votes capable of being cast by the members of that board; and/or (b) the holding and/or possession of the beneficial interest in, and/or the ability to exercise the voting rights applicable to, Shares in the Club (whether directly, [or] indirectly …) which confer in aggregate on the holder(s) thereof 30 per cent or more of the total voting rights exercisable at general meetings of the Club".

 

    From the information you have provided, [PLL] is provisionally minded to conclude that KSA satisfies both elements in the test for "Control" over [NUFC] through its control over PIF (which, as noted, recognises that it will be a Director). In summary:

 

    1. As to management, … PIF's directors are appointed by Royal Decree, and its current board is almost exclusively composed of KSA Government Ministers. The PIF Law puts [it] expressly under the direction of … a KSA Government Ministry. Its function is to serve the national interest of KSA.

 

    2. As to ownership, it would appear that PIF is state-owned, and that it manages only state-owned assets.

 

    Again, if you disagree with either of these provisional conclusions, we would welcome your reasoned response.

 

    Following receipt of any submissions, [PLL] will fully consider them before reaching a final decision on the issues.

 

    If [PLL] then decides that KSA will not become a Director, then it will proceed to a decision on the application of Section [F] to the individuals who have been declared, including PIF. However, should the Board decide that KSA is also to be regarded as a future Director, then there will have to be a declaration in respect of KSA and the Board's decision on the application of [section F] will have to be made in respect of KSA also."

5. NUFC disputes this conclusion and the lawfulness of the process by which it was arrived at by PLL. It is this dispute that is the subject of the reference with which these proceedings are concerned.

It is submitted by PLL, and I accept, that the decision contained in the decision letter was one that is concerned exclusively with the question whether KSA would be a "Director" under PLL's Rules and not with the question whether if KSA was a "Director" it would be disqualified under Section F of PLL's Rules. As the decision letter makes clear, no decisions under Section F of PLL's Rules had been made at that stage. This is important because, as I explain below, one of the grounds on which NUFC relies in support of the Section 24 Application to remove the second defendant is that he had previously advised PLL in relation to Section F of PLL's Rules. PLL maintains this point does not withstand scrutiny because the arbitration can only be concerned with the decision actually taken by PLL, which was that KSA would be a Director applying Section A of its Rules if the disposal proceeded. The second defendant's advice (which was given jointly to PLL and the English Football League ("EFL")) was concerned with Section F not Section A of PLL's Rules. NUFC submits that this is wrong because the second defendant could not have advised in relation to Section F without considering the definitions in Section A. I return to this issue further below.

 

This confirms that one of the issues in the arbitration is the PL's "provisional" decision that KSA would be a director, which NUFC, et al. don't agree with.  I also confirms that, in light of that impasse, things never reached a point where it was decided whether KSA, as a director, would be disqualified.

 

Nothing necessarily new that hasn't already been assumed by many -- but it does provide some confirmation and clarity.

 

The ruling also confirms that the arbitration is being conducted as a "Board Dispute" under the EPL rules.

 

The arbitration provisions contained within section X of PLL's Rules ("the Arbitration Code") requires that any dispute between its members, or between a member or members and PLL, be referred to and resolved by arbitration in accordance with the detailed rules contained in the Arbitration Code. The dispute identified in paragraph 4 above is a "Board Dispute" within the meaning of the Arbitration Code. This limits the grounds of review available under PLL's Rules. On 10 September 2020, NUFC referred the dispute to arbitration in accordance with the Arbitration Code.

 

Here are the available grounds for review in a Board Dispute:

 

Section XX.5. In the case of a Board Dispute, the only grounds for review shall be that the decision:

 

    X.5.1. was reached outside the jurisdiction of the Board;

 

    X.5.2. could not have been reached by any reasonable Board which had applied its mind properly to the issues to be decided;

 

    X.5.3. was reached as a result of fraud, malice or bad faith; or

 

    X.5.4. was contrary to English law; and

 

directly and foreseeably prejudices the interests of a Person or Persons who were in the contemplation of the Board at the time that the decision was made as being directly affected by it and who suffer loss as a result of that decision.

 

Hell yeah, thanks dude.

[Dr Jinx]

The most interesting thing there was the Premier League being highly motivated to keep his advice private in relation to the 2017 amendments of the o&d’s test.

 

There could potentially be a whole septic tank of corruption in those documents, designed to keep the status quo intact.

[Robster]

Oh to be a fly on the wall in Nick de Marco's office.

Would love to know what he thinks this afternoon.

[Teasy]

De Marco's first loss ?

 

If course it isn't. He hasn't lost cases, but he'll have lost judgments as part of cases he ended up winning. What do you think he is like Mr Perfect?

 

Could also be argued this is simply a manoeuvre, which is backed up by the fact its been made public.  The chairman now has the question of bias hanging over him, not just in proceedings but publically.

[Shearergol]

De Marco's first loss ?

 

If course it isn't. He hasn't lost cases, but he'll have lost judgments as part of cases he ended up winning. What do you think he is like Mr Perfect?

 

Could also be argued this is simply a manoeuvre, which is backed up by the fact its been made public.  The chairman now has the question of bias hanging over him, not just in proceedings but publically.

 

The HUGE problem people seem to be ignoring is the fact that it's pretty obvious that PIF are controlled by MBS and piracy is still an outstanding issue. People who claim "as if he'll be ringing the manager telling him to drop the left back" are completely missing the point.

 

Until piracy is resolved this is going nowhere.

[Robster]

De Marco's first loss ?

If course it isn't. He hasn't lost cases, but he'll have lost judgments as part of cases he ended up winning. What do you think he is like Mr Perfect?

Could also be argued this is simply a manoeuvre, which is backed up by the fact its been made public.  The chairman now has the question of bias hanging over him, not just in proceedings but publically.

 

You are bang on with what you say. I think my post was a reflex reaction to the news; just seemed instantly bad !

The optimistic half of my brain is hoping it is as you say, a manoeuvre as part of a bigger play.

 

[Dr Jinx]

De Marco's first loss ?

 

If course it isn't. He hasn't lost cases, but he'll have lost judgments as part of cases he ended up winning. What do you think he is like Mr Perfect?

 

Could also be argued this is simply a manoeuvre, which is backed up by the fact its been made public.  The chairman now has the question of bias hanging over him, not just in proceedings but publically.

 

The HUGE problem people seem to be ignoring is the fact that it's pretty obvious that PIF are controlled by MBS and piracy is still an outstanding issue. People who claim "as if he'll be ringing the manager telling him to drop the left back" are completely missing the point.

 

Until piracy is resolved this is going nowhere.

 

I agree. And to be honest, it’s hard to argue against the reasoning for the PL to include KSA as a director (or person with controlling influence)

 

What they should have done all along was to set up a separate entity that PIF invested in that had its own board. They were a bit naive to think given everything going on that this would be waved through.

[Collage]