The news about BeIN finally being allowed into Saudi Arabia broke on Wednesday afternoon. I cautiously welcomed that news as being likely to soften the PL’s position, but kept the cans resolutely unopened. The PL was only ever one part of the jigsaw. We still had an erratic seller, a shady buyer, a purchase price far above market value, a depreciating asset, and the complications of a global economic shock. None of those commercial realities were impacted by the BeIN / Saudi development. Caution remained advisable. Then, at 6:56pm on Wednesday evening, came George Caulkin’s tweet. Best-before dates on cans were quickly checked. Fridges across the North East were filled.
Off licences were emptied. During the course of the evening, cans were opened. At first, we sipped slowly. Tentatively. Almost guiltily. Thursday dawned – and once completion of the takeover was formally announced – it was safe to guzzle those cans greedily.
‘The podcast we never thought we’d record’
Full reaction from the night of the takeover – thank you for all of the kind feedback so far
I can’t remember recording most of this but I think it turned out okay https://t.co/I74hZGqOxf
— Alex Hurst (@tfalex1892) October 9, 2021
This is a time for long-awaited hope. Becoming one of the “big clubs” is no guarantor of silverware, a fact to which Spurs fans will attest. But maybe, finally, we will actually try. It does not sound like much, but at the same time, it is absolutely everything.
Because we can now focus on football. We can remove words from our vocabulary, words which have absolutely nothing to do with why we love football. Joyless, loveless, rootless words like jurisdiction, test, separation, cartel, tribunal, piracy, confidentiality, arbitration, and disclosure. I am so tired of writing about those things. It is draining and it is hard work. After today, I don’t want to write about law and Newcastle United in the same breath ever again, although I’ll always be grateful to True Faith for having given me the platform to do so, over the past year. I will be writing about football. It’s all I ever wanted to write about.
But here goes, once more, one final time, with feeling. Five (legal) take-aways from the last few days’ incredible turn of events:-
It was always about piracy, not separation per se.
The PL’s insistence (rightly or wrongly) that PIF was not separate from the Saudi state, never existed in a vacuum. The PL only ever pushed the point because the Saudi state (although not PIF) was allegedly involved in piracy, and because the PL had therefore wanted to find a way to have the owners and directors test applied to the Saudi state. We had always known that. This was always why the PL had cared about the separation point in our case, whereas they had not been as bothered in the case of previous investments using state funds (e.g. Man City, Burnley).
While some preferred to see piracy concerns as a fabrication, preferring instead to second-guess the PL’s true aims (assuming the existence of conspiratorial motives without any real basis for the assertion), the reality was always that the PL had a legitimate interest in protecting its broadcast partners and clamping down on piracy.
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— True Faith: Newcastle United Fanzine and Podcast (@tfNUFC) October 9, 2021
It was never about a prohibition on sovereign states, or sovereign wealth funds, investing in clubs. No such prohibition ever existed in the PL’s rules. What happened on Wednesday was that the settlement between BeIN and Saudi Arabia made it impossible for the PL to harbour any remaining concerns about piracy, and therefore to care about separation any longer. The fact that things then moved as quickly as they did on the takeover front, following the BeIN/Saudi announcement, proves beyond any doubt that the substantive question of piracy – rather than the academic question of separation – was always the sticking point.It is correct that some cursory assurances were provided to the PL about the Saudi state having no intention of interfering in club affairs.
However, this is best seen as a nod to formality, rather than anything else. Arbitration, strictly, is required to settle the specific issue which has been referred to the tribunal. As such, the parties needed to formally agree that they had reached an accommodation in relation to the separation issue, in order for the arbitration to go away. It was always fanciful to speak in terms of “the arbitration being settled” as there was never a compromise or middle ground which was acceptable to both parties. More accurately, the resolution of the piracy issue meant that the PL simply had no interest in maintaining its prior position.
The only legal process that ever mattered was arbitration.
The fact that things happened – with all the major players flying into Newcastle – almost immediately after the arbitration was formally resolved, proves beyond all doubt that the arbitration was the only legal process that ever mattered here. The removal of the piracy issue led to the disappearance of the separation issue as an obstacle, meaning that the takeover could progress. The dominoes tumbled very fast. If the BeIN/Saudi settlement had not been reached, arbitration had gone ahead in January, and the club had won, then the separation issue would also have gone away. The only difference would have been that the issue would have gone away by reason of the arbitrators’ ruling, rather than by agreement.
In that scenario, the PL would have been bound by the decision of the panel, and would have had no reason to stand in the way of the takeover even if the BeIN/Saudi settlement had not been reached. There is still an unanswered question. We do not know whether things would have moved as quickly towards a takeover, in the event that the arbitration had been necessary. There may have been some residual ill-feeling between the club and the PL, and potentially some issues to be resolved in relation to (e.g.) legal costs.
The parties were able to choreograph things in the way that they did this week, because of how events unfolded. We should not assume it would have been as seamless, following an arbitration. That said, I suspect we do not care that much. The key point, which was always correct but has now been demonstrated conclusively, is the clear causal link between the arbitration and the takeover.
Today we've turned down the 30+ media requests. We said our piece yesterday and got the message out there standing up for #nufc fans in local, national and international media.
— Greg Tomlinson (@GregNUST) October 8, 2021
The Premier League considers Saudi money to be as good as anyone else’s.
While some had feared that the PL simply did not want Saudi investment in one of its clubs (and was effectively beholden to Qatari interests), the reality is that the PL never had such an agenda. I never liked that notion much, and never thought we should assume the existence of scandalous motives: by definition, if scandals are assumed to exist, they cannot be scandals. The fact that the PL was not in the business of undermining Saudi Arabia at every turn had already been demonstrated by the fact that, as reported a few months ago, the PL had stopped insisting that Saudi Arabia remain on a global piracy “watch list” maintained by the United States.
Indeed, it had always seemed a bit implausible that the PL would do Qatar’s bidding, or would wade into the wider geopolitical squabble between Qatar and Saudi Arabia. BeIN is a current broadcast partner, and the PL accordingly fought hard on the piracy front (indeed the continued wealth and success of the PL depends on it being seen as a safe and reliable business partner to the major broadcasters – which means their interests being protected) but it went no further than that. Put simply, the PL – much like the City of London – is a honeypot for global capital. Its success relies on not being too sniffy about where the money comes from: Russian oligarchs, American property tycoons, Emirati sheikhs and Chinese moguls are all welcome.
The notion that Qatar controlled the PL was a fanciful one: BeIN needs the prestige of being able to show PL content, far more than the PL needs the BeIN contract (it is hardly as though the TV rights would be worth zero, if BeIN spat their dummy out). The best commercial outcome for the PL was always for the Newcastle United takeover to act as a catalyst for the piracy issue to be resolved, and for yet more money (this time Saudi money) to flood into the league.
— True Faith: Newcastle United Fanzine and Podcast (@tfNUFC) October 8, 2021
It seems even less likely that there was ever any anti-competitive behaviour.
If it had ever been correct that the PL engaged in anti-competitive conduct (and it was always a stretch to automatically assume that such scandalous behaviour had taken place – see above), then the events of this week simply would not have unfolded in the way that they did. If the Big Six clubs were colluding with the PL to block the Newcastle takeover, and if the PL had improper arrangements in place with its commercial partners to deny us this takeover, then this week’s resolution of the piracy issue (which was always a genuine, substantive, hot-button issue) would have done precisely nothing to bring the takeover closer. The other clubs and the PL’s commercial partners – and the PL itself – would still have stood in the way. That didn’t happen. In fact, quite the opposite. Piracy went away, and we got our takeover. The outlandish claims made in the CAT claim have been proven to be precisely that: outlandish.
The CAT was always a sideshow because it was never timed to coincide with the arbitration in such a way that it could ever have a meaningful impact on it. This week shows that the underlying anti-competition claim itself was weak. Some will say that it cannot be a coincidence that there was a jurisdiction hearing in the CAT case, just a week before our takeover. This is utter nonsense. The BeIN/Saudi dispute pre-dated any mooted takeover, and was a far, far bigger issue to the parties involved than anything to do with Newcastle United.
The idea that the CAT case brought about resolution of the far bigger dispute, is frankly absurd. There are, frankly, dozens of ways in which to demonstrate that what happened this week had nothing whatsoever to do with the CAT claim. Moreover, the reaction of the other PL clubs (which seems to be fury that the PL approved the takeover), would appear to suggest that, whether or not they lobbied against the takeover last year, the PL was certainly not doing their bidding.
'in modern football, clubs are bought and sold by the richest people in the planet…football supporters, we are not in that conversation' https://t.co/QGSnX7IzS7
— Alex Hurst (@tfalex1892) October 8, 2021
The owners and directors test really is not fit for purpose.
The test itself didn’t change this week. The relationship between PIF and the Saudi state didn’t change this week. All that happened was that the PL stopped caring about standing in the way of the takeover. They stopped regarding the Saudi state as a person with control (and therefore being subject to the test) and some flimsy justifications for the change of approach were hastily cobbled together. They also evidently lost interest in actually applying the test and ruling that it had been failed.
Last year, it took 17 weeks.
On Wednesday, it didn’t. We will not be complaining now – but the reality is that the owners and directors test is simply an excuse: drafted deliberately badly, and vaguely, to give the PL an almost unfettered right to apply its discretion however it wants. They can use it to block what they want to block, and to wave through what they want to wave through. It is extraordinarily subjective, as demonstrated in the context of our takeover. It is absolutely not fit for purpose.
The fact it is so hard to pin down, is also precisely why the arbitration would have been an uphill struggle. It would have been really, really hard to succeed in arguing that the PL failed to follow its own test. The PL drafted it in such a way that it was almost impossible for them to fall foul of it. This is not good enough.
While it has been trying at times, it has been a privilege to write about the legal aspects of our takeover for True Faith. I’ll always be thankful that I was given this platform, and that my views – though sometimes unpopular, and never informed by any inside information – were always published, in full, and unedited. I have enjoyed engaging with fellow supporters and I hope it has been informative. But I am extremely happy that I can go back to writing about football.
I am still amazed by what happened this week. Of course, it’s worth remembering that this is how corporate acquisitions are meant to work – the hard work is done privately, confidentially and diligently, without the aid of self-serving “club statements”, soundbites delivered to Simon Jordan on TalkSport, or the co-opting of supporters to write to their MPs. Takeovers should happen in the way it happened this week: really, we should only know once they’re announced, for all the (understandable and totally legitimate) generalised clamour for transparency.
I want to know more about our new owners’ plans. I want to know who we’re going to buy in January. I am now counting down the days to Palace away: it will be my first match in almost three years and I am giddy with excitement. I am looking forward to bringing my baby girl up to support a club that tries. I am looking forward to watching matches with my Dad.
I never thought we would get here. While I have always written about the legal aspects of our takeover (and sought to do so diligently and honestly), I had started to wonder what the point was. In my mind, the legal debate was becoming of purely academic curiosity, as I was becoming less and less confident that our buyers were still in the picture. I am so happy that they were, and that Mike Ashley is no longer a part of our lives.
YOUSEF HATEM – @yousef_1892