Thursday, May 17, 2007

Tevez: The Case for the Defence

A friend of mine writes a West Ham blog, and in the interests of openness, I invited him below to make the 'case for the defence' on the Tevez/Mascherano affair:

What is the precedent for a points deduction in this case? As far as I can tell, there isn’t one. Many emotive discussions have centred on the points deduction that AFC Wimbledon suffered earlier this season. That was for the offence of failing to register players with the English FA. Tevez and Mascherano were registered with the English FA, therefore a parallel with the punishment is an irrelevance.

Additionally, in the case of lower league clubs, the FA like to take away points rather than cash, knowing that a cash fine could put some clubs into bankruptcy. That was not the case with West Ham, where points or a fine were options.

A fine of £5.5 million is certainly not insignificant and is not an invitation as Warnock suggested that clubs will now play players illegally if they think that is the fine they will receive. Firstly, as public companies, most clubs could not afford to make such a decision that would upset the shareholders so and secondly, Warnock appeared to pay lip-service to it, but he didn’t actually do it like he said he could did he?

How much have West Ham really benefited from the signings of Tevez and Mascherano? For those with short memories, a quick reminder. In the 2005-2006 season, West Ham were FA Cup runners-up and made a serious challenge for Europe. In 2006-2007 West Ham had an appalling season, struggling with relegation and some dreadful results.

The only major change to personnel was the arrival of two non-English speaking players whose reputations threatened the places of various members of the squad, causing their performances to significantly denigrate. There was serious squad unrest and the relationship between players and manager also appeared strained (albeit for other factors alongside the signings).

Carlos Tevez failed to score for almost two thirds of the season and played in such woeful performances as a 2-1 home defeat to Portsmouth, a 1-0 home defeat to Watford, a 4-0 away defeat to Bolton Wanderers, oh and look, a 2-0 home defeat to Wigan Athletic. Hmmm, why were no complaints made by Mr Whelan then? Was it because the signings of Mascherano and Tevez was having a terrible affect on the team, sunk us to the bottom of the table and allowed teams to turn up at Upton Park and collect 3 points?

That Tevez turned on the style towards the end of the season is not a reason to start making a noise about the punishment we received for staying up. Additionally, if anything the kickstart to our season was a home game against Spurs, which even though we were defeated, proved that there was life in West Ham yet and that players like Noble and Neill could be really help us turn things around. Why is no one considering the detrimental effect that the signings has on us until March 2007? It appears we only upset people when we started playing decent football, a bizarre basis on which to pursue ‘justice’.

What steps can be justly be taken to rectify the perceived ‘injustice’? Sheffield United have today requested that a new independent panel preside over the case. Will that be a panel which will agree with their request for points to be deducted rather than the original panel’s decision? And what would West Ham’s right of appeal be, for yet another panel which will agree on the original decision? When would this stop precisely?

The English court could only intervene in a case where the Premier League has done something procedurally wrong or acted in an incorrect manner. This is simply not the case in this instance. I could go on, but if someone can give me exemplary responses to the above, I’d be only too delighted to read them. At the end of the day, no one really cared about Tevez or Mascherano until it actually affected them, and I’m afraid that is simply not how justice works.

15 Comments:

At 8:41 AM, Anonymous Anonymous said...

The above 'case for the defence' totally overlooks the point that Tavez 're-signed' for WHU at the conclusion of the meeting where a £5million fine was handed down. This 're-signing' was OUTSIDE the transfer window. WHU should be deducted points.

 
At 9:40 AM, Anonymous Anonymous said...

I did not think a point deduction was in order, because I think that points should be fought for on the pitch and NOT in the courtroom. However, the 5.5 million fine was far too low given what West Ham have gained by staying up. In my view, they should have forfeited their entire TV income from next season because that would have sent out a clearer message. The author of this piece is looking at the whole thing through claret and blue glasses. West Ham have benefited from the incompetence of the EPL and should count themselves incredibly luck. Time to keep your own counsel, methinks as too much gloating and self-justification might backfire.

 
At 10:14 AM, Blogger Blackheath Addicted said...

Interesting, but the real issue (to my mind) is that the 'independent' panel cited reasons for decision that were rubbish: the impact on West Ham supporters, the fact that the club had new owners (even given the poor Spurs precedent), and the fact that the decision was coming late in the season. If these factors had a bearing on the outcome and are considered rubbish, it follows that the penalty should have been more severe than it was: either a larger fine or points deduction.

 
At 1:22 PM, Blogger charlton north-downs said...

There is only one way to look at the situation. If Sheffield United had survived instead of West Ham in similar circumstances, you would probably have the equivalent protest, if not more vehemently.
There is no way I would want Charlton to survive by default. West Ham won 7 out of their last 9 matches and on that statistic alone, deserve to stay up. One player does not make a team
and the fine was certainly large enough.
We are simply not good enough.
But next season we will build a side better equipped for the Premiership.
Come on you Reds.

 
At 1:32 PM, Anonymous Simon said...

Hi

I am said author of the case for the defence, thanks for your comments.

To Anonymous at 8.41, West Ham did not re-sign the player, we merely tore up the piece of paper that said he was under MSI ownership. Tevez's registration as a player has never been in doubt. But players are allwoed to adjust their contracts at anytime during the season, and they do. This was nothing more than such an adjustment.

Anonymous at 9.40 - in essence i agree with you and I am neither gloating or feeling smug. The fact is the Sheff Utd are blaming their relegation on us and demanding that we should be relegated. We simply have to speak up for ourselves and gain support from other clubs. If Wigan and Sheff Utd weren't whinging about it, we wouldn't be dsicussing it.

Blackheath - a judge in a court is allowed to give a sentence based on mitigating factors (and I re-iterate there is no precedent anyhow). Although the reasoning might seem clumsy, simply put the panel felt that relegation would have been too extreme a punishment for the 'crime' committed. The fine was in line with what they viewed as suitable punishment and this was by an independent panel.

Look forward to any other comments.

 
At 4:52 PM, Anonymous Lesley Angeles said...

http://www.tottenham-fans.com/rival/pest_ham/visiting_thepikeys.htm

 
At 7:02 PM, Anonymous Simon said...

I love sp*rs fans, they like to work with pictures rather than words!

 
At 8:36 PM, Anonymous Anonymous said...

Simon,
You admit that MSI had a contract with Tevez until Jan/Feb. Isn't that illegal, MSI may have been able to exert undue influence over Tevez and the outcome of games he was involved in.
Also who shops the class room idiot when you see them cheating in a test?Nobody you know that he will fail anyway.Its only when their success threatens your own chances that you will complain. hence no complaints when WHU were at the bottom of the table.

 
At 9:23 PM, Anonymous Anonymous said...

I'm a villa supporter and am entirely neutral towards any of the team involved.

There were PLENTY of questions being asked on deadline day when Tevez and Mascherano were signed as everything, other than the players actually signing, was undisclosed. Combined with all the rumours surrounding Kia & Co, the big question was how in the fcck West Ham managed to sign these two? West Ham! A team just promoted the year before who had zero players from outside Europe on the roster and whose manager was never particularly inclined toward such extravagant transfer dealings.

Now, no one particularly cared when Tevez was crap and Mascherano didn't play, but it doesn't mean the question wasn't asked. To claim some sort of statute of limitations is ignorant at best.

 
At 10:37 PM, Anonymous Ali said...

Simon, just a couple of things
1) As I understand it, the AFC Wimbledon points deduction wasn't because Jermaine Darlington wasn't registered, but because he wasn't correctly registered. They hadn't realised they needed to fill in a form disclosing that he'd previously been registered with a foreign FA (Wales), because he came out of retirement to play for them.

2)The West Ham fans (including those in the media) keep going on about how Tevez and Mascherano were not ineligible, as they had been registered. However, as with AFC Wimbledon, they didn't disclose everything they were supposed to, so were not correctly registered. In fact, as these registrations were obtained by West Ham under false pretences, they could (and in my opinion should) be considered to be totally invalid. If WHUFC had disclosed the contentious clauses in the contract, they would have had to go back and renegotiate them, and given the timescales it is unlikely that this would have been achieved before the end of the summer transfer window, so they wouldn't be available to play until January. How many points did the Hammers get with Tevez or Mascherano in the side before January?

3) Depending on which papers and websites you read, Tevez had to be re-registered after the conclusion of the disciplinary case. Now I'll concede that it's not clear whether that was actually the case, or whether some journos are confusing the renegotiation of the contract with re-registration. If it was the case, then that does rather imply that the original registration was rendered invalid by the dodgy elements of the contracts. It also leads to the question as to why WHUFC were allowed play Tevez when he had just been registered outside the transfer window.

 
At 12:03 PM, Anonymous Simon said...

Villafan - I don't really recall much noise being made at the time of signing, outside of the signing itself. I certainly don't recall Whelan and Mccabe saying anything, in fact, I'm sure they did not.

Ali - my understanding is that the fella was registered with the Welsh FA and Wombledon had not realised they had to register the player with the English FA. Tev and Masch were both registered with the English FA, so an analogy with the punishments meted out is incorrect.

Re the 're-signing' as I've said before, all that occured was the the 3rd party agreement was torn up, Tevez was not 'transferred' or anything else. The Premier Leauge have confirmed he was eligible to play, so why are the gang of two still moaning about it?

The longer this goes on, the longer it looks like a 'we've been hard done by' stunt by Sheff Utd. Clearly worried about season ticket sales, they are seeking to apportion blame to everyone but themselves, indeed Warnock was blaming everyone from Rob Styles to Alex Ferguson. It's starting to look and sound a little pathetic and my guess is after this weekend, we won't really hear about it again.

 
At 9:54 PM, Anonymous Chris said...

Simon,

With all due respect, I think you are missing the point. Whilst you are correct to suggest that there is no precise precedent for the Tevez/Mascherano case, the fact is that a points deduction is the typical punishment for offences of this type. There is a very good reason for this. A points deduction is the only really effective form of discipline. Consider the chaos that might, potentially ensue if clubs were able to make a financial calculation about when it might be in their interest to play a player who wasn’t registered or properly registered? This point is perhaps better illustrated by looking at another type of offence. Middlesbrough were once docked three points, and subsequently relegated, because they failed to fulfil a fixture. Should they have been fined instead? If they had been it would have been ‘open-season’ for clubs to pick and choose when it suited them to play key fixtures. Further, your point about affordability is, quite frankly, absurd. Are you suggesting that had Colchester United been promoted to the Premier League and then committed a similar offence that they would have been docked points on the grounds that a £5.5m fine would be beyond them? Once any society puts a price on its rules, i.e. you can bend them if you are able to pay-up, it is heading for big trouble. A major advantage of a points deduction is precisely that it is even-handed and avoids the minefield of the ability to pay question. I wonder what Chelsea would have been fined for a similar breach? Twenty-five to fifty millions perhaps? The AFC Wimbledon case is highly relevant. That club made a very simple administrative error, failing to ‘tick the box on the form’ for international clearance before posting the documentation to the Ryman League. Note that the player was moving from Cardiff! Their initial punishment of an 18 points deduction and expulsion from two Cup competitions was, in my view, very harsh, not least since they immediately owned up to their mistake once it came to light, but the principle was right. They had broken a rule and needed to pay. As one of the wealthier clubs at their level, I’m sure that they too would have preferred a fine.

The real issue with the Tevez/Mascherano saga, and the reason that it simply won’t go away, is that it is clear that both the Premier League and the Independent Tribunal knew that a points deduction was the right sanction and implied as much when the Tribunal’s decision was announced. The real question, in the eyes of almost all neutrals, is why then did the tribunal make the wrong decision and fail to deliver justice? Unfortunately, the arguments used to explain the decision to simply fine West Ham United were so entirely fatuous its very hard to believe the Premier League were misguided enough to issue the statement. What I found most offensive was the statement that West Ham’s plea of guilty was a mitigating factor. What Planet were the Tribunal on? Until the 11th hour West Ham’s position was that everything was in order and that they had every intention of taking the Premier League to court if they didn’t like the verdict. This blatantly threatening behaviour was accompanied by a deliberate decision to continue to play Tevez even though it later transpired that there was a problem with his registration. Had West Ham’s new owners behaved more honourably and, for example, agreed not to play Tevez until any irregularities were resolved they might have deserved some sympathy. Instead, they put up a metaphorical two-fingers to the Premier League and ploughed on regardless. In my view, Mr Magnusson deserves no compassion whatsoever.

Whether you like it or not, as far as neutrals are concerned the situation stinks. It is impossible to avoid the suspicion that the Premier League/Independent Tribunal simply bottled making the right decision for fear of finishing up in court, easing their consciences with a huge fine and hoping that nobody would object. Instead, the Premier League’s lack of integrity and backbone now means that the Courts are exactly where this wretched saga seems likely to finish. Unfortunately for Richard Scudamore, whilst being taken to court by West Ham to play the role of defender of what is right and proper may have been a real triumph, he now faces what I’m sure will be a humiliating experience. His reputation is in tatters and he’ll be very lucky to survive.

The real tragedy with the mess that has been created is that there will be no winners. The FA Premier League have lost credibility, West Ham have become the game’s pariahs and I’ll bet that most Sheffield United fans would rather not survive as a result of a reversal of the Tribunal's decision. I follow Charlton and I’m pleased that Chairman Richard Murray is involved in the legal action, but delighted that the Club cannot benefit from it. If the Premier League is trying to find a way out, perhaps they should deduct ten points from West Ham next season. West Ham would probably be good enough to stay up anyway, but most importantly the right precedent would be set and justice seen to be done.

Chris

 
At 1:56 PM, Anonymous noel said...

Chris....well that's shut him up! That's the best summing up of this shoddy afair that I've read - you should be a journo if you're not already. All this bullshit about things being decided on the pitch etc. It's all inextricably linked, and impossible to seperate one thing from another.
I get the sense that more than a few Addicks are actually quite looking forward to a season or two in a proper league, where money and tv execs don't have quite such a dominant influence.

 
At 9:47 AM, Anonymous Simon said...

Hi Chris

Thanks for your reasoned argument, however, you will not be surprised to hear I do not agree.

Firstly, a punishment that suits the circumstances is not uncommon at all. Courts commonly have options for example of a fine or a custodial sentence, usually based on the means of someone to pay such a fine. Find me 10 murderers in prison and I will show you 10 different sentences. Why? Because the courts are entitled to use discretion when giving punishment. The Premier League are entitled to use such discretion as well.

Again I re-iterate that there was nothing wrong with the players registration, they were fully and properly registered to play in the league, it was their contracts that were subject to dispute. The gang of four are disputing his licence to play after the fine was imposed, not before, and I have addressed that seperately but as a reminder, the Premier League themselves have come out and said it was fine, so why won't the gang of four believe them?

I still believe that the panel knew a points deduction would be an over zealous decision in this case as it would have meant relegation, which is a draconian response to a slightly dodgy contract, therefore they were entitled to make it a hefty fine instead.

As I've said previously, most clubs are public companies and could not afford to face such fines in their day to day running, indeed Warnock was blabbering on about playing a suspended player but funnily enough the thought of a 5.5m fine put paid to that.

Cheers
Simon

 
At 7:48 AM, Anonymous Chris said...

Hi Simon,

Thanks for your reply. I am not surprised to hear that you disagree with my response to your ‘Case for the Defence’. I am disappointed though that you have failed to directly address any of my arguments. Everything you say is logical and coherent and, on one level, very hard to refute. You are defending the decision to fine West Ham, rather than deduct points, from a legal and process perspective. Richard Scudamore has been following a similar strategy, focusing on the use of an Independent Tribunal, as required, and on your point that the Tribunal was entitled to use their discretion and did so. There was certainly no obligation on them to deduct points and no precise precedent that might guide or force their decision. However, a defence that says, ‘We have followed the agreed process, that process and legal precedent allowed us to do whatever we felt appropriate and therefore there is no accountability for the decision made and no right of challenge’ leaves me completely cold I’m afraid. The football community, at least in this country, has a genuine interest in the values underlying the decision made and the precedent set. The lack of transparency, opportunity for public debate and accountability is simply not accepatable as far as I’m concerned. I’m much more interested, than you are it seems, in the value system at work here and what it means for the future.

My focus is on whether the Tribunal used its discretion appropriately. Did they get the right answer? In arriving at a clear judgement on these questions it would be helpful to have a complete grasp of all of the facts and I confess that I do not. However, a number of things do seem to be clear, at least as I understand it.

1) The contracts of Tevez and Mascherano were subject to third party ownership and potential influence. A clear breach of League rules as I understand it. As you say, the punishment should suit the circumstances. It is not at all clear to me that such a breach is less serious than a problem with a player’s registration nor therefore why the penalty should be less onerous. Returning to the AFC Wimbledon example, there was no question of any wrong doing in their simple administrative error and nor did they or anybody else gain (or seek to gain) any advantage from it. Can you be as confident that this is true for the Tevez and Mascherano saga? It seems to me to be absolutely clear that West Ham were seeking to gain an advantage by acquiring two world class players for free. Moreover, let’s not forget that the 3rd party concerned was engaged in a very serious attempt to buy the club at the time the players were signed, a fact he has subsequently confirmed. How comfortable are you with this conjunction of circumstances? In so far as you understand the rules, do you accept that West Ham broke them, with intent and with the objective of potentially significant gain? Can you give me one example of a club playing an unregistered player where, in your judgement, the offence was as serious?

2) We have also been led to believe that West Ham systematically lied to the Premier League, allegedly deliberately withholding information despite being requested to confirm that everything that needed disclosure had been reported. If true, this is very serious in my book and helps to explains why the Independent Tribunal were damming of the way that West Ham had behaved. Referring again to AFC Wimbledon, I’m very confident that their problem was an innocent mistake, a genuine ‘cock-up’. Are you as confident that West Ham were as innocent? It is possible that they didn’t understand the rules I guess, though one might expect a prudent man to check if in doubt. What is the appropriate punishment for this crime would you say? Again, there is no precedent, but as I’m sure you’ll agree that can also mean that a more severe sanction than ‘usual’ might have been imposed. Discretion in a two-way street.

3) It has been argued that whilst this might be an appalling state of affairs, the new owners shouldn’t be held responsible, i.e. the previous management is to blame. As I’m sure you know, nobody serious would take this argument seriously. When one business buys another it takes on it’s liabilities and obligations as well as it’s assets. If that principle were undermined it would open the door to a wide range of nafarious schemes. So moving on let’s assume that Mr Magnusson et al did their due diligence, but missed the fact that the contracts of Tevez and Mascherano were irregular. This is quite possible, but as I’m sure you know ‘too bad’ under corporate law. However, this is all irrelevant really because at some point, several months before the Tribunal met, Magnusson must have known that there was a problem. Given what was at stake it beggars belief that his lawyers hadn’t been on the case and identified a clear breach of Premier League rules. Why then did West Ham wait until the Tribunal to accept this? The Tribunal ordered that Tevez’s contract be ‘torn up’, making it clear that he could not play until this was done. Are we really expected to believe that West Ham had failed to understand that his contract was in breach until the Tribunal made it clear? A more likely explanation is that they knew, but decided to continue to play Tevez nevertheless, continuing to benefit from his contribution to the team and daring the Premier League to deduct points. Let’s not forget that it seems that Liverpool went through what must have been a similar thought process in January and, presumably, decided not play Mascherano for several weeks until his registration was regularisd. This looks like another very serious breach of good faith to me, this time by the new owners.

I accept that I may not have all of the facts, or understand fully even those facts that I do have, but this all adds to a very serious case against West Ham. Moreover, ironically, I believe that this was the view of the Independent Tribunal. In summary, we have been led to believe that West Ham signed two players on contracts that were against Premier League rules and then lied about this when questioned. West Ham played one of those players, Carlos Tevez for almost the entire season, seeking to gain advantage from so doing and for most, if not all of that time in full knowledge that they were breaking league rules. When challenged on this point early this year the club denied any wrong doing, continued to play Tevez and threatened the FA Premier League with legal action if they were docked points. I’m all in favour of discretion. In your view, using your discretion, what should have been the sanction for these breaches of rules and good faith? Come to think of it, relegation may have been appropriate. I can think of two clubs, Peterborough United and Swindon Town, that were relegated for breaking league rules so there is a precedent. But nobody is suggesting relegation as a punsihment are they. I’ve already explained why a points deduction was the right sanction. The only issue was how many. When you said, ‘I still believe that the panel knew a points deduction would be an over zealous decision in this case as it would have meant relegation’ you gave the game away. This is a clear admission that the decision taken was compromised. To paraphrase what so many have said before, ‘had West Ham been docked points it would not have been this that relegated them but their failure over the entire season’. By lacking the courage and integrity to make the right decision, the Tribunal have created a mess and established an awful precedent. It now seems that a points deduction is only used when it doesn’t matter. How would you define that by the way? Would a UEFA Cup place count? The Champions League perhaps? We also now know that if you are going to offend, do it late in the season or play for time. You might get docked points in December but you’ll be safe in March. What kind of system of justice is that? The Tribunal should have done what they thought was right and not have been swayed by the potential consequences, whatever they might have been. It is absolutely clear, and this is why there is no much anger over this issue, that the Tribunal knew what the right sanction was but decided not to apply it. Moreover, the suspicion is that the concern was not so much with the direct consequence but with West Ham’s likely reaction.

Having said all of that, let’s be generous for a moment and accept that the Tribunal were in a tight spot. What might have been done? Well first the Premier League should have got the case moving much more quickly. What on earth took so long? Given the circumstances, they are clearly guilty of serious neglect for which someone should be accountable. Let’s be generous again and suppose that by the time the Tribunal met it was too late to make the right decision. What should they have done? Under pressure the Tribunal chose to make the wrong decision, the consequence of which is that West Ham have simply got away with murder. They have received no prison sentence to use your analogy. A £5.5m fine in neither here nor there in the context of what the club has gained. Just think, the difference in prize money in 06/07 alone, compared to the outcome with a 3 points deduction, was worth around 20% of the fine! What precedent has been set here? Crime pays? An alternative might have been for the Tribunal to announce that they would make a decision at the end of the season, enabling them to tailor the punishment to the circumstances with a points deduction applying in either league for 07/08, for example. I don’t really feel like being generous but it is instructive to try because it exposes incompetence in every aspect of the way in which this case has been handled. The Tribunal had discretion alright, but didn’t use it very intelligently. As I’ve already said, the arguments used to justify the decision made were entirely fatuous so that whilst a process may have been followed it is clear that the people involved were not fit to be there. The FA Premier League are now desperate to avoid a ‘retrial’ or public debate because they know what the outcome will be. It will be a very sad day for football if legal technicalities prevent a proper debate about this distasteful affair. In my view, and that of many others, the reputation of West Ham has been badly stained and the credibility of the Premier League almost completely eroded. What you believe is for you and your conscience, but please don’t hide behind the legal process. Be honest about the facts, face them and form a view.

Before closing, I feel compelled to reply directly to three of your comments. First, you state that the gang of four are disputing Tevez’s right to play after the Tribunal, not before as if this implies that they accept the Tribunal’s decision. If that is what you mean you are wrong. They have gone down that route simply because it offers what they feel is the best form of attack.

Second, you then ask why they don’t believe the Premier League. I thought that was a rhetorical question on first reading. I’m in no better position than you to judge, but my guess is that they feel they have no reason to trust West Ham and have lost confidence in Richard Scudamore. They are probably also struggling to figure out how a contract can be amended (torn up the Tribunal said) without the written consent of both parties. The third party has not signed we are told. Perhaps this is another gentleman’s agreement? Are you confident that the League has seen a revised contract signed by all interested parties?

Third, you refer to Neil Warnock’s comment about precedent. You are right that £5.5m is a bit steep for a one game advantage but I don’t think that is his point. £5.5m was the fine for a full season of blatant disregard for the rules along with dishonesty and disingenuity, or at least this is what we have been told. Warnock has probably concluded that on this basis the fine for a one game offence would be shrapnel. Suppose Liverpool had almost managed to regularise Mascherano’s contract but that it was not quite ready for a game they saw as crucial to their Champions League chances. Do they play him? Before, no. Now? Well, it may be worth the gamble. They know they can’t be docked points and a fine of £100,000 or so might well be worth it. They might even try to argue that a new contract was almost signed. That they had a gentleman’s agreement. Suppose another club signs a player in the January window, but just hours too late to play in an important FA Cup tie. Before ‘West Ham’ there is no way they would play him. Now? It might just be worth a gamble. I think this is what Warnock meant. Don’t you?

The FA and the FA Premier League will find that this decision will haunt them for a long time to come. They still haven’t made a case for the defence and nor have you.

Enjoy the forthcoming season

Regards

Chris

 

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