Will Clubs be Banned for not Breaking-Even? A Review of Recent FFP Cases
Actual Moneyball
By Daniel Geey and Andrew Visnovsky
Introduction
The recently published high profile decision involving Malaga gives important insights into the decision making rationale of UEFA’s Club Financial Control Body (CFCB) and the Court of Arbitration for Sport (CAS) in relation to the UEFA Club Licensing and Financial Fair Play Regulations edition 2012 (the FFP Regulations). Malaga was sanctioned for breaching the 'overdue payables' section of the FFP Regulations.
Break-even Decisions will begin in Spring 2014 and the lessons learned from the Malaga and other recent 'overdue payables' cases set out below are instructive for a number of sanctioning reasons.
The Malaga Decision
In November 2012, CFCB Investigatory Chamber found that Malaga as of 30 September 2012 had overdue payables debts of €8.45m owed to the Spanish tax authorities.
The CFCB found the club in breach of the FFP Regulations by way of Articles 62(3) and 65(8) which state that a club is in violation of the provisions if:“the licensee has overdue payables as of 30 June of the year that the UEFA club competitions commence...” [which are also outstanding on 30 September].
Throughout UEFA’s financial inquiry, Malaga maintained that it had no overdue payables and that any debts owed to tax authorities were deferred. After a hearing, the CFCB Adjudicatory Chamber found Malaga in breach of the overdue payables requirements by:
fining Malaga €300,000 and
banning the club for the next two UEFA club competitions should they qualify in the next four seasons[1].
Malaga appealed that decision to CAS, arguing that it had a valid agreement to defer its overdue payables to the tax authorities under Spanish law and therefore had no debts that were overdue. The club also argued that it should not be punished for the delay caused by the tax authorities deciding on its request for deferral.
The CAS panel disagreed with Malaga, stating that the FFP regulations define overdue payables as payments not paid “according to the agreed terms.” The panel also observed that the FFP Regulations required that any agreement extending deadlines for payment must be “accepted in writing by the creditor”. Thus if there was no agreement before the relevant date i.e. 30 September 2012, then the debt was overdue. As the FFP Regulations explicitly define overdue payables and Malaga had not entered into a written agreement for the extension of deadlines of those over due debts, the CAS held that Malaga was in breach of the overdue payables requirements.
A disappointing aspect from a sanctioning perspective was that Malaga had not submitted any specific arguments on the proportionality of the sanction to CAS. Therefore there was no discussion about the possibility of a lesser sanction being imposed and whether the test (set out below) had been satisfied. The following section sets out why this is important.
Implications for Future for Break-Even Decisions
UEFA’s CFCB has the power to sanction clubs for breaches of the FFP rules. Such sanctions include a reprimand, a fine, withholding of prize monies, points deductions, refusal to register players for UEFA competition, reducing a club’s permitted squad size, disqualification from competitions in progress and/or exclusion from future competitions. It is likely that there will be clubs wanting to participate in European competition that breach the break-even criteria (i.e. make more than a €45m loss) in the FFP Regulations. The real issue will be how the CFCB sanction such clubs.There have been other recent FFP Regulation and overdue debt sanctioning decisions which may be of assistance when discussing the severity of break-even sanction decisions when they are announced in the Spring. Relatively recently, CAS has (in the main) upheld sanctions imposed on a range of clubs including:
Besiktas (exclusion for one year, a second year suspended plus a fine),
Bursaspor (a one year suspended exclusion and a fine); and
Gyori (exclusion for two seasons with the third season suspended and a fine).
With he first CFCB break-even decisions in the Spring, the below overdue payable examples demonstrate the rationale for how previous clubs have been sanctioned.
Previous CAS FFP Examples
1. Besiktas had five overdue payable amounts outstanding which totalled around €4.5m. The club stated that a number of the amounts were contested though CAS concluded they had been labelled 'contested' by the club in their submissions to ensure they were not classed as 'overdue'. CAS believed that an exclusion was more likely where, in this case, overdue payables were "concealed" through listing them as disputed but not contesting them and that the club had earned revenues from a competition they should not have been allowed to have participated in.
2. Bursaspor had failed to pay Portsmouth over €300,000 as part of a transfer fee instalment agreement as of June 2011. As there was overlap between the implementation of the new and old regulations, CAS reduced the exclusion sanction to a suspended exclusion but fined the club the amount it gained from participating in the UEFA competition.
3. Gyori (although based on a different regulatory procedure) had committed two breaches. The first was having overdue payables due and the second was falling to disclose its correct level of overdue payables. Even though the outstanding amount was (only) €100,000, a two year exclusion was deemed appropriate by CAS. It was these two combined elements that led Gyori to be banned rather than face suspended exclusions.
Appropriate Sanction
sWith Malaga now included in this growing exclusion list before CAS, the rationale for the appropriate FFP sanctions may be becoming clearer. An excellent article, Brian Kennelly examines a number of determining features in relation to the proportionality of the sanction (i.e. does the breach match the punishment). The most important part of this 'proportionality test' is set out in the Besiktas Decision in relation to a club that wishes to argue its sanction is disproportionate (i.e. if a club has been disqualified from Champions League competition and they believe a points deduction or fine would have been fairer). The CAS at paragraph 127 in the Besiktas Decision stated:"On the question of proportionality, the Panel accepts the position of UEFA, as established by the CAS jurisprudence it cited – just because another sanction could be issued, it does not make the one issued disproportionate. The Appellant would have to demonstrate that the Appealed Decision was “grossly disproportionate”."
The above examples show instances were even a small overdue debt can lead to exclusion from competition. This suggests that the overdue amount is not necessarily relevant because the club failed to comply with a fundamental obligation (no overdue debts) under the FFP Regulations. By analogy, it may be suggested that a club €200,000 outside of the break-even acceptable deviation provisions may also be excluded from competition. Some may argue however that such a sanction would be "grossly disproportionate" and that there are more appropriate sanctions that could be imposed instead.Nonetheless, it is instructive to note from the above CAS cases that a sanction is likely to be more severe if there are a number of offences tied in with an overdue payables breach like concealment of information or failure to disclose such information. Such behaviour would be likely be deemed an aggravating feature for sanctioning purposes.
Conclusion
The next stage is to wait for the CFCB in the Spring to announce the clubs that have breached the break-even FFP Regulations provisions. Although the CFCB decisions are not publically available, if appealed, the CAS judgments will provide further insight into this important area.
However, if Malaga proved compliance with the overdue payables regulations by 31 March 2012, UEFA would reduce the ban to one UEFA competition season (which Malaga was subsequently able to do).