Justice, natural justice and double jeopardy

The picture here is meant to show Lady Justice and her scales with a football under one arm, though it looks more like a cannonball to me. Which is fairly appropriate really as the Premier League continue to pursue its blunderbuss Profit and Sustainability regulations, hitting walking wounded targets Everton and Nottingham Forest while leaving Manchester City and Chelsea as untouched as a stealth bomber targeted by a musket.

Nottingham Forest got docked four points by the Premier League for exceeding the Profit and Sustainability threshold (as it applied to them as a club promoted during the rolling three year period covered by the regulations) by £34.5m. Everton got docked six points, reduced from 10 on appeal, for being £19.5m over the limit. Forest were in breach by 57%, Everton by 19%. Go figure, as they say.

Forest had an apparently reasonable mitigation plea. They delayed the sale of Brennan Johnson until after the relevant end date having received an offer of £43m as they thought he was worth more. I agree it would hardly seem sustainable to sell players for less than their market value. However, he was only sold for £47.5m two months later. And they had continued to buy players in the previous January window: three permanently, two on loan and one on a pre-contract basis, having been on such a huge buying spree in the previous window that the rules on squad size meant they had to loan some players out in order to register all the new acquisitions. 

Even if they planned to sell Johnson they must have known that they wouldn't get top dollar in June. In contrast Everton pushed through a fire sale of Richarlison by 30 June 2022.

The Premier League noted Forest had a larger proportionate breach of the limit than Everton and sought an 8 point deduction but the commission decided both club's breaches were in the "significant" band so stuck with the same level as Everton - 6. But they then reduced it by a third for Forest's "early plea" and "co-operation".

Everton now faces a second charge, which it has already effectively admitted, this time as promptly as Forest did, though they will probably claim they were only in breach of the rules a second time because they were found to be in breach the previous time, so they had no opportunity to take action to avoid the second breach.

The points I've been pondering for some time (as Mrs H will attest) and on which the media has slowly caught up are how, when the target is on a rolling annual basis, can you be charged twice in one season? And what penalty would be appropriate when they have already been sentenced for two of the three seasons?

The reason Everton can be charged twice is that the timetable for clubs to submit their PSR calculations was brought forward from March to December to allow cases to be heard in the season a charge is brought, after a lot of whinging from a number of clubs (yes, I mean you Leeds and Leicester).So this is a once-off situation. It's crazy, because the accelerated progrtamme still does not ensure a final verdict before the last matches of the season are played. To accelerate the programme but not by enough seems incompetent to say the least.

But is it fair? Sean Dyche says Everton's second PSR charge in one season may be double jeopardy. The Athletic put Everton's arguments to sports lawyer, barrister Samuel Cuthbert.

He disagreed because the Premier League rules allow a second charge covering, in this case three of the four seasons for which the club has already been punished. However he does feel that it contravenes the concept of 'natural justice' since penalties for overlapping periods should be judged holistically to avoid disproportionate outcomes.

The barrister pointed out that, as Everton remained guilty after their appeal then they cannot say "we've done nothing wrong before", which could affect the further level of sanction given if found guilty again. But he went on to say that there is a nuance because the sanctions cover multiple seasons.

“There is a general principle in law that, if a party who is bringing a charge is aware of facts that should lead to another charge, then those charges should all be brought at the same time. That’s just natural justice because, otherwise, you can drip-feed charges and keep a club constantly in front of disciplinary commissions for years.

“Double jeopardy isn’t quite the right term because that’s a criminal allegation. It’s more just a question of natural justice; that if the Premier League had been aware of facts for some time — and they presumably have been — then all charges ought to be brought at the same time so that they can be considered holistically and appropriate sanctions given."

“You can’t hold back facts that you are reasonably aware of and then subject a party to multiple charges. You shouldn’t have to fight allegations which could and should have been brought all at the same time.

“I do wonder whether that’s a slightly theoretical argument because Everton have admitted a level of breach, so the issue is sanctions. They will say that sanctions should have been considered holistically."

I guess this means Everton could not have the chance to do the equivalent of asking for other offences to be "taken into consideration" in a criminal case. The barrister went on to say

“That then brings me back to my original point — that, as a matter of natural justice, they should have been heard at the same time.”

“Essentially, if you’re going to charge over a period, you need to bring everything that you want to charge in relation to it,” he says. “Otherwise you end up in a Kafka-esque situation where you are just constantly being pulled back in over the same period over matters that could and should have been brought at the same time."

The truly Kafka-esque situation would be where a fine levied for the first charge makes it certain that the club would be found guilty under the second charge. The EFL rules are different and prevent a given season being considered more than once. However, that did not stop Derby County being hit with a series of penalties which made their relegation from the championship inevitable and then continuing to hit them with a transfer ban the following season when many of their players had left, leaving them fielding a lot of academy players.

As I understand it on Everton's original interpretation of its accounts it was under the PSR limit but it accepted some of the Premier League's interpretation in the first hearing, putting it over the limit, which is why Everton could not be found not guilty on appeal. But if that change also tilts them over the line for the second charge then that would appear to me to go against natural justice, as put forward by barrister Cuthbert, as they had no opportunity to take action, such as selling players by 30 June 2023 given that their first hearing didn't even take place until November of that year.

However, I don't understand how the barrister can argue that the matters could have been brought at the same time as the subsequent season's accounts weren't available then. I think it's daft that the club can be effectively charged again for some of the seasons for which it has already been penalised and that, to me, would seem to go against natural justice. But the problem with that argument is that "rules are rules" and the clubs signed up to them a long time ago.

They are, of course, a bad set of rules put in place for bad reasons - to keep the richest clubs at the top for ever, which is why Manchester United and Liverpool are such big supporters of the concept.

Perhaps Everton's strongest argument will be that, if the second breach is found to be "significant", the six point penalty tariff proposed by Forest's Commission should be reduced by two-thirds (for the seasons already penalised) and then by a further third for an early plea and co-operating, like Forest. Which would make it a one point deduction.

If I were a betting man I'd say it will be a further three points for Everton (the minimum tariff for a breach as proposed by in the Forest commission's report) but maybe two points.

On the current table that would put Everton, Luton and Forest all within a one or two point range, scrapping it out for the third relegation place, assuming Burnley and Sheffield United are effectively gone. Brentford, currently in a tail spin with only one point from their last five games (Everton and Luton have two) could also get drawn in. 

Nevertheless it's going to be a funny end to the season if we don't know what each club needs to do to survive on the last day - and still don't know after the final whistles have gone what the final league table for the season will be.

That situation might be avoided if Everton's case is decided in April, the penalty is light and they choose not to appeal. Whether it's justice, natural or not, it's pathetic. The relegation scrap is one of the most riveting aspects of the season. But possibly not this year, which can only harm the Premier League's brand.

Everton and Nottingham Forest confirm Premier League PSR breaches https://www.premierleague.com/news/3858986

Nottingham Forest docked four points for Premier League financial rules breach. The Guardian 18 March 2024

The independent (sic) commission's report to the Premier League is downloadable from the Premier League website, see https://www.premierleague.com/news/3936397

Assessing Everton's PSR arguments: Is double jeopardy a valid defence? Patrick Boyland and Jacob Whitehead, The Athletic 17 January 2024. https://theathletic.com/5208105/2024/01/17/everton-ffp-psr-double-jeopardy-efl/