West Hams Chances Gone?

[Napoleon Solo]

Having just read through the transcript of the hearing regarding the transfers of Tevez and Mascherano, it seems West Ham were in breach of Rule U18: "No club shall enter into a contract which enables any other party to that contract to acquire the ability materially to influence its policies or the performance of its teams in league matches or in any (other) competitions."

While the inquiry found no outside influence by Kia Joorabchian (owner of both players rights) upon the clubs policies, at the time of the transfers being registered with the FA Premier League the club, apparently knowingly, failed to disclose the full terms of the contracts, namely that of the third party ownership. That was apparently the only way West Ham were able to purchase the players and to get registrations of Tevez and Mascherano through by the deadline date, the club knowing that the FAPL would more than likely not grant the transfers had thrid party ownership been disclosed.

Penalty.

That being the basis upon which we will 18 proceed, what then is the appropriate penalty? In determining that, we have taken into account and given West Ham credit for the pleas of guilty and we have taken into account their hitherto exemplary disciplinary record. We are of the view that these are exceedingly serious allegations because they amount to not only an obvious and deliberate breach of the Rules, but a grave breach of trust as to the FAPL and itsconstituent members, because in our finding the club has been responsible for dishonesty and deceit.

The Rules of the FAPL allow us to penalise a club by deducting points. That is a course that we consider would normally follow from such a breach of these Rules. Many clubs may be of the view that all competitions should be decided on the pitch and not by tribunals. Whilst that is a natural and understandable view, the fact remains that some breaches will be of such a serious nature that only a deduction of points would be appropriate.

Some clubs, here perhaps those who are locked in the relegation battle with West Ham, may be of the view that only a points deduction would be appropriate. Here, we have finally come to the view that a deduction of points would not be proportionate punishment. We have taken the following factors into account:
One, the club's pleas of guilty.
Two, the fact that the club is under new ownership and management. True it is that Mr Duxbury remains, but we are impressed by Mr Sturman's point that Mr Magnusson could have cynically dispensed with his services so as to reflect more favourably upon the club.
Three, had the club in time made disclosure of the third party contracts to the FAPL, then, in all probability, contracts could have been entered into which would not have offended the Rules. Mr Mascherano is now playing football for Liverpool. He is doing so pursuant to a contract entirely different in form to these contracts, and which has been approved by the FAPL. We have no reason to suspect that the same could not have been achieved with West Ham in August 2006.
Four, there has been a delay between the discovery of these breaches and these proceedings. Whilst that delay is due to no party's fault, the consequence is that a points deduction, say in January, whilst unwelcome, would have been somewhat easier to bear than a points deduction today which would have consigned the club to certain relegation.
Five, Tevez has continued to play for the club after the discovery of these breaches. The FAPL had the power to have then terminated his registration. For understandable reasons, they did not. Had it not been for these proceedings, the club and the FAPL might have reached a similar situation to that pertaining to Liverpool and Mascherano. Tevez, we note, has played in more games post-24th January than before it.
Six, we have considered the position of the players and the fans. They are in no way to blame for this situation. Of course, if the impact upon players and fans was to be the overriding consideration, there may never be a deduction of points. However, in this case, the fans and the players have been fighting against relegation. They have been doing so from between January and April. They have been so doing against the ever-present threat of a deduction of points. Those efforts and that loyalty would be to no avail were we to now, on what might be termed the eve of the end of the season, to deduct points.
Seven, it was Mr Igoe, thus the club, then under new ownership, who brought attention to these breaches.
Thus we do not order any deduction of points.

We repeat we do take these breaches as being extremely serious. They could have merited a points deduction, and thus the financial penalty must reflect that. Our aim in assessing the financial penalty is to (a) impose punishment, (b) to deter other clubs from committing any similar breach. We have perhaps no adequate means by which we can determine whether we will achieve either or both of those ends. We have, however, noted the following financial facts:
(a) that the club have had the advantage of having the playing services of two international footballers without the payment of any transfer fee. Whatever their value, and we do not proceed upon those figures in the penalty clauses, it would not have been insignificant. The players signed respectively four and five year contracts.
(b) had we deducted points, West Ham would have certainly been relegated and thus have no chance of securing the lucrative benefits of continued Membership of the Premier League.
(c) even if they are to be relegated, they will receive what is termed a parachute payment in the sum of £11.5 million.
(d) the club were prepared to pay a considerable sum to an agent as a reward for securing these deals.Had the matter proceeded to trial and the charges proved, then, had we not deducted points, the financial penalty would have been in the region of £8 million. Due to the plea, the sum is £5.5 million, made up as to £2.5 million in respect of breach of Rule U18, and £3 million in respect of breach of B13. We order the registration of Carlos Tevez can be terminated by the FAPL, and we order that West Ham pay the costs of these proceedings.

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