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Can Mike Ashley persuade the Competition Appeal Tribunal to help him sell Newcastle United?

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As we now know, it was at least partly as a result of Mike Ashley’s vociferous complaints, that the Competition and Markets Authority (CMA) blocked the proposed acquisition by J.D Sports of Footasylum - a decision set aside by the Competition Appeal Tribunal (CAT) and remitted for reconsideration. Now he is making another attempt to use competition law - which has been used against his businesses in the past - to achieve his commercial objectives.

This legal action involves suing the Premier League for allegedly blocking a lucrative sale of Newcastle United to a consortium of investors allegedly backed by the Saudi government. The latter allegation appears to have some substance as we now know that the ruler of Saudi Arabia complained to the British government about the failure of the Premier League to wave the proposal through; this led (it is said) to the consortium withdrawing its bid. Mike Ashley is naturally anxious that the bid be renewed and is therefore trying to clear a path for a renewed bid with his action before the CAT.

The action could easily end up in the long grass behind closed doors... 

The aborted sale has already led to litigation brought by Amanda Staveley against Barclays for cutting her out the deal. This action at least got to court; whether this one will do so is far from certain. The Premier League may well be characterised as a cartel of clubs but even if its control of changes in ownership of a club were to fall within the competition rules (as opposed to control of admission of clubs which clearly does so) the claim faces a number of substantial preliminary hurdles. Already the Premier League is challenging the jurisdiction of the CAT; this challenge will be based on the fact that there is a binding arbitration clause covering disputes between clubs and the Premier League and that a similar claim is already before an arbitral tribunal. Based on past authorities the Premier League may be able to obtain a stay of the action before CAT pending the outcome of the arbitration.

With a serious loss of transparency

The virtue of arbitration from a sports league perspective is its secrecy. Any dirty linen can be washed in private. However, competition law claims - particularly meritorious ones which this one may not be - raise serious issues of interest to the public. This suggests that transparency should be prioritised; but recent cases involving major competition claims against leagues have been fought in private (the claims of Queens Park Rangers and Saracens - with only the decision in the latter case actually published). What is more, these cases were not decided by a specialist tribunal like the CAT.

Transparency in this case is Ashley's major weapon and a major threat to the league; in a legal action taking place in public rather than behind closed doors much of interest would be revealed to fans and other interested parties about how the Premier League conducted this approval process which could be seriously embarrassing and thus force a favourable settlement for Ashley. For example, did foreign governments apart from the Saudis - perhaps the owner of Manchester City - seek to influence the outcome? And what about the Department of Culture Media and Sport? They have claimed of course that this is a footballing matter but as recent events involving the abortive European Super League fiasco demonstrate, politicians will intervene very significantly in sport if there are votes in it.

With ownership of major clubs moving to sovereign states is football actually governable at all?

In the scheme of things Mike Ashley’s competition claim may not ultimately matter. With the UK government having helped to scupper the Super League it is difficult to see how the Premier League could stand in the way of another Saudi bid where further refusal will surely cause great offence to a key commercial partner. It is therefore not cynical to suggest that subject to the traditional and traditionally unenforceable assurances, Mike Ashley’s boat may well come in. The fans will be delighted.

But such a sale raises many questions. With the Chinese state TV now buying a majority share in Inter Milan and Barcelona, Real Madrid and Juventus in dire financial straits, is the future of European football outside Germany going to fall into the hands of sovereign states and / or their agents? If so, can another European Super League be stopped if the sovereign states decide that it is their interest? What power would the much vaunted’ independent’ regulator possibly have in these circumstances?  

The three recalcitrant super league clubs sue UEFA with sovereign state owners awaiting the outcome

Much therefore hangs on the action brought in Spain by the Barcelona, Real Madrid and Juventus against UEFA which has now been referred to the European Court of Justice. These recalcitrant three argue that UEFA’s refusal to consent to the proposal and threat to ban players from Super League clubs from international representation was an abuse of a dominant position and would be abusive in the future. Certainly the threat to ban players looks hard to defend (similar action by the governing body in cricket was found unlawful in Greig v Insole) but suppose UEFA were to win and the recalcitrant three decided it was better to sell to sovereign states in search of ‘soft power’ than remain ,what would such a legal victory actually look like?

A fine mess is certainly on the cards whatever the outcome of this litigation. Unfortunately, it is much easier to analyse how sport got into such a mess than to suggest concrete solutions - the suggestion of an ‘independent’ regulator ignores the fact that it would be opposed by most clubs. What is more it would have to be transnational to stand any chance of success. Such transnational regulation of ownership and governance was actually proposed by the French government in 2007 as part an EU initiative to take control of sport from national governments; but four years after its emphatic rejection (led by the UK government), the then French President Sarkozy played a key role in the sale of PSG to the Qatari government and the arms race truly began. One can only hope that the outcome will be satisfactory but at the moment it is not looking good. 

Stephen Hornsby

Stephen Hornsby is one of the most experienced EU and competition lawyers still practising in the UK. He has acted for clients ranging from Fortune 100 companies to individuals, in contentious and regulatory matters in the High Court, before the ECJ in Luxembourg and in front of the OFT, Ofcom, the European Commission and the Competition Appeal Tribunal.

Goodman Derrick LLP - a London law firm focused on delivering an exceptional service to ambitious businesses and entrepreneurs.

More information

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.