Mourinho's appeal

I’ve just read the statement of the Premier League Appeals Committee concerning the Mourinho and Cole appeals, and, as usual, I just can’t stop laughing. The amateurish way the Premier League Commission had gone about the ‘conviction’ of Mourinho in the first place left much to be desired. So, it’s laughable, even if grudgingly commendable, to see them use the appeals process as a means of correcting some of their initial wrongs. Of course, they’ve come out bullish, claiming they’ve “dismissed the appeals on findings”, but if, as in the case of Mourinho, reducing a fine from £200,000 to £75,000 isn’t enough of a seismic shift to declare the appeal successful, how about the fundamental finding in his favour to the effect that he was “less culpable for the arranged meeting”, which is the whole basis of the case against him? Is it any surprise that Senhor Mourinho wouldn’t be pushing the case further?

The whole case was based on this incredibly constructed base of primarily hollow conjectures, even though the Premier League Commission had constituted itself into a law court for this purpose, with lawyers and witnesses called up and with evidence presented and analysed under legal criteria. Invariably, what this meant was that if they were going to put out such elaborate legal machinery as they did, they couldn’t at the same time depend on conjectures to make their rulings, because the decision of the Commission must be legal and reasonable. But, of course, in the banana republic that is the Premier League, there is no room for the rule of law!

Now, I know that Chelsea Football Club did not appeal the Commission’s ruling pertaining to itself, but it’s worth mentioning that even the case against Chelsea is as shoddy as they come. First, defining what constituted an approach in line with the Football Association Premier League Rules seemed to have unnecessarily tasked the intellectual capabilities of Sir Phillip Otton’s Commission. Though Section K which deals with the subject of “Approach to Players” and “Approach by Players” did not define the term, it does imply in its language the requirement for the offender to take the initiative. In other words, by consistently using such phrases as “make an approach”, “make such an approach”, “makes an approach” and “make any such approach”, the section is indicating that responsibility for an approach can only lie with one person/party. And this is simply logical, because only one party can approach the other, not both approaching each other as determined by the Commission! Both parties cannot just wake up one morning and begin to approach each other without the initiative coming from one. For a charge of illegal approach to stick therefore, the accused must have initiated the meeting.

Thus, in spite of the Commission’s conjecture as to what must have transpired between Pini Zahavi and Jonathan Barnett (being that they did not hear evidence from Pini Zahavi and did not believe Jonathan Barnett and Ashley Cole’s account that it was a chance meeting), they appropriately found that Ashley Cole approached Chelsea in violation of Football Association Premier League Rule K5 which states: “Subject to Rule K6, a Contract Player, either by himself or by any person on his behalf, shall not either directly or indirectly make any such approach as is referred to in Rule K4 without having obtained the prior written consent of his Club”. However, in their eagerness to find something to hang on Chelsea, they concocted the legal and logical impossibility of also finding Chelsea guilty of illegally approaching Cole!

Below is how they explained it:

It is alleged that Chelsea FC breached Rule K3 which provides: “Any Club which by itself, by any of its officials… makes an approach either directly or indirectly to a Contract Player… shall be in breach of these Rules”. There is no dispute that Peter Kenyon and Jose Mourinho are “Officers” of Chelsea FC, that Ashley Cole is a Contract Player, Arsenal FC had not approved any approach either by Chelsea FC to Ashley Cole, or vice versa and that these facts were known to those officials.

As before FAPL must prove on the balance of probabilities:

(1) that Chelsea FC directly or indirectly made an approach to Ashley Cole
(2) with a view to negotiating a contract.

On the facts as we have found them and recorded in the decision that has been handed down, we are satisfied that the case against Chelsea FC is proved. Although the meeting at the Royal Park Hotel was initiated by Pini Zahavi and Jonathan Barnett, Peter Kenyon and Jose Mourinho agreed to attend the meeting knowing that Ashley Cole was a contracted player and that he would be present. They travelled to the meeting and stayed throughout the meeting and on their own story, listened to Jonathan Barnett and Ashley Cole. This conduct constituted an “approach”. In other words Ashley Cole and Chelsea Football Club approached each other.

We reject Peter Kenyon’s and Jose Mourinho’s explanation that they merely went to listen. They played an active role in a discussion between all those present on the basis that Ashley Cole was going to be up for sale in the near future and explored the prospect of acquiring him and assessed whether he would be an appropriate player to join their squad. This amounted to an approach with “a view to negotiating a contract”. It was not necessary for negotiations to be completed on that occasion, but with a view to entering into contractual relations at a later date. The Commission is persuaded that if Chelsea Football Club had decided to carry the matter forward to the next state they would have informed Arsenal Football Club through the proper channels of their interest.

Accordingly we find the Charge against Chelsea FC proved.

However, the point is that Section K works on the assumption that only two parties are capable of approaching the other in the situations envisaged under the section. These parties are (1) the Club and (2) the Player. The Club can approach the Player by itself, by any of its Officials, Players, Agent, any other person on its behalf or by any other means whatsoever, while the Player can also commit the breach of illegal approach to the Club either by himself or by any person on his behalf. To this end, Section K (1-3) deals with “Approaches to Players”, that is approaches by Clubs to Players, while Section K (4-6) deals with “Approaches by Players”, that is approaches by Players to Clubs. From the arrangement of the subsections and their subjects, it is quite clear that the section does not envisage the offence of “mutual approach”; rather, what it does is to indicate conditions under which any of both parties (not both at the same time) can be construed to have made an illegal approach to the other.

Logically therefore, what has to be determined at all times in line with Section K is which party between both made the illegal approach, not whether both made illegal approaches to each other as that is not possible since only one party could have thought up one reason or the other to meet with the other and take initiative to make such a meeting possible. Thus, once one of the parties have been properly found to be in breach (which can be easily determined by the party that took the initiative to approach – in this case, Ashley Cole and his agent), it would be otiose to find against the other party (Chelsea) based on the same charge!

Therefore, it is a contradiction to admit on one hand, as the Commission did, that Ashley Cole and his agent initiated the meeting (which by definition constitutes the whole of the approach) and then still turn round to find Chelsea guilty of the same illegal approach only because “Peter Kenyon and Jose Mourinho agreed to attend the meeting knowing that Ashley Cole was a contracted player and that he would be present”. There is nothing in the rules that says it is illegal for Peter Kenyon and José Mourinho to listen to Ashley Cole simply because he’s a contracted player with another club. It is what they did thereafter that should have determined whether they are in breach of the rules or not. The Commission was quick to reject Peter Kenyon’s and José Mourinho’s explanation that they merely went to listen, yet it accepted their account of how much time they spent at the hotel as opposed to Jonathan Barnett’s and Ashley Cole’s and their account of what actually transpired there, as opposed to Jonathan Barnett’s and Ashley Cole’s. It rejected their claim only to believe its own conjectures! This convenient selectiveness on the Commission’s part didn’t generate confidence in its ultimate decision.

The provision of Section K which deals with the Club approaching “with a view to negotiating a contract” certainly does not apply to Chelsea for the simple reason that it didn’t initiate any approach. Yeah, Cole and his agent may have had that in mind, but for Chelsea to be in breach of Section K3, they have to be the ones initiating the meeting coupled with a desire to negotiate. If we have to depend on conjectures (as the Commission did), then we must look at the outcome of the meeting for guidance as to possible intentions. If as the Commission believes, height was no impediment and Chelsea were negotiating the possibility of a contract with Cole, why then was the deal not concluded? And, if, as the Commission states, it wasn’t necessary for negotiations to be concluded on that occasion, why were no further arrangements made to continue the discussion/negotiation “at a later date”? Why did Mourinho call immediately after to say they aren’t interested?

Another thing that left a bad taste in the mouth was the way the Commission handled Cole’s restraint of trade argument and the selective manner it went about quoting case law to support its essentially ambivalent, but ultimately unhelpful position. This contradiction is signposted by the Commission’s acceptance of the restraint of trade argument, while still “balancing” it with limitations it considers necessary in the peculiar environment of the football industry. It should have been clear to the Commission that ANY FORM of restraint, limited or otherwise IS a restraint of trade! It certainly cannot be the object of laws and rules to further limit the already limited!

Nonetheless, one would have accepted this grudgingly were it not for the sheer hypocrisy of them washing their hands off the real life case of Shaka Hislop who gave evidence about how this rule works to the disadvantage of older professionals or professionals coming to the end of their career. The Commission accepted that such persons suffer “marked disadvantage compared with any other person in the commercial world who is coming to the end of a fixed contract period”. They expressed their “sympathy”, but then claim to regret the fact that they were “unable to declare that Rule K5 is void and unenforceable on this ground alone or when combined with the anomaly of Managers, other nation’s rules and FIFA position”. Whatever the Commission’s excuse, the fact that it couldn’t there and then recommend a review of Rule K5 to take care of the obvious injustice raised by Hislop nor did it sit down and consider the laws of other European Football leagues and FIFA as they relate to the issues being dealt with by Rule K5 not only smacks of laziness, but a predetermined intention to find guilt or breach at all cost.

Anyway, our main purpose here is the outcome of the Mourinho appeal. The appeal was based on two main grounds. One was that Mourinho needed not to have been charged separately from the club and secondly, the punishment of £200,000 was disproportionate to the alleged breach. While it would seem the Simon Bourne-Arton Appeals Committee found for Mourinho with regard to the second by drastically slashing the fine from £200,000 to £75,000; on the first ground, it took ambivalence and obfuscation to another level.

First, there is no precedence in Premier League history of handling the same kind of breach that supports the Commission’s treatment of Mourinho. Indeed, one can clearly state that it is an abuse of process to charge him after charging the club with a breach of FAPL Rule K3. Messrs Mourinho and Kenyon are officials of Chelsea Football Club who acted in this matter on behalf of the club. It is clear that Mr Kenyon who was in fact the main actor on the Chelsea side wasn’t charged with anything personally because legally he’s deemed to have acted on behalf of Chelsea Football Club hence they charged the club instead; yet one wonders why Mourinho was separately charged when his status in this matter is exactly the same as Mr Kenyon’s in that like the latter, he’s only an official of the club!

Secondly, there is no precedence of the Premier League charging any manager under Rule Q1 for a breach of this sort. Monsieur Houllier openly courted Christian Ziege against all the so-called laid down rules (including inviting him over to dinner!), but at the end of the day, he was not even mentioned nor touched. A mere £20,000 fine was all Liverpool got. And they in fact got their man! So, in fact Liverpool joyously benefited from a breach they initiated right under the nose of the Premier League! The Villa-Beattie one was even more of a farce. David O’Leary was not mentioned nor sanction, neither were Villa! The club was simply handed a warning! But when it came to Mourinho and Chelsea a few months later, precedence flew out the window even though the other cases were more clear-cut breaches in which the clubs actively approached the players with a view to sign them.

Thirdly, the Commission’s accepted account of how Mourinho came to be involved makes it clear that he wasn’t an initiator nor was he a very willing participant. It was Kenyon who on his own requested that Mourinho accompanies him to the meeting, but Mourinho wasn’t so keen because it was supposed to be his day off and he had looked forward to spending the day with his wife and children, especially as he’d spent the previous day which was his birthday preparing for and overseeing a match. All Mourinho did was to harken to the plea of his boss that he should come along. Mr Mourinho didn’t know about Cole, didn’t talk about Cole nor did he covet Cole in any way. He was obviously not in the knowledge of a breach when he followed Kenyon to the meeting in a place as public as a hotel. The man answered the call of his employers to come use his technical skills of assessment of a player (that is what the Commission itself conjectured). Mr Mourinho had no reason to believe that respectable people like Jonathan Barnett, Pini Zahavi, Peter Kenyon and Ashley Cole were involved in an illegality. Besides, the benefit of doubt should have been given to him, being that of all the parties, he was the newest to the Premier League and might not have been well-grounded in the rules, especially as such rules do not apply in the continent from whence he’d come just a few months before.

Nonetheless, the important thing is that Mourinho nipped the whole thing in the bud by declaring he didn’t need the player. He had all the powers to acquire this player obviously being offered him on a platter; he had all the power to do this and destabilize his closest competition, but he declined, because he really never wanted to act in bad faith. Yet, he was the one being singled out for punishment! In fact, one of the most curious and indeed contradictory things about the Commission’s verdict is that while on one hand they claim to be “persuaded that if Chelsea Football Club had decided to carry the matter forward to the next state they would have informed Arsenal Football Club through the proper channels of their interest”; on the other hand, they still found the Club and Mourinho guilty for not taking the matter further when they indeed had all the advantages to do so! Chelsea and Mourinho’s crime obviously is that they did not cash in on Arsenal’s disadvantage when they had the chance to do so!

What the Appeals Committee ultimately did was to attempt to use one stone to kill two birds, no matter how crudely. It did this by acknowledging even if in a roundabout way that Mourinho needed not to have been charged. Short of saying so, it invented the dubious ruling that “he was less culpable for the arranged meeting”, which is a clear overrule of Sir Otton. Yet, it still would not define convincingly what culpability is in the case of an approach in the Cole-Chelsea situation. Perhaps, to put back some credibility in the process and to disabuse the minds of some of us who believe what’s been guiding this trial from the beginning is the size of Chelsea’s wallet, the Appeals Committee simply hanged on to the coattails of their new invention of lesser culpability for Mourinho to drastically reduce the fine. Okay, it’s all very messy, as Premier League and Football Association affairs are wont to be, but we acknowledge the attempt to save face. At this stage, the only advice one can give these grey-suited men is to put heads together and review their rules to reflect today’s reality before we get another case putting them on the spot and making them a laughing stock.