The article below has been written by Yousef Hatem, an experienced and qualified solicitor who has been in practice many years. Yousef is also a dedicated Newcastle United supporter and regular writer for TRUE FAITH. This is his opinion on what is happening with Ashley’s actions against the Premier League, where his motivations lie and what is driving him. Yousef will freely concede, as he has, that his opinion is of no greater or lesser value than any other supporter. Like everyone at TRUE FAITH, we will acknowledge others may see things differently and we’re not going to respond to other opinions with abuse or attempted ridicule, bullying or intimidation. That would be moronic. That’s not what we do. We hope you read this piece and understand it is one supporter’s opinion, albeit one who knows his way around a court-room. Yousef may not be completely right, time will tell. That applies to every other version of what is happening with our club right now … 

What has happened?

Mike Ashley’s company, St James Holdings, has sued the Premier League.  The argument is that the Premier League, in insisting that the proposed buyers of NUFC had failed to disclose all persons who would have had control following a takeover, breached competition law, by abusing a dominant market position.  More specifically, it is claimed that the Premier League acted with an ulterior commercial motive, promoting its own business interests, the interests of its business associates and other PL clubs.

Why is this allowed to go ahead?

The arbitration is between NUFC and the Premier League.  The claimant, in this new action, is St James Holdings.  If NUFC had tried to bring this new claim, it may have been thrown out on the basis that there is an ongoing arbitration between the exact same parties.  However, here, the entities are different.  Also, the remedies being sought are different.  St James Holdings is primarily seeking financial compensation for the damage (i.e. to Ashley’s pocket).  Given these differences, it can be argued that the claim is sufficiently different from the arbitration, that it ought to be allowed to proceed.  The PL and its lawyers may, however, be considering an argument that the claim should be dismissed (“struck out”) or at least put on hold (“stayed”) while the arbitration is ongoing, as they arise out of the same set of facts, and it is unreasonable for the PL to be forced to fight on two fronts.  These arguments are quite finely balanced.

Does it bring a takeover any closer?

No.  Two main reasons.  Firstly, even if St James Holdings were to win, the remedy might well only be financial compensation (for Ashley, not the club).Although the claim also contains a request that the PL reconsider its decision of last year, this is not the main focus.  The arbitration, even though it will not result in an immediate order that the club is sold, is at least part of the acquisition process.  This claim is not.  Secondly, in order to succeed in this claim, it needs to be successfully argued that the PL misapplied its own rules (exactly what is being argued in the arbitration), and also that this constituted an abuse of a dominant market position.  This is an additional hurdle, even before getting into the allegations themselves.  If the arbitration fails, this claim certainly fails.  But if the arbitration succeeds, this claim could still fail.  All in all, it has very little to do with the takeover and certainly does not bring it closer.

Will the claim succeed?

I don’t know.  All that can be said with confidence is that this claim is more difficult than the arbitration, because the claimant needs to succeed on the same arguments which are relevant to the arbitration, and then some more on top.  As to the “some more on top”, Ashley has made some incendiary claims in this new action: essentially alleging that the PL has colluded with its broadcast partners and/or the other clubs, to deliberately exclude NUFC from having new owners.  Ashley is inviting the suggestion that there has been a conspiracy.  Some fans believe that is true.  Personally, I don’t believe that, but I can’t disprove it either.  People already have entrenched positions on this.  The point is that those arguments are very difficult to make – judges will tend to be very careful before making findings of this nature.

Why has he done it?

Taking it at face value, Ashley feels he has been hurt.  It is not his fault that PIF are who they are, and he is frustrated that he did not get his big payday last summer.  This is an attempt to get some money (for himself – or more accurately his company, St James Holdings) – and, because this claim is public (whereas the arbitration is private), he can comment on it – see, for example, the “dark forces” comment of yesterday – and can create hassle for the PL.  However, creating hassle for the PL, so that they pay him financial compensation (potentially by way of an out-of-court settlement) does not impact the takeover.

There is a view doing the rounds that this claim is part of a broader strategy to apply pressure on the PL to abandon its position in the arbitration, and allow the takeover to go ahead.  Personally, I do not go along with that.  If these claims are as outlandish as they sound (at least to my ears), the PL will not be scared.  By contrast, if the claims are true (i.e. Ashley has evidence that there was a conspiracy), then that evidence can be brought to bear in the arbitration anyway, without the need for additional “pressure”.  In any case, the arbitration is binary – either the PL’s decision is upheld, or it is not.  There is no obvious compromise or middle ground which can be sought, which calls into question the relevance, and purpose, of “pressure”.  When a legal dispute has a binary outcome, it is more likely to go the full distance, irrespective of any “pressure” applied during the process.

And finally…

This claim has been brought by Mike Ashley, purely to benefit Mike Ashley. That is the reality of this latest development, irrespective of where we individually stand on the takeover.

YOUSEF HATEM – @yousef_1892