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Not illegal, not specified, not described, not restrained – Leeds United, utmost good faith and the EFL Regulations

On 18 February, the English Football League (“EFL”) handed Leeds United a sizeable fine of £200,000 as well as issuing a formal reprimand and warning for sending staff to ‘spy’ on opposition training before matches. This was an initiative instigated by the Head Coach, Marcelo Bielsa. The decision followed Bielsa’s comprehensive PowerPoint presentation in January that demonstrated the full extent of his game preparation, which included watching videos of every single opposition game and populating a document with tactical notes.

Contrary to obligation to act in utmost good faith

One interesting element is that Bielsa’s practice was (and is) not contrary to a specific prohibition under the EFL Regulations. In this way the manager was right to say that what he had done was “not illegal…not specified…not described…not restrained.” The sanctions were imposed and accepted pursuant to EFL Regulation 3.4 in Section 2 – Membership:

“In all matters and transactions relating to The League each Club shall behave towards each other Club and The League with the utmost good faith. Further, each Club shall deliver to the League a copy of the Club Charter signed by the appropriate Relevant Person for and on behalf of the Club. The League shall be entitled to publish the Club Charter.”

This is similar to the wording of the Premier League Chairmen’s Charter which has been in force in the Premier League for roughly a decade and is aimed at ensuring integrity in Clubs conduct with each other. The Chairmen’s Charter is incorporated into the Premier League Handbook and provides that:

“The Chairmen’s Charter is a statement of our commitment and aim to run Premier League football to the highest possible standards in a professional manner and with the utmost integrity.

 With that aim we, the Chairmen of the Clubs in membership of the Premier League, are determined:

  •  To conduct our respective Club’s dealings with the utmost good faith and honesty.”

The practice of sending staff incognito to view opposition training was held by the EFL to be below the standard of ‘utmost good faith’ and the Club was said to have “formally admitted [the] breach of Regulation 3.4.” Under English law when conduct is not in good faith, it is in bad faith. However, the addition of the word ‘utmost’creates a seemingly different threshold which conduct can fall short of, without being in ‘bad faith’ per se.

Sanction against the club, not the coach

Despite Bielsa admitting in his press conference that he was “the only one responsible” the EFL was unable to sanction the manager given the wording of the regulation relied upon. Regulations 3.4 (above) expressly binds The League and each Club as opposed to the ‘participants’.

Under the current rule therefore, the EFL could not proceed to sanction Bielsa personally. This scenario is in contrast to the FA’s sanction of both Leeds United and its former owner Massimo Cellino who was found by the FA to have breached FA Rule E3(1) in December 2016. Rule E3(1), which is still in force today, provides:

“A Participant shall at all times act in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute…”

No reward for honesty

Unfortunately for Bielsa, the manager’s honesty appears not to have been considered by the EFL as a mitigating factor. In his press conference, Bielsa publicly admitted that he “watched all the training sessions of the opponents before [Leeds] played against them.” Bielsa was keen to emphasise that he gathers far more information from watching every game each of his opponents played in the previous season than he does by sending staff to watch them train just before the game.

José Mourinho and Rafael Benítez were pioneers in the field of pre-match preparation, the former manager famously creating comprehensive pre-match dossiers and personalised DVDs for each player. Perhaps a logical progression to pre-game preparation is having sight of the opposition’s final training session before the match. This is, in a sense, a reflection of the direction of market practice and highlights the need for sports regulation to develop with market conditions.

Catch-all provisions in the age of integrity

Like the national governing body for football, the Football Association, the EFL (a competition organiser) creates a contractual, private law relationship between itself and its members and in order to participate in the EFL, clubs must agree to be bound by its rules and regulations. This decision is the latest in the use of ‘catch-all’ provisions that enable governing bodies and competition organisers to reprimand its participants for actions that are undesirable, but not specifically prohibited. A similar approach is taken to ‘off-pitch’ behaviour which is usually sanctioned by way of prohibitions on bringing the sport into ‘disrepute’. In both instances, the provisions tend to deal with conduct and the broader concept of integrity.

The EFL used a formal statement regarding the decision to announce that it was introducing a new regulation to make it clear that Clubs will be expressly prohibited from viewing opposition training in the 72 hours immediately prior to a fixture, unless invited to do so.” This provision will need to be passed at a general meeting by a majority of the votes cast by all Member Clubs in accordance with Article 13 of the League’s Articles of Association. If passed, in the future the EFL will not need to proceed under Regulation 3.4 to regulate such activity, since there will be an express prohibition.

In this case it appears that the size of the fine is commensurate with the media attention that ‘spy gate’ received. This serves as a reminder that participants are operating within an environment where integrity in dealings with each other and the league is required as standard.

© Copyright 2019 Squire Patton Boggs (US) LLP

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