Yousef is a n experienced and qualified lawyer. We hasten to add this is his opinion. He may be proven correct and he may not. There are other opinions available and Yousef would be the first to say his opinion is of no greater or lesser value than any others. His is his qualified however. We would hope that because Yousef’s opinion is different from others, there will be no attempt to abuse, ridicule or humiliate him. Sadly this does happen in certain circles but it isn’t anything we’ll be indulging in. Its just not our style. We recommend you read Yousef’s article for TF and note its contents. It won’t be the last word but it is food for thought. Cheers.
What has happened?
The PL is attempting to have the competition claim dismissed on the basis that the arbitration deals with the same set of facts. For that to happen, the PL needs to make an application to the Competition Appeals Tribunal (CAT). The CAT – like all tribunals – sets deadlines for applications. The deadline, for this application, was originally 18 May. Last week, the PL wrote to the CAT, seeking a 28-day extension of that time limit (i.e. to 15 June) on the basis, essentially, of the ongoing work involved in the arbitration. The CAT made a ruling, on 13 May, granting a slightly shorter extension, to 11 June.
What does this mean for the CAT claim?
It means that, on 11 June, the PL will file an application at the CAT (supported by evidence), in support of its position that the CAT claim should not be allowed to go ahead. St James Holdings – Ashley’s company – will get the opportunity to respond (probably by the end of June). The CAT will then decide, on the basis of the evidence, and arguments made by the lawyers, whether the CAT claim can proceed. We do not know when that decision will be made, or what the outcome will be. The arguments are finely balanced. If the PL wins, then the CAT claim disappears. If St James Holdings wins, then the CAT claim continues, and the PL will be required to file a formal defence to the claim which St James Holdings filed last month.
— True Faith: Newcastle United Fanzine and Podcast (@tfNUFC) May 13, 2021
What does this mean for the arbitration?
Nothing, so far as the arbitration itself is concerned. However, there is a point of interest in the CAT’s 13 May ruling. In addressing the existence of the arbitration, the CAT mentioned that the arbitration is “being heard on an expedited basis in July 2021”. This is the clearest – and perhaps the only – reliable public information available about the timetable in the arbitration.
Is this good news?
In one sense, yes. We are no longer completely in the dark about when the arbitration hearing will commence. It is reassuring to have some actual information about the current status of the arbitration process, instead of just guessing. However, it’s less clear that expediting (i.e. speeding up) the process will help NUFC win the arbitration. Firstly, the decision to expedite the hearing is likely to have been agreed with the PL, and may even have been suggested by the PL, which would suggest that the PL has a degree of confidence in its position. Secondly, NUFC is looking to overturn a finding that was previously made (i.e. the PL’s view in relation to separation). This is inherently harder than looking to have that finding upheld. This is not to say that the club will fail – De Marco and his team will have plausible arguments and will make them strongly – it is just to note that, other things being equal, the club might have benefited (more than the PL) from having more time to assemble its evidence and arguments. Thirdly, if the arbitration hearing takes place in July, then it confirms the total irrelevance of the CAT claim as a means of applying “pressure” (as has been suggested in some quarters). There is zero prospect of disclosure in the CAT claim taking place before the arbitration hearing (particularly given the latest developments in the CAT claim, which create delay as mentioned above), and therefore it is impossible for any evidence to emerge from the CAT claim, in time to assist NUFC in the arbitration.
When could a takeover happen?
We do not know exactly when the arbitration hearing is taking place, other than that it starts at some point in July. It could last one, two or three weeks. We may (cautiously) assume that the hearing will end in late July / early August 2021. This does not mean that the arbitral panel will make its decision immediately. Typically, the panel will take a few weeks to consider all of the evidence it has seen, and the legal arguments it has heard. The panel may also request further written submissions from the lawyers, before issuing its ruling. This process may be quicker than is sometimes the case (given that the parties have requested that the arbitration is expedited). A verdict before the start of the next league season (which begins on 14 August 2021) is highly unlikely.Success in the arbitration would not, in any case, lead to the takeover immediately going through. We would be back where we were in spring 2020, the difference being that we do not know whether the same buyers are still interested, and we do not know whether the same deal is on the table. A lot of water has passed under the bridge, and there are fairly erratic people involved (on both the seller and buyer side).Additionally, while a successful outcome in the arbitration would mean that MBS / the Saudi state would not need to pass the Owners and Directors Test, PIF still would, as would Staveley and the Reubens. The buyers pulled out of the deal last year before the test was applied to them. It remains possible – and even likely – that it will take a long time for PIF to pass the test, even if they are found to be legally separate from MBS / the Saudi state. Richard Masters said, in his letter to Chi Onwurah MP last summer, that “there are no timescales prescribed by the PL’s Rules in relation to the Owners and Directors Test”. While that is frustrating, it remains true. It is not hard to see how, in a proposed takeover this significant and this controversial, the test could still take a long time.
— True Faith: Newcastle United Fanzine and Podcast (@tfNUFC) May 15, 2021
This week’s developments have removed one “unknown” – we now have more clarity on when the arbitration is happening. However, there are still many more legal and commercial “unknowns” which stand in the way of a successful takeover.
In truth, the most important recent news, for takeover purposes, is that we’re staying up. If we had gone down – which looked a distinct possibility after the Brighton game – it would have been hard to see any deal still being on the table, regardless of anything happening on the legal side.
Howay the lads.
YOUSEF HATEM – @yousef_1892