Fulham match preview - WHUFC
All the early team news and background for West Ham United's trip to face Fulham in Saturday's derby
25.09.2008
Barclays FA Premier League
Fulham v West Ham United
Craven Cottage
Saturday 28 September
3pm
Referee: Andre Marriner
WHUTV - Full audio commentary
Introduction
* West Ham United make the short trip from east to west London when they visit Fulham's Craven Cottage on Saturday for their third away game of the Barclays Premier League season.
* It will be Gianfranco Zola's first away league game since joining the club having won 3-1 in his opening league game against Newcastle United last weekend.
* West Ham United have the best home record in the Premier League but have lost both of their away games to date - at Manchester City and West Bromwich Albion.
* The club are sixth with three wins and two defeats and a plus two goal difference, but could move top with an emphatic win and if other results go their way. Fulham are eleventh with six points and could go fifth with a win.
* Zola said: "We have two players we are not 100 per cent sure about in Craig Bellamy and Carlton Cole. They will be training with us on Friday and after that we will decide ... apart from that we have the same players as last time."
* Fulham captain Danny Murphy said: "I'm expecting a good game. I think any team under Zola will be a good footballing one. I don't think for a second he's going to have them launching it from the back! So I think from a spectator's point of view it will be a good game of football. I'm sure there'll be chances for both sides."
* Both clubs go into the match having been knocked out of the Carling Cup by Championship clubs on Tuesday. United lost 1-0 to Watford while Fulham lost to Burnley by the same score.
* West Ham United are unbeaten in the last six meetings against Fulham, but the hosts will know their east London opponents have not kept a clean sheet in their last 17 matches dating back to 23 February - when the club won 1-0 at Fulham.
* Fulham have not won at home against West Ham United since a 4-2 win on 15 October 1966, making a run of ten games unbeaten for the visitors.
* West Ham United are next in top-flight action on Sunday 5 October at home to Bolton Wanderers while Fulham travel to West Brom the previous day.
Last time out
Tuesday 23 September - Watford 1-0 West Ham United
West Ham United: Lastuvka, Neill, Lopez, Upson, Etherington, Boa Morte (Parker 62), Noble, Mullins, Faubert, Di Michele (Reid 71), Sears.
Subs not used: Green, Ilunga, Behrami, Collison, Stanislas.
Tuesday 23 September - Burnley 1-0 Fulham
Fulham: Zuberbuhler, Baird, Stoor, Andreasen, Konchesky, Teymourian, Ki-Hyeon (Milsom 90), Gera (Pantsil 73), Dempsey, Kallio, Johnson (Nevland 72).
Subs not used: Stockdale, Leijer, Brown.
Team news
* Zola must consider his options before naming his team for the weekend's game. Several players impressed in the mid-week defeat to Watford. The manager singled out Freddie Sears for particular praise after his first 90 minutes for the senior side.
* Zola will again be without Dean Ashton who will undergo arthroscopic surgery to his left ankle next week to help assess the extent of his injury. Craig Bellamy and Carlton Cole are in contention but a decision will be made on Friday.
* Walter Lopez impressed on his debut against Watford so Zola must decide whether to return to Herita Ilunga, who did well against Newcastle, at left-back. Indeed, the manager could welcome back other first-team regulars including Robert Green, Scott Parker and Valon Behrami.
* Danny Gabbidon and Kieron Dyer remain long-term absentees but James Collins and James Tomkins are getting closer after their respective knee troubles. Calum Davenport is also training again after a knock kept him out midweek and could be in contention.
* Jack Collison, an unused substitute in midweek, is over his own knee problem.
Background
* The last meeting of the clubs came at Craven Cottage on 23 February 2008, when an 87th-minute goal from Nolberto Solano was all that separated the teams. Fulham were down to ten men after Leon Andreason was sent off.
* The lineups were:
West Ham United: Green, Neill, Ferdinand, Upson, McCartney, Ljungberg (Spector 89), Mullins, Faubert (Solano 63), Noble, Boa Morte, Cole (Ashton 80)
Subs not used: Richard Wright, Pantsil,
Fulham: Niemi, Stalteri, Hughes, Hangeland, Konchesky, Andreasen (sent off 88), Bullard, Murphy, Dempsey (Eddie Johnson 76), McBride, Kamara
Subs not used: Keller, Bocanegra, Smertin, Nevland,
* John Pantsil, Paul Konchesky and Bobby Zamora could all face their former clubs. Zamora made 152 appearances, scoring 40 goals between February 2004 and July 2008. Konchesky made 70 appearances with two goals between July 2005 and July 2007. Pantsil spent two years at West Ham United from August 2006, making 24 appearances.
* For West Ham United, two players could potentially face their old club. Boa Morte played 250 times for Fulham, scoring 54 goals between June 2000 and January 2007 while Jan Lastuvka got 12 games in a season-long loan during the 2006/07 season.
Head to head (last six meetings, league unless stated)
23 February 2008 - Fulham 0-1 West Ham United
12 January 2008 - West Ham United 2-1 Fulham
13 January 2007 - West Ham United 3-3 Fulham
23 December 2006 - Fulham 0-0 West Ham United
23 January 2006 - West Ham United 2-1 Fulham
17 September 2005 - Fulham 1-2 West Ham United
Overall record v Fulham (all competitions): W 34, D 18, L 27
Barclays Premier League fixtures (all 3pm unless stated)
Saturday 27 September
Arsenal v Hull City (5.30pm)
Aston Villa v Sunderland
Everton v Liverpool (12.45pm)
Manchester United v Bolton Wanderers
Middlesbrough v West Bromwich Albion
Newcastle United v Blackburn Rovers
Stoke City v Chelsea
Sunday 28 September
Portsmouth v Tottenham Hotspur (1.30pm)
Wigan Athletic v Manchester City (4pm)
General information
For ticket information, click here. For details of getting to Craven Cottage click here
Weather: The forecast is for a clear and sunny day with top temperatures of around 20C.
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West Ham rocked by Ashton injury - BBC
West Ham striker Dean Ashton could miss the next month of the season after suffering an ankle injury. Ashton, 24, is to undergo exploratory surgery to assess the extent of the injury he picked up in training with the Hammers last week. Ashton will go under the knife next week and could be out until the end of October, ruling him out of two World Cup qualifiers and five league games. He has been plagued by injuries since breaking his ankle in August 2006. The surgery means the West Ham forward will be unavailable for England's World Cup qualifiers against Kazakhstan and Belarus in October. "Dean Ashton will undergo arthroscopic surgery to his left ankle next week," said a West Ham statement. The former Crewe striker has already sat out West Ham's last two games, the first two under new manager Gianfranco Zola. Ashton signed a new five-year deal with West Ham in June shortly after winning his first England cap in the friendly against Trinidad & Tobago. Ashton, who scored 11 goals last season, joined West Ham from Norwich for £7.25m in January 2006 and helped the club to the FA Cup final, where they lost on penalties to Liverpool. His performances that season earned him an England call-up for the friendly with Greece in August 2006. But he broke his ankle in training for that game and missed the whole of the 2006-07 season, and also suffered injuries in the 2007-08 campaign.
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Zola reassured on transfer budget - BBC
West Ham manager Gianfranco Zola has been given assurances by the club he will be able to sign players during the January transfer window if he wants. The Hammers may have to pay Sheffield United more than £30m in compensation after an independent tribunal ruling against them in the Carlos Tevez case. But Zola told BBC Sport: "I've been assured by West Ham chief executive Scott Duxbury it will not be a problem. "It will not affect us if we want to do changes in January." West Ham are understood to have a wage bill approaching £50m a year, with Lucas Neill, Kieron Dyer and Craig Bellamy on bumper pay packets. That spiralling salary bill allied to one of the biggest first-team squads in the Premier League, was part of the reason West Ham sold John Pantsil, Bobby Zamora, Richard Wright and Anton Ferdinand during the last transfer window. However the Hammers have insisted that concerns over the tribunal ruling, which they plan to appeal to the Court of Arbitration for Sport over, were not behind their decision to sell players. The Hammers beat Newcastle 3-1 in Zola's first game in charge last Saturday, but on Tuesday the Italian suffered his first defeat as West Ham were beaten 1-0 by Watford in the Carling Cup third round.
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Door closed on Hammers appeal? - KUMB
Filed: Thursday, 25th September 2008
By: Staff Writer
West Ham United have been told by the Court of Arbitration for Sport that their appeal cannot be heard without the agreement of Sheffield United. The Hammers had hoped to take their case to the Swiss-based arbitrators following an independent panel's finding in favour of the Championship club this week. But a spokesman for the CAS confirmed tonight that an appeal would only be heard if either both clubs agreed or if the FA's rules allowed it to be - which, the FA have said, it does not. "If the English FA rules did have a specific clause allowing an appeal to CAS in a case like the Tevez one, there would be no need for both parties to agree to have the case refereed," said CAS general secretary Matthieu Reeb. "But if there is nothing in the rules, it is mandatory that both parties agree in writing to go to CAS."
Despite the news West Ham United have hired leading sports lawyer Maurice Watkins to represent them in any forthcoming litigation. Watkins, who replaced the club's current legal team following the arbitration panel's findings was formerly mentor to Hammers CEO Scott Duxbury. Sheffield United are extremely unlikely to agree to take the matter to appeal given that it has taken four hearings to find one in their favour thus far.
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Zola lays down the law - KUMB
Filed: Thursday, 25th September 2008
By: Staff Writer
Gianfranco Zola has fined Carlton Cole as a result of the striker's arrest on Tuesday morning. Cole was charged with drink driving after being stopped by police in central London at 4:30am on Tuesday monrning and was locked up for several hours before being released. United boss Zola insisted today that he would not put up with any such indiscretions by his squad and confirmed that Cole, who is battling to be fit for the weekend's match with Fulham, had been sanctioned as a result of the incident. "I am very disappointed," said Zola. "He is very sorry about being out at such a time. "Being so nice doesn't mean I'm stupid. I can accept certain things but I will not accept players not looking after their bodies."
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Zola on Gudjohnsen - KUMB
Filed: Thursday, 25th September 2008
By: Staff Writer
Gianfranco Zola has refused to rule out the possibility of signing Barcelona striker and former team mate Eidur Gudjohnsen. The Icelandic striker - who played alongside Zola at Chelsea in the late 1990s - has been heavily linked with a move to West Ham since last October when Eggert Magnusson first held talks with the player's father Arnor, who also acts as his agent. When prompted by an Icelandic journalist about the possibility of United renewing their interest in the 30-year-old striker, Zola said: "Why not? It'd be good help as he's a good player. "I remember when I was playing [for Chelsea] and he was on the bench. He kept coming on, taking my place and scoring great goals. "I had a very good relationship with him; he's a very good player."
Zola is currently down to the proverbial bare bones in the striker department; Carlton Cole and Craig Bellamy are still working their way back to full fitness whilst Dean Ashton could be out until the new year after it was revealed he requires exploratory surgery on an ankle injury. With Bobby Zamora having been sold to Fulham in the summer Zola has just two fully fit strikers at his disposal - loanee David Di Michele and rookie Freddie Sears.
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More injury woe for Ashton - KUMB
Filed: Thursday, 25th September 2008
By: Staff Writer
Dean Ashton has suffered yet another injury setback - which could keep him out of action until 2009. It was confirmed by the club this evening that Ashton - who had been due back in time for the visit to Fulham this weekend - will undergo exploratory surgery on his left ankle next week. The extent of the injury remains unclear at this stage although should should surgery be required he is likely to face a minimum of three months out of action. Swelling from the surgery, which involves cameras being passed through a tube directly into the joint could take up to six weeks to disappear whilst a complete recovery plus a return to match fitness could take as long, if not longer - meaning that Hammers fans are unlikely to see the England international back in a West Ham shirt before Christmas. News of Ashton's latest injury was first broken on the KUMB.com forums on Tuesday; the club confirmed the story on their website tonight, stating: "Dean Ashton will undergo arthroscopic surgery to his left ankle next week to help assess the extent of his injury."
The club added that "Craig Bellamy and Carlton Cole are in contention", but it is believed that Saturday's trip to Craven Cottage will come too early for Welsh striker Bellamy, who himself has only made one substitute appearance this season. Cole, who missed out on the 1-0 defeat at Watford on Tuesday night should however return to partner David Di Michele, who scored a brace against Newcastle at the Boleyn last weekend.
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Zola - No fire sale - SSN
Hammers boss was not aware of compensation threat
Last updated: 25th September 2008
Gianfranco Zola has been assured by the West Ham board that he will not have to sell his best players in January. The Hammers have been ordered to pay compensation to Sheffield United as a result of the Carlos Tevez affair. West Ham are to appeal after a Football Association arbitration panel ruled in the Blades' favour earlier this week, with reports suggesting they must pay the Championship club over £30million. The news has raised concerns that West Ham may have to let players go, but Zola has been told not to change his plans for the January transfer window. "I don't think it will happen," Zola said on Sky Sports News. "I have been reassured by the club and the board that it won't happen." Zola took charge at Upton Park following Alan Curbishley's departure at the start of the month and he admits he had no idea West Ham may have to pay compensation. The Italian is refusing to dwell on the matter and is concentrating solely on West Ham's clash with Fulham on Saturday. He said: "I wasn't aware of this but it doesn't change (anything). I came to work with the players I have and to try to make them better. "That is what I am doing and that is what I am focused on."
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View From The Opposition - Fulham - West Ham Online
Vinny - Thu Sep 25 2008
Fulham at Craven Cottage is next up and the view from Fulham comes fromAndrew Joyce from http://www.fulham.vitalfootball.co.uk/
How do you feel your season is going so far?
We started well, it was our best start in the last five seasons in the Premier League, sadly, the defeat at Blackburn was followed by a Carling Cup loss at Burnley. We desperately need to prevent you lot making it a third defeat on the trot. We've been playing some good football and the defence seems a lot more organised than last season. The defeat of Arsenal was most welcome and hopefully we can kick on with three points on Saturday.
What are your hopes for the season?
Until Tuesday night, and that defeat at Burnley, I was hoping for a Wembley appearance, it's been a long time since we danced down Wembley way, in fact we danced down Wembley way together before didn't we! As for the Premier League, I'm hoping for mid table mediocrity, I couldn't stand another survival fight like last year whereby a Danny Murphy goal at Portsmouth kept us up on goal difference.
Who is your most dangerous player?
If he's on top form it's got to be Jimmy Bullard. Since he's come back from that horrific injury he's been top notch and his selection for the England squad was deserved. If you don't get to grips with him he'll run the midfield and if you're foolish enough to give us a free kick just outside the area, he'll make you pay.
Who is the weakest?
Come on! We're not like you lot, we get behind our players! Besides I seriously doubt whether Chris Baird will be playing!
What's the general view on Roy Hodgson?
Roy is slowly turning our club around, he's ditched the rubbish Lawrie Sanchez purchased and he's brought in some real quality players. Our squad, under Sanchez, was huge and now it's a more manageable size. When he was appointed I had my doubts, I didn't know if he could straight step back into management in the Premier League but his experience abroad has stood him in good stead and he's really made a difference.
How have Bobby Zamora and John Pantsil settled in?
Wonderfully! Pantsil is well on the way to becoming a cult hero. He's so manic in whatever he does you cannot help but like the guy. As for Bobby, he showed his class with a wonderfully taken goal against Bolton Wanderers and he's starting to forge a good partnership with Andrew Johnson. I've got to say I'm pleased with the acquisitions and I wouldn't bet against Zamora scoring against you lot this Saturday, these happens more often than not.
What do you make of West Ham so far this season?
After your fire-sale in the transfer window I wasn't too surprised that Curbishley walked but I was surprised by the appointment of Zola, a very brave move to appoint such an inexperienced guy, even though he is well respected in the world of football. It'll be interesting now the Tevez affair looks like coming back to bite you again whether you'll survive this storm or sink further into the mire.
Any West Ham players which concern you?
Dean Ashton if he's fit, Mark Noble always impresses me and Freddy Sears definitely looks like one for the future, Bellamy, if he's fit, can cause problems as well.
Any advice for the travelling West Ham fans.
Advice - wrap up warm its cold next to the river. As for pubs, drink in the ground we'd prefer you to donate your spare cash to us not the local publicans! Seriously, enjoy yourselves, well as much as you can when you're destined to lose.
Prediction for the game
It's going to be home win! 2-0 to Fulham with West Ham old-boys Konchesky and Zamora scoring.
Many thanks to Andrew Joyce at. http://www.fulham.vitalfootball.co.uk/
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Players hope to sue Hammers
Matt Lawton, Daily Mail
September 26, 2008 12:02pm
AT least 10 players relegated from the Premier League with Sheffield United have taken the first step in a multi-million dollar legal action against West Ham United.
The club is already demanding more than $65 million after an independent Football Association tribunal concluded that they should be compensated by West Ham in the wake of the Carlos Tevez scandal. But now the players who suffered financially as a result of the Blades' relegation to the Championship in May 2007 have opened discussions with leading UK sports lawyer Chris Farnell in a bid to make their own compensation claims. While players such as club skipper Chris Morgan remain at Sheffield United, discussions have also taken place with players who have moved on. As well as claiming the $2.5 million the players would have received in a collective bonus payment for Premier League survival, there will be a claim for a loss of earnings running into millions. Wages were slashed by as much as 50 per cent after relegation, which meant a player earning $50,000 a week in the Premier League lost as much as $1 million last season. Farnell spent much of yesterday in talks with Sheffield United players as well as their agents and the key thing he now has to establish is whether, within current Premier League regulations, there is the facility for individual players to make such a claim. Both the Premier League and West Ham can expect to be contacted in the next 48 hours. Farnell told the Daily Mail: "I've been contacted by various players with a view to looking at this claim, but at this stage I can say no more than that."
West Ham will fight any such action, just as they will continue in their efforts to have the tribunal's verdict over-ruled by either the Court of Arbitration for Sport (CAS) in Lausanne or a British court. Their chances of success at the CAS appear remote after CAS secretary-general Mathieu Reeb said the court would not hear a case referred by just one party in a dispute. "Two parties in a dispute can only refer a case to the CAS if they both agree in writing to come under CAS jurisdiction for a legal remedy," Reeb said. "If the English FA rules did have a specific clause allowing an appeal to the CAS in a case like the Tevez one, there would be no need for both parties to agree to have the case referred. But if there is nothing in the rules, it is mandatory that both parties agree in writing to go to the CAS."
- Daily Mail
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Tevez? Even Maradona couldn't have done it alone, says Zola
Hammers coach hits out at Griffiths' ruling
Fines won't influence club's transfer spending
Sachin Nakrani The Guardian, Friday September 26 2008
Gianfranco Zola has became the first West Ham employee to openly criticise this week's ruling by an independent arbitration panel on the Carlos Tevez affair. Zola said yesterday that even Diego Maradona could not have determined the outcome of matches in the way the panel allege Tevez did during his time at the club.
West Ham's new manager played with Maradona at Napoli when the Argentinian was widely considered the best player in the world and yesterday claimed that, as good as Maradona was, he could not have won a game single-handed. The comment was a direct criticism of Lord Griffiths, the chairman of the arbitration panel that ruled in favour of Sheffield United on Tuesday by stating that Tevez was worth three points to West Ham in the 2006-07 season, when they just pipped the south Yorkshire club to Premier League survival.
"During my time at Napoli I do not remember one occasion when Maradona won the game on his own, and he was the best player in the world," said Zola. "Obviously a great player can make a hell of a difference, but you still need all the other players to support you."
Zola's intervention will only inflame the bitter dispute which looks set to run for many months. Sheffield United players are considering suing West Ham, and the Hammers are determined to fight Griffiths' ruling - and Sheffield United's claim for £30m in compensation - at the Court of Arbitration for Sport, although CAS indicated yesterday that it would not hear the case because both parties have to agree to take the matter there.
It has become an unwelcome distraction for Zola so early in his tenure at the club, and one he believes is motivated more by the prospect of financial gain on the part of Sheffield United than the pursuit of justice.
"What is happening at the moment is not a nice thing for our sport," said the Italian. "Football is all about a pitch and 11 players versus another 11 players, but unfortunately it is now also becoming important for the money that is around it. Situations like this are happening more often, which is a real shame.
"But it is a club matter and I have been told that it won't change or influence our spending in January. That was the kind of assurance I wanted."
Considering that the assurance he was speaking about came from the West Ham chief executive, Scott Duxbury, Zola should perhaps not rest so easy. Leaks of Griffiths' ruling have implicated Duxbury in the transfer of Tevez to Upton Park in August 2006 and there is now the strong possibility he will be investigated by the Premier League, which would almost certainly cost him his job.
That is not a pressing concern for Zola, who says his priority is preparing the team for the challenges ahead, starting with tomorrow's visit to Fulham, and he says the players are fully focused on securing three points at Craven Cottage.
"All this has not in any way been a distraction on the training pitch this week, not at all," said Zola, who will be without Dean Ashton for a month because the striker is to have arthroscopic surgery to his left ankle next week to assess the extent of an injury. "The players are very focused."
Asked what he thought of Tevez, who may come up against West Ham when they face Manchester United on October 29, Zola could offer nothing but compliments. "Tevez is a great player and I like him very much," he said. "He is a bit like me but perhaps more of a striker than I was."
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McCabe ready to press Premier League again - Sheffield Telegraph
ate: 26 September 2008
By Alan Biggs
Sheffield United are preparing to wage a new campaign for redress from the Premier League after winning their case for damages against West Ham. Vindicated chairman Kevin McCabe could take his fight back to where it started with a possible financial claim against the Premier League - in addition to an awarded pay-out of up to £30m from the Hammers over the club's relegation two seasons ago.
And former sports minister Richard Caborn has suggested that West Ham could even play into the Blades' hands by taking legal action against the Premiership - for failing to force them not to play saviour Carlos Tevez in line with the rules they broke on third-party ownership.
Sheffield MP Caborn, a United fan and former director, gave a pointer to the chaos that could ensue from the Premier League neglecting to deal with the issue at source. He told the Telegraph: "It'll be interesting - it could mean that West Ham may well sue the Premier League for allowing them to continue to play their player. The Premier League will have to look at their rules."
Caborn agreed that such an action from Upton Park would, ironically, give United more ammunition to attack the Premiership over their original verdict, merely to fine West Ham and not deduct points.
"Yes, that may come by West Ham taking on the League," he said as he welcomed the verdict of the FA tribunal to find in favour of United's £30m compensation claim, with the exact amount to be set in the coming months. It's very important not only that justice is seen to be done but has been done. It brings integrity back to the governing of football."
McCabe may not be entirely in agreement with the last point where the Premiership is concerned. At the very least, he is likely use the FA panel's findings as a means of embarrassing Premier League chairman Sir Dave Richards and chief executive Richard Scudamore.
I believe McCabe, who held the pair publicly accountable for his club's contentious exit from the top flight, will bring fresh pressure to bear.
The form this will take and the objective of such a move is unclear. It has long been considered unworkable for United to be reinstated at West Ham's expense after a Premier League arbitration panel, sitting last summer, backed the Blades' sense of grievance but stopped short of recommending more action on top of the £5.5m the Upton Park club were fined in April, 2007. But Richards and Scudamore should be braced for renewed representations from the Blades for failing to protect them for the actions of another of the Premiership's member clubs.
It has been established that West Ham did not tear up Tevez's effective ownership by businessman Kia Joorabchian as they were instructed to do.
United gave a hint on their website this week of McCabe's intention not to let his original grievance drop. A statement confirming the club's successful action against West Ham added: "This award could now pose a question as to what the Premier League will do."
McCabe himself is refusing to add to this relatively low-key reaction: "I can confirm that both clubs have been notified of the ruling.
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Ashton to undergo surgery - Sunday Sun
Sep 26 2008
West Ham striker Dean Ashton faces a month on the sidelines after it was confirmed he requires an ankle operation.
The England international will go under the knife next week and early indications are that he could be out until the end of October. That would make Ashton unavailable for five Barclays Premier League fixtures and England's World Cup qualifiers against Kazakhstan and Belarus.
The club said on Thursday night: "Dean Ashton will undergo arthroscopic surgery to his left ankle next week to help assess the extent of his injury."
Ashton has already had to sit out last weekend's 3-1 Barclays Premier League win over Newcastle and the midweek Carling Cup defeat at Watford since suffering the original injury in training.
News of the surgery will be a blow for new West Ham manager Gianfranco Zola, who is yet to see Ashton play, but the setback could be eased slightly if Craig Bellamy proves he has recovered from a groin injury in time to play against Fulham.
The Welsh striker has made just one appearance this season, scoring off the bench in the 4-1 home win against Blackburn.
Bellamy would slot neatly into the 4-3-3 formation Zola employed with such success against Newcastle last weekend, when new Italian striker David di Michele scored twice.
Carlton Cole impressed Zola with his performance as the lone striker in that line-up and he could also return after missing the Watford defeat with a slight ankle injury.
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Gianfranco Zola will read riot act to wayward West Ham stars like Carlton Cole - The Mirror
By Darren Lewis 26/09/2008
West Ham boss Gianfranco Zola warned West Ham's players he will become Mr Nasty if they fall out of line like Carlton Cole. The 24-year-old West Ham striker has been fined two weeks' wages - around £30,000 - after being arrested on suspicion of drink-driving in Central London on Tuesday. Cole was bailed until November. Zola, widely regarded as one of the nicest guys in football, has given Cole another chance. But he said: "Being so nice doesn't mean I'm stupid - I have responsibility and I'm going to take it. "I have to take a decision and make sure there is a balance. If somebody makes a mistake I'm ready to be there and be the one who forces people to do things in the right way." He added: "When I was at Chelsea not everything was perfect and there were players who made mistakes and they paid for that. "Once, every now and then you can make one but it can't become a habit or you are spoiling your chances and spoiling the team's chances. "You have to be ready to help these people and make them realise it is wrong. I am sure that Carlton Cole 100 per cent realises this. "Of course, I've got a nasty side. You don't want to see me like that. I have my moments like everybody but this is not the case here. "It was a mistake, he was out for a long time and he realises this and that's it.
"I try to control my anger as much as I can - you have to have a nice balance if you want to keep control of things properly."
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Hammers keeper eager to make an overdue shut-out - Echo
7:41pm Thursday 25th September 2008
THE LAST time Robert Green played at Craven Cottage an unlikely thing happened - West Ham kept a clean sheet! That came some 19 Premier League games ago when a solitary Nobby Solano strike earned the Irons a 1-0 win over Roy Hodgson's Fulham outfit. Green, for obvious reasons, reckons another one is well overdue. And the keeper believes playing under boss Gianfranco Zola's new style of attacking football means a Premier League shut-out becomes all the more valuable. "It's been a while," said Green. "It's disappointing that we didn't keep one against Newcastle because I think we fancied our chances of keeping a clean sheet (West Ham won 3-1). These things happen in the Premier League. "You play more attacking, expansive football and you leave holes. "It'll be of value a clean sheet, any time in the Premier League, and to keep one at Craven Cottage would be. "The way we're playing is giving us the real opportunity, if we keep a clean sheet, to win games because of the way the manager wants us to play."
One man who will be desperate to ruin Green's chances is Fulham's former West Ham striker Bobby Zamora. The 27-year-old lifelong Irons' fan - who was sold for £4.8million in the summer after four-and-a-half years at Upton Park - has scored one goal in five appearances for Roy Hodgson's improving side. "He's a quality player," admitted Green. "Hopefully we'll manage to keep him quiet but you come up against these players every week. "You get past one challenge and you're onto the next."
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If anyone is to blame for Carlos Tevez debacle it is the Premier League - Telegraph
One of the first comments that will be made on the ruling of the independent tribunal in the matter of Sheffield United against West Ham United will be that it was not that of a court.
By Brian Moore
Last Updated: 10:12AM BST 25 Sep 2008
Maybe, but this will not wash because the panel are all highly qualified legally and both parties nominated one of the panel. This jurisdiction was mandated under Football Association rules and there is no right of appeal. That does not mean it is impossible to appeal, but the process is tortuous and legally difficult. West Ham, against whom the panel ruled, are now in a very difficult position.
There are some who question why this case was allowed to be brought at all, given that the question of playing the ineligible Tevez was dealt with by the Premier League and West Ham fined £5.5 million.
Unfortunately, unless it is clearly frivolous or vexatious a court or tribunal cannot throw out even an unlikely case, unless they find evidence from which they can conclude that it has no prospects of success, even if the factual matrix (list of actual facts pertaining to a case) averred by the party seeking damages is accepted.
What this tribunal had to decide was – had it not been for Tevez, would West Ham have won enough points to stay up?
Much was made of Tevez's contributions to the West Ham win over Manchester United at Old Trafford, but they would also have considered the fact that Tevez had scored six goals in West Ham's previous nine games. The tribunal decided they would not, and the damages flowing therefrom will be the subject of a further hearing.
The point has been forcefully made by many in the football world — in and out of the media, that nobody is able to know what the results would have been had Tevez not played following his ineligible registration. The debate over this sort of issue sinks quickly into philosophical realms. The tribunal decision would not have passed the first meditation of Descartes and his basic strategy of considering false any belief that falls prey to the slightest doubt. This "hyperbolic doubt" is summoned to criticise what is labelled a 'guess' by the tribunal.
The emotions that surround this matter are strong and cloud the real issues; the element of 'morality', in itself a hugely questionable concept, is with Sheffield. They went down and suffered all which that entails. Their most direct rival played an ineligible player and stayed up.
Though the decision of the tribunal, indeed of any ruling body, is open to question, that does not in itself make it wrong, whatever the Father of Modern Philosophy states. If these bodies did not indulge in this kind of speculation there would be no civil jurisdiction within which claims could be decided. You may not like this, but it is the foundation of the civil legal system and is used to decide cases infinitely more complex, and could I cause controversy by saying with more importance, than the one in issue.
Those who criticise the ruling by using the claim that it is no more than crystal-ball gazing are stating a truism. Moreover, one that is rejected by all litigants who accept the strictures faced by the body from which they seek the ruling.
Those who speculate about what would have happened had former Sheffield United player Steve Kabba played for Watford against his old team, in United's only win of their last five matches that season, are missing the point. That was not an issue over which this tribunal were asked to rule. If it had been, for example in a pleading from the respondent, then it would have been dealt with in the same way, on the balance of probabilities.
The precedent set is not a welcome one, but the alternative is to say that there is no right of redress at all in matters which involve calculated estimation of fact and consequence — i.e. anything at all.
Decisions are made with some regard to the precedent they may set, but this is not and should not be the deciding factor in the decision to be made at that time. What others decide to do as a consequence involves as much speculation as that decried in the judgment in which the precedent is created. How do you know that it will lead to a flood of challenges to all manner of football issues?
Finally, I question whether West Ham were the cause of any damage suffered, given that the eligibility issue had been ruled upon and they had been fined by the Premier League. Once that decision had been made I believe they were entitled to consider the ineligibility issue closed.
Whether they should have had points docked and not a fine is a different argument, but not one which Sheffield United thought important enough to launch legal action at the time. If anybody caused this damage it was the Premier League, who allowed West Ham to continue fielding Tevez.
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West Ham's Carlos Tevez appeal falters to leave the club on the ropes - Telegraph
West Ham's hopes of avoiding a huge pay-out over the Carlos Tevez affair were dealt a potentially devastating blow when the Court of Arbitration for Sport (CAS) said that they would not hear an appeal without the agreement of Sheffield United.
By Jeremy Wilson
Last Updated: 1:21AM BST 26 Sep 2008
In the firing line? Scott Duxbury (left), West Ham's CEO, could face action from the Premier League over Carlos Tevez affair. Photo: Getty Images
An independent arbitration tribunal have already ruled in favour of Sheffield United, who are claiming up to £30 million. And there were suggestions last night that at least 10 of the Sheffield players could launch their own multi-million claim for compensation.
West Ham have instructed their lawyers to draft a statement of appeal to CAS. However, CAS general secretary Matthieu Reeb yesterday said that the case could only be heard if an appeal was either part of the Football Association's rules or both parties had agreed in writing to further arbitration.
"If the English FA rules did have a specific clause allowing an appeal to CAS in a case like the Tevez one, there would be no need for both parties to agree to have the case refereed," Reeb said. "But if there is nothing in the rules, it is mandatory that both parties agree in writing to go to CAS."
The FA facilitated the independent arbitration tribunal and have clearly stated that "there is no further right of appeal" under their rules. Having won the tribunal, it also appears highly unlikely that Sheffield United would support the idea of having a West Ham appeal heard at CAS.
West Ham, though, have received advice from some of the country's leading sports lawyers, including Manchester United director Maurice Watkins, and believe that they do still have grounds to approach CAS. They would point out that a precedent was set when they were forced to go through the FA's arbitration procedure after they had already been fined £5.5 million for breaking Premier League rules over Tevez.
Given the complicated background, they could also argue that the whole case should now be dealt with by CAS. However, West Ham's decision to appeal was questioned yesterday by the FA chairman, Lord Triesman.
"If it is going to go through the courts it is going to drag on and on," he said. "It would be much simpler for people to observe the rules of football. The FA is a pretty decent regulatory body."
Following leaks to the press, there is also increasing pressure on the tribunal to fully publish their findings. Wigan chairman Dave Whelan said: "You can't keep that secret. That is not democracy."
The Premier League will only decide whether to launch any action against West Ham chief executive Scott Duxbury once they have seen the full transcript of the tribunal's judgment.
It is alleged that Duxbury verbally suggested to Graham Shear, football agent Kia Joorabchian's solicitor, that the club would honour the third party agreement which they unilaterally terminated so that Tevez could continue playing. West Ham have never denied that conversations took place, but maintain that they always intended to deal with any dispute over their actions at the end of the season.
West Ham manager Gianfranco Zola confirmed he had fined Carlton Cole after the striker was arrested on suspicion of drink driving at 4.30am on Tuesday. "He is sorry about being out at such a time," Zola said. "I can accept certain things but I will not accept players not looking after their bodies." Zola will also be disappointed to learn that striker Dean Ashton is to have an ankle operation next week and faces about a month on the sidelines.
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Another shock for West Ham as Sheffield United players plan to sue - Daily Mail
By Matt Lawton Last updated at 12:50 AM on 26th September 2008
At least ten of the players who were relegated with Sheffield United have taken the first step in launching their own multi-million pound legal action against West Ham.
Their Bramall Lane employers are already demanding more than £30million after an independent Football Association tribunal concluded that they should be compensated by West Ham in the wake of the Carlos Tevez scandal. But now the players who have suffered financially as a result of United's relegation to the Championship in May 2007 have opened discussions with a leading UK sports lawyer in a bid to make their own claim for compensation. Sportsmail's Charles Sale revealed the plan on Thursday and by the evening a group of the demoted side were involved in the discussions with Chris Farnell of IPS Law. While players such as club skipper Chris Morgan remain at Bramall Lane, discussions have also taken place with players who have moved on. As well as claiming the £1m the players would have received in a collective bonus payment for Barclays Premier League survival, there will be a claim for a loss of earnings running into millions. Wages were slashed by as much as 50 per cent after relegation, in basic salary and appearance money, which meant a player earning £20,000 a week in the Premier League lost as much as £500,000 last term. It is understood that Farnell spent much of Thursday in talks with players at Bramall Lane as well as their agents and the key thing he now has to establish is whether, within current Premier League regulations, there is the facility for individual players to make such a claim. Both the Premier League and West Ham can expect to be contacted in the next 48 hours. Farnell told Sportsmail: 'I've been contacted by various players with a view to looking at this claim, but at this stage I can say no more than that.'
The situation is unprecedented and yet another example of the impact the independent tribunal's verdict may have on English football. The Premier League could also be targeted by the players for a compensation claim and one senior football official remarked last night: 'It hasn't just opened a can of worms but a barrel full of pythons.'
West Ham will fight any such action, just as they will continue in their efforts to have the tribunal's verdict over-ruled by either the Court of Arbitration for Sport (CAS) in Lausanne or a court in this country. On Thursday, their chances of success in Lausanne appeared remote after CAS secretary-general Mathieu Reeb said the court would not hear a case referred by just one party in a dispute. 'Two parties in a dispute can only refer a case to the CAS if they both agree in writing to come under CAS jurisdiction for a legal remedy,' said Reeb. 'If the English FA rules did have a specific clause allowing an appeal to the CAS in a case like the Tevez one, there would be no need for both parties to agree to have the case referred. 'But if there is nothing in the rules, it is mandatory that both parties agree in writing to go to the CAS.'
Lawyers representing West Ham are continuing to examine the situation and they already recognise that the issue of jurisdiction, and whether the CAS can hear the case, needs to be resolved. They would, however, argue that they had no desire to enter arbitration with the independent tribunal but were left with no choice by the FA.
On Thursday night it emerged that West Ham might, in fact, be better served taking their case to an English court. Some legal experts believe Lord Griffiths and his two colleagues on the tribunal have committed a crucial legal error when it comes to applying the law to the contractual obligations between member clubs of the Premier League. 'It's a question of whether it extends to the extent that Lord Griffiths clearly believes it does,' said one observer. 'After all, how can anyone say that one player has determined the outcome of a 38-game season for two clubs? 'It might be more prudent for West Ham to forget about the CAS and take their case to an English court instead. In an English court they might just win.'
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Sheffield United v West Ham: The £30m claim in full - Daily Mail
By Sportsmail Reporter Last updated at 12:01 AM on 26th September 2008
IN THE MATTER OF AN ARBITRATION UNDER RULE K OF THE RULES OF THE FOOTBALL ASSOCIATION AND IN THE MATTER OF THE ARBITRATION ACT 1996
B E T W E E N:
SHEFFIELD UNITED FOOTBALL CLUB LIMITED Claimant
- and -
WEST HAM UNITED FOOTBALL CLUB PLC Respondent
____________________________________
PARTICULARS OF QUANTUM OF LOSS ____________________________________
Expressions defined in the Points of Claim are used with the same meanings in these particulars
1. These particulars set out Sheffield's current best estimate of the loss and damage that it has suffered and will continue to suffer during the 2007/2008 Championship season by reason of West Ham's breaches of the FAPL Rules pleaded in the Points of Claim. The total of the figures quantified in these particulars is £30,396,897.32.
2. Sheffield reserves the right to serve further particulars setting out additional loss and damage that it may suffer in future seasons. The amount of that additional loss and damage will depend on whether Sheffield achieves promotion to the Premier League for the 2008/2009 season and will only become clear at that time.
3. The particulars in paragraphs 4 to 24 below quantify the loss and damage pleaded in sub-paragraphs 74(1) to 74(10) of the Points of Claim. The particulars in paragraphs 25 and 26 below allege an additional head of loss and damage that was not pleaded in paragraph 74 of the Points of Claim. PYS/JFR/47163.00007 Page 2 HEADS OF LOSS PLEADED IN PARAGRAPH 74 OF THE POINTS OF CLAIM Lost payments under the FAPL Rules (sub-paragraph 74.1)
4. Had Sheffield remained a member of the Premier League during the 2007/2008 season, it would have received pursuant to section C of the FAPL Rules the following payments totalling £21,788,795:
(1) £6,722,992 from the "Basic Award Fund" pursuant to rule 34.1 of the FAPL Rules. This amount is the difference between the half share in the "Basic Award Fund" that Sheffield has received as a relegated club and the full share that it would have received had it remained a member of the Premier League.
(2) £484,182 from the "Merit Payments Fund" pursuant to rule 34.2 of the FAPL Rules. This amount represents the additional share in the "Merit Payments Fund" that Sheffield would have received had it finished in 17th position rather than 18th position in the Premier League at the end of the 2006/2007 season.
(3) A further £2,881,284 from the "Merit Payments Fund" pursuant to rule 34.2 of the FAPL Rules. This amount is calculated on the assumption that, had Sheffield not been relegated at the end of the 2006/2007 season, it would have finished in 17th position in the Premier League at the end of the 2007/2008 season. It would consequently have been entitled to 4 shares in the "Merit Payments Fund", each of which would have been worth £720,321.
(4) £5,235,782 from the "Facility Fees Fund" pursuant to rule 34.3 of the FAPL Rules. This amount has been calculated on the basis that, if Sheffield had been a member of the Premier League during the 2007/2008 season, 10 of its matches would have been transmitted live, 10 would have been transmitted on the BBC and 28 would have been transmitted "near live". PYS/JFR/47163.00007 Page 3
(5) £4,669,023 from the "Overseas Broadcasting Money" pursuant to rule 36 of the FAPL Rules. This amount is the difference between the half share in the "Overseas Broadcasting Money" that Sheffield has received as a relegated club and the full share that it would have received had it remained a member of the Premier League during the 2007/2008 season.
(6) £452,640 from the "Title Sponsorship Money" pursuant to rule 38 of the FAPL Rules. This amount is the difference between the half share of the "Title Sponsorship Money" that Sheffield has received as a relegated club and the full share that it would have received had it remained a member of the Premier League during the 2007/2008 season.
(7) £1,342,892 from the "Commercial Contract Money" and the "Radio Contract Money" pursuant to rules 40 and 43 respectively of the FAPL Rules.
5. Sheffield will give credit in the sum of £1,284,926 for the payments that it has received or will receive from the Football League as a Championship club during the 2007/2008 season.
6. Under this head of loss and damage, Sheffield accordingly claims £20,503,868, being the difference between £21,788,795 and £1,284,926. Lost revenue from ticket sales (sub-paragraph 74.2)
7. Sheffield's income from ticket sales during the 2007/2008 Championship season will be lower than it would have been had Sheffield remained a member of the Premier League. Sheffield's ticket sales comprise match-day and season tickets. It will sell fewer of both types of ticket for the 2007/2008 season because demand is lower for Championship matches than for Premier League fixtures. Similarly, the prices that Sheffield can PYS/JFR/47163.00007 Page 4 charge for both types of ticket are lower than they would have been had Sheffield remained a member of the Premier League during the 2007/2008 season.
8. Under this head of loss and damage, Sheffield claims £2,239,746.83, which comprises the following: (1) £1,172,798.83 for lost income from match-day ticket sales; and (2) £1,066,948 for lost income on season ticket sales.
9. Further, following its relegation from the Premier League at the end of the 2006/2007 season, and in order to mitigate its lost income from ticket sales, Sheffield sold season tickets for the 2007/2008 Championship season on the basis that purchasers would be entitled to receive half-price season tickets for the 2008/2009 Premier League season if Sheffield achieved promotion. Sheffield accordingly reserves the right to plead its lost income from season ticket sales for the 2008/2009 season if it is promoted to the Premier League at the end of the 2007/2008 season. Lost profit from sponsorship, catering and merchandising (sub-paragraph 74.3)
10. Sheffield's income from sponsorship and private boxes, and its profit from catering and the sale of merchandise, will be less during the 2007/2008 Championship season than they would have been had Sheffield remained a member of the Premier League. Demand is lower for these products now Sheffield is a Championship club rather than a Premier League club, in part because average attendances at home matches are lower. The prices that Sheffield can command for these products are also lower.
11. Under this head of loss and damage, Sheffield claims £1,481,789, which comprises the following:
(1) £994,199 for lost income from team sponsorship and advertising revenue; PYS/JFR/47163.00007 Page 5
(2) £253,075 for lost profit on sales of Sheffield's merchandise and match-day programmes;
(3) £121,300 for lost income from sales of private boxes;
(4) £80,015 for lost profit on catering at Sheffield's home matches; and
(5) £33,200 for lost income from match-day sponsorship. Lost value of players (sub-paragraph 74.4)
12. As a result of its relegation at the end of the 2006/2007 season, Sheffield lost approximately half of the value of its most valuable player, Phil Jagielka. Under the terms of the player contract between Sheffield and Mr Jagielka, if Sheffield was relegated from the Premier League at the end of the 2006/2007 season, it was obliged to facilitate his transfer to any club that offered £4 million. Following Sheffield's relegation at the end of the 2006/2007 season, Everton FC purchased Mr Jagielka for that amount. Sheffield estimates that Mr Jagielka's true market value at the end of the 2006/2007 season was at least £8 million.
13. Under this head of loss and damage, Sheffield accordingly claims £4 million, being the difference between the estimated market value of Mr Jagielka when Sheffield sold him and the price that Sheffield received from Everton FC. Additional compensation payments to management (sub-paragraph 74.5)
14. Sheffield is liable to pay substantial bonuses to its existing manager and assistant manager if it achieves promotion to the Premier League at the end of the 2007/2008 season. This liability would not exist if Sheffield had not been relegated at the end of the 2006/2007 season. Sheffield accordingly reserves the right to plead its loss in this regard if it is promoted to the Premier League at the end of the 2007/2008 season. PYS/JFR/47163.00007 Page 6 Additional expenses for home fixtures (sub-paragraph 74.6)
15. Sheffield will incur expenses for the additional 4 home league matches that it will host as a Championship club during the 2007/2008 season that it would not have hosted had it been a member of the (smaller) Premier League. These expenses cover, in particular, the presence of stewards, the police and the ambulance service.
16. Under this head of loss and damage, Sheffield claims £23,651. For the avoidance of doubt, this sum is net of the extra revenue that Sheffield will receive from the additional 4 home league matches that it will host during the 2007/2008 Championship season. Additional financing costs (sub-paragraph 74.7)
17. Sheffield has paid and will continue to pay higher interest charges on loans made to it during the 2007/2008 Championship season than it would have paid had it remained a member of the Premier League. By reason of its relegation at the end of the 2006/2007 season, Sheffield was obliged to repay in full a loan of £5 million from its bankers and to obtain alternative financing of £10 million from another lender, SDG Caledonia. Had Sheffield remained a member of the Premier League during the 2007/2008 season, it would have been obliged to repay only £2 million of the loan from its bankers and would not have required any financing other than the remaining £3 million of that loan.
18. Under this head of loss and damage, Sheffield claims £577,753.51, being the difference between the interest payments that it will make to SDG Caledonia during the 2007/2008 Championship season and the interest payments that it would have made to its bankers under the £3 million loan had it remained a member of the Premier League. PYS/JFR/47163.00007 Page 7 Reduced grants (sub-paragraph 74.8)
19. Sheffield will receive lower youth academy and community funding grants as a Championship club during the 2007/2008 season than it would have done had it been a member of the Premier League.
20. Under this head of loss and damage, Sheffield claims £337,048, being the difference between the grant payments that it will receive during the 2007/2008 Championship season and the grant payments that it would have received had it been a member of the Premier League. Additional cost of the Football League's ticket levy (sub-paragraph 74.9)
21. Sheffield is obliged to pay to the Football League a levy of 3% on its income from league match ticket sales during the 2007/2008 Championship season. The FAPL does not impose such a levy on members of the Premier League. Had Sheffield not been relegated at the end of the 2006/2007 season, it would accordingly not have had to pay a levy.
22. Under this head of loss and damage, Sheffield claims £175,448.62, being its estimate of the amount that it will have to pay to the Football League on ticket sales for the 2007/2008 Championship season. Lost business opportunities (sub-paragraph 74.10)
23. Sheffield lost the opportunity to earn fees from an overseas tour prior to the 2007/2008 season. Had Sheffield not been relegated at the end of the 2006/2007 season, it would have received one or more invitations to play in pre-season matches overseas. Sheffield's best estimate of the fees that it would have earned from such matches is £500,000 plus expenses. Sheffield received no such invitation following its relegation PYS/JFR/47163.00007 Page 8 and was obliged, on the contrary, to organise a short tour to the Republic of Ireland at its own expense for which it did not receive a fee.
24. Under this head of loss and damage, Sheffield claims £531,989.90, being the sum of the estimated fees that Sheffield would have earned for pre-season matches as a Premier League club and the expenses that it incurred for its tour to the Republic of Ireland as a Championship club.
ADDITIONAL HEAD OF LOSS
25. Sheffield has paid legal fees and expenses in connection with its unsuccessful challenge to the Disciplinary Decision. Had West Ham not acted in breach of the FAPL Rules as alleged in the Points of Claim, Sheffield would not have incurred those fees and expenses.
26. Under this head of loss and damage, Sheffield claims £525,602.46, being the sum of its own legal fees, the legal fees of other parties that it was ordered to pay and has paid, and arbitrators' fees.
Served this 17th day of December 2007 by Denton Wilde Sapte LLP of One Fleet Place, London EC4M 7WS, solicitors for the Claimant.
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Sheffield United v West Ham: Arbitration judgment - Daily Mail
By Sportsmail Reporter Last updated at 1:50 AM on 26th September 2008
IN THE MATTER OF THE ARBITRATION ACT 1996
AND
IN THE MATTER OF AN ARBITRATION UNDER RULE K OF THE RULES OF THE FOOTBALL ASSOCIATION
B E T W E E N:
Sheffield United Football Club Limited Claimant
- and -
West Ham United Football Club plc Respondent
REASONS FOR INTERIM AWARD
INTRODUCTION
1. In this arbitration the Claimant, Sheffield United Football Club Limited, claims damages against the Respondent, West Ham United Football Club plc, for breach of contract.
The breaches of contract are said to consist of breaches of the rules of the Football Association Premier League ("the Premier League") of which both parties were members during the 2006-7 football season.
2. At the end of that season Sheffield United finished third from the foot of the Premiership table and was relegated to the Championship. West Ham finished the season on 41 points with a marginally inferior goal difference to that of Sheffield United. The latter was relegated on 38 points with an inferior goal difference to that of Wigan Athletic, which also finished with 38 points. The other two clubs to be relegated were Charlton Athletic and Watford with, respectively, 34 and 28 points.
3. As is apparent from the above, if West Ham had achieved three less points over the season, it would have been relegated and Sheffield United would have remained in the Premiership for the following season. The "relegation battle" was keenly fought at the end of the 2006-7 season. At one time it seemed that West Ham was destined for relegation. Thus, on 4 March 2007 West Ham was bottom of the premiership with only 20 points. However, towards the end of the season the club accomplished what was dubbed by commentators "the great escape". It put together a most impressive sequence of performances, culminating in a 1-0 victory over the champions Manchester United on the last day of the season, and in the event the club narrowly avoided relegation. West Ham's results over the last 9 matches of the season were as follows:
17 March (w) Blackburn 1 West Ham 2
31 March (w) West Ham 2 Middlesborough 0
7 April (w) Arsenal 0 West Ham 1
14 April (l) Sheffield Utd 3 West Ham 0
18 April (l) West Ham 1 Chelsea 4
21 April (w) West Ham 1 Everton 0
28 April (w) Wigan 0 West Ham 3
5 May (w) West Ham 3 Bolton 1
13 May (w) Manchester Utd 0 West Ham 1
4. Carlos Tevez and Javier Mascherano are two highly gifted Argentinian footballers. They both used to play for the well known Corinthians football club in Brazil and represented Argentina in the 2006 World Cup. It was with considerable surprise that the football world then learned at the end of the 2006 summer transfer window that Mr Tevez and Mr Mascherano had signed for West Ham. West Ham had been promoted to the Premiership in 2005. It had done well in its first season after promotion, reaching the FA Cup Final and finishing a creditable ninth in the league. But, it was certainly not a club of the stature or indeed player ability of, say, the so-called "big four". Internationally known stars like Mr Tevez and Mr Mascherano would not normally be expected to join a club such as West Ham. When they did so, it was widely regarded as a tremendous coup for the club.
5. Mr Mascherano was in fact transferred from West Ham to Liverpool in the January 2007 transfer window. However, Mr Tevez remained with West Ham for the whole of the 2006-7 season before being transferred to Manchester United for which he now plays. Whilst the extent of his contribution to West Ham's performances, particularly over the last quarter of the season, was in issue before us, on any showing he played his part in West Ham's successful fight against relegation.
6. It is Sheffield United's case that Mr Tevez's registration for West Ham was only achieved through breaches of the Premier League rules. The two critical rules are Rule B13 and Rule U18. They provide as follows:
Rule B13 In all matters and transactions relating to the League each Club shall behave towards each other Club and the League with the utmost good faith. 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 of the competitions set out in Rule E.10 It was not in dispute before us that, at least vis-à-vis the Premier League, West Ham was in breach of both these rules by reason of the terms on which it contracted for Mr Tevez and Mr Mascherano to play for West Ham and the way in which it procured the players' registration with the Premier League.
7. On Sheffield United's case Mr Tevez should never have been playing for West Ham at all, and it is said that the club only avoided relegation at the expense of Sheffield United because of his particular contribution to West Ham's performances in the final quarter of the season. Alternatively, it is said that for the serious breaches of the Premier League rules which occurred in this case West Ham should have been disciplined by a deduction of points. In the event, when the infractions of the rules at the time of Mr Tevez's and Mr Mascherano's registration came to light, there was a disciplinary hearing conducted by a Commission in accordance with Section R of the rules of the Premier League. West Ham was heavily fined. But points were not deducted and, on certain conditions, Mr Tevez's registration for West Ham was not terminated. Sheffield United contend that, if the true position had been revealed, either or both of a points deduction or termination of Mr Tevez's registration would have occurred. In either eventuality it is said that West Ham would not have stayed up in the Premiership. It is therefore necessary for us to consider the history of material events from the time of Mr Tevez's (and Mr Mascherano's) initial registration as West Ham players until Mr Tevez's departure to Manchester United.
BACKGROUND TO THE REGISTRATION
8. In the summer of 2006 a consortium of investors represented by Mr Kia Joorabchian ("the Joorabchian consortium") was preparing to make a bid for a takeover of West Ham United plc, the parent company of West Ham. By the end of August 2006 negotiations were well advanced. We were told that a bid by the Joorabchian consortium was much favoured by, in particular, Mr Aldridge and Mr Brown, two principal shareholders and respectively the Managing Director and Chairman of the company. On the other hand, others such as Mr Igoe, the Finance Director, and Mr Duxbury had reservations. Mr Duxbury, a qualified solicitor, was then Legal and Commercial Director of West Ham although he was not on the main board. He is now the Chief Executive Officer.
9. Concurrently with conducting the takeover negotiations Mr Joorabchian was also involved with attempts to place Mr Tevez and Mr Mascherano with a European football club. They were leaving Corinthians in Brazil for whom they had been playing, and Mr Joorabchian had also severed his ties with that club. Mr Joorabchian mentioned a number of well known football clubs with whom there had been some discussions over Mr Tevez and Mr Mascherano by the end of August 2006 including Manchester United, Chelsea and Liverpool in England and Inter Milan in Italy. However, it seems that the English clubs had doubts over the suitability of the players for the English Premiership. Accordingly, the position had been reached where insufficient interest in the players had been shown by English clubs so that, with the summer transfer window due to expire in England at the end of August 2006, it was looking as if they would not be joining a leading English club for the 2006-7 season. Mr Joorabchian mentioned the alternative of a continental European club - Inter Milan was mentioned specifically by him - but we cannot say how realistic such a possibility was at the time.
10. Against the above background Mr Joorabchian approached West Ham over Mr Tevez and Mr Mascherano. In doing so, Mr Joorabchian was acting for certain offshore companies which, as we were told although the matter was not explored at all in the evidence, held long term contractual rights over the players. They were Global Soccer Agencies Limited and Mystere Services Limited in the case of Mr Mascherano and MSI Group Limited and Just Sports Inc in the case of Mr Tevez. We shall, as the parties did before us, refer to these companies as the "rights owners". Mr Joorabchian's idea was that either the potential takeover by his consortium would succeed, in which case he and the rights owners would be happy to have players of the calibre of Mr Tevez and Mr Mascherano playing for West Ham, or it would fail. In the latter event the intent would be to transfer the players to more prestigious clubs, but in the meantime they would be playing for West Ham as, in Mr Joorabchian's words, "a shop window" for them to demonstrate their Premiership quality. As for West Ham, the attraction of obtaining players of the calibre of Mr Tevez and Mr Mascherano (without having to pay any transfer fee), even for a potentially limited period, was obvious.
11. The initial negotiations with Mr Joorabchian over Mr Tevez and Mr Mascherano were conducted by Mr Aldridge and Mr Brown for West Ham. The precise point of time when Mr Duxbury first became involved is not entirely clear although on any showing Mr Duxbury became heavily involved in the contractual discussions on 30 August 2006. There were a number of individuals who participated, and there was conflicting evidence about precisely who was being represented by whom. But ultimately we do not think that matters for our purposes. The negotiations started in the offices at West Ham on 30 August 2006 and continued late into the evening at a London hotel where the players were staying. What was ultimately agreed is apparent from the contractual documents which were signed late on 30 and early on 31 August 2006.
THE CONTRACTUAL STRUCTURE
12. Under the contractual arrangements for Mr Tevez, he personally executed a standard form of Premier League player contract with West Ham dated 31 August 2006. The term of the contract was expressed to be until 30 June 2010 so that it was, on the face of it, to last for almost 4 years with only limited possibility of early termination. However, this player contract did not reflect the full contractual picture. The true contractual arrangements were radically different in consequence of what became called by the parties the "private agreement". This was a contract dated 30 August 2006 and made between West Ham and the two Tevez rights owners, both Virgin Islands companies. Mr Tevez also signed the contract personally. It is unnecessary to recite at length the wording of the various clauses of this private agreement. But the broad effect of its main material clauses was as follows:
(a) West Ham and Mr Tevez acknowledged that the economic rights over Mr Tevez were vested in the rights owners.
(b) The rights owners had the absolute entitlement to require West Ham to transfer Mr Tevez to another club in the January 2007 transfer window on payment of £2 million and in every transfer window thereafter on payment of £100,000.
(c) West Ham was precluded from transferring Mr Tevez and from entering into any contractual arrangement relating to Mr Tevez or any variation or termination of his player contract without the rights owners' consent.
(d) West Ham was required to insure Mr Tevez for the benefit of the rights owners for a minimum of 30 million euros.
13. As for Mr Mascherano, the contractual arrangements were similar although not absolutely identical. There was a player contract also dated 31 August 2006 which was on the face of it to last for nearly 5 years, i.e. until 30 June 2011. There was also a private agreement between West Ham and the two applicable rights owners, in this case two Gibraltar companies. The provisions were similar to those of the other private agreement. Some differences we note are that (i) the entitlement to require a transfer of Mr Mascherano in any transfer window at all was subject to the payment of £150,000 (ii) there was a requirement for West Ham to pay to one of the rights owners what was called a sporting utilisation fee of 500,000 euros and (iii) the insurance value of Mr Mascherano was put at 20 million euros.
14. In short, notwithstanding the purported effect of the player contracts, the rights owners rather than West Ham retained future control over Mr Tevez's and Mr Mascherano's destiny in terms of the football club to which either was to be contracted. This was the essence of the arrangements. There was no question from the rights owners' perspective of any conventional outright transfer of the players to West Ham such as the ordinary form of Premier League player contract envisages. Mr Duxbury put it this way in his evidence:
The whole motivation behind the private agreements was purely to protect Joorabchian and the positions of the companies should the takeover not succeed, because they would then be able to serve notice on West Ham in a transfer window requiring the transfer of the players. Obviously, this motivation would be entirely incompatible with a conventional transfer of the players to West Ham on ordinary Premier League standard form terms. The evidence was that, at least from the perspective of one of the Mascherano rights owners, a straightforward one year transfer to West Ham would not have been acceptable.
REGISTRATION OF THE PLAYERS WITH THE PREMIER LEAGUE
15. Mr Tevez and Mr Mascherano came to be registered with the Premier League as West Ham players in the following circumstances. There are significant differences between the accounts of Jane Purdon, a solicitor and company secretary and head of football administration at the Premier League, on the one hand and Mr Duxbury on the other hand as to what was said in the course of telephone conversations between themselves. However, given what was ultimately admitted by West Ham at the disciplinary hearing before the Commission and West Ham's admissions before us, we are of the view that it is not necessary for us to examine these differences at great length. West Ham would appear to agree. In suggesting that Miss Purdon need not give oral evidence and saying that they did not wish to cross-examine her on her witness statement (albeit its accuracy was not accepted by them) West Hams's solicitors stated position was that "the issues to which her evidence relates are of no material relevance to the issues in the case".
16. At some time prior to the conclusion of the contracts on 30 and 31 August Mr Duxbury, evidently concerned about the compatibility of what was being proposed for the players with the rules of the Premier League, spoke to Miss Purdon on at least one occasion with an inquiry whether the Premier League would accept a break clause in a player's contract that could be exercised by a third party. According to Miss Purdon, she expressly told Mr Duxbury that this would not be acceptable under Rule U18 of the Premier League Rules. Mr Duxbury disputes this. On his version there was no mention of Rule U18 at that time. Indeed, he says that he was quite unaware of Rule U18 – something which the Chairman of the Commission subsequently said he thought, as we do, to be "extraordinary". However, Mr Duxbury does accept that he was at least put on notice by Miss Purdon that "third party ownership and control over a player might cause a problem within the Rules of the Premier League".
17. Following what Mr Duxbury had been told by Miss Purdon, a decision was taken at West Ham to have two contracts relating to each of Mr Tevez and Mr Mascherano, one a conventional Premier League player contract and the other the private agreement incorporating all the rights owners' entitlements. The private agreements were to be kept secret from the Premier League. It was Mr Duxbury's evidence before us that, without reverting to Miss Purdon, he personally checked the Rules and advised Mr Aldridge that this approach would be acceptable.
18. The contracts having been concluded, West Ham submitted the player contracts and other documents, but not the private agreements, to the Premier League on 31 August 2006 for the registration of Mr Tevez and Mr Mascherano as West Ham players. The transfer window expired on that day. The Premier League was evidently troubled about how players like Mr Tevez and Mr Mascherano had come to be signed to West Ham. On 1 September 2006 Mr Duxbury was asked by Mr Brown to speak to Miss Purdon about the arrangements for Mr Tevez and Mr Mascherano in order, presumably, to allay the Premier League's concerns.
19. Again, there are considerable differences in the respective accounts of Miss Purdon and Mr Duxbury about what was said on the telephone on 1 September 2006. Nevertheless, it is beyond question that, even on his own account, Mr Duxbury was guilty of seriously misleading the Premier League. According to Miss Purdon, and her account is supported by an attendance note made by her on the same day, Mr Duxbury expressly assured her that West Ham had no arrangement with any third party in respect of the players and owned all the rights in the players. On her evidence, what Mr Duxbury told her was a deliberate falsehood backed up by Mr Duxbury citing in support his position as a solicitor and officer of the Court. Mr Duxbury for his part confirmed that Miss Purdon did want to know if West Ham owned all the rights in the players. His evidence was that he told her that "the Club owned all the player rights". He also told us that she specifically asked if there were any side agreements relating to them. His response, according to him, to difficult questions which Miss Purdon was posing was simply not to answer the question but to state, more than once, that the League had all the documents required for the registration of Mr Tevez and Mr Mascherano as West Ham players.
20. Whatever Mr Duxbury did say, it evidently reassured Miss Purdon in relation to the registration of the players. She reported to the Board of the Premier League what Mr Duxbury had told her and, in the light of that, the Board decided to approve the registration of the two players. She then telephoned Mr Duxbury later on the same day to confirm that the registration had now been approved.
21. For completeness we should also record that there was apparently a meeting a week later between Mr Aldridge and the Chief Executive of the Premier League. West Ham do not dispute, and always have accepted, that at this meeting the former told the latter that there was no documentation relating to the transfer of the players other than what had already been disclosed to the Premier League. This was untrue.
22. We note that subsequently the Commission was sure that Miss Purdon's evidence was correct and, albeit without having heard oral evidence and cross-examination, accepted what she said. Like the Commission, we have great difficulty in accepting Mr Duxbury's version of events even though we have had the advantage of hearing him give oral evidence. However, there is no need for us to elaborate in the light of West Ham's subsequent admissions before the Commission. Paragraph 3 of the complaint against West Ham before the Commission included the following:
In particular, and without limitation: 3.1 on 1 September 2006, an Official of the Club, namely the then Legal and Commercial Director Mr Scott Duxbury, told Ms Jane Purdon of the Premier League during a telephone conversation that the Club had not entered into any arrangements with any third parties in respect of Mr Tevez or Mr Mascherano and that the Club owned all the rights in the players. In reliance on Mr Duxbury's assurance, the Premier League approved the registration of Mr Mascherano and Mr Tevez with the Club; …….
Up until the day of the hearing West Ham denied this allegation, albeit admitting other parts of the complaint. However, at the beginning of the hearing West Ham by its Counsel told the Commission that West Ham admitted the remainder of the charges. Moreover, whatever the detail, West Ham now accept that what Mr Duxbury said to Miss Purdon on 1 September 2006 did put West Ham in breach of its duty of good faith under Rule B13 of the Premier League rules.
THE ICELANDIC CONSORTIUM
23. The projected takeover of West Ham by the Joorabchian consortium did not in the event get very far. What actually happened was that the club was taken over by a consortium of Icelandic investors led by Mr Eggert Magnusson. In October 2006 the Icelandic consortium made its initial approach to West Ham. At first the approach was unwelcome, but we were told by Mr Magnusson that following an introduction at an Arsenal game in early November 2006 matters started to move quickly. On 21 November 2006 West Ham made a formal announcement recommending the Icelandic consortium's bid. Mr Magnusson's evidence was that he was in situ at the club a few days prior to the formal announcement. He was formally appointed Chairman in early December 2006.
THE AMENDMENT
24. Mr Magnusson became aware of the contractual arrangements relating to Mr Tevez and Mr Mascherano during the lead up to the takeover by the Icelandic consortium. He told us, and there is no reason to believe otherwise, that it never occurred to him that there had been a breach of the Premier League rules or that disclosure had been withheld from the Premier League. However, Mr Magnusson regarded the contractual arrangements as unsatisfactory. He was unhappy with contracts which restricted the club's freedom to deal with the club's players as it wished. He had never seen any comparable contracts before. Moreover, both players were being paid high salaries which Mr Magnusson regarded as detrimental to West Ham at a time when neither player was for various reasons contributing very much to West Ham's performances. Accordingly, Mr Magnusson was broadly in favour of a proposal to amend the Tevez contractual arrangements. This was a proposal which had originated with Mr Joorabchian although Mr Magnusson decided that the proposal should not be formalised in an agreement until after the takeover by the Icelandic consortium had gone through.
25. The proposal was for an amendment to the private agreement relating to Mr Tevez. Mr Joorabchian (with presumably the rights owners) was unhappy with the clause in the Tevez private agreement which would require the rights owners to pay West Ham £2 million if Mr Tevez were to be transferred in the January 2007 transfer window. There was no comparable clause in the Mascherano private agreement. For his part Mr Magnusson was prepared to agree to a reduction in the amount payable from £2 million to 600,000 euros. But the quid pro quo was to be that the rights owners would agree to use reasonable endeavours to transfer Mr Tevez in the January 2007 transfer window and accept an absolute obligation to procure a transfer in the July – August 2007 transfer window. In this way, Mr Tevez would definitely be leaving West Ham in the summer and the club's financial exposure to funding Mr Tevez's wage bill would be reduced. Mr Magnusson would have wanted a similar arrangement to ensure the departure of Mr Mascherano by the summer of 2007 at the latest, but there was no incentive under the private agreement in his case for the Mascherano rights owners to agree.
26. By 1 December 2006 agreement on the terms of an amendment to the Tevez private agreement in accordance with the above had been reached. On that day Mr Duxbury forwarded to Mr Salisbury of Teacher Stern Selby, who were then acting for Mr Joorabchian and the Tevez rights owners, four originals of the amendment signed on behalf of West Ham. At some stage the original amendments were also signed by both Mr Tevez and Mr Joorabchian on behalf of the rights owners. However, it is not clear when this happened. Mr Joorabchian told us that Mr Tevez signed the evening he received the documents from Mr Salisbury. This would have been on or around 1 December 2006. But Mr Joorabchian could not say when he signed the documents on behalf of the rights owners. What does, however, emerge is that it is wholly unclear when, if at all, a signed original was ever returned to West Ham. Certainly, it seems that none had been returned by 4 February 2007 when Mr Duxbury sent a chasing e-mail to Mr Salisbury. It was Mr Duxbury's evidence that it was in fact never provided to West Ham and he maintained that accordingly his view was, and always has been, that there never was a concluded amendment agreement.
27. This was in some respects a curious stance of Mr Duxbury since the effect of the amendment, assuming it were in force, would be substantially to reduce the scope for third party influence. It is certainly the case that there is no satisfactory evidence of any signed original of the amendment ever having been returned to West Ham. Nevertheless, the evidence points overwhelmingly to West Ham having treated the amendment as being in force at the latest by early February 2007. Thus, on 8 February 2007 (shortly after disclosure of the private agreements to the Premier League) Mr Duxbury sent a copy of the amendment (in entirely unsigned form) to Mr Foster of the Premier League and wrote:
Dear Mike
Carlos Tevez
Further to my letter of yesterday's date and our subsequent conversation of today, I enclose the second agreement relating to Carlos Tevez. As you will see this agreement confirms that as of the summer 2007 transfer window, Carlos Tevez's contract will end and he will no longer be employed by West Ham United.
Yours sincerely,
Scott Duxbury
Deputy Chief Executive Officer
In evidence Mr Duxbury maintained that, probably in the telephone conversation mentioned in the letter, he had told Mr Foster that the amendment had not yet been executed and accordingly was not in force. Given the language used by him in the letter, we are unable to accept the accuracy of that evidence.
TRANSFER OF MR MASCHERANO TO LIVERPOOL
28. Mr Mascherano had been frequently omitted from the team by the then manager of West Ham, Alan Pardew. For a number of reasons he was clearly unhappy at West Ham. It is scarcely surprising that he wished to leave and was pleased to move to Liverpool when that club offered to take him on.
29. In the January 2007 transfer window Mr Mascherano was transferred to Liverpool. It seems that arrangements satisfactory to the Premier League were in fact made for Mr Mascherano to be registered as a Liverpool player although it took some weeks for this to be finalised. It appears from a witness statement of Mr Parry made in the subsequent arbitration between Sheffield United and the Premier League that initially the rights owners wanted to retain some control over Mr Mascherano. This was unacceptable to the Premier League. In the end, however, the right owners were prepared to give up all control. As Mr Joorabchian pointed out in his evidence, the situation with regard to Mr Mascherano joining Liverpool was quite different to that when Mr Mascherano and Mr Tevez had joined West Ham. Liverpool was a prestigious "big four" club involved in the Champions League and it acquired Mr Mascherano's registration for a sizeable loan payment with an option to purchase for a very considerable sum indeed.
DISCLOSURE OF THE PRIVATE AGREEMENTS
30. Perhaps the Premier League had been alerted to problems during the discussions about Mr Mascherano's transfer to Liverpool. In any event, Mr Duxbury and Mr Igoe decided to disclose the private agreements to the Premier League. This was done by a letter of 24 January 2007 from Mr Igoe to Mr Khan of the League. Mr Magnusson told us that he knew nothing about this at the time and was told afterwards by Mr Duxbury about the decision to make disclosure.
31. The reaction of the Board of the Premier League to disclosure of the private agreements is apparent from Mr Foster's letter to Mr Magnusson of 29 January 2007. He wrote:
The Board takes the view that these contracts should have been disclosed to the League and to the FA at the time of the application to register these players. It takes the view, further, that had this been done, the League would have considered West Ham United to have been in breach of Rule U.18 by entering into the contracts, and accordingly the players would not have been registered for West Ham.
About a month later, after exchanges of correspondence, the Premier League informed West Ham by letter of 2 March 2007 that it had referred suspected breaches of Rule B13 and Rule U18 to a Commission and enclosed the Complaint.
THE COMMISSION AND SUBSEQUENT ARBITRAL PROCEEDINGS
32. As mentioned above, West Ham initially admitted only part of the Complaint, but at the outset of the hearing before the Commission on 26 April 2007 it accepted the Complaint in its totality. Accordingly, the Commission was only concerned with mitigation and sanction. The following day, 27 April 2007, the Chairman announced the Commission's decision. It is to be noted that this was a Friday, and West Ham were due to play a match against Wigan the following day.
33. Before we set out the salient features of the Commission's decision it is perhaps worth noting, given some of the evidence about subsequent attitudes towards the contracts, that West Ham vigorously maintained before the Commission that the private agreements were unenforceable in law as being in unreasonable restraint of trade. Whether or not this contention was well founded, it evidently impressed the Commission which expressly proceeded on the premise that the private agreements were indeed unenforceable: see paragraph 16 of the decision. We now turn to the essential features of the Commission's decision. The actual decision was to impose a total fine of £5.5 million, to direct that the Premier League could terminate Mr Tevez's registration and to order West Ham to pay costs. In coming to this decision the Commission took a grave view of what it described as "an obvious and deliberate breach of the rules" and "dishonesty and deceit". The Commission stated that a points deduction penalty "is a course that we consider would normally follow from such a breach of these rules". Nevertheless, it decided in the event not to impose any points deduction. Given arguments advanced before us on behalf of Sheffield United we should set out the factors which led the Commission not to deduct points.
THE COMMISSION AND SUBSEQUENT ARBITRAL PROCEEDINGS
32. As mentioned above, West Ham initially admitted only part of the Complaint, but at the outset of the hearing before the Commission on 26 April 2007 it accepted the Complaint in its totality. Accordingly, the Commission was only concerned with mitigation and sanction. The following day, 27 April 2007, the Chairman announced the Commission's decision. It is to be noted that this was a Friday, and West Ham were due to play a match against Wigan the following day.
33. Before we set out the salient features of the Commission's decision it is perhaps worth noting, given some of the evidence about subsequent attitudes towards the contracts, that West Ham vigorously maintained before the Commission that the private agreements were unenforceable in law as being in unreasonable restraint of trade. Whether or not this contention was well founded, it evidently impressed the Commission which expressly proceeded on the premise that the private agreements were indeed unenforceable: see paragraph 16 of the decision. We now turn to the essential features of the Commission's decision. The actual decision was to impose a total fine of £5.5 million, to direct that the Premier League could terminate Mr Tevez's registration and to order West Ham to pay costs. In coming to this decision the Commission took a grave view of what it described as "an obvious and deliberate breach of the rules" and "dishonesty and deceit". The Commission stated that a points deduction penalty "is a course that we consider would normally follow from such a breach of these rules". Nevertheless, it decided in the event not to impose any points deduction. Given arguments advanced before us on behalf of Sheffield United we should set out the factors which led the Commission not to deduct points.
34. There were 7 reasons expressed by the Commission as follows:
(1) the guilty plea
(2) the new ownership and management of the club
(3) the view that conforming contracts could have been concluded as had happened when Mr Mascherano had been transferred to Liverpool
(4) the delay between the discovery of the breaches and the hearing before the Commission in that a points deduction then on 27 April "would have consigned the club to certain relegation"
(5) the fact that Mr Tevez had continued to play for West Ham after discovery of the rule breaches
(6) the effect on the players and the fans of a points deduction on "the eve of the end of the season"
(7) the voluntary disclosure of the private agreements by Mr Igoe.
35. As we shall subsequently describe, following the Commission decision the Premier League decided to permit Mr Tevez's registration with West Ham to continue on certain conditions. Sheffield United were aggrieved both by the Commission's decision and also by the Premier League's decision not to terminate Mr Tevez's registration. It instituted arbitration proceedings against the Premier League seeking to challenge both decisions. In order successfully to do so Sheffield United undoubtedly had a difficult task in law. It would have had to have satisfied the Arbitral Tribunal not merely that the decisions in question were wrong but that they were perverse such that no reasonable decision maker could have made them.
36. On 3 July 2007 the Arbitral Tribunal published its Award. As regards the decision of the Commission, the Arbitrators had much sympathy with Sheffield United's grievances and even went so far as to say that in all probability they would have deducted points. Nevertheless, they could not say that the decision not to deduct points was outside the range of rational conclusions and accordingly dismissed the challenge to the Commission's decision. They also dismissed the challenge to the Premier League's decision not to terminate Mr Tevez's registration upon certain conditions. They considered that what the Premier League did was "a practicable and workable solution to a difficult situation". They could not say that it was "perverse or capricious".
37. For completeness we should also record that an application by Sheffield United to the Commercial Court for permission to appeal against the above Award was dismissed. This is scarcely surprising in the light of the guidelines for the grant of permission to appeal against an arbitration award.
REGISTRATION FOLLOWING THE COMMISSION DECISION
38. By fax letter sent shortly after the Commission decision on 27 April 2007 the Premier League informed West Ham of its Board decision that:
In order for the player to be eligible to play tomorrow it will be necessary for your Club by 12 noon tomorrow to modify the third party agreement in a fashion satisfactory to the Board or alternatively terminate the third party agreement (and any amendments(s) to it) outright.
Following receipt of this fax West Ham e-mailed to Mr Shear of Teacher Stern Selby, Mr Joorabchian's solicitors, a notice that the private agreement was "hereby terminated with immediate effect, and shall cease to have any further force or effect". Thus, Mr Tevez was eligible to play for West Ham the following day and duly did so. Unsurprisingly, the entitlement of West Ham simply to terminate unilaterally was not accepted by the rights owners.
However, Mr Tevez's registration was continued for the final two games of the season upon West Ham giving undertakings to the Premier League in the following form set out in a letter from Mr Magnusson of 4 May 2007: 1. the Club will copy the Premier League in on all correspondence (including any proceedings served) between the Club and any of Tevez, MSI and JSI (or any of their respective representatives or advisers) in relation to Tevez; 2. the Club will continue to contend that the Private Agreement is invalid and unenforceable and, from the Club's perspective, terminated, and the Club will not perform in accordance with it; and 3. if proceedings are issued against the Club in respect of the enforceability of the Private Agreement, the Club reserves the right to settle or resolve such proceedings as it sees fit, but no such settlement or resolution will include any concession that the Private Agreement was valid and enforceable.
DISCUSSIONS WITH MR SHEAR AND MR JOORABCHIAN
39. Following the Commission decision and West Ham's notice of termination there were discussions between Mr Duxbury and Mr Magnusson for West Ham on the one hand and Mr Joorabchian and his solicitor, Mr Shear, on the other hand. The first contact occurred on 27 April 2007 when Mr Duxbury telephoned Mr Shear. Later on the same day, according to Mr Shear, Mr Duxbury telephoned him again. There was a meeting on 2 May 2007 at a club, Les Ambassadeurs, attended by Mr Magnusson and Mr Duxbury for West Ham and Mr Joorabchian with Mr Shear attending later.
A further meeting took place at West Ham's offices on Friday 4 May with the same participants.
40. Before us Mr Shear confirmed the truth of what he had said in a witness statement which he made in an action commenced by the Tevez rights owners against West Ham. There he stated after referring to West Ham's unilateral notice of termination:
Admittedly, on that same day, 27 April, and also again at a meeting the following week (at which I was present), [West Ham] made clear to both me and the [rights owners] that they intended to and would, notwithstanding the 27 April letter, perform their obligations under the Private Agreement. This has, at least in private and behind the scenes, always remained [West Ham's] position.
It was Mr Shear's evidence before us that on the telephone on 27 April 2007, and again on 4 May 2007, Mr Duxbury gave what he called "words of comfort" and "oral cuddles" that West Ham would in fact honour the private agreement despite the notice of termination which West Ham had been unwillingly compelled to give by the Premier League. It is fair to say that Mr Shear was evidently an unwilling witness who had attended under a witness summons and felt deeply uncomfortable giving evidence. But, there is no doubt from his perspective what message West Ham was conveying. It is summarised in the following passage from his evidence:
THE CHAIRMAN: I am bound to say, I want to give you an opportunity to deal with this. The impression that the whole of your evidence has left with me, is that Mr Duxbury, in this very awkward position, was saying to you, "Don't worry, we are not going to depart from the terms we had agreed with the private companies".
A. Broadly yes.
41. In response to his witness summons Mr Shear produced notes both of the telephone conversations of 27 April 2007 and of the meeting of 4 May 2007 at West Ham's offices. It is right to say that his note of the telephone conversations of 27 April does not in terms refer to West Ham promising to adhere to the private agreement. It just refers to Mr Duxbury wanting to convey the message that the notice of termination was something which West Ham had not wanted to serve but had been compelled to serve in order for the Premier League to permit Mr Tevez to play for the club. It was not to be regarded as an "aggressive step". However, his note of the 4 May meeting is much more explicit. Item 2 of that note records:
Kia [Joorabchian] told EM [Eggert Magnusson] and SD [Scott Duxbury] that his investors wanted formal written assurances from WHU [West Ham] as they were all very unhappy about the Notice of Termination served. SD said that because of FAPL [Premier League] had put the club in they couldn't do it formally but both he and EM would perform as per the Agreement and everything would be sorted out after the season ended.
42. Mr Duxbury acknowledged that West Ham was most anxious to ensure that Mr Tevez did in fact play for West Ham in the last games of the season and did not want to upset the rights owners. He agreed that he wanted everything to be dealt with at the end of the season. He said that from his perspective West Ham were likely to face a claim for damages for the unilateral termination which it would not want to litigate. He also agreed that he would have told Mr Joorabchian and Mr Shear that West Ham had only served the notice of termination because of the Premier League's insistence. But he disputed saying that, irrespective of the formal notice of termination, West Ham would honour the private agreement. Despite the stance taken by West Ham about the private agreement being unenforceable in law, both before the Commission and apparently on 22 May 2007 at a meeting with the Premier League, West Ham never seem to have raised such a point in the discussions with Mr Shear and Mr Joorabchian.
43. On the face of it there is a marked conflict of evidence between Mr Shear and Mr Duxbury. However, it seems to us that the conflict may not in fact be as great as appears at first sight. Mr Duxbury accepted that in the discussions he was saying to Mr Joorabchian and his representatives that West Ham would not stand in the way of Mr Tevez leaving the club in the summer. This was because, according to Mr Duxbury, if Mr Tevez wanted to go, the reality was that West Ham could not stop him. Mr Duxbury did not address West Ham's ability, on the hypothesis that the player contract were the only contract in place, to withhold consent to a transfer of Mr Tevez's Premier League registration.
44. Mr Duxbury's stance should be looked at in the light of the position as it would have been under the private agreement. Even if the agreement were to be fully honoured, there was nothing which under its terms could in fact take place before the summer 2007 transfer window. Under the private agreement the rights owners were entitled (indeed obliged under the amendment) to serve notice requiring the transfer of Mr Tevez to another club during the summer transfer window but not, of course, before then. If and when notice were served, West Ham would be obliged to consent to the transfer. In substance, therefore, it seems to us that there may be little real difference between what Mr Duxbury says he said and Mr Shear's understanding of what he was saying. At this time, in any event, it was common ground that Mr Tevez was to leave West Ham at the end of the season even though subsequently it would appear that West Ham's attitude changed. During the summer the club (a) wanted to retain Mr Tevez and (b) did not co-operate when Mr Tevez wished to join Manchester United.
45. Moreover, we took account of evidence which we heard about the insurance of Mr Tevez following West Ham's termination letter. This was a matter of concern to Mr Joorabchian and the rights owners. It will be recalled that under the private agreement West Ham was required to pay for the insurance of Mr Tevez in the amount of 30 million euros for the benefit of the rights owners. If, following termination, Mr Tevez were to continue to play for West Ham in the crucial last games of the season, Mr Joorabchian and the rights owners were understandably worried about the possibility of his suffering an injury without there being insurance in place in favour of the rights owners. Initially, West Ham was receptive to the idea of continuing the insurance despite the termination, but it was then appreciated that this would be unacceptable to the Premier League. The difficulty was overcome by the rights owners themselves effecting the insurance but with West Ham agreeing to reimburse the cost. This was going to be, according to Mr Duxbury's evidence, as part of the damages claim for breach of contract which the rights owners had against West Ham.
46. At the end of April 2007 there were only two material positive obligations to be performed by West Ham under the private agreement. One was to permit Mr Tevez's transfer at the behest of the rights owners but only in the next transfer window. The other was to maintain insurance over Mr Tevez for the benefit of the rights owners. Whatever the form in which Mr Duxbury's assurances were expressed, we have no doubt of the reality. This was that West Ham through Mr Duxbury was orally reassuring the rights owners that the substance of West Ham's outstanding obligations under the private agreement would be carried out irrespective of the agreement's nominal termination. West Ham was desperate to ensure that Mr Tevez played for the club in the critical last few games of the season. Whilst having no choice but to adhere to the Premier League's requirements, West Ham wanted to do everything possible to attempt to placate the rights owners.
THE LITIGATION AND ITS RESOLUTION
47. After the end of the 2006-7 season relations between West Ham and Mr Joorabchian and the rights owners deteriorated. It appears from a minute of a meeting of 22 May 2007 between Mr Magnusson and Sir Richard Scudamore of the Premier League that West Ham rather changed its mind about not wanting to retain Mr Tevez at the club. It records amongst other matters:
EM [Eggert Magnusson] re-iterated forcefully that WHU [West Ham] considered Tevez to be their player, they wanted and expected him back next season and that they would defend any claims by MSI/JSI [the rights owners]
RS [Sir Richard Scudamore] stated that WHU held his registration and that this would be the key asset in whatever unfolded over the Summer.
Mr Duxbury's evidence was also consistent with there having been a change of heart at West Ham. He described how, following West Ham's avoidance of relegation, Mr Magnusson became enthusiastic at the idea of keeping Mr Tevez at the club. Indeed, in June 2007 West Ham made an offer to enter into a new 5 year contract with Mr Tevez for amounts totalling £34 million over 4 years subject to certain conditions if he were later transferred to another club and subject to full and final settlement of the dispute with the rights owners.
48. After the 2006-7 season had ended negotiations took place with a view to the transfer of Mr Tevez to Manchester United. West Ham did not conduct these negotiations. They were conducted by the rights owners. Nevertheless, any transfer would require West Ham's consent, for West Ham held Mr Tevez's registration. As Sir Richard Scudamore had pointed out on 22 May 2007, that was a "key asset" of West Ham.
49. West Ham was not co-operative over a transfer to Manchester United. In consequence the rights owners sued West Ham to enforce the private agreement. Eventually, that litigation was compromised by Mr Tevez being transferred to Manchester United and West Ham receiving £2 million from the rights owners. We were told that West Ham did not want to be paid anything since they had not paid anything originally when Mr Tevez had come to them. However, we were told that the Premier League insisted that West Ham as the holders of Mr Tevez's registration had to receive money as, in effect, a transfer fee. The rights owners paid the £2 million against an understanding that Mr Joorabchian would recoup that sum, plus his costs, from acting as an agent for West Ham in future player transfer dealings. It is not for us to decide whether this understanding amounted to an enforceable contractual commitment. We note that Mr Joorabchian in fact sued West Ham for the money and those proceedings were compromised very shortly before the hearing of the arbitration. Under the compromise Mr Joorabchian is to receive a guaranteed amount for acting as consultant to West Ham in relation to player transfer activity.
50. As far as the transfer of Mr Tevez to Manchester United was concerned, we were given the figures on a confidential basis. The actual amounts do not matter. It is sufficient to note that the arrangements involve no element of control being retained by the rights owners. There was a conventional transfer for two substantial annual amounts with an option to purchase for a very sizeable sum. It is, of course, indisputable that Mr Tevez is a very valuable player indeed.
THE ARGUMENTS BEFORE US
51. Sheffield United put its case before us in various different ways and made submissions based on several different factual hypotheses. West Ham countered with detailed examination of each link in the chain of argument. However, we think it right to concentrate on what seem to us to be critical facts. In the light of our conclusions on those facts we consider that we need only briefly mention other arguments deployed before us. We propose therefore to deal firstly with a point of contractual construction raised by West Ham for the first time at the hearing before us and in respect of which we permitted a very late amendment of its Points of Defence. We shall then address two areas where breach of the Premier League rules was either admitted or in our view clearly established on the evidence before turning to the debate before us over Mr Tevez's contribution to West Ham's successful struggle against relegation. In conclusion, we shall simply record the fact of some alternative arguments put before us in the course of the hearing.
THE CAUSE OF ACTION ISSUE
52. It was submitted on behalf of West Ham that, properly construed, the effect of the Premier League rules was that, although, by virtue of Rule B12, membership of the league constituted a contract both between the Premier League and the member clubs and between each member club to be bound by and comply with the Premier League rules, it was not in respect of a breach of every one of those Rules that it was open to one member to claim against another. The essential feature of this submission was that the Rules imposed on the member clubs a variety of disparate obligations all of which were owed to the Premier League as the primary regulator of the league but only some of which involved performance ostensibly for the direct benefit of other member clubs individually and that it must have been the mutual intention of the parties that only in the latter class of obligation could one member club claim against another for breach of contract. By way of illustration, reliance was placed on Rules C21 and C29. These provide as follows:
Obligations of Clubs 21. Subject to Rule C.25, Clubs shall provide such rights, facilities and services as are required to enable the Company to fulfil its Commercial Contracts, UK Broadcasting Contracts, Overseas Broadcasting Contracts, Radio Contracts and Title Sponsorship Contracts and shall not by any act or omission infringe any exclusive rights granted or otherwise cause any breach thereof to occur. …….
29. Subject to the prior approval of Clubs in General Meeting, the Board shall be empowered to require Clubs to pay to the Company from time to time any sum by which its income, excluding UK Broadcasting Money, falls short of the operating and other expenses of the Company and the League.
53. It was submitted that both these Rules imposed on member clubs obligations exclusively for the benefit of the Premier League and which, therefore, could not have been intended to be enforceable at the suit of any individual member club: only the Premier League would therefore have a cause of action for breach of those Rules. Reliance was also placed on Rule B11. This provides as follows:
11. Without prejudice to the powers contained in Section R of these Rules, any Club purporting to resign otherwise than in accordance with Rules B.8 and B.10 shall on demand indemnify the Company on behalf of itself and the Clubs remaining in membership of the League against all losses, damages, liabilities, costs or expenses whatsoever suffered or incurred by the Company or such Clubs resulting directly or indirectly from such purported resignation including
without limitation loss of income or profits from any broadcasting, sponsorship or other commercial agreement. This Rule, it was argued, demonstrated that there was a very strong mutual intention to exclude claims by individual clubs for breach of those rules which were intended to operate for the common benefit of all members and to confine claims for breach of such rules to the Premier League itself.
54. Basing himself on these general submissions, Mr Brindle argued on behalf of West Ham that neither Rule B13 nor Rule U18 could have been intended to give rise to claims by one member club against another. In the case of both Rules the only party which could have been intended to have a cause of action for breach would be the Premier League itself as primary regulator of the league, for the obligations imposed by both Rules were for the benefit of all the member clubs as a league and not such as to benefit individual members.
55. It was further submitted on behalf of West Ham that Clarke v. Dunraven [1897] AC
59 was not authority for the general proposition, relied on by Sheffield United, that where participants in a competition or members of a club undertook mutually to be bound by the competition or club rules, breach of the Rules by one member which caused loss or damage to another gave that other member a cause of action for damages against the rule breaker. Mr Brindle referred to the speech of Lord Herschell and in particular to the following passage:
I cannot entertain any doubt that there was a contractual relation between the parties to this litigation. The effect of their entering for the race, and undertaking to be bound by these rules to the knowledge of each other, is sufficient, I think, where those rules indicate a liability on the part of the one to the other, to create a contractual obligation to discharge that liability. That being so, the parties must be taken to have contracted that a breach of any of these rules would render the party guilty of that breach liable, in the language of rule 24, to "pay all damages," in the language of rule 32, to be "liable for all damages arising therefrom." The language is somewhat different in the two rules; but I do not think they were intended to have, with regard to payment or liability to damages, any different effect.
That passage showed that the decision to dismiss the appeal rested on the express words of the rules of the yacht race that the yacht in breach of the rules was to "pay for all damages" and that her owner was to be "liable for all damages arising" from such breach. Without that express provision there would have been no contractual liability to pay any damages as between one competitor and another. By parity of reasoning, in the present case, absent an express provision for one member of the Premier League to have a right of action for damages against another for breach of the Rules, it was necessary to ascertain from the substance of the Rule in question whether such a right of action was conferred on other member clubs which had sustained loss or damage caused by the breach: there could be no presumption that any such cause of action was available.
56. Rule B12 provides as follows:
Membership of the League shall constitute an agreement between the Company and Clubs and between each Club to be bound by and comply with: .... these Rules.
In this Tribunal's Reasons for the previous Interim Award, at paragraphs 15-16 there are set out the basic principles of construction which are applicable to a case where, like the present case, a party undertakes to another a contractual obligation to be performed, and which determine whether there is a secondary obligation to pay damages for breach to that other party. In this connection it is necessary to repeat paragraph 16 (iii) of that Award: Only if on the proper construction of all the express terms of the contract the right to recover damages for breach is expressly excluded, will such recovery be barred. Outside this analysis there is no room for exclusion of such right by implication.
In Rule B12 one finds cast upon each member club by the words "and between each Club" an express contractual duty to each other member club to comply with "the Rules". There being no express selection of any particular Rules, the reference can only be to all the Rules. Full effect must be given to these words in that sense unless such a meaning is so far-fetched that it could not have been mutually intended. So the question arises whether the fact that performance of some of the Rules, such as C21 and C29, is expressed to be for the benefit of the Premier League, as distinct from other individual member clubs, displaced the apparently clear meaning of B12 in favour of a limitation confining each member club's available cause of action for breach to those Rules expressed to be for the benefit of individual clubs.
57. The answer to this question must, in our view, clearly be NO. This conclusion is compelled by two key factors.
58. First, abiding by all the Rules and not merely some of them is an essential requirement of the mutual character of the league. That in turn gives rise to the natural consideration that where a member disobeys the Rules and loss is in consequence sustained by another member club the latter ought to be able to look to some party for compensation. Since the Premier League could not be said to have been in breach of its own contractual obligation and undertakes no indemnity obligation towards the clubs, the only available source of compensation is the member club in breach. Thus, were the position to be that a member club, which could prove that another member's breach of the Rules had caused it quantifiable loss, could not recover damages from the party in breach because the Rule in question was not expressed to be for the benefit of the members individually, there would be a striking defect in the available
compensatory regime. On the other hand if, there having been a breach of any of the Rules, the only relevant question were whether a member club had suffered loss caused by that breach, there would be a fair and logical compensatory regime. If that were the effect of a construction of Rule B12, it would be quite impossible to regard that construction as so far-fetched that it could not have reflected the mutual intention of the Premier League and the member clubs.
59. Secondly, a requirement that it must be proved by a claimant club that another member's breach had caused loss to the claimant operates as a barrier to claims for breach of the Rules except in those cases where a particular club has sustained loss caused by the breach. In most cases this would confine claims to breach of those Rules the substance of which was ostensibly to provide a benefit to particular clubs rather than to the Premier League at large. However, there may be cases, such as Rule U18 or B13, where the scope of the contractual duty is such that it is mainly for the benefit of the Premier League as a whole but where, if there is a breach of that duty, a particular member club may be able to prove that it has thereby been caused loss or damage. For there to have been a mutual intention to provide for compensation by way of a damages claim by the club in such cases is substantially more probable than that the loss should be uncompensated.
60. We do not consider that the argument based on Rule B11 is of any assistance to West Ham. This Rule is designed to provide for a particular eventuality – the purported resignation of a member club – which could well cause loss to the entire membership as well as the Premier League. In such a case, in order to avoid multiplicity of claims for compensation against the resigning club, special provision is made for the Premier League to advance a representative claim on behalf of itself and all members who have sustained loss. This specific regime presents no inconsistency with the construction of Rule B12 which we believe to be correct. It merely provides for a representative claim in a specific case which can be expected to give rise to losses which may be sustained by the member clubs as well as the Premier League so as to make for a more efficient and cost-effective compensatory regime.
61. The argument based on the speech of Lord Herschell in Clarke v. Dunraven, supra, carries the matter no further in West Ham's favour. In the House of Lords, it was not argued that there was no binding contract between the participants in the competition. The appeal was argued on the assumption that, as held in the Court of Appeal, there was such a contract, the only matter in issue being whether under its terms damages were at large or were subject to limitation under Section 54 of the Merchant Shipping Act Amendment Act 1862. The House of Lords held unanimously that the words of the competition rules excluded the operation of Section 54. In so far as Lord Herschell expressed reasons for concluding that there was such a contract, his views were not a necessary part of his reasoning on the issue before the House. However, in the Court of Appeal the existence of a contract between competitors was in issue. The underlying factor which led all three members of that court to conclude that there was a binding contract between each competitor and each other competitor, although the competition rules did not expressly say so, was that each competitor signed up to rules which required him to pay for all damage caused to any other competitor's yacht by his breach of the rules. Since that obligation could not be owed to the organisers, it must have been undertaken to the other competitors, thus creating a bargain in terms of an obligation to abide by the rules and to pay full compensation if there were a breach which caused damage. The express secondary obligation to pay compensation thus evidenced the implicit primary obligation to other competitors to abide by the rules.
62. In the present case there is an expressly stated primary obligation to other member clubs to abide by the Premier League Rules and the issue is whether there was a primary and secondary obligation owed to other member clubs in respect of breach of all or, as West Ham submits, only of some of the Rules. In our view the reasoning which led to the Court of Appeal's conclusion in Clarke v. Dunraven, as explained above, cannot be deployed to support the argument by West Ham that Rule B12 does not impose a primary and secondary obligation in respect of all the Rules. What was missing in that case was any expressly stated primary obligation to the other competitors and the court therefore relied on the expressly stated obligation to pay all damages to infer that such primary obligation existed. One does not get from such reasoning that the absence of an expressly stated secondary obligation in this case cuts down the scope of the primary obligation to comply with the Rules in Rule B12.
63. Accordingly, we conclude that each member club was by reason of Rule B12 under a contractual duty owed to each other member club to abide by each of the Premier League Rules and in case of breach of any Rule causing loss or damage to any other member club to pay damages to that other club. Therefore, Sheffield United has a cause of action in respect of breach by West Ham of either or both of Rules B13 and U18 and, if and to the extent that it can prove that such breaches caused it damage, it can recover substantial damages for breach of contract.
BREACHES OF THE PREMIER LEAGUE RULES
64. As we noted above, West Ham admits that in entering into the private agreement in relation to Mr Tevez it was in breach of Rule U18. Furthermore, West Ham admits that in concealing the true contractual arrangements from the Premier League it acted with a lack of good faith and in breach of Rule B13. There is no doubt that the Premier League registered Mr Tevez and Mr Mascherano as West Ham players in ignorance of the private agreement and, as was made clear in the Premier League's letter of 29 January 2007, it would not have done so if it had known of the private agreements. Furthermore, it is clear on the evidence that it was because of what Jane Purdon was assured by Mr Duxbury on the telephone on 1 September 2006 that the Premier League was induced to accept Mr Tevez's registration in the first place. In short, it is indisputable but that the breaches of the Rules caused Mr Tevez to be registered as a West Ham player. If West Ham had acted honestly towards the Premier League, Mr Tevez, like Mr Mascherano, would not have been a West Ham player for the 2006-7 season, at least not without radical alteration of the contractual arrangements.
65. Aside from the causation argument which we address below, the response of Mr Brindle for West Ham to the admitted breaches of the Rules is to say that contractual arrangements for Mr Tevez (and Mr Mascherano) could have been concluded in conformity with Premier League requirements. It was Mr Foster's evidence before us that, if that had been done, the registration would have been acceptable. Accordingly, so the argument runs, the Rule breaches were not the operative cause of Mr Tevez becoming a West Ham player. In support of this argument West Ham point to the fact that when Mr Mascherano was transferred to, and registered as, a Liverpool player it was found possible to conclude a conforming contract.
66. We have some sympathy with the submission advanced by Mr Mill QC for Sheffield United that it is not open to a contract breaker to say that he could have acted differently when he in fact deliberately chose not to do so for what, presumably, seemed good reason at the time. Certainly, the proposition that a claim for breach of a duty of good faith may be defeated if bad faith was not required seems odd. We were impressed by the observations of Hobhouse LJ (as he then was) in Downs v Chappell [1997] 1 WLR 426 at 433D-F albeit in a different context, i.e. the tort of deceit:
The plaintiffs have proved what they need to prove by way of the commission of the tort of deceit and causation. They have proved that they were induced to enter into the contract with Mr. Chappell by his fraudulent representations. The judge was wrong to ask how they would have acted if they had been told the truth. They were never told the truth. They were told lies in order to induce them to enter into the contract. The lies were material and successful; they induced the plaintiffs to act to their detriment and contract with Mr. Chappell.
67. Nevertheless, we do not decide this point as a matter of abstract law. In our view the argument fails in any event on the facts of the present case. We acknowledge that one of the factors which led to the Commission deciding against a points deduction for West Ham in April 2007 was its view that conforming contracts could have been concluded as happened in the case of Mr Mascherano. However, we have had the advantage of considerably more evidence than was before the Commission. The Premier League would doubtless have accepted a conventional, and conforming, contract under which only West Ham had control over the player. Also, West Ham might have been willing to conclude such a contract on the highly speculative assumption that financial terms acceptable to it could have been achieved. Regarded solely from the perspective of West Ham and the Premier League, Mr Brindle's argument may be right, although we do have considerable reservations whether West Ham would at the time (and in the time available before the end of the transfer window) have had the financial resources to fund an outright transfer. However, the argument ignores the perspective of the rights owners whose agreement would, of course, have been required.
68. In the factual circumstances as we have described them earlier in this Award we regard it as highly improbable that the rights owners would have agreed to any contract in which outright control were given to West Ham. From their point of view it was essential that they retained control over the players. Mr Duxbury recognised as much in his evidence. Third party control is precisely the vice at which Rule U18 is aimed and which would necessarily have been unacceptable to the Premier League. The arrangements made when Mr Mascherano was transferred to Liverpool were concluded in an entirely different context. There was no potential takeover of Liverpool by Mr Joorabchian's consortium in the offing which might or might not succeed. Liverpool is, unlike West Ham, a "big four" club which was playing in the Champions League. The transfer to Liverpool involved sizeable payments and a large option fee such as we doubt West Ham would have been willing to pay, even if it could have raised the funds to do so. In summary, we are quite unable to accept that any deal comparable to that subsequently concluded with Liverpool would have been on the cards for West Ham in August 2006.
69. In addition to the admitted breaches of the Rules in August and September 2006, we consider that West Ham's conduct immediately after the Commission's decision of 27 April 2007 and its non-disclosure of such conduct to the Premier League amounted to further breaches of the obligation under Rule B13 to behave with the utmost good faith towards the Premier League. The Commission had determined that the Premier League could terminate Mr Tevez's registration. The Board of the Premier League decided, and notified West Ham, that the private agreement must be terminated (or modified in a fashion satisfactory to the Board) if Mr Tevez's registration were not to be suspended. West Ham decided to serve a letter of termination and did so, informing the Premier League accordingly. On 4 May 2007 Mr Foster of the Premier League wrote to West Ham's solicitors to say that, in the light of the apparent unwillingness of the rights owners to accept termination, the Premier League required various undertakings from West Ham if the decision to maintain the registration were not to be reconsidered. In response, on the same day West Ham provided the undertakings to which we have referred above. Obviously, and understandably, the Premier League wanted confirmation that West Ham's stance that the private agreement had been terminated was a genuine one. On 8 May 2007 Sir David Richards and Richard Scudamore of the Premier League wrote to Sheffield United and other clubs which had expressed concern over the position vis-à-vis the Tevez rights owners to say, amongst other things:
(v) …. The Premier League made it very clear to West Ham that unless it could be satisfied that all trace of any third party ability to influence West Ham's policies or the performance of its team was removed, Mr Tevez's registration would be terminated; (vi) Assurances were received in a satisfactory form from West Ham. West Ham has assured us that it has terminated the Contract. It has also indicated that under no circumstances will it regard the Contract as binding West Ham and that it will defend any proceedings brought against West Ham seeking its enforcement.
70. Nevertheless, at the same time as West Ham was maintaining towards the Premier League that it had terminated and was having nothing more to do with the private agreement, Mr Duxbury (with Mr Magnusson) was having discussions with Mr Joorabchian and his solicitors as recounted at paragraphs 39 – 46 above. The object of those discussions was to reassure the rights owners that, irrespective of the formal position which West Ham had had to adopt, everything which the private agreement required would be realised in practice. Mr Tevez would be transferred on request in the next transfer window and the cost of insuring him would be reimbursed by West Ham. Nothing could be put in writing because of the position taken by the Premier League, but Mr Duxbury wished to reassure the rights owners that they need not in reality be concerned about the notice of termination which West Ham had only served because of the Premier League's demands. The Premier League was, of course, not told anything about what was being said to Mr Shear and Mr Joorabchian.
71. For Sheffield United Mr Mill also submitted that in the week immediately after the Commission decision West Ham made an agreement with Mr Joorabchian to pay him £4.7 million in return for Mr Joorabchian securing that Mr Tevez play for the club in the remaining crucial games of the season. He referred to the Particulars of Claim in an action commenced by Mr Joorabchian against West Ham. Certainly, there is no doubt that West Ham desperately wanted Mr Tevez to play in these games but we were not persuaded on the evidence before us that a binding contract was in fact concluded as pleaded in those legal proceedings. Nevertheless, we do consider that West Ham was in breach of its duty to behave with the utmost good faith towards the Premier League in the way in which Mr Duxbury conducted his discussions with Mr Shear and Mr Joorabchian immediately following the notice of termination and in not disclosing those discussions to the Premier League. Given the robust attitude of the Premier League as regards the private agreement, it is in our view inconceivable that it would have been prepared to tolerate West Ham's stance towards the rights owners. We are sure that, if the Premier League had known about that, it would have suspended Mr Tevez's registration as a West Ham player.
CAUSATION AND THE FOOTBALLING ISSUES
72. We are clearly of the view that Mr Tevez would never have been registered as a West Ham player if the true contractual arrangements had been disclosed to the Premier League at the outset. He would not have been playing for West Ham at all in the Premiership during the 2006-7 season if there had been no breach of the Rules. We also think that the Premier League would have suspended Mr Tevez's registration for West Ham for the last two games of the season if it had known about the discussions with Mr Shear and Mr Joorabchian following the Commission decision. However, it does not follow that West Ham would have been relegated, and Sheffield United accordingly not relegated, if Mr Tevez had not been playing for West Ham. There was a vigorous debate before us whether in truth it was Mr Tevez's contribution which made the difference for West Ham between staying up in the Premiership and being relegated to the Championship in the 2006-7 season.
73. We read and heard a great deal of evidence about Mr Tevez's contribution to West Ham's successful avoidance of relegation. Understandably, Mr Mill for Sheffield United concentrated on Mr Tevez's performances over the last 9 games of the season, i.e. during the "great escape". Mr Brindle, on the other hand, submitted that it is necessary to consider the season as a whole since the case was that Mr Tevez should never have played for West Ham at all. In principle, we are inclined to agree with Mr Brindle at least as regards the consequences of the initial rule breaches. Nevertheless, we do not think that anything turns on this on the present facts. It is right to say that there was a general consensus among what we may call the football witnesses that Mr Tevez for various reasons had little impact on West Ham's performance until the last 9 or 10 games of the season. He and Mr Mascherano, fresh from Argentina and the World Cup, had difficulty fitting in with a new club playing English league football in a new country where neither spoke English. Furthermore, it appears that Alan Pardew, West Ham's manager for the first half of the season, was less than enthusiastic about Mr Tevez's arrival and played him out of position. Then, he was injured. All these factors resulted in Mr Tevez achieving little of note until the last 9 games. However, none of the witnesses went so far as to suggest that Mr Tevez actually lost points for West Ham prior to March 2007. At worst Mr Tevez's presence in the West Ham team had been neutral until then. In these circumstances it seems to us to be right to focus on the last 9 games of the season where it is said by Sheffield United that Mr Tevez's presence in the team made all the difference for West Ham staying up (and Sheffield United in consequence going down).
74. We recognise that it may be unduly simplistic just to focus on goals scored and assists, but Mr Tevez undoubtedly played a direct part in West Ham's successful run in at the end of the season. We set out the sequence of West Ham's results over the last 9 games of the season at the beginning of these Reasons. In the first two games of that sequence Mr Tevez scored in the 2-1 victory over Blackburn on 17 March 2007; he scored one goal and created the other in the 2-0 victory over Middlesborough in the following match. In the last two games of the sequence, Mr Tevez scored twice and created the third goal in the 3-1 victory over Bolton on 5 May 2007; in the final game of the season against Manchester United on 13 May 2007 he scored the only goal of the match in West Ham's unlikely victory over the Premier League champions.
75. Mr Tevez was voted West Ham player of the year by West Ham's supporters with 84.5% of the vote and our attention was drawn to numerous occasions when one or more commentators nominated him as man of the match. Sir Alex Ferguson is recorded as having said that it was Carlos Tevez who "kept them up" and that most of the 7 victories West Ham achieved in the last 9 games were "down to Carlos". The Chief Football Writer of the BBC is quoted as saying: "Make no mistake, West Ham would have gone down without Tevez".. Gary Lineker on Match of the Day described Mr Tevez as "the man who has ultimately turned their season around"
76. There was a very great deal of football evidence led before us. Evidence was given by eminent people in the world of management such as Graham Taylor, Frank Clark, Sam Allardyce, Alan Curbishley and Neil Warnock. We also heard from players, Gary Speed and Lucas Neill, and from commentators, Henry Winter of the Daily Telegraph who wrote after the match against Manchester United an article under the heading "Talent of Tevez Lifts West Ham to Safety" and Anthony Gale. In addition, Peter Shreeves, currently a monitor of referees for the Premier League, gave evidence; and we took into account a written statement of Dario Marcolin, an assistant coach of Inter Milan. We do not believe it is necessary for us to analyse all this football evidence in great detail. Ultimately, it appeared to us that differences between the witnesses were more a matter of emphasis than fundamental disagreement.
77. A number of the witnesses referred to Mr Tevez as "a world class player". We have no doubt that he was infinitely more skilled than any other player in the West Ham squad at the time. The witnesses called on behalf of Sheffield United, particularly Graham Taylor, Frank Clark and Henry Winter, enthused over Mr Tevez's performances over the last 9 games of the 2006-7 season. For them, it was absolutely clear that it was Mr Tevez who made the critical contribution to West Ham avoiding relegation. The West Ham football witnesses, on the other hand, were much more circumspect in their written statements. Nevertheless, it became clear from the oral evidence that there was general acknowledgment both of Mr Tevez's outstanding skill generally and of his significant contribution to West Ham's run of success over the last 9 games of the season.
78. We took account of, and indeed accept, a number of the points made by West Ham witnesses. Football is a team game such that success requires more than a single player to be playing well. The contributions of defenders, particularly goalkeepers, may be just as important, indeed more important, than those of strikers like Mr Tevez. And indeed we note that in the final 9 games the West Ham defence kept a clean sheet on 5 occasions. The contribution of Lucas Neill, who had joined West Ham in the January 2007 transfer window, as an inspiration to the defence should not be underestimated. Many factors other than the performance of a single player will contribute to a team's success including, for example, leadership, tactics, managerial input and team confidence. We accept the force of much of this. Nevertheless, the ultimate question which we have had to decide is whether the presence of Carlos Tevez in the West Ham team was worth at least 3 points, i.e. one win, to West Ham.
On the totality of the evidence we have no doubt that West Ham would have secured at least 3 fewer points over the 2006-7 season if Carlos Tevez had not been playing for the club. Indeed, we think it more likely than not, on the evidence which we heard, that even over the final two games of the season West Ham would have achieved at least 3 points less overall without Mr Tevez. He played outstandingly well in the two wins which West Ham secured in those last two games.
79. It follows from the above both (1) that Mr Tevez was only able to play for West Ham in consequence of West Ham's breaches of the Rules and (2) that his participation in the West Ham team was an effective cause of West Ham winning at least 3 more points than they would otherwise have won. Nevertheless, this is not conclusive of the causation issues. It should not be forgotten that the cause of Sheffield United's loss was not the fact of West Ham remaining in the Premiership. It was Sheffield United's relegation. Mr Brindle strongly urged upon us that the true effective cause of Sheffield United's loss here was its own poor performance on the playing field, particularly in the home loss to Wigan in the final game of the season. It is said that, whatever West Ham achieved with Mr Tevez playing, Sheffield United could readily have saved themselves from relegation by better performances of their own. On the other hand, we also have to bear in mind that Sheffield United did over the season secure 38 points. The evidence was that in general, although not invariably, this would be enough to avoid relegation.
80. We see the force of Mr Brindle's argument. Ultimately, however, we have not found it necessary to come to a conclusion whether the cause of Sheffield United's relegation was (a) the number of points achieved by West Ham with Mr Tevez's assistance or (b) Sheffield United's poor performance. On any showing the former was an effective cause. At most Sheffield United's own poor performance was an equally effective cause. This is insufficient to displace the causation of another effective cause. The law is summarised in Chitty on Contracts (29th ed), Vol 1, paragraph 26-038 under the heading "Two Causes":
If a breach of contract is one of two causes, both co-operating and both of equal efficacy in causing loss to the claimant, the party responsible for the breach is liable to the claimant for that loss. The contract-breaker is liable so long as his breach was "an" effective cause of his loss; the court need not choose which cause was the more effective.
CONCLUSION
81. For the reasons set out above we find that West Ham is liable to Sheffield United in damages for breach of contract. West Ham was in breach of Rule U18 in the contractual arrangements which it made in order to obtain Mr Tevez as a West Ham player in August 2006. It was also in breach of Rule B13 in what it told, and did not tell, the Premier League about the arrangements. West Ham was in further breach of Rule B13 in the discussions held with Mr Joorabchian and his solicitor about the private agreement at a time when it was assuring the Premier League that the private agreement had been terminated. In consequence of the initial breaches of Rules U18 and B13 West Ham secured what it would not otherwise have had, i.e. the playing services of Mr Tevez for the 2006-7 season. We have no doubt that those services were worth at least 3 points to West Ham over the season and were what made the difference between West Ham remaining in the Premiership and being relegated at the end of the season. In consequence, West Ham remained in the Premiership and Sheffield United was relegated. Moreover, if the Premier League had known
what Mr Duxbury for West Ham was saying to Mr Joorabchian's solicitor following the Commission decision, we are confident that the Premier League would have suspended Mr Tevez's registration as a West Ham player. Because the Premier League did not know, Mr Tevez was available to West Ham for the concluding games of the season during which Mr Tevez's contribution was outstanding such that it was in our view worth at least three points to West Ham.
82. In the light of our findings we do not need to address the other ways in which Sheffield United put its case before us. However, out of consideration for the able arguments which were put before us we should say that we would have had difficulty with some of the factual hypotheses on which Mr Mill for Sheffield United invited us to make findings. We would have been inclined to agree with Mr Brindle that the hypothetical exercises which we were being invited to undertake involved too much reliance on assumption and speculation. In the event, however, it is unnecessary for us to elaborate on the alternative ways in which the case for Sheffield United was put.
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Tevez appeal could go unheard
West Ham's fight against £30m compensation claim likely to be outside CAS remit
By Jason Burt
Friday, 26 September 2008
Independent.co.uk Web
West Ham United are to push ahead with submitting their case against paying Sheffield United up to £30m in compensation even though the Court of Arbitration for Sport yesterday cast some doubt as to whether it would be able to get involved at all.
The CAS secretary-general Matthieu Reeb said that "the door may not be open" for it to hear West Ham's appeal because the case may not fall within the organisation's tightly controlled remit. Reeb also added that the Premier League club's only course of action may be to persuade Sheffield United to agree to take part in any hearing.
Reeb said there were two usual avenues for CAS to be involved. "Two parties in a dispute can only refer a case to CAS if they both agree in writing to come under CAS jurisdiction for a legal remedy," he said from the organisation's headquarters in Lausanne, Switzerland.
"If the English FA [Football Association] rules did have a specific clause allowing an appeal to CAS in a case like the [Carlos] Tevez one, there would be no need for both parties to agree to have the case referred. But if there is nothing in the rules, it is mandatory that both parties agree in writing to go to CAS." There is, indeed, no provision within the FA rules.
Nevertheless, West Ham will submit their case next week having taken extensive legal advice, including enlisting the help of the Manchester United director and legal expert Maurice Watkins, to challenge an FA arbitration hearing which ruled in favour of Sheffield United over the Tevez saga. The club remain bullish about their prospects and pointed out yesterday that there had been some doubt over whether or not the FA's hearing had the correct jurisdiction when it was set up in the first place. CAS also concede that it cannot make a judgement on whether or not to hear the case until it has received representations.
West Ham also believe it would be "odd" for Sheffield United not to agree to participate in the proceedings with CAS, given the club's desire for justice and the ramifications the whole episode has for football.
The Premier League, which fined West Ham £5.5m for fielding Tevez last year, will today receive a copy of the findings of the tribunal, which was chaired by Lord Griffiths. The League is not thought likely to take any further action.
West Ham are adamant that the position of their chief executive Scott Duxbury, who was criticised in the report, is "not under review" and although he could be vulnerable to further investigation from the Premier League, that also appears unlikely.
At the same time a directions hearing will be held next week by the Griffiths tribunal at which the timetable for deciding a final compensation figure will be agreed. Sheffield United are demanding £30m based on loss of earnings but this total will be fiercely contested by West Ham.
The club are adamant that even in the worst-case scenario they will not have to conduct a fire sale of players and that transfer funds will still be made available to manager Gianfranco Zola.
Dean Ashton, meanwhile, is to undergo an ankle operation next week and faces around a month on the sidelines. The striker injured his left ankle in training last week.
Zola yesterday fined Carlton Cole two weeks' wages after he was arrested. The 24-year-old was stopped in his Audi in London at 4.25am on Tuesday. He was given a breath test and taken to a police station, where he was later bailed to return in November.
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