1. What has happened?

The club has made a short statement (here) to say that the arbitration hearing (which was previously understood to be taking place this month) has been postponed until early 2022, due to “issues with the disclosure of evidence”.

This is the only statement which has been made.  The only people who know what has happened in disclosure, and why we have reached this point, are the parties to the arbitration, and their lawyers.

I do not represent any fan group or editorial position, nor do I have a role with the NUST.  As such, what follows is my personal take on the current situation.  Although I do not have any information that is not available to the fanbase as a whole, this article is informed by my professional experience in litigation and arbitration, and my understanding of the legal processes.  I hope it is helpful.

  1. What are the “issues with the disclosure of evidence” that have got us to this point?

It could be any number of things.  Disclosure is a means of exchanging documents relating to the issues in a dispute.  Each side will have requested that the other side conduct a reasonable search for documents relevant to issues in the case, and hand them over.  Given the crucial role that documents play in arbitrations, disclosure can be an extremely laborious and time-consuming exercise.  Firstly, given the volume of data that exists in modern organisations, it can take a very long time to carry out searches and review documents prior to sending them (“giving disclosure”).  Secondly, it can take a similarly long time for the party receiving the documents to review them, and raise any concerns regarding the completeness and adequacy of what has been provided.

The club statement does not tell us whether the delay is due to issues with the giving of disclosure (e.g.insufficient time to complete the exercise), or issues having been raised following disclosure having been given, and not having been resolved.  Either could be true.  It is common – particularly in disputes where there is mistrust on both sides (such as here) – for there to be squabbles about the adequacy of disclosure.  It may be that either NUFC or the PL has identified an apparent gap in disclosure (a classic example would be if an email has been disclosed which says, e.g. “I look forward to the meeting on Wednesday”, but no minutes of that meeting are disclosed), or a shortcoming in the other side’s search.  Parties typically look to target relevant documents by restricting their search to specific individuals’ email inboxes, applying keyword search terms, and using date ranges.  There can be disagreements about the techniques that are used, and often these disagreements are still unresolved when disclosure is given.

In short, there can be difficulties relating to the giving of disclosure, and squabbles arising out of reviewing disclosure once it has been given.  Both can give rise to significant delays.  The arbitrators typically want all of these issues to be resolved prior to the final hearing – not least because the arbitrators ultimately want to be able to reach a correct decision.

We do not know whether the issues have been on NUFC’s side or the PL’s side.  It is possible (and indeed there will be some NUFC fans who lean towards this view) that this delay has been caused by the PL attempting to withhold certain (disadvantageous or unhelpful) documents from disclosure, or having refused to search extensively, and that NUFC is pushing for the PL to adopt a more extensive approach to the exercise.  However, while there is a temptation to speculate that the PL’s conduct may be the cause of the latest delay, it should be remembered that it was NUFC – through its ill-conceived application to replace the chairman of the arbitral panel – who previously delayed everything by 5 months.  Had it not been for that wholly avoidable and self-inflicted delay, the arbitration could be done and dusted by now.

Unfortunately – and yet again – we are left to speculate.  My best guess (and it really is only a best guess) is that the arbitration timetable (being so tight) created difficulties on both sides, and that a delay might actually suit both parties, as well as the arbitration panel.  In circumstances where we have nothing more than the club’s bare statement to go on, this is probably the fairest working assumption.

  1. Why is the delay so long?

The delay is at least 6 months, and may be even longer.  By anyone’s definition, that is a long delay.

Rather than asking why the delay is so long, it is arguably preferable to frame this aspect in a different way, and to ask whether a July hearing date in the arbitration was ever realistic in the first place.  On 5 March, NUFC failed in its application to have the chairman of the arbitral panel removed.  The panel was therefore not “constituted” until after that point, and it would have been later in March (at the earliest) that the timetable leading up to the arbitration hearing was set.  We know, from orders published in the anti-competition case (here), that disclosure was due to be given in the arbitration in late May / early June, with the final hearing in July.  That left very little time for potentially extensive disclosure exercise to be conducted (on both sides), and alarmingly little time (in between the disclosure date, and the hearing date) for complaints arising from allegedly inadequate disclosure, to be properly addressed – or even addressed at all.

Given that, by March, there wasn’t even an arbitral panel in place, July was extremely ambitious and has indeed proven to be unachievable.  I had predicted (on a TF podcast following the 5 March verdict) that we were unlikely to have a hearing in 2021.  While it gives me no pleasure to find out that has been correct, the unfortunate reality is that a final hearing this summer was always too optimistic, given the procedural steps and complexities.  (The timing pressure almost certainly became even more acute, once the anti-competition case was filed and created an additional theatre of conflict, diverting time and resources away from an already hugely ambitious timetable in the arbitration).

So a delay was, perhaps, inevitable.  Even so, this delay is admittedly very long.  It may not be that 6 (or indeed 7, 8 or 9 months) is actually needed for the parties to be ready for the final hearing.  In my view (and based on personal experience) it is more likely to be a diary issue.  There are three extremely busy and highly respected arbitrators, and senior QCs on both sides who are very much in demand.  It may simply be that no date can be found, this side of Christmas, which works for all the key players in the arbitration.  The barristers have other clients, and other sources of income.  They will already be committed to trials and other important hearings after the summer holidays, and they cannot move those commitments around in order to accommodate the NUFC v PL arbitration.  This may also explain why the club statement is so vague as to the new date: “early 2022” is a suggestion that they still have not found a date that works on all sides.

Where a less ambitious timetable is set, allowing sufficient time between the various procedural steps leading up to a final hearing, there can be some flexibility / “wriggle room”, so that if some more time is needed to resolve issues in disclosure, this can be done without putting the final hearing date at risk.  This was not the case here, for reasons which are best known to the parties.  We are therefore left with a situation where NUFC remains in limbo for at least two more transfer windows, with an owner who refuses to invest properly in the playing staff and where another relegation battle seems almost certain.

  1. What does this mean for the takeover – has it become more or less likely?

Even before this latest development, and even putting the legal disputes to one side, there were already concerns about whether the takeover was likely to go ahead.  This squad was embroiled in a relegation battle for much of last season, and has a manager who is unfit for the job.  We have just started pre-season with an anonymous defeat to York City.  We have an owner who has promised only £10m for transfers, in circumstances where Aston Villa (who finished ten points ahead of us last season) have just spent £30m on Buendia.  The main transfer news has been the release of Atsu and Lejeune.  The takeover issue simply cannot be divorced from the football side – the asset in question is, after all, a football club.

The hot air about cartels, conspiracies, BeIN Sports, Ben Jacobs, Ghodoussi’s tweets, Simon Jordan, the Big Six, and anti-competitive behaviour – is precisely that: hot air.  These things may be more juicy and interesting than either the dry procedural aspects of legal process, or our pathetic transfer kitty, but they are frankly unhelpful distractions.

The concerns on the football side are magnified, given this significant delay, and it has become necessary to seriously ask the question of whether there will even be a club worth purchasing, by the time the arbitration is ultimately won (if that indeed happens), or whether we will already be heading for the Championship by then.  If it is the latter, then the deal will simply no longer be on the table.

There has been a suggestion, put forward by certain elements within the fanbase, that this delay to the final hearing in the arbitration is in fact a blessing in disguise – the theory is that, if disclosure in the CAT case takes place before the arbitration hearing, then it will help the club win the arbitration (or alternatively force the PL to give the green light to the takeover), because of the damning evidence that will (supposedly) emerge from the CAT case.  This is misleading on a number of levels.  Five immediately spring to mind:-

  1. It is a rule of English civil procedure that you cannot use documents obtained in one set of legal proceedings, for the purpose of separate legal proceedings. The documents that come into St James Holdings’ possession in the CAT case do not miraculously find themselves in NUFC’s hands in the arbitration.  It is just not that simple.
  1. We do not even know whether the CAT case will be allowed to proceed. At present, the PL is applying to have it thrown out (or, at least, paused until the arbitration is finished) on the basis that it should not be required to fight on two fronts at the same time.  The arguments in relation to this issue are finely balanced and I do not seek to pre-judge that outcome.  However, it would be madness to place too much reliance on what might emerge from disclosure in the CAT case, given that it’s highly plausible we won’t even reach that stage.
  1. This whole theory assumes that the evidence in the CAT case will be different from the evidence in the arbitration. There are opposing views on this, but I do not subscribe to the view that disclosure will be any more extensive in the CAT case.  The CAT case is not a general investigation of whether the PL engages in anti-competitive behaviour – it is only looking at whether the PL did so, in the context of its treatment of the proposed NUFC takeover last year.  As such, the underlying facts are the same, and the documents largely will be too.
  1. This whole theory also assumes that the PL is scared of needing to disclose these documents publicly (if indeed they are damning, which is still just speculation). The PL is pretty shameless – their spinelessness over the Super League already proves that – so I find it hard to draw the conclusion that the PL is scared of anything that might see the light of day, even if it does show the PL in an unfavourable light.  The sad reality is that most fans already think football in general, and the PL in particular, is corrupt – and I don’t think fans of other clubs particularly care about the NUFC takeover.  In short, while I share many fans’ misgivings about the PL, I don’t really see the threat of embarrassing the PL as being worth very much.
  1. Even if the CAT case does go ahead, it’s far from guaranteed that disclosure would take place before the final hearing in the arbitration anyway. (It is worth noting that these elements within the fanbase were trumpeting the importance of disclosure in the CAT, to the outcome of the arbitration, even when the arbitration was due to be heard this month – which shows a disregard for timing and sequencing).

Unfortunately for those who are desperate to see a takeover, it is not possible to paint yesterday’s club statement in a positive light, however much one might try to do it.  Similarly, for everyone who simply wants to see the end of this saga (one way or the other) and a return to focusing on the football, yesterday was not a good day.

So where do we go from here? Ultimately, it is for individual fans to decide how they feel about the takeover and the various content that has emerged following yesterday.  I don’t speak for anyone other than myself.

The season starts in three weeks and we simply don’t look ready for it.

Keep the faith.

Howay the Lads.

YOUSEF HATEM – @yousef_1892