A momentous three-day hearing in Lausanne will determine whether Uefa was right to punish City for alleged breaches of Financial Fair Play (FFP) regulations.
Uefa launched an investigation into City’s FFP compliance after purportedly hacked documents obtained by Football Leaks were published by Der Spiegel.
City unsuccessfully tried to stop Uefa’s disciplinary process last autumn – before the two-year ban was announced – when their first CAS appeal was ruled “inadmissible”.
The Premier League champions were previously fined £49m by Uefa for FFP breaches in 2014, with the sanction later reduced to £16m.
The outcome of the CAS appeal is not only likely to define City’s immediate future but could also have wider ramifications on English and European football.
Here, The Independent answers some of the main questions surrounding the appeal…
What are City accused of?
Two things. Back in February, the adjudicatory chamber of Uefa’s club financial control body (CFCB) ruled that Manchester City had…
- committed “serious breaches” of financial fair play regulations by “overstating its sponsorship revenue in its accounts … submitted to Uefa between 2012 and 2016”
- failed to “cooperate in the investigation of this case by the CFCB”.
As a punishment, Uefa banned City from their European competitions for the next two seasons and imposed a €30m fine.
City immediately released a strongly-worded statement claiming Uefa’s process was “prejudicial” and that they would seek “an impartial judgment” at CAS.
How will City defend themselves?
City deny any wrongdoing and have repeatedly claimed they have a “comprehensive body of irrefutable evidence” to support their position.
If City are able to produce evidence which indisputably proves they did not overstate their sponsorship revenue, they will go a long way towards winning the appeal. If not, there are a number of other arguments they could pursue.
Christopher Flanagan, the managing editor of the International Sports Law Journal, believes this part of City’s defence is most likely to rest upon three lines of enquiry…
- the use of hacked documents as evidence
- the legality of FFP itself
- Uefa’s handling of the disciplinary process
Can hacked documents be used as evidence?
In short, yes. “The fact that some of the evidence may have come from Football Leaks, I don’t think is going to be a winning argument on its own,” says Flanagan.
“There’s established CAS precedent that you can use evidence even if it wasn’t entirely properly obtained,” he adds. “Previous CAS cases have allowed wire-tapped evidence, for example.”
It should also be pointed out that, as previously reported by The Independent, Uefa’s case is not expected to rely solely on the materials revealed by Football Leaks and published in Der Spiegel.
Even if they used the Football Leaks documents as a starting point, Uefa had wide-ranging audit powers to collect information from City as part of their investigation and the means to gather a wider body of evidence.
Could City challenge the legality of FFP itself?
Yes, they could try, but again they are unlikely to succeed.
There have been numerous challenges to Uefa’s FFP under European competition but they have so far proven unsuccessful. “Again, I don’t think this on its own is likely to be a winning argument,” says Flanagan.
Galatasaray, Queens Park Rangers and Saracens are among those who have tried and failed to prove FFP or similar sporting financial regulations contravene competition law. Each of those cases were decided on their own particular merits though, and Flanagan suggests there is a narrow scope for a fresh challenge from City.
“If City can bring really good evidence to show that this is restrictive of competition then they could establish it, but there have been a number of similar cases where similar rules have been looked at and very distinguished adjudicators have said this is not an illegal breach of competition law.”
Can City claim Uefa’s disciplinary process was flawed?
Yes, and this may be City’s best hope of success and where their defence has most merit.
“In addition to the FFP rules in general, there is a separate set of procedural rules that Uefa is bound to follow,” says Flanagan. “If they’ve not followed those rules, then that is potentially problematic.”
Among the procedural points of concern which City could raise are…
1. Lack of confidentiality
In their first appeal to CAS, City argued that Uefa’s investigation was undermined by “the repeated leaking of confidential information”. Though City were unsuccessful in stopping Uefa’s disciplinary process, CAS said their complaints regarding media leaks were “worrisome” and “not without merit”.
The CFCB is bound to ensure “complete confidentiality” under Article 10 of Uefa’s procedural rules. Leaks to the media would represent a clear breach of those rules. “Whether it’s going to be sufficient for a CAS panel, I don’t know,” says Flanagan. “It’s possible there have simply been two wrongdoings there.”
2. Revisiting previous breaches
Another part of City’s argument was that the CFCB “exceeded its jurisdiction” during their investigation by revisiting breaches covered by their 2014 FFP case, when they reached an agreement with Uefa.
Flanagan says: “They could say there was a settlement agreement at the time that was final, determinative decision as to what should happen in relation to City’s actions at the relevant time and Uefa aren’t in a position to revisit that just because there’s been an email they’ve found.”
Equally though, Uefa may argue that significant new evidence has since come to light. “If there was a settlement agreement on the basis of something understood by Uefa and it comes to bear that City were not complying with their obligation to be open and honest with the CFCB at the time, then it is possible they will have a problem.”
3. Proportionality of two-year ban
In 2018, Milan were banned from Uefa competitions for two years due to breaching Financial Fair Play rules. During their appeal, Milan successfully argued the punishment was disproportionate and instead only received a one-year ban.
“City might say even if we have breached FFP rules and it’s capable of being looked at again, the punishment here is disproportionate to what it is we have actually done,” says Flanagan. “My suspicion is that that is where the real nub of the case might be.”
However, the severity and nature of City’s case is different from that of Milan. Crucially, City are not only accused of breaching FFP but also of failing to cooperate with Uefa’s investigation.
When can we expect a decision?
Anytime between a few weeks and a few months. “When the CAS need to go quickly, they can be quite flexible with that,” says Flanagan. “When they don’t need to, it can take quite a long time, particularly when it’s a really high profile case.
The most recent high-profile CAS hearing involved Chinese swimmer Sun Yang last November. A verdict was only returned in February. “Similarly with the City case, it’s very high-profile and there’s a lot of political pressure on it. The arbitrators will want to make sure the award is watertight.”
Whether or not a start date is in place for next season’s Champions League could be important. At present, if the 2019-20 competition is to be completed in August and there is no crossover, it appears that qualifying for any 2020-21 competition could only start in September at the earliest.
If the ban is upheld, who could leave?
If City’s ban stands, questions will follow about the future of several key players. Less than a fortnight after the ban was announced and shortly before the Champions League last-16 tie with Real Madrid, Raheem Sterling gave an exclusive interview to Madrid-based daily newspaper Marca with both a City and a Madrid shirt draped over his shoulders.
A typically forthright Kevin De Bruyne said he was confident in the club’s appeal last month but admitted he may be forced to consider his future if the full two-year ban is upheld. “Once there’s a final decision I will look at it,” he said. “Two years [without Champions League football] would be long. One year is something I might be able to cope with.”
And Pep Guardiola’s long-term future is also uncertain, though more because his contract is set to expire at the end of next season. Guardiola has repeatedly said he will not walk away from City before then. “Unless they sack me, which can happen, I will not leave,” he insisted after the two-year ban was announced.
Who would qualify for the Champions League instead?
If City secure a top-four Premier League finish while banned from participating in the Champions League, the fourth spot will drop down to the fifth-placed club. The sixth and seventh-placed clubs would qualify for the Europa League.
As it stands, Manchester United would take City’s place in next season’s Champions League group stages. But with the Premier League nearing a return, Wolves, Sheffield United, Tottenham and Arsenal are only a few points behind and in chase.
If there was no Champions League next season, would City’s ban still apply?
Limitations on cross-border travel due to the coronavirus pandemic have raised the possibility that there could be no 2020-21 Champions League. Would City’s ban still apply for next season in those circumstances? According to Flanagan, probably not.
“Generally speaking, when you look at those decisions and you look at CAS decisions, they are framed as being the next Uefa club competition for which the participant who has been banned qualifies for and enters into,” he says.
“If there is not a next competition to qualify for and enter into in the next season, then I would anticipate the ban would come into effect the next time there is a Champions League. Ordinarily it’s framed that way, but it would depend on how the CAS decision is worded. If a ban is upheld they will state the suitable terms of that ban.”
Could they also be punished by the Premier League?
Yes. The Premier League has its own Profit and Sustainability rules which are more lenient and allow for clubs to lose up to £105m across three seasons. Even so, if CAS uphold Uefa’s decision and City’s losses are found to have exceeded that mark, the Premier League could act.
Another concern may be rule J.7 of the Premier League Handbook, which says any club found to have made a “false statement” in connection with an application to enter Uefa competitions – of which FFP submissions are a part – they could also be punished by the Premier League.
Would City be able to appeal again?
Potentially, though the chances are fairly slim and would rely on flaws in the CAS process. “If the CAS got something profoundly wrong, City would have a right of appeal to the Swiss Federal Tribunal to make a determination on that point,” says Flanagan.
“What the Swiss Federal Tribunal does not operate as is as an appeals court from CAS. It will not be the case that if City get a decision that they simply do not like, they will be able to trot down the road to the SFT and ask them to reconsider what the CAS panel have determined.”