George Overhill

Wed 6 December 2023 17:47, UK

Everton face a “double jeopardy” situation in terms of punishment as they consider having to pay out to rival clubs on top of receiving a points deduction for breach profit and sustainability rules, but there is a “lifeline”, according to Matt Stanbury.

In a lengthy thread on Twitter (5 December) the Park Square Barristers lawyer, and Toffees fan, reacted to the news that the club may be looking to reach settlements to avoid compensation being determined by the independent commission panel which has already ruled against them once, to suggest they shouldn’t need to pay at all, while there may be hope in the appeal against the points penalty.

Citing Sheffield Wednesday’s own points deduction to start this season he pointed out the Lord Dyson had in that case called it “impossible to quantify” what effect the Owls’ breach had on rivals, before Stanbury also highlighted the “overlooked” fact that West Ham had been spared a deduction in the Carlos Tevez case [Guardian] on the grounds of it “unfairly” impacting on Irons fans and players.

Stanbury wrote: “It’s reported that Everton are looking to settle compensation claims made by various clubs who have been relegated from the Premier League. It’s not at all clear that they are required to do so.

“In order for compensation be due there needs to be proof of ‘causation’, i.e. that Everton’s breach of the Profit & Sustainability Rules (PSR) caused the other team to be relegated.

“This causation issue was flagged by the Commission in its ruling on 9 May 2023. It has identified the problem that the relegated clubs face.

“In terms of proving causation, in the Sheffield Wednesday case Lord Dyson (a very senior judge) said any loss arising from a breach of PSR would likely be ‘impossible to quantify’.

“Is it one goal scored, one point, one win? Nobody can say. And therefore how can any loss be quantified, and how can be it be said that Everton’s breach of the PSR caused the loss?

“The relegated clubs may point to the award made by an arbitration panel in Sheffield United v West Ham: the Carlos Tevez saga. But each case turns on its facts, and in that case West Ham were not punished with a points deduction.

“Everton, on the other hand, now face double jeopardy: a points penalty which puts them at a disadvantage this season whilst being asked to pay compensation to put right a perceived (but impossible to quantify) advantage from earlier seasons.

“In fact, it’s not at all clear that the Commission were entitled to hive off the compensation claims to be dealt with later, separately. The Commission itself spoke of the need to avoid ‘a multiplicity of proceedings’.

“The Rules provide for the possibility of a combination of sanctions being imposed, including a points deduction and compensation. This can only fairly be assessed by them being considered together, in the round.

“They also assume that proceedings will be concluded as soon as possible, usually within 12 weeks (unless of course you are Man City). This provides finality and removes the sort of financial uncertainty that the PSR are designed to eliminate.

“Settling the claims removes this uncertainty, but brings its own problems in terms of the sustainability of the Club. If compensation is not required to be paid, then paying it to avoid a catastrophic outcome may, in its own way, bring about one.

“On a more optimistic note, in the Tevez case the Commission did not award a points penalty in part because it would impact unfairly on the players and the West Ham fans. This has been overlooked so far and might provide a lifeline.”

Get out?

From an Everton point of view Stanbury’s arguments certainly sound persuasive, but whether they stand up in front of the appeals panel, or indeed the same commission panel which has already imposed the 10-point deduction, is another matter.

Differing legal interpretation of the rules could go on indefinitely, but with the commission supposedly afforded plenty of discretion they may be seen to have reached a valid conclusion regardless of precedent in other cases, or the rules of other jurisdictions such as the EFL.

It seems impossible to argue out of a punishment altogether, and likely wouldn’t be reasonable anyway, but at the very least it would seem that a points deduction or a financial penalty might make sense.

If Everton go ahead on negotiations with previously relegated clubs then it might be a matter of trying to make it a known quantity, as they are clearly not going to willingly agree to a settlement that pushes them into financial oblivion.

That David Phillips KC is the man who already ruled that Burnley, Leeds and Leicester had grounds to make a claim and also the one who would decide compensation they are due it is clearly a risk to leave such a matter in his hands, if Everton were prepared to hold their ground.

And when it comes to the points deduction appeal it makes a lot of sense to argue on the Tevez grounds that the fans and players are the ones who are ultimately being punished the most, because it seems obviously true.

But the panel at the hearing might just argue in return that the commission had already considered that and decided to discount it, as they did with the Premier League’s proposed points deduction framework before conveniently landing on the same number anyway.

In other Everton news, Newcastle are now “likely” to pay the Toffees £5million.