tigermaul
Well-Known Member
Further to my previous post, here is the relevant stuff from the Boro board that is worrying Soton fans. The laywer concerned is
Stefan Borson, a corporate lawyer, qualified solicitor, and football finance expert. He is well-known for his extensive analysis of Premier League and UEFA Financial Fair Play (FFP) regulations.
Spygate: Why the Swindon EFL Trophy case should worry Southampton fans
slbsn
@slbsn
·
29m
I wrote on Saturday that my best guess was that Southampton would be deducted six EFL points in their next EFL season and fined £500k-£1m.
.
I felt, instinctively, that expulsion from such a big game was excessive and disproportionate. However, there are some technical points that would worry me as a Southampton fan. Worse than that, the key ones were considered recently by an EFL Disciplinary Commission in EFL v Swindon (
https://images.gc.eflservices.co.uk/f1a33090-1191-11f1-a071-51ac3b681d4e.pdf
)
Liability is not the battleground
Liability is unlikely to be seriously contested. Regulation 127.1 prohibits any club from directly or indirectly observing, or attempting to observe, a rival's training session in the 72 hours before a scheduled fixture between them. The "attempt" formulation means that whether or not Southampton obtained anything useful is irrelevant - the act of trying is enough. Expect an admission, or at minimum a rapid narrowing of issues, with Southampton's lawyers focussing hard on the proportionality of the sanction rather than fighting the underlying charge. Admitting early is the only realistic way to bank any credit with the Commission.
If there are additional instances of surveillance beyond the specific fixture charged, and reports suggest there may be, those will likely be advanced by the EFL as aggravating factors.
The knockout competition problem
Middlesborough have already argued in their statement that "the only appropriate response is a sporting sanction which would prevent Southampton FC from participating in the EFL Championship play-off final."
Whilst this is a lawyer drafted statement and obviously tendentious, it is possible that the EFL may adopt the same position at the Commission.
In the Swindon Commission chaired by John Mehrzad KC the sanctioning principles were set out with clarity. Drawing on Derby v EFL and the Everton Appeal Board decision, it identified four purposes for any sanction: punishment, vindication of compliant clubs, deterrence, and restoring and preserving public confidence in the fairness of EFL competitions. It then identified that last aim as the most important of the four.
During the hearing, there was some focus on the meaning of 'proportionality' in this disciplinary context with parties urging the Commission to arrive at a sanction which was 'balanced' (as submitted by the Club) or 'no lesser than would meet the aim' of a fair competition (as submitted by the EFL).
It did not stop there. The Commission went on to say that a necessary part of restoring public confidence in the fairness of a competition is ensuring the competition is in fact fair. And herein lies a subtle but potentially crucial distinction for Spygate.
The competition here is, arguably, not the League season itself because the Play-Offs are defined separately in Section Nine of the EFL Handbook. The Play-Offs are defined as a distinct knockout competition with its own rules, its own definitions, and its own prize structure - namely, a very valuable place in a different division. There are no points to win, just £200m of broadcast revenue (at least).
The Swindon Commission confronted exactly this structural problem and its conclusion was unambiguous: where a club gains an unfair competitive advantage in a knockout competition, a points deduction is not available and a fine alone does not restore genuine fairness to the competition.
The EFL argued that the key aim or objective of any sanction was the fairness or integrity of the respective competition. If that approach is repeated, a Commission will be asked to focus on sanction in the context only of the Play-Offs as a distinct competition.
Proportionality is relative
My position is that expulsion from the Play-Offs feels excessive given that Southampton finished seven points clear of sixth and nine clear of seventh. That is an intuitive position but it is not one the Swindon framework or the EFL's argument there supports. The margin by which Southampton qualified is not the relevant question. The relevant question may be whether Southampton obtained a sporting advantage in a specific knockout fixture by prohibited means. If they did, the Commission's primary concern is the integrity of the Play-Off competition from that point forward and not whether Southampton "deserved" to be there in the first place.
The Commission also made clear that a club should not financially benefit from its own misconduct. Southampton's financial interest in a Play-Off final and potential Premier League promotion dwarfs Swindon's £40,000 prize money by several orders of magnitude. However, arguably, that context does not reduce the Commission's appetite for the ultimate sanction. Rather, it increases it.
I stand by my best guess but as a matter of principle, the Swindon case and the EFL's arguments there suggests the Commission should be reaching for something more.
A nervous 48 hours or so awaits for Southampton fans.
Stefan Borson, a corporate lawyer, qualified solicitor, and football finance expert. He is well-known for his extensive analysis of Premier League and UEFA Financial Fair Play (FFP) regulations.
- Legal and Corporate Roles: Borson trained as a lawyer and has served as the Group CEO and General Counsel for Watchstone Group plc.
- Football Expertise: He is a former financial adviser to Manchester City and frequently appears on UK sports media (like talkSPORT and the BBC) commenting on club takeovers, FFP cases, and related legal disputes.
Spygate: Why the Swindon EFL Trophy case should worry Southampton fans
slbsn
@slbsn
·
29m
I wrote on Saturday that my best guess was that Southampton would be deducted six EFL points in their next EFL season and fined £500k-£1m.
.
I felt, instinctively, that expulsion from such a big game was excessive and disproportionate. However, there are some technical points that would worry me as a Southampton fan. Worse than that, the key ones were considered recently by an EFL Disciplinary Commission in EFL v Swindon (
https://images.gc.eflservices.co.uk/f1a33090-1191-11f1-a071-51ac3b681d4e.pdf
)
Liability is not the battleground
Liability is unlikely to be seriously contested. Regulation 127.1 prohibits any club from directly or indirectly observing, or attempting to observe, a rival's training session in the 72 hours before a scheduled fixture between them. The "attempt" formulation means that whether or not Southampton obtained anything useful is irrelevant - the act of trying is enough. Expect an admission, or at minimum a rapid narrowing of issues, with Southampton's lawyers focussing hard on the proportionality of the sanction rather than fighting the underlying charge. Admitting early is the only realistic way to bank any credit with the Commission.
If there are additional instances of surveillance beyond the specific fixture charged, and reports suggest there may be, those will likely be advanced by the EFL as aggravating factors.
The knockout competition problem
Middlesborough have already argued in their statement that "the only appropriate response is a sporting sanction which would prevent Southampton FC from participating in the EFL Championship play-off final."
Whilst this is a lawyer drafted statement and obviously tendentious, it is possible that the EFL may adopt the same position at the Commission.
In the Swindon Commission chaired by John Mehrzad KC the sanctioning principles were set out with clarity. Drawing on Derby v EFL and the Everton Appeal Board decision, it identified four purposes for any sanction: punishment, vindication of compliant clubs, deterrence, and restoring and preserving public confidence in the fairness of EFL competitions. It then identified that last aim as the most important of the four.
During the hearing, there was some focus on the meaning of 'proportionality' in this disciplinary context with parties urging the Commission to arrive at a sanction which was 'balanced' (as submitted by the Club) or 'no lesser than would meet the aim' of a fair competition (as submitted by the EFL).
It did not stop there. The Commission went on to say that a necessary part of restoring public confidence in the fairness of a competition is ensuring the competition is in fact fair. And herein lies a subtle but potentially crucial distinction for Spygate.
The competition here is, arguably, not the League season itself because the Play-Offs are defined separately in Section Nine of the EFL Handbook. The Play-Offs are defined as a distinct knockout competition with its own rules, its own definitions, and its own prize structure - namely, a very valuable place in a different division. There are no points to win, just £200m of broadcast revenue (at least).
The Swindon Commission confronted exactly this structural problem and its conclusion was unambiguous: where a club gains an unfair competitive advantage in a knockout competition, a points deduction is not available and a fine alone does not restore genuine fairness to the competition.
The EFL argued that the key aim or objective of any sanction was the fairness or integrity of the respective competition. If that approach is repeated, a Commission will be asked to focus on sanction in the context only of the Play-Offs as a distinct competition.
Proportionality is relative
My position is that expulsion from the Play-Offs feels excessive given that Southampton finished seven points clear of sixth and nine clear of seventh. That is an intuitive position but it is not one the Swindon framework or the EFL's argument there supports. The margin by which Southampton qualified is not the relevant question. The relevant question may be whether Southampton obtained a sporting advantage in a specific knockout fixture by prohibited means. If they did, the Commission's primary concern is the integrity of the Play-Off competition from that point forward and not whether Southampton "deserved" to be there in the first place.
The Commission also made clear that a club should not financially benefit from its own misconduct. Southampton's financial interest in a Play-Off final and potential Premier League promotion dwarfs Swindon's £40,000 prize money by several orders of magnitude. However, arguably, that context does not reduce the Commission's appetite for the ultimate sanction. Rather, it increases it.
I stand by my best guess but as a matter of principle, the Swindon case and the EFL's arguments there suggests the Commission should be reaching for something more.
A nervous 48 hours or so awaits for Southampton fans.
Last edited:
#1480
