Swedish ice hockey star Nicklas Backstrom reaches doping settlement at CAS

Nicklas Backstrom © Flickr / Dan4th

Nicklas Backstrom
© Flickr / Dan4th

AN appeal to the Court of Arbitration for Sport (CAS) by Nicklas Backstrom has been withdrawn after the Swedish ice hockey star reached an out of court settlement with the International Olympic Committee and the International Ice Hockey Federation over claims that he had taken the banned substance pseudoephedrine (PSE) during last year’s winter Olympics in Sochi, Russia.

The sportsman was suffering from a cold during the games and sought advice from the Swedish Olympic team doctor about whether he was permitted to take a particular brand of medication. Acting on that advice, he took the medicine on a daily basis and gave details of the medication on a doping control form.

When a doping control exercise was carried out after the quarter final match between Sweden and Slovenia on 19 February last year, Backstrom was found to have more than the permitted 170 micrograms per millilitre in his system (170 µg/mL).

The IOC Disciplinary Commission found that Backstrom had committed a violation; but because of the mitigating circumstances decided that he should be allowed to claim both the silver medal won by the Swedish team and the diploma awarded for men’s ice hockey; and he received these in a ceremony in Gävle, Sweden in August.

In the case before the CAS, Backstrom was challenging the IOC Disciplinary Commission’s decision that an anti-doping rule violation had occurred. In the meantime, the International Ice Hockey Federation (IIHF) had decided that a breach had not occurred; a decision which was the subject of a separate challenge to the CAS by the World Anti-doping Agency (WADA).

The CAS facilitated “constructive discussions” between legal teams representing Nicklas Backstrom, the IOC, WADA and the IIHF; which resulted in a settlement leading to today’s decision to conclude the CAS litigation.

Mr Backstrom will be issued with a reprimand, which is the lowest sanction permitted under the WADA Code.

In a statement today, the CAS say that “Mr Backstrom, WADA, the IOC and the IIHF are pleased that this matter has now been concluded, and wish to clarify that at no time was Mr Backstrom’s receipt of his Olympic silver medal at issue in the proceedings before the Court of Arbitration for Sport.

“WADA, the IOC and the IIHF take this opportunity to state that there is no indication that Mr Backstrom intended to enhance his sport performance by taking a prohibited substance, that the prohibited substance (PSE) was contained within a product Mr Backstrom was taking for medical reasons, that Mr Backstrom relied on the specific advice of his team doctor that his use of the product would not give rise to a positive sample, and that he openly disclosed the product on the doping control form at the time of the doping control.”

Coventry City FC owner’s Ricoh lies have backed them into cul-de-sac from which they can’t reverse

One of the first things that Lord Justice Burnett had to do when he returned to work at the Court of Appeal yesterday was to begin ploughing through the pile of work allocated to him during the Christmas recess.

Amongst the pile of cases waiting for him is an application for leave to appeal by Sky Blue Sports and Leisure Ltd against the monumental failure of their application for judicial review of Coventry City Council.

You would have thought – considering the weight of the judgments against them in both their original and renewed applications for judicial review, and their publicly stated aim of leaving the Ricoh for their own newly built stadium, that they would have learnt their lesson. Apparently not.

For not only have they sought leave to appeal against that decision; they have also launched a fresh application for judicial review over the decision by Coventry City Council to sell their stake in the Ricoh Arena to the London Wasps Rugby club.

In summary, in their original judicial review the Sisu hedge-fund owned Sky Blue Sports and Leisure, one of the myriad of companies in the complicated ownership structure of Coventry City Football Club, claimed that Coventry City Council were guilty of unlawful state-aid by buying out a mortgage for Arena Coventry Ltd (ACL), the owners of Coventry City’s Ricoh Arena home.

ACL was 50 per cent owned by Coventry City Council. The other half was owned as an investment by a local charity.

The reason Coventry City Council needed to buy out the mortgage was because Sisu wanted to buy the stadium at a knock-down price. And in an attempt to force the price down they attempted to distress ACL by withholding rent.

Those aren’t my allegations – they are Sisu’s allegations, and were contained within their court papers. They are open about what they tried to do.

Or, partly open: they are happy to tell the court what they are doing so long as nobody reports it or puts it into the public domain. When the Guardian reported Sisu’s actions, they received a complaint via Sisu’s solicitors.

In July last year, the Guardian reported that law firm Speechly Bircham (now Charles Russell Speechlys) wrote to them saying that “given its natural meaning”, to say Sisu stopped paying the rent “suggests that Sisu was acting in a commercially immoral way”.

So there you have it: Sisu’s own lawyers admit that Coventry City FC’s owners had acted in a “commercially immoral way”.

But wait, I’m not being fair. That would only apply, of course, if Sisu had indeed decided to stop paying the rent. Where could this suggestion have come from? Oh yes, I forgot – from Sisu’s own submissions to the High Court and the subsequent High Court judgment.

Giving judgment against Sisu’s Judicial Review application, Mr Justice Hickinbottom, said that, from 2 April 2012, “CCFC went on a rent strike, making it tolerably clear that they did not intend to pay any further rent unless and until a restructuring agreement to their (and SISU’s) satisfaction was made.”

To me – and Sisu’s own lawyers, it seems – this is “acting in a commercially immoral way”.

ACL’s bankers had decided that the lack of rental income meant that the security of the Ricoh Arena was no longer sufficient to guarantee the loan and, on 11 December 2012, they wrote to ACL demanding that they “provide additional security and/or reduce the balance of the debt to the Bank’s satisfaction within seven days.”

It was Sisu’s plan that this action would force Coventry City Council to sell its share in ACL to Sisu at a knock-down price. Instead, Coventry City Council paid off the loan and made its own loan to ACL.

Sisu’s key argument was that no commercial investor would make a loan to ACL on the terms that the Council agreed with ACL and so the deal constituted “state aid” which is contrary to EU law.

But the Judge disagreed, saying that “On the basis of all the evidence, in my judgment, a rational private market operator in the position of the Council might well have considered that refinancing ACL on the terms in fact agreed was commercially preferable to allowing ACL to become insolvent.”

He said: “The private investor in the shoes of the Council would have been properly entitled to take the view that ACL was capable of servicing a loan for £14.4m over 41 years, and the security was sufficient to make the risk of it failing to do so commercially worthwhile.”

He highlighted the fact that the bank was itself willing to consider a restructured loan having considered that ACL could service “a larger loan over a shorter period”.

In comments critical of Sisu, the judge said that in coming to his conclusion, he had “taken into account all relevant matters”, including that fact that: “the failure of CCFC/SISU to pay rent – and their refusal to consider paying any rent except on SISU’s terms – put the Council an invidious commercial position.  As it was intended to do, it placed ACL in considerable financial distress, compounded by the indications that CCFC/SISU were unwilling to pay any rent unless and until a commercial deal was struck on their terms, including a significant (at least 50%) share in ACL; and by SISU’s indications that they were fully prepared to put CCFC into administration or even liquidation.”

He continued: “Winding up ACL would have meant that, although the lease may have ultimately reverted to the Council as freeholder, the Council’s investment in ACL would have failed.  Although the worth of ACL on paper was, as at January 2013, nil, I consider a rational private market economic operator, with a view to longer-term returns, may have considered (as the Council in fact considered) that the failure of the company was temporary, brought on by the refusal of CCFC to pay any rent; and restructuring involving both the refinancing of the ACL debt by the investor himself and steps to improve ACL’s cashflow – in terms of cutting costs and increasing revenue – would result in a realistic prospect and reasonable likelihood of future profits.”

He said that such a private investor “would be alive to the mismanagement and failure of the Football Club, whilst in SISU’s hands; and the failure of CCFC to produce a convincing business plan for a sustainable football club. His faith and trust in SISU would have been less than full.”

He concluded that Sisu’s claim “fails in its entirety.”

Most people in Sisu’s shoes would call an end to the legal action here. According to their own words, over a couple of years now, they have absolutely no interest in a long-term residency at the Ricoh Arena.

Following the unnecessary politically motivated decision to put one of Coventry City Football Club’s ownership companies in administration; Sisu moved the club, temporarily to Northampton, where they played all their home matches last season and during the opening months of this season.

They returned to the Ricoh, on a short-term deal, after the judicial review was lost and after paying ACL an amount that the Football League had decided a year earlier should be paid to ACL in return for the League handing their golden share (and the right to play in the League) to the new Sisu company that had bought some of the assets from the older Sisu company that was at that stage in administration.

All through the time that they were in Northampton – and to this day – Sisu say that their intention is to build a new stadium for Coventry City FC. Without owning their own stadium – with access to the income streams this would provide – they can’t make the money to produce a return on their investment in the club.

However, in the autumn of 2013, a series of Freedom of Information requests by this website revealed that Sisu had not held even exploratory conversations with planning officers of Coventry City Council nor any of the local authorities that border Coventry – conversations that would be necessary before any land was purchased or planning permission applied for.

This process has now been picked up and widened by supporters group the Sky Blues Trust. Last month they published their latest findings showing that such discussions have still not taken place.

Are Sisu genuine when they say that they will build a new stadium for Coventry City Football Club?

It appears not. Because they are still focused on legal action surrounding the Ricoh Arena.

Not only are they seeking permission to appeal against the comprehensive rejection of their judicial review (which Lord Justice Burnett should rule on in the next week or so); they have launched a fresh judicial review proceedings challenging Coventry City Council’s decision to sell their 50 per cent stake in ACL to the London Wasps rugby club.

The rugby club now own the stadium outright, having also brought the 50 per cent stake held by the local charitable trust; and have confirmed that Coventry City Football Club can continue to play their home games at the stadium.

This is surely a sensible decision – Sisu had continued to insist that they were at the Ricoh for the short term and that they would be building their own stadium. So the selling of the stadium to a new significant sporting organisation provides a long term future for the stadium and protects the investment by the council and charity.

But Sisu are unhappy that they have lost the ability to buy the stadium and have lodged papers seeking a judicial review of the Council’s decision to sell the stadium.

The Coventry Observer reports that Sisu are challenging the Council’s agreement with London Wasps that the Rugby Club would repay the outstanding £13.4million loan over 20 years.

As I stress, I am not a lawyer; but if this is the basis of Sisu’s claim it is, so far as I can see, bound to fail.

The Council’s loan was made to ACL. ACL still exist and still have the mortgage. The owners of ACL have changed; as has its directors. But the company is still the same legal entity today as it was when the loan was agreed with Coventry City Council.

The High Court has ruled that Coventry City Council’s loan to Arena Coventry Ltd was lawful. The loan is still with Arena Coventry Ltd. A change of ownership of ACL does not, in itself, change that. And there can be no grounds for arguing otherwise.

But the question remains: why is Sisu spending its money on judicial reviews of the Coventry City Council’s handling of a stadium which it claims not to have any long term interest in?

It is my honest opinion that Sisu have lied about their intention to build a new stadium and that, up until the sale of ACL to London Wasps, their intention was to continue in their attempts to purchase the Ricoh Arena; and that now the stadium has been sold to London Wasps they have been caught out by their lies and find themselves backed into a corner from which they can’t reverse.

Sisu has form when it comes to misleading statements: in 2005, High Court judge Mr Justice Warren, in a judgment on an unconnected matter, described Sisu’s head, Joy Seppala, as “the least satisfactory of all the witnesses”, saying: “I fear Ms Seppala has a distorted recollection of some events … and, with the benefit of hindsight, has introduced a ‘spin’ which suits the Applicants’ case.  She is also prone to exaggerate – the Respondents would characterise it as lying, but I give her the benefit of the doubt on that.”

Sisu have made various promises about building a new stadium. Sisu’s own publicly stated deadlines by which they would announce where the stadium would be built have come and gone with no such announcement made; and still no discussions have taken place with nearby local authorities about whether any sites under consideration would be suitable.

And in October last year, Joy Seppala told supporters that Sisu would not interfere with the sale by Coventry City Council to London Wasps. They have now gone back on that by issuing judicial review proceedings.

And yet they remain “fit and proper persons” to own and manage a football club according to Football League rules.

The Guardian reports that Sisu’s lawyers threatened a supporters group with legal action for linking to the Guardian article referred to at the start of this blog. I received no such letter – despite making similar, if not stronger, claims. Should Sisu’s lawyers get in touch with me I would be more than happy to supply them with a service address for any claim they wish to make arising out of the statements made in this blog.

Why is the PFA putting so much effort into promoting rapist Ched Evans?

Ched EvansThe Professional Footballers Association have been pushing Ched Evans’ case since before he was released from prison.

As the patrons of the Kick It Out campaign, which describes itself as “football’s equality and inclusion organisation”, you might think they’d be fighting for victims of sexual violence; not least because Kick It Out has worked hard to support women in football.

“For the last two decades, women’s football has been the fastest growing sport in England,” Kick It Out say on its website. “Football is now the most popular team sport in the country amongst women and this increased interest shows no sign of relenting with over a million women and girls playing the game.

“There is also a large focus on representation off the pitch with Kick It Out playing a vital role in trying to address the lack of female presence in the football industry. Several leading women from across football provide vital support to the campaign and are helping to shape its future work in this area.”

So it is hard to understand why the PFA would seek to promote and campaign for a rapist while ignoring the views and of women up and down the country. You have to ask, what do the women who work for the PFA think about their actions?

But this question begs another question: do women work for the PFA? And are they represented in the upper echelons of the organisation? Fortunately, the PFA provide the answer to this as they have a webpage profiling their staff.

They start with their chief executive: Gordon Taylor OBE – a man. Then two deputy chief executives: Bobby Barnes and John Bramhall – both men. Then there are three assistant chief executives: Simon Barker, Nick Cusack and Richard Jobson – all men.

Below the various CEO-types are the director level staff: Matthew Buck, director of player management; John Hudson, director of corporate social responsibility; Jon Kilburn, director of IT and Digital Communications; Pat Lally, director of education; and Darren Wilson, director of finance: five men.

Below the directors are the heads of department. Perhaps the PFA will do better here: Michael Bennett is head of player welfare; George Berry is head of commercial; Jim Hicks is head of coaching; and Colin Hill is head of commercial: four more men.

But wait – I’ve missed a head of department out. And it’s a woman! Simone Pound is head of equalities! Yes, the most senior woman at the PFA (according to their online staff list) – the only woman amongst the top 16 posts at the PFA – is head of equalities. Talk about a token gesture.

The website lists more staff: a coaching technical consultant, an assistant director of education, an equalities education executive, a PFA/ULF project administrator, a PFA/ULF project manager, two PFA executives, a community equalities executive, two community liaison executives, a player management executive, an independent registration service advisor, somebody working in digital communications, a digital communications executive, a coaching office manager, nine regional coaches, and two commercial executives: 25 more men.

The PFA does have women working for it. Their job titles are secretary to the directors, trainee accountant, finance assistant, two PAs, an office manager, three administrators, and one person listed simply as “administration”: 10 archetypal “women’s roles”. There are two other women: one working in digital communications and a player management executive.

The vast majority of staff employed by the PFA are men. All the PFA’s senior staff are men. Most of the women employed by the PFA are in roles traditionally seen as women’s roles because of their support and administrative nature.

Could this be why the PFA don’t realise how offensive their campaign to support a rapist is?

But wait: these are only the staff. What about the PFA’s management committee. To be fair, the PFA is a representative body and its management committee is comprised of representative players from the top leagues. As this is a male dominated sport you would expect the management committee to be male-heavy; but even allowing for this, women are under-represented.

There are six representatives from the Premier League, three from the Championship, four from League One and four from League Two; but just one from the Women’s Super League: one woman on an 18-member management committee.

The PFA needs to take a long hard look at itself; and it needs to widen its horizons.

They simply do not seem to understand that putting so much effort into promoting a rapist is offensive not just to women; but to many men too. Football, through the Kick It Out campaign, has done so much in recent years to speak out about violence against women and to tackle misogyny and discrimination. All that work is being undone by their focus on promoting Ched Evans: an unrepentant rapist.

Ched Evans: sifting facts from fiction

A lot has been said – and continues to be said – about former Sheffield United striker Ched Evans’ conviction for raping a teenager in a Rhyl hotel room in the early  hours of 30 May 2011.

Over the weekend it was reported that Oldham Athletic were set to sign the striker. But a press conference that was said to be taking place yesterday didn’t happen. Instead, the Oldham directors met in a board meeting to discuss the situation and club sponsors Verlin and Mecca Bingo said that they would terminate their relationship with the club if they signed Evans.

There are moral questions that football needs to answer about the rights and wrongs of signing a convicted rapist, a man on the sex offenders register, but what are the legal and factual rights and wrongs? This Q and A is designed to sift the facts from the fiction.

Before we get to the Q&A, there is a basic set of facts:

  1. Ched Evans is a convicted rapist.
  2. An Appeal Court judge rejected his application to appeal saying that “I am not persuaded . . . that the fresh evidence, even if admissible on appeal, is such as to render the verdict of the jury unsafe.”
  3. At a subsequent hearing in front of three Appeal Court Judges at which Evans renewed his application to appeal, the three judges, including the Lord Chief Justice of England and Wales, the appropriately named Lord Judge, upheld Evans’ conviction, saying: “We can see no possible basis which would justify us to interfere with the verdict of the jury which heard all the evidence and reflected on it following a careful summing up by the judge.”
  4. Following the conviction, Ched Evans was sentenced to five years in prison. The Court of Appeal upheld the sentence, with Lord Judge saying: “Having reflected on this sentence which [was] passed by an experienced and highly respected judge, we have come to the conclusion that the sentence fell within the appropriate range. There is no basis to justify interfering with it”.
  5. In line with most offenders with this level of sentence, Ched Evans served half his time in prison before being released in October last year to serve the remaining of his sentence on licence in the community.
  6. Evans’ conviction and sentence means that he is on the sex offenders register indefinitely. He will have to wait until October 2029 before he can apply to be discharged from the register.

Q and A – What Evans’ supporters and apologists say

He maintains his innocence – he says he didn’t do it.

Actually, Ched Evans doesn’t say he didn’t do it. He is open about the fact that he did what he is accused of. In fact, the prosecution case against him was based on his own account of what happened in the hotel room – the victim has no memory of what happened.

His defence isn’t that he didn’t do what is alleged; but rather that what he did do should not be classed as rape. The law, however, is what the law is; not what criminals think it should be.

The only aspect that is in dispute is that Ched Evans says that the victim consented to have sex with him while the prosecution allege that the victim was too drunk to consent. The jury heard all the evidence and came to the conclusion, that Ched Evans raped the girl.

We don’t know on what basis they reached their decision but, based on the evidence presented to them, it is reasonable to conclude that they agreed that the woman was too drunk to consent.

Sentencing Evans, the trial judge, said that the victim was “extremely intoxicated”.

“CCTV footage shows, in my view, the extent of her intoxication when she stumbled into your friend,” His Honour Judge Merfyn Hughes QC was quoted by the Wales Online news service as saying. “As the jury have found, she was in no condition to have sexual intercourse. When you arrived at the hotel you must have realised that.”

And after the trial, the senior Crown Prosecutor for Wales, Nita Dowell, said that “Ched Evans took advantage of a vulnerable young woman who was in no fit state to consent to sexual activity. He did so knowingly and with a total disregard for her physical or emotional wellbeing.”

She continued: “It is a myth that being vulnerable through alcohol consumption means that a victim is somehow responsible for being raped. The law is clear: being vulnerable through drink or drugs does not imply consent.”

His appeal is being considered by the Criminal Cases Review Commission

One of the things that is often said in support of Ched Evans is that his case isn’t concluded. Those who argue this point to the “investigation” by the Criminal Cases Review Commission (CCRC). This argument confuses the law and also the purpose and role of the CCRC.

Ched Evans’ case is concluded: it was concluded when the jury found him guilty. Yes, there is a route of appeal but he was refused permission to appeal twice. His first application for leave to appeal was rejected by a single judge on initial sifting. He renewed his application in front of three judges, including, as stated above, the Lord Chief Justice of England and Wales, and was again told that he had no grounds for appeal.

The language of the Appeal Court judgment  is clear that the “new evidence” presented by Evans’ legal team is nothing of the sort. It includes a witness statement from somebody who confirmed that the victim had previously said that when she drinks a lot she can’t remember what happens; and from an “expert” who contradicted Evans’ first expert on the question of victim’s memory.

The Appeal Court judges said that issues about the victim’s memory was not a subject that the trial judge addressed during his summing up. They said: “that was not the issue in the case”. In any event, both pieces of “new evidence” supported the victim’s assertion that she had no memory of what happened in the hotel room.

They said: “In effect, it is now proposed that a new expert should be called to disprove the evidence given by the former defence expert and to assert no more than that the claimed loss of memory does not of itself lead to any implication that the complainant was not consenting to sexual activity at the time when it took place.”

And a submission to the CCRC does not mean that the body accepts that there are grounds for the conviction to be considered to be unsafe. Anybody convicted of an offence can ask the CCRC to look at their case.

Up until 30 November 2014, some 18,627 cases had been referred to the CCRC. Of those, some 17,183 have completed the CCRC processes. Just 568 have been referred to the Court of Appeal; and of those, just 374 have resulted in convictions being quashed.

This means that around 98 per cent of cases submitted to the CCRC do not result in the conviction being changed. In its advice to would-be applicants, the CCRC says that it “will need to find significant new evidence or new legal argument if we are going to be able to refer your case to an appeal court.”

The case hangs on the evidence of Ched Evans, his friend Clayton McDonald, and the victim. All three gave evidence at the original Crown Court trial. It is difficult to see what possible “significant new evidence” could emerge to show a different version of what happened in the hotel room.

The only other avenue for the CCRC to consider, therefore, is new legal argument. But the law on rape is clear. Sex without consent is rape. A rapist doesn’t need to jump out from behind a bush; or be wearing a balaclava; or be holding a knife to the victim’s throat. All a person has to do to be a rapist is to penetrate a person without their consent.

Neither Ched Evans nor his legal team have explained what their submission to the CCRC contained. They are under no obligation to do so; and would be acting unwisely if they did. But without knowing what they have submitted it is difficult to see what could possibly constitute “significant new evidence or new legal argument” in relation to the case.

Drunken consent is still consent

One of the claims made by Ched Evans’ supporters is that drunken consent is still consent. And it is. But how does that tie-up with a person being too drunk to consent and therefore a victim of rape if intercourse takes place?

This issue isn’t a new argument. It was addressed by the Court of Appeal and and by the trial judge. His Honour Judge Merfyn Hughes told the jury that: “A woman clearly does not have the capacity to make a choice if she is completely unconscious through the effects of drink and drugs, but there are various stages of consciousness, from being wide awake to dim awareness of reality.”

He continued: “In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. So you will need to consider the evidence of the complainant’s state and decide these two questions: was she in a condition in which she was capable of making any choice one way or another?

“If you are sure that she was not, then she did not consent. If, on the other hand, you conclude that she chose to agree to sexual intercourse, or may have done, then you must find the defendants not guilty.”

On this issue, the Appeal Court ruled that “those directions to the jury amply encapsulated the concept of the drunken consent amounting to consent. The judge did not use those express words; there was no obligation on him to do so. On occasions when those words are used or the issue is put in that way, it causes umbrage and indeed distress. But that he covered the concept of capacity and choice in his directions to the jury seems to us to be clear. The contrary is not arguable.”

So this is a question that the jury was asked to consider. It cannot be considered to be new legal argument.

Watch the video – the victim wasn’t drunk

Ched Evans’ website contains a video of the victim entering the hotel under the heading “View the complainant entering the Premier Inn and judge for yourself.” The publication of this video by Ched Evans and his team might constitute a contempt of court (neither the court, nor the copyright holder, Premier Inn, have given permission for the video to be used), a breach of the Data Protection Act (which states that personal data should only be used for the lawful purpose for which it was acquired) and a breach of the Sexual Offences (Amendment) Act (which prohibits publication of any information which could lead to the identification of the name or address of a victim of sexual violence, including rape).

Just before Christmas, the Attorney General’s office said that he was considering a complaint by the victim’s father about the video.

Ched Evans and his supporters claim that the video shows that the woman was not that drunk. They say: “As you can see from the footage, shown from two separate cameras, the complainant arrives in the front seat of a taxi with Clayton McDonald in the back seat. He gets out first and opens the door for her, the complainant passes the pizza to Clayton. The complainant believes that she has left her handbag in the taxi and so Clayton places the pizza on the floor and runs after it. He returns and they walk into the premier Inn together, the complainant linking Clayton.

“The complainant then remembers the pizza and goes outside to retrieve it bending down on her haunches to pick it up and carry it back in where the complainant re-joins Clayton. If you note the shoes they are extremely high wedges which the complainant had borrowed for the evening. Somebody incapably drunk would find it incredibly difficult to walk in them, never mind having the cognitive ability of remembering the pizza.”

Elsewhere on the website, in a bid to portray the victim in a poor light, they state that “The complainant left the kebab shop and walked up Queen Street. CCTV footage outside the kebab shop and on Queen Street showed her unstable on her feet walking up Queen Street; unstable on her feet crossing the road; squatting in a doorway; urinating in a doorway; and reacting to a car that flashed its lights at her.”

It also says that Ched Evans’ first encounter with the victim was when he stepped over her after she had fallen over in the kebab shop.

In any event, anybody who has been drunk will know that you can often find the capacity to get home or to a hotel before falling into a sofa or bed and then falling asleep. I’m not saying that this is what happened in this case. We simply do not know – but CCTV of a drunk person entering a hotel is not evidence of what happened to that drunk person once they landed on a bed.

The verdicts are inconsistent – either both men are guilty or both men are innocent

This is a line that is often trotted out by Ched Evans’ supporters. In order to address this claim, it is necessary to summarise what happened that evening in more detail than this post has done so far. In doing so, I am drawing on “facts” from Ched Evans’ website and the Court of Appeal judgment as I have no direct knowledge.

Ched Evans had been out drinking in Rhyl with another footballer, his friend Clayton McDonald. Earlier, Evans had booked and paid for a room at the Premier Inn for McDonald to stay in. Separately, the victim had herself been out drinking and at some point between 3.00 am and 4.00 am, both the footballers and the victim were in a kebab shop.

Ched Evans and Clayton McDonald had become separated. While Evans was in a taxi going to one place with his brother and a friend, the victim and McDonald talked and it was agreed that they would go together to McDonald’s hotel room. While in the taxi, MacDonald sent a text to Evans saying he had “got a bird.”

On receiving the text, Evans told the taxi to head to the hotel. While his brother and friend stayed outside, Evans went into the hotel and lied to the receptionist to get a key to the hotel room.

After letting himself in he saw McDonald having sex with the victim. This stopped when he entered the room. The two men, contradicting each other, say that the other asked if Evans could join in; and that after a “yeah” from the victim Evans performed oral sex on her before having sex with her.

While this was taking place Evans’ brother and friend were outside the hotel trying to film what had happened on their phones and the hotel receptionist was listening through the hotel door from the corridor.

Evans then left the hotel, leaving via a fire exit so that he wasn’t seen by the receptionist. McDonald left through the hotel’s main entrance and told the receptionist to “keep an eye out for the girl” because she was sick.

The girl woke up at around 11.30am with no recollection of how she got to the hotel or what had happened to her. She had a headache and was confused. After being collected by her mother, she reported the matter to the police.

After an investigation, both Clayton McDonald and Ched Evans were charged with rape. After a trial at Caernarfon Crown Court in April 2012, the Jury returned a not guilty verdict in the case of McDonald and a guilty verdict in the case of Evans.

Ched Evans’ supporters continue to point to the different verdicts as evidence of a miscarriage of justice; despite the fact that there is a different set of circumstances and actions.

Ched Evans’ website states: “One could conclude that if the jury found that the complainant had consensual sex with Clayton McDonald then the sex that occurred with Ched would be consensual as well as the issue was over her ability to consent and she of course could remember no sexual activity at all.”

Elsewhere on the website, they say: “The prosecution’s case was that she was too drunk to consent with either but logic dictates that the complainant must have been more sober with Ched than Clayton due to the passage of time.”

This not only ignores the way alcohol works (see the point I made earlier) but it ignores the facts of the case. We do not know, nor are we allowed to know, why or how the jury came to the decision they reached. The secrecy of the jury room – all jury rooms – is absolute in English law.

The jury are not asked to decide whether or not a woman was raped. Nor are they asked to decide which version of a story they prefer; or which account is more likely to be true. A jury is asked only one question: is the case against the defendant proved beyond reasonable doubt.

In this case, the woman went to the hotel with Clayton McDonald and video footage showed that she appeared to do so willingly. This does not prove that she consented – but the jury aren’t asked to decide whether or not there is proof that she consented (is there was, the judge would have stopped the case before the jury were asked to reach a decision). But it might well be sufficient to cast reasonable doubt as to whether or not there was consent – particularly as the victim had no recollection of what happened.

But such a doubt does not arise with Evans. The victim did not go back to the hotel with him. The text message (From McDonald, not the victim) merely said that McDonald had “got a bird” – not that the “bird” was inviting Evans to join them. Evans lied to the receptionist to get a key to the room. He didn’t knock the room door and wait to be invited in; but he let himself into the room where (if you accept his version) he must have known that sex was likely to be taking place. And he would have known how drunk and vulnerable the woman was – he had to step over her at the kebab shop.

Evans convicts himself with his own testimony: he claims that the victim consented. Did she consent to him lying to get a key to a hotel room and letting himself in so he could get a look at her at a time when he thought that she would be naked? No. By his evidence he spoke to her for the first time in the hotel room. Where was the consent to be ogled in the nude?

Did she consent to his brother and friend filming the encounter through the hotel window? He might argue that he isn’t responsible for their actions; but he took them to the hotel in his taxi; he asked them to wait; and he must have told them that there would be something worth filming.

The verdicts are different; but they are not inconsistent. And it is perfectly reasonable for the jury to reach separate verdicts. In the Appeal Court judgment, the Lord Chief Justice said that “we find nothing illogical or inconsistent about the verdicts.”

Ched Evans has served his time – he is entitled to rehabilitation and to get his job back.

There is no law or any rules to prevent footballers from returning to their profession after serving a sentence. There are numerous cases where this has happened.

But nobody convicted of a crime is “entitled” to have their job back. Most employers would treat a conviction for a serious criminal offence as an act of gross misconduct or an act likely to bring the employer into disrepute. Such an eventuality, for most people, is likely to lead to instant dismissal.

In many professions, any serious conviction, or a conviction of particular types of crime, would exclude you from that profession for life. Examples include taxi drivers, security guards and teachers, where convictions for sexual offences will prevent you from returning to that profession after release from prison. And a person convicted of fraud will not find work as a chartered accountant or banker.

The consequences of committing a criminal offence extend far beyond prison and the sentence imposed by the court. Judges are well aware of these consequences and bear them in mind when passing sentence.

The range of appropriate sentences for Ched Evans’ offence was between four and eight years; the Appeal Court said. Evans was sentenced to five years – at the lower end of the scale. We don’t know why the trial judge reached this decision, but he had in mind that Evans’ had no future as a footballer, telling him that he had “thrown away the successful career in which you were involved.”

In November last year, when Sheffield United took the (later overturned) decision to allow Ched Evans to train with them, they issued a statement in which they said: “The Club agrees with the recent statements of The PFA, to the effect that professional footballers should be treated as equals before the law, including in circumstances where they seek to return to work following periods of incarceration.

“The Club rejects the notion that society should seek to impose extrajudicial or post-term penalties on anyone. In a nation of laws, served by an elected parliament and duly constituted courts of law, there can be no place for ‘mob justice’. The Club believes that the only penalties following from a conviction on any charge should be those set forth in law and deemed appropriate by a court of competent jurisdiction.”

Those who oppose Ched Evans’ return to football are not a “mob”. Nor are they calling for “extra-judicial penalties”. Ched Evans’ supporters, including the PFA and Sheffield United, say that they want footballers to be “treated as equals before the law” but they then campaign for them to be treated differently from ordinary people and be given a hero’s return.

It is common sense to most people – including the trial judge – that rapists should not return to football (hence the statement that Evans had “thrown away [his] successful career” – this is not an extra-judicial penalty; but the self-imposed consequence of raping a woman.

The law recognises the acknowledged proven fact that sex offenders are more likely to re-offend than other criminals. That is why Parliament established the Sex Offenders Register with mandatory reporting restrictions. This includes a requirement for registered sex offenders to notify the police where they are living or staying for more than a few days in a year; and restrictions on overseas travel.

As I have stated earlier, Evans is on this list indefinitely. He can’t even apply to be considered for removal for another 15 years. And under the Rehabilitation of Offenders Act, his conviction will never become spent. This is not about “extra-judicial penalties” or penalties that are not “set forth in law.”

The law accepts and respects that employers will want to – and are entitled to – take some convictions into account when considering whether or not to give somebody a job.

Employers – including football clubs – have a duty to all of their employees. How safe would women feel working alongside a convicted unrepentant rapist? More importantly than how they feel, how safe would they actually be?

Having said this, rehabilitation is not an optional part of our criminal justice system; but one of its core aims. But what does this mean?

It is difficult to see how a person who refuses to acknowledge that he did wrong can be rehabilitated. In a video message recorded after his release from prison, Evans said: “I made an incredibly foolish decision  and failed those people that trusted and believed in me; most of all, Natasha [his girlfriend] and our families.”

But he continues to insist that what he did in that hotel room was not rape – despite the fact that, in law, it is. He sees it as nothing more than a one-night stand; an act of infidelity against his girlfriend; rather than the serious sexual offence that it is.

There is a lot of help for offenders who want to rehabilitate themselves. But it starts with the offender: if a person can’t accept that what they did is wrong; then true rehabilitation cannot begin.

In his video message, Ched Evans said that: “It is a rare and extraordinary privilege to be permitted to play professional football.” He is right. Being a professional footballer isn’t just “a job” – it is a representational role and a privilege afforded to the few rather than the many.

There are lots of jobs that Ched Evans could do. I haven’t seen any of the campaigners arguing against his return to football from saying that he should be denied every job. but they make a distinction between returning to gainful employment and returning to the “rare and extraordinary privilege” of the representational role that being a professional footballer is.

Ched Evans is not responsible for the abuse his victim has received

It is inevitable that the focus of media attention will be on Ched Evans rather than his victim; but she should not be overlooked. She is entitled to lifelong anonymity; but this has not stopped Ched Evans’ supporters from naming her and targeting her on social media. She lives in fear of her life and has had to move house and adopt new identities several times.

Close supporters of Ched Evans say that he is not responsible for what strangers do. But we aren’t talking about strangers. These are the actions of Ched Evans’ own family.

The abuse began even as the rape was happening as Evans’ brother, Ryan Roberts, tried to film the attack. And it continued after Evans’ conviction when Evans’ Cousin, Gemma Thomas, named the victim on social media despite her legal right to life-long anonymity.

In a Tweet, Thomas described the victim as a “money-grabbing slut”. Similar language was used by a friend of Evans, Craig McDonald, who also named the victim. The two were among nine people who were convicted of naming the victim in November 2012. They were ordered to pay the victim £624 in compensation – a very small sum considering the impact that their actions has had – and continues to have – on the victim.

What was Thomas’ response to the conviction? Was she repentant? Not much. “I understand it’s against the law and I wouldn’t have minded having a big fine because I understand what I did was wrong, but it’s the fact that it’s compensation and it’s just … I don’t know, it’s hard thinking that I have got to pay compensation, knowing that I know my cousin is innocent,” she told BBC Five Live.

Of course, Ched Evans is only responsible for his own actions. He can’t be accountable for what his friends, his cousin, or his brother do. But Evans and his family – through the chedevans.com website – is encouraging a witch-hunt against the victim.

They are offering a “significant reward” for “any information, however insignificant you believe it is” about the victim.

They say: “If you attended the trial or any part of the legal process pre or post conviction and are concerned by the verdict and think you can help, please do not hesitate to contact [a firm of private investigators] and put right the injustice that has happened to Ched.

“There is a significant reward for new information that can be used as evidence that leads to the acquittal of Ched Evans.”

This is encouraging supporters to continue tracking down and harassing the victim. Following critical media reports about the reward, a disclaimer appeared on the website saying: “There have been recent media reports about Ched’s website and in particular the reward for information.  To clarify the reward is offered by his supporters, not Ched who has no access to any funding.”

It matters not who is funding the reward; it is being offered and promoted on a website that is registered to Ched Evans.

The only people that know what happened in that hotel room are Ched Evans and Clayton McDonald. The victim has no recollection. What information are they seeking? What they want is information to damage the victim’s reputation. We already know what the Evans’ family think of her (“money-grabbing slut”) but now they seem to be seeking to prove this in a court of law.

Well, even if the victim is a “money-grabbing slut”, it might surprise Ched Evans and his supporters to learn that even money-grabbing sluts are entitled not to be raped.

It is difficult to see how information about the victim could amount to “substantial new evidence” about what happened in the hotel room. And in any event, Evans’ lawyers have already submitted their case to the CCRC. So what additional information could they be looking for?

Ched Evans could do a lot to prevent the abuse that his victim has and is suffering by removing the reward from his website and by issuing a statement condemning the abuse and calling on his supporters to stop abusing and identifying her.

That would be the gentlemanly thing to do; but one thing that we have learned through this entire process – and the evidence of Evans himself – is that he is no gentleman.

Note: this blog was corrected at 3.45pm on Tuesday 6th January to make clear that the Appeal Court judgments were not appeal hearings; but applications for leave to appeal.

Who can play for England?

Jack Wilshere © Ronnie MacDonald / Flickr / CCL

The Arsenal midfielder Jack Wilshere’s recent comment that only English people can play for England has sparked a storm of controversy which, on the face of it, is a storm in a tea-cup. It could be argued that it is common sense that the English representative national team should be a team of Englishmen. That isn’t xenophobic or racist: France’s national team should be a team of Frenchmen; Ghana’s national team should be a team of Ghanaians; China’s national team should be a team of Chinamen; Jamaica’s national team should be a team of Jamaicans; and so on.

But if you scratch the surface it is easy to understand why the subject matter is controversial. One reason was highlighted by the South African-born English cricketer Kevin Pietersen on Twitter. A number of English sporting stars aren’t actually, English at all.

Former England cricket captain Andrew Strauss was born in South Africa; as was fellow-English cricketer Jonathan Trott. The British winner of the 2013 Tour de France, road cycling race, Chris Froome, was born in Kenya. And who can forget the British patriotic euphoria when Somalian-born Mo Farah won Great Britain’s first ever Olympic gold medal in the 10,000 metres at the 2012 London games.

Can none of these sporting greats claim to be English? Well, no. Actually they can’t. But then neither can anybody else. As a nationality “English” doesn’t exist (although “Scottish” does). If you don’t believe me, check your passport. In most cases this isn’t an issue because our nation is generally represented in sports by a national team which encompasses Wales, Scotland, Northern Ireland and England. Where it doesn’t, the regulations need to make more detailed provision about who can play for which country. Those rules have to take account of little local difficulties, such as the history and politics of the island of Ireland where people born in the six counties that make up Northern Ireland are entitled to both Irish and British citizenship.

So what are the regulations?

Football – FIFA

The Fédération Internationale de Football Association – FIFA – is the governing body of world football. Its eligibility criteria is set out in Articles 15 to 18, or Part VII, of its Regulations Governing the Application of the Statutes, last updated in May 2008.

In principle, the regulations provide that “any person holding a permanent nationality that is not dependent on residence in a certain country is eligible to play for . . . that country.” So, it’s simple: if you’re French, you play for the French national team; and if you’re British, you play for. . . well, they cover that in Article 16.

A person whose nationality would entitle him to play for more than one national team – such as a Brit – can choose which one to play for; so long as at least one of the following conditions are met in relation to his chosen sporting nationality: he or his biological mother or father or his grandmother or grandfather must have been “born on the territory of” the relevant football association; or he must have lived continuously in the territory of the relevant association for at least two years. National federations sharing a common nationality are allowed by FIFA to agree to either extend the qualification period for residence (the latter of the conditions listed above) beyond two years or to remove residence as a criteria completely. The home nations have agreed to remove the residency criteria.

There are other exemptions too. If a player changes his nationality and has not previously played for a national side, he can play for his new national side so long as he, his biological mother or father, or his grandmother or grandfather was born on the territory of his new national football association; or if he has lived for at least five years after reaching the age of 18 on the territory of the relevant football association.

A player who has played for one national team can only change to another national team in two circumstances: firstly he can switch to another national team – but only once – up to his 21st birthday so long as he is otherwise eligible to represent that other nation and has not played in an official Category A international competition match for his existing team; or if he loses his nationality through the involuntary actions of a government authority. In the latter case he will need to have obtained nationality of his new team before being eligible to play and in both cases he will need the prior consent of FIFA’s Players’ Status Committee.

The situation in the island of Ireland has caused FIFA no little amount of grief. The Irish Football Association, the national association for Northern Ireland, can only select players for its national team who are eligible through links to the territory of Northern Ireland; while its counterpart in the Republic of Ireland, the Football Association of Ireland, can select players who with links both to the Republic and to Northern Ireland, because the Irish government recognises people born in the North as Irish citizens.

The matter reached the Court of Arbitration for Sport which upheld FIFA’s interpretation of the rules. Despite the “unfair ‘one-way situation'”, the court said that “Players born in Northern Ireland have a right by birth to an Irish and British passport which entitles them to be selected for the representative teams of the IFA as well as of the FAI, whereas, in contrast, players born in the Republic of Ireland do not have such dual-nationality from birth and, as a consequence, are confined to playing for the association teams of the FAI” (Irish Football Association v Football Association of Ireland, Daniel Kearns and FIFA [2010] CAS 2010/A/2071).

Cricket – ICC

The governing body for world cricket is the International Cricket Council (ICC).  Its rules are set out in the International Cricket Council’s Player Eligibility Regulations, which were last updated on 18 September 2013.

The international eligibility rules for cricket are slightly more complex because they cover not only what player is eligible to play for which national federation; but also restrictions on the number of different types of player each national federation can field in a match. There are also different rules that apply to the three different membership categories: full, associate and affiliate; and different rules for men and women.

The full members are the elite cricketing nations: Australia, Bangladesh, England, India, New Zealand, Pakistan, South Africa, Sri Lanka, West Indies and Zimbabwe. There are 37 associate members, including Scotland and Ireland; and 59 affiliate members. Associate and affiliate memberships are those national federations where the game is under development.

The core eligibility criteria is that a player must have been born in the country; is a national of the country; or has resided in the country for a minimum period of 183 days in each of the immediately preceding two years for women and four years for men.

However, a country whose national federation is an associate or affiliate member of the ICC can only select up to two players who are eligible by the four-year-residence qualification. This limit doesn’t apply to players who have fulfilled the residence criteria for a minimum of seven continuous years.

There are a number of additional eligibility criteria for players wanting to play for associate or affiliate member countries; these are participation in the national domestic leagues; working for 100 days coaching, playing or working in the administration or development of cricket during the previous five years; or having represented the country before the eligibility regulations changed.

A player can switch national federations much more easily than his footballing counterpart; but male players can’t switch to another country if he has played in an international match for a different full member in the preceding four years. This period is reduced to two years if he is returning to an associate or affiliate member that he previous played for before switching to a full member country.

It is a much simpler criteria for female players: they can’t switch countries if they have played for another country in the preceding two years.

A player can only switch countries once; unless the second switch is to return to an associate or affiliate country they played for prior to switching to a full member country.

Rugby Union – IRB

The International Rugby Board (IRB) is the world governing body for rugby union. Its player eligibility rules for international teams are set out in Chapter 8 of Section three of the IRB Handbook 2013. The rules are very simple and clear – even though the handbook contains nine pages of explanatory guidelines in addition to the two pages of rules.

A player is eligible to represent a country in a senior fifteen-a-side or Sevens teams if he, a parent or grandparent was born in the country; or if he has resided in the country for three full years immediately prior to his first game. Unlike FIFA, the IRB’s definition of “parentage” includes formal legal adoption. And the rules on transferring to a different country are simple too: he can’t; or at least he can’t since a no-swap rule was introduced on 1 January 2000.

In their guidance notes, the IRB helpfully sets out the reasons for their eligibility criteria; and says that the rules are “to ensure that players . . . have a genuine, close, credible and established national link with the country of the Union for which they have been selected. Such a national link is essential to maintain the unique characteristics and culture of elite international sporting competition between Unions.”

Rugby League – RLIF

Rugby is a sport with more than one international regulator. While the IRB has responsibility for Rugby Union; the rival Rugby League is governed by the Rugby League International Federation (RLIF).

The RLIF’s international eligibility rules are set out in section three of the Laws of Rugby League.

At first glance, the rules are very similar as for Rugby Union: A player is entitled to play for the country in which he, either of his parents or any of his grandparents was born; or the country which has been his principal place of residence for a period of three years up to the date of his selection.

Where the rules differ is that Rugby League players with dual eligibility can switch countries, but only at the end of the next World Cup tournament, or the expiry of two years, whichever is earlier; but in any case not during any international tournament in which that player is participating.

 Swimming, Diving and Water Polo – FINA

The Fédération Internationale de Natation (FINA) is the world governing body for swimming, diving, water polo, synchronised swimming and open water swimming.  Its eligibility criteria is set out in General Rules 1 to 2 of the FINA Constitution and Rules.

Most competitors compete as individuals but they must be registered with their national federation in order to do so. A competitor who moves his residence – either temporarily or permanently – can simply register with the new national federation, and will come under their jurisdiction.

Where competitions involve national teams, or a competitor is officially representing his country, for example in the Olympics, the competitor must be a citizen by birth or naturalisation. If a competitor is a naturalised citizen he must have lived in the country for at least one year prior to the competition.

A competitor can’t change his affiliation from one national governing body to another unless he has lived in the territory of the new national governing body for at least a year before representing the new country.

Can only an Englander play for England?

Adnan Januzaj © pal2iyawit / FreeDigitalPhotos.net

Jack Wilshere’s comments appear to be in response to media reports of comments by England manager Roy Hodgson that he and and the Football Association are watching the talented young Manchester United winger Adnan Januzaj with a view to a future England call-up.

But, as things stand, Januzaj would not be eligible to play for England under FIFA rules. His options are Belgium, the country of his birth; or Albania, Turkey and Serbia through his parental links. He would also be entitled to play for Kosovo but there is no FIFA affiliated team in that country.

If Januzaj accepted any approach to play for England, he could qualify; but only if he applied for and was granted British citizenship. Many media reports suggest that he could qualify after five years of residence; but as a citizen of an EEA member state he would need to live in the UK for six years, not five, before he could apply.

The UK immigration rules require EU citizens to hold Permanent Residence status for 12 months before applying or naturalisation. Permanent Residence status comes automatically for EU citizens after five years of continual residence in the UK. So the earliest that Januzaj could apply for UK citizenship would be March 2017; by which time he would be still only be 22 years old – but he may not be willing to wait that long before starting his international career.

Of course, all of this is entirely hypothetical on the assumption that Januzaj actually wants to play for England. The Kosovan newspaper Gazeta Express quotes the former Belgium youth coach Marc Van Geersom saying that Januzaj has repeatedly rejected call-ups to the Belgium national side because his father would prefer the player to play for Albania.

 

 

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Court to decide match-winner after masseuse turns goalie

The play-off competition to decide who will be promoted from Campeonato Brasileiro Série D to Série C, the fourth and third divisions of the Brazilian football league, descended into farce on Saturday and is now destined to be decided by a judge in a court of law rather than footballers on the field of play.

The first leg of the play-off quarter-final between Associação Atlética Aparecidense and Tupi FC had finished 1-1; and the teams were level at 2-2 with a minute-to-go of the second leg. The rules of the competition, organised by the Confederação Brasileira de Futebol, the Brazilian Football Confederation, meant that if the scores remained that way at full time, Aparecidense would progress to the semi-final on the away-goal rule.

Tupi FC striker Ademilson Correa (Photo from Tupi FC website)

But in the 89th minute Tupi forward Ademilson Correa cleared past the advancing Aparecidense keeper and had a clean shot on goal. He would have scored, putting Tupi through to the semi-final, but for the bizarre actions of a member of Aparecidense’s backroom staff.

Their Masseur, Romildo Fonseca da Silva, was hanging around the goal just off the playing area, and took it on himself to enter the field of play and block not only Correa’s shot but the resulting re-bound.

The Tupi players chased da Silva out of the ground, providing a little “masseur” moves of their own. There were no more goals after the game eventually re-started and Aparecidense advanced.

The Aparecidense team bus was attacked by angry Tupi fans as it left the stadium; while Tupi’s management say they will take the matter to the courts.

As it stands, Aparecidense are set to play Mixto Esporte Clube in the semi-final at the E Stadio Anibal B stadium in Toledo on Sunday. But Flavio Zveiter , President of Brazil’s Supreme Court of Sports Justice, has told tv channel STV that a hearing to determine the outcome of the match should take place by the end of this week. Article 243-A of Brazil’s rules provide for a fine of between 100 and 100,000 US dollars and forfeiture of the match in cases where a person related to a club acts contrary to sporting ethics.

 

FOI responses expose Coventry City Football Club’s “new stadium plans”

The Football League has maintained that a commitment by SISU-owned Otium Entertainment Group to return Coventry City Football Club to the city of Coventry was a condition of their permission for the club to “temporarily” ground-share with Northampton Town.

Coventry City’s chief executive, Tim Fisher, has repeatedly stated that the club’s owners intend to return the club to the Coventry area and they have agreed a £1 million bond with the Football League should the club not do so (the Football League has since revealed that this “bond” is nothing of the sort – it is, instead, a promise to pay should the club default on its promise, rather than a sum that has been lodged with the League or an Escrow service).

Tim Fisher has made a number of promises and self-offered deadlines over the past few months, stating that more information about the company’s (or companies’) plans for their new stadium would be forthcoming. But despite this, Coventry City Fans remain in the dark.

Tim Fisher’s first – and most significant – promise was made in May this year when he said that the new stadium would be built within three years. Four of those 36 months have now passed and fans still don’t know where the proposed new stadium will be built.

And on 26 July Tim Fisher told the Coventry Telegraph that “terms had been agreed” on one site, subject to contract and that they had entered “exclusive talks on a second site”. He said that they were “aiming to finalise a deal within eight weeks.”

That is a self-imposed deadline of the 20th September for the fans to be told where the new stadium will be built; although he still has not said which SISU-owned entity was seeking to buy the site and build the new stadium (and therefore own it).

In order to build a stadium CCFC will not only need to buy the land but they will also need to obtain planning permission. It is usual practice when developments on such a scale are envisioned for discussions to take place with the local authority planning offers prior to the purchase of a site.

While these discussions can’t bind the local authority on which way the decision will go once any planning application is eventually made; they can help developers identify whether planning permission is likely to be particularly difficult on the proposed site and whether it is appropriate to purchase land for the intended purpose.

Using the Freedom of Information Act, the Footy Law Blog asked Coventry City Council and all six neighbouring local authorities whether their planning offers had “engaged in formal conversations with third parties over the past 36 months about any proposed new sporting stadia within the council boundary area”.

The local authorities were also asked for the number sites discussed as a proposed location for any new stadia; whether any discussions were still on-going; and whether the planning department had received any indication that a planning application for new sporting stadia was to be expected.”

The local authorities were deliberately not asked for the identity of any third parties engaged in such discussions: such a request was likely to have been refused on the basis that the information was exempt from disclosure on the grounds that it would breach the Data Protection Act or prejudice the third parties’ commercial interests.

In response to the requests, Coventry City Council – which covers the area that the Football League regulations say CCFC should be based (not that the Football League has followed its regulations in its handling of CCFC’s move away from the Ricoh Stadium) – say that its planning department “has not engaged in formal conversations with third parties over the past 36 months about any proposed new sporting stadia within the council boundary area” and that it has “not received any indication that a planning application for new sporting stadia is expected.”

The same is true of North Warwickshire Borough Council, Solihull Metropolitan Borough Council, Stratford upon Avon District Council and Warwick District Council.

Nuneaton and Bedworth Borough Council was slightly more nuanced: it’s head of development control said that she was “not aware” of any formal conversations with anyone about a new sporting stadium; and that no planning application was expected.

Rugby Borough Council, on the other hand, has had discussions with third parties during the past three years about proposed new sporting stadia. Six locations were identified but discussions “primarily revolved around one specific location.” Those discussions are no longer on-going and the planning department has received no notification that a planning application should be expected.

So, the question remains: “Where does Tim Fisher plan to build CCFC’s new stadium?”

Or, perhaps a more pertinent question is: “Does Tim Fisher really plan to build a new stadium for CCFC?”

And a key question that the Football League can no longer duck: What information have they received to show that Otium Entertainment Group intend to return the Club to the confines. Are the Football League presiding over another Wimbledon franchise by stealth?

Note: The FOI requests were made in separate emails to the local authorities on 12th August 2013. On 13th August the request to Solihull Metropolitan Borough Council was clarified to make clear that the question referred to large sporting stadia with spectator seating rather small community facilities. Responses were received in the period from 13th August 2013 to 6th September 2013.

Leaked player transfer documents contradict CCFC position on contracts

The Prison of Measured Time blog, which focuses on football finance, has published leaked player transfer documents which clearly contradict statements by Coventry City FC chief executive Tim Fisher and administrator Paul Appleton.

The leak is important – and the blog should be congratulated for getting hold of these documents and having the courage to publish them – because Tim Fisher and Paul Appleton have repeatedly stated that key assets of Coventry City Football Club – player registrations – were not held by Coventry City Football Club Ltd (the company in administration) but by Coventry City Football Club (Holdings) Ltd, a different SISU-owned company that was not in administration.

This information would have seriously affected the so-called “sale”-process of Coventry City FC Ltd which saw another SISU-owned company, Otium Entertainment Group Ltd, emerge as the preferred bidder. In the end the sale didn’t go through because Ricoh Arena owners ACL rejected a CVA and the administrator has announced his intention to liquidate the company that was in administration (but doesn’t appear to have made any progress on this).

The information would have been key to the Football League’s decision to transfer its “golden share” in the League from the company in administration to Otium Entertainment Group.

Tim Fisher, writing in the Preston North End match-day programme on 25th August, claimed that the Football League had been registering players in Holdings, rather than Ltd since “way before SISU took over”, adding: “there is a myth that somehow SISU have set up this structure because they have something to hide when, in fact, it was a structure they inherited.”

The documents obtained by A Prison of Measured Time show this to be false.

They have published compensation agreements from Aston Villa for Richard Blythe and Kofi Poyser, dated 17th December 2007; a transfer agreement with Newcastle United for Leon Best, dated 1st February 2010; transfer agreements with Walsall for Dan Fox (28th January 2008) and Scott Dann (31st January 2008); and a transfer agreement with Bolton Wanderers for Temitope Obadeyi, dated 19th September 2006.

All these documents show that the agreements are between the respective clubs and Coventry City Football Club Ltd.

Of interest to most football fans will be the financial agreements for the transfers and associated add-ons. Those details have, however, been redacted. But they are very significant for fans of Coventry City and other football fans who are concerned about the lack of transparency and fair-dealing by those tasked with regulating football.

Some unanswered questions to the Football League about Coventry City FC

Last night the Football League said:

Following the failure of Coventry City FC Limited’s Company Voluntary Arrangement earlier today, the Board of The Football League has considered an application by the Administrator’s preferred bidder, the Otium Entertainment Group, for a transfer of the club’s share in The Football League under the ‘exceptional circumstances’ provision of The League’s Insolvency Policy.

The Board has agreed to transfer the Club’s share on the basis that it accepts a 10 point deduction for the 2013/14 season. This decision will enable Coventry City to continue its membership of The Football League, despite the failure of its CVA, and participate in the 2013/14 Sky Bet League 1 season.

These three sentences leave so many questions unanswered, so I thought I would list them:

  • Why is the Football League’s “Insolvency Policy” secret?

     

  • What were the “exceptional circumstances” that applied to the situation at Coventry City?

Following the failure of the CVA, the administrator of Coventry City FC Ltd said he would now seek to liquidate the company. This has not yet happened. Coventry City Football Club Ltd remains in administration and can only be liquidated by an order of the High Court.

If disputed, as is the case here, a High Court liquidation order will only be made after a hearing at which the court will inquire into the circumstances that led up to the insolvency. The hearing will include questions about the transfer of assets; such as the “sale” by the administrator of the assets of Coventry City FC Ltd to the Otium Entertainment Group Ltd.

  • Why has the Football League transferred an asset of Coventry City Football Club Ltd (the “golden share” in the Football League Ltd) to Otium Entertainment Group Ltd before awaiting the outcome of the legal process?

     

  • Why does the Football League refer to a “preferred bidder” when talking about a company heading towards liquidation, bearing in mind that liquidation is about the closure of a company rather than its sale?
  • Bearing in mind the implication behind the immediately preceding question, on what basis have the Football League decided to allow Otium Entertainment Group Ltd to be given a “golden share” in the Football League Ltd, to operate a club called Coventry City Football Club?

In an earlier statement, the Football League said it would allow Coventry City to play its home matches at Northampton Town’s Sixfields Stadium, contrary to its own rules and regulations, and the FAs rules and regulations, but that this agreement was “entirely conditional on the Club ultimately exiting administration in accordance with The Football League’s conditions and achieving a successful transfer of its League share.” 

  • Why did the Football League deem it appropriate and necessary to ignore both its and the FAs rules and regulations when agreeing to the ground share with Northampton Town?
  • Why has the Football League overturned its own position that the ground-sharing agreement was “entirely conditional on the Club ultimately exiting administration”, bearing in mind that Coventry City Football Club Ltd is still in administration?

At a number of points during the administration process, the Administrator of Coventry City Football Club Ltd has stated that he could not operate the club in administration, as other football club administrators have done, because while Coventry City Football Club Ltd owned the “golden share” in the Football League, the players were contracted to and registered with a different company, Coventry City Football Club (Holdings) Ltd. This is contrary to the Football League’s rules and regulations that define a club as the company holding the “golden share.” This arrangement came to light after the club went into administration.

  • Now that this irregular arrangement is a matter of public knowledge – and, effectively, a matter that the Football League is now aware – has the Football League insisted that the players’ contracts and registrations be transferred to Otium Entertainment Group Ltd as a condition of the transfer of the Golden Share?
  • If not, isn’t it the case that Otium Entertainment Group Ltd are in the same position that the Administrator was in – ie, they have the “golden share” entitling them to play in the Football League, but no players contracted to it?
  • If the “new” Coventry City Football Club (ie, Otium Entertainment Group Ltd) play a Football League match with players who are owned by another company (ie, Coventry City Football Club (Holdings) Ltd) are they not in breach of Football League and Football Association rules and regulations concerning third party ownership?

     

  • If the players’ contracts and registrations have not been transferred to Otium Entertainment Group Ltd, are the Football League not sanctioning a further breach of their rules and regulations (and, in fact, their Articles of Association) by allowing a “club” to be operated by two separate entities?
  • If the players’ contracts and registrations were transferred to Otium Entertainment Group Ltd, when did this transfer take place, and why did the Football League not publicly announce the transfer as they do with every other payer transfer?

And finally, In its earlier statement about ground-sharing, the Football League said: “with the new season less than four weeks away, the Board required certainty as to where the Club would play its matches from the start of the new campaign.” It continued: “the Board was placed in an unenviable position – with the very real possibility of Coventry City being unable to fulfil its fixtures for next season.

In its statement last night, the Football League said its decision, in “exceptional circumstances” to transfer its share to Otium Entertainment Group Ltd “will enable Coventry City to continue its membership of The Football League, despite the failure of its CVA 

  • Is it correct to read into the Football League’s statements, that its position that its rules and regulations will never be applied correctly by the Board if it means that a club will be forced to exit the Football League?

     

  • If that is the case, aren’t the Football League saying that owners and directors can flout the rules with impunity; so long as they get their timings correct and allow things to happen right next to the start of a Football League season? 

The Football League concluded its statement last night by quoting its chairman Greg Clarke saying that the Board were “dismayed at the level of intransigence being shown.”

The Board need to be aware that football fans up and down the country – not just Coventry City fans – are dismayed at the actions of the Football League and the lack of proper transparency and accountability in holding football club owners and directors to account for their mismanagement.

As one football fan said on another club’s message board last night: “Before a ball is kicked in its 125th season, the football league betrays its legacy.”

 

Sixfields ground share would make Northampton play second fiddle to Coventry City

It was reported in the Coventry Telegraph last night that an agreement had been reached for Coventry City to ground share with Northampton Town at the latter’s Sixfields Stadium while a new permanent stadium is built at an undisclosed location somewhere in the Coventry area.

The Telegraph reports that the Football League Board were due to discuss the proposal today. The League has made no announcement so far.

Northampton’s chairman David Cardoza told the BBC that “There’s some legs in this, but it’s not near done and dusted,” adding: “It’s speculation at the minute.”

If Northampton and Coventry do reach a deal to share the Sixfields and the proposal is ratified by the Football League; Northampton will play second-fiddle to Coventry City on the 10 occasions when both teams are due to be home.

Internet forums and the media have quoted Football League regulations on ground sharing, particularly regulation 13.4 which states: “Ground sharing will only be approved at the discretion of the Board. The Board will not generally approve any ground-sharing arrangement where the club plays its matches outside the conurbation, as defined by the Board, from which the Club takes its name or with which it is otherwise traditionally associated.

Many people have interpreted this by saying that a club can only ground share within 30 miles of its existing stadium – but such a condition is not stipulated in the regulations. That may be one of the Football League’s unpublished rules, or it may be that it has been applied to a different club. But the regulations themselves state it is at the discretion of the board; and the conurbation requirement will only be applied “generally”.

But little attention has been paid to the Football Association’s rules which would also apply to any ground sharing.

The Football Association’s rule 2.3.1 states that where two clubs enter a ground-sharing agreement “the Club playing in the most senior competition has priority of fixtures at all times”.

This means that if Coventry City and Northampton Town do agree a ground-sharing arrangement, League One Coventry City’s fixtures would take priority over League Two Northampton.

Northampton’s home matches against Newport, Torquay, Scunthorpe, Exeter, Morecambe, York, Southend United, Bristol Rovers, Mansfield and AFC Wimbledon would have to move to a Friday or Sunday (FA rule 8.13) to make way for Coventry’s home matches against Bristol City, Preston North End, Colchester, Gillingham, Brentford, Crawley Town, Carlisle, Shrewsbury, Port Vale and Stevenage.

But the possibility of a ground share being ratified by the FA is slim, if the Association applies its rules correctly. The same rule (2.3.1) states that: “Ground sharing may not be permitted when one of the sharers retains the use of another ground unless that club can show by means of a refused planning permission or similar that it cannot meet the requirements of the Criteria Document at that ground.”

Coventry City’s present landlord, Arena Coventry Limited (ACL), has repeatedly said that it wants Coventry City to continue playing at the Ricoh Arena. The difficulty is that it won’t negotiate with the proposed new owners while the club is still in administration. ACL says it can only negotiate with the administrator as legally, the administrator is the person responsible for running the club until it exits administration.

The FA rule also states that, except in an emergency, any ground sharing agreement must be completed by the 31st March if a club is to be permitted to ground share in the following season.

  • The Northampton Chronicle and Echo’s report of the story contains a peculiar line: “The deal would not be a groundshare, but purely a rental agreement.” I have absolutely no idea what they mean by this. Both the Football Association and the Football League require member clubs to have their own ground with security of tenure; but will allow the sharing of a ground, either with another member club, or with another sporting club, but such sharing agreements require the consent of both the FA and the Football League. The rules do not cover any situation that could be described as “purely a rental agreement”.