The sports silk who led Leicester City’s successful challenge against football’s Premier League over the club’s finances has voiced concern that the league criticised its own decision-making panel of eminent lawyers after losing the case. Nick De Marco KC of Blackstone Chambers has also warned sports watchdogs not to ‘make up the rules as they go along’, calling for more ‘clarity and certainty’ in the drafting of regulations.
The Premier League declared itself ‘surprised and very disappointed’ last week after Leicester won its appeal against a decision that an independent commission had jurisdiction to consider an alleged breach of profit and sustainability (PSR) rules. Leicester’s legal team successfully argued that the club was no longer under the Premier League's jurisdiction at the time of the alleged breach due to the timing of its accounting year-end.
Writing for the website LawInSport on the lessons of the case, De Marco said: ‘It is of some concern that the PL, as regulator, expressed such forthright criticism of one its independent appeal boards, which was made up of three very senior and distinguished lawyers, two of whom were previously Court of Appeal judges [Sir Stanley Burnton and Sir Maurice Kay].’
He added: 'Just as government ministers are advised not to criticise the courts, so too sports regulators should be careful criticising panels when they don't get the result they want. Such criticism risks undermining the independence and integrity of the Premier League's own judicial process.'
De Marco hailed the outcome of the case as a ‘welcome restatement’ of the correct approach to contractual interpretation of sporting bodies’ rules. ‘Those acting for regulators sometimes feel forced to fall back on "just interpret these rules so they work for us" argument, sometimes even relying on their own badly drafted rules. But there must be limits to that submission. Rules cannot simply me made up as you go along, to suit each case as it arises. There needs to be clarity and certainty.’
De Marco noted that the case highlights flaws in the drafting of financial rules in football, notably the failure to align PL sustainability rules with those of the second-tier Championship. He said the decision is in line with the approach of the European courts in a series of recent important sports regulatory cases, most notably in football relating to the European Superleague challenge to FIFA.
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