Club update on a High Court judgement
Today the High Court handed down judgment in NUFC’s application to have the Chairman of the Arbitration Panel under the Premier League’s (‘EPL’) Rules removed from hearing its claim concerning the proposed takeover of the Club. The Club asked for the Chairman to be removed on the ground of apparent bias.
The Club made the application because two weeks after the Chairman had been appointed the lawyers representing the Premier League, Bird & Bird, disclosed information that the Club had previously been unaware of. In particular, Bird & Bird disclosed that the Chairman had provided confidential advice to the EPL in 2017.
Although the advice was not provided to the Club, the Club was informed that the Chairman had advised the EPL on amendments to its ‘Owners and Directors Test’ (‘OADT’) in Section F of its Rules. Shortly after the Chairman provided that advice in 2017 the Rules were changed to prevent a foreign owner involved in alleged broadcasting piracy from passing the test.
This information concerned the Club given the following context: in a much publicised letter to EPL clubs in April 2020, BeIN Sports called for the EPL to “strictly apply” the OADT to prevent the Saudi sovereign wealth fund, PIF, from being involved in the takeover of the Club because BeIN alleged that the Kingdom of Saudi Arabia (‘the KSA’) was involved in broadcasting piracy. Later that year, the EPL decided that the KSA controlled the PIF and was therefore a ‘Director’ under its Rules. The Club disputes this analysis and brought an arbitration to reverse the decision. As today’s Judgment records, the Club’s case is that the arbitration is wider than simply the definition of ‘Director’ and part of the Club’s challenge is to the lawfulness of the EPL’s approach when considering the takeover.
The Chairman had also failed to disclose, when he was appointed, that he had previously been appointed by Bird & Bird and, in the last 3 years, had been an arbitrator in 12 cases involving Bird & Bird. When challenged by the Club, prior to the High Court claim, the Chairman did not agree to step down. The Club’s concerns were heightened when he then engaged in unilateral communications with Bird & Bird about the Club’s challenge, which is expressly against the EPL arbitration rules. In his private emails with the EPL’s lawyers he asked if they wanted him to carry on as Chairman, and he later explained that if they had asked him to step down he would have done so. The private email exchange was only disclosed after Bird & Bird suggested it should be.
Although the Court was critical of these communications, describing them as an “error of judgment” the Court refused the Club’s application to remove the Chairman on grounds of apparent bias.
The Club is disappointed with the Court’s judgment on this issue. As noted at the end of the Judgment, the Club submitted that the Judge did not address all of the Club’s arguments. The Club is committed to the speedy and fair determination of its claim so that the proposed takeover can go ahead as soon as possible. However, it felt it had to make this application given the need for the dispute to be determined by way of a fair process. The Club is considering whether or not to pursue an appeal.
The Club argued for the hearing to be in public but lost on that argument. The Club also wanted the Judgment to be published, even though it was dissatisfied with the outcome. Meanwhile, the EPL attempted to prevent it from being published at all. The EPL said that if it was published it should be heavily redacted and anonymised so that readers would not be able to identify the dispute. Unfortunately, this is consistent with the EPL’s lack of transparency over the takeover. The Club won on this point. The Judge rejected the EPL’s arguments and said there was a “public interest” in publication of the Judgment. The Club welcomes the fact that at least its supporters, and the wider public interested in the takeover and the dispute, will now be able to have some information about the process.
The Club shall continue to actively pursue its claim in the arbitration and calls on the EPL to resolve the matter in a speedy and transparent way that does not prevent the substantial investment into English football, and the North East region, that the proposed takeover would bring.