The tribunal hearing between Manchester City and the Premier League in June came down principally to one disputed commercial deal: the club’s new 2023 agreement with Etihad Airways, the Abu Dhabi carrier that has its name on City’s shirt and stadium.
It was a single deal, unusually large in scope of the rights that it encompassed according to the independent valuers Nielsen, used by the Premier League’s regulatory team to assess the fair market value of such an agreement. Indeed, the rights package City proposed to sell to Etihad was “as large as the rights that some clubs would grant across all of their sponsorship agreements with multiple counterparties”.
It was agreed in the early part of last year between City, owned by an Abu Dhabi royal, and Etihad’s parent company, the Abu Dhabi state, and thus subject to the Premier League’s associated-party transaction (APT) rules. Over 30 pages of the arbitration tribunal judgment, published this week, the three panellists decided that the Premier League was not unreasonable to judge the Etihad deal above fair market value. City’s challenge had failed.
What the Etihad deal was worth to City, how long it was to run, and how it compared to all other commercial income, was sadly lost to the redactions. But given that it was the sale of the prime real estate of the club’s commercial landscape, and the focus of their extensive legal challenge, one might assume it was also the most lucrative in the portfolio.
City do not like the APT rules which underscore the financial controls – profit and sustainability rules (PSR) that themselves underpin the Premier League’s competition. So the club took it upon themselves to challenge APT rules over the course of the tribunal, and failed. They scored some wins, as City lawyers saw it, in pulling shareholder loans into the APT rules and a couple of procedural hits.
The Premier League agreed that those amendments would have to be made. Since Monday, clubs have submitted details on shareholder loans to the Premier League and there is a preliminary meeting on Thursday. City themselves contacted the 19 other clubs and told them, via their general counsel Simon Cliff, that the Premier League’s analysis was wrong. That APT rules were now void and that there should be no rush to change them.
It would likely benefit City for there to be a notion that there are no APT rules and thus no effective PSR. But if 14 clubs vote for the amendments in the weeks to come the APT rules will be updated anyway.
Do City have another six allies? Only time will tell, but implicit in the letter sent to clubs was that their legal war will go on and on and on. Every time City run up against something they do not like, they will challenge it, and that challenge will be long and expensive. That was certainly the way that Cliff’s letter was interpreted when he counselled against a “knee-jerk reaction” in updating the APT rules.
“Such an unwise course,” he wrote, “would be likely to lead to further legal proceedings with further legal costs.”
This is where the Premier League is now. In City, a club that wishes for their fellow 19 shareholders to do as they do and disregard the advice of the Premier League of which they all have a stake, its legal regulatory team and its board. The league for now must assume that every time it seeks to sanction City, or refuses to assign fair market value to their commercial deals, it can expect a legal challenge.
This was a sporting competition with its own rules to which the Premier League’s owners, its 20 shareholders, adhered. But not anymore. It is a remarkable situation that the most successful single-nation football competition on the planet finds itself. It makes you wonder too of life inside City’s hierarchy in Manchester. What kind of pressure are the club’s executives under to produce a result?
Every so often, the tribunal report gives some startling insight into the nature of the legal battle. As the Etihad fair market value dispute developed, City’s lawyers received new valuations of the deal to support their cause, submitted by a third party sometime between December 18 last year and February 27. They handed them to the Premier League on March 23.
The valuations were “unexpected and substantial”, the tribunal reported, and caused “considerable difficulty” for the already stretched Premier League regulatory team. In analysing them the league had to make a further 96 requests for clarification. It asked for two extensions to the deadline for the board to make its judgment. City opposed both requests.
The tribunal found that communications were often sent “very late at night”. City responded in April to a deadline extension request of the Premier League at 11.15pm The league’s non-executive director Mai Fyfield, a key figure in its decision-making, and a “candid and engaged” witness according to the tribunal, found herself up until 4am reading documents.
At one point she was asked to discuss the so-called terms of a deal with a non-associated party that City’s lawyers submitted in support of the valuation of the Etihad deal. She declared that the terms submitted did not constitute a completed deal at all. “In the contract those things are 40 pages,” Fyfield told the tribunal. “Here [the deal being used as a comparable] … it’s a page. There’s clearly some detail to be worked through.” She said the evidence from City was not a negotiated final deal. It was more what the putative partner might pay “to get in the room”. The tribunal saw no error in her verdict.
At times, this case felt like it was being fought on sheer scale by City, with whatever was to hand, and done so in the wee small hours of the undergraduate essay crisis. Their big challenge, that the Premier League board had been “unreasonable” – the legal threshold – in finding the Etihad deal was not at fair market value, failed on all but a procedural point.
Yet City’s legal team is undeterred. It wishes for the Premier League not to amend the rules upon which it scored its victories because to do that would be to heal those minor wounds. One might have thought that was the point of a dispute. To reach agreement, adapt accordingly and move on. But City just threaten more of the same. More legal challenge, until, presumably, they get their way.
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