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After being woken by my 7 week old at 5am I thought I’d jot down my thoughts on the #NUFCTakeover following on from yesterday’s publication of the WTO report...(1/22)
I have spent some time reading the PL Rules, the Conclusions / Findings to the WTO Report, and the TRIPS Agreement which the WTO Report concluded KSA has breached. (2/22)
Firstly, the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement has the purpose of promoting “effective and adequate protection of intellectual property rights...” between WTO members. (3/22)
KSA were found to be in breach of Article 61 which requires members to provide for criminal procedures and penalties within their respective jurisdictions, in cases of certain IP infringements (including copyright piracy). Full wording of the article below... (4/22)
Side note; It was also found that KSA had acted inconsistently with articles 41 & 42 which relate to allowing / enabling civil enforcement of IP breaches through Saudi courts / tribunals to other WTO members. (5/22)
But, re Arts. 41&42, KSA were able to invoke the exclusion in Art 73b(iii) which says the Agreement doesn’t prevent “a Member from taking any action... necessary [to protect] its essential security interests... in time of war or other emergency in international relations” (6/22)
KSA attempted (unsuccessfully) to invoke the same exclusion in relation to its breach of Article 61. (7/22)
The Report itself imposes no sanctions on KSA, and in fact doesn’t appear to have the power to do so. It concludes with a recommendation that KSA “bring its measures into conformity with its obligations under the TRIPS Agreement.” (8/22)
So how does the impact the takeover? (9/22)
The findings from the Report must be read in the context of the PL Rules as set out in the PL Handbook - https://resources.premierleague.com/premierleague/document/2020/06/11/44837f7b-2dd0-4e65-a13c-e2b271c6c087/2019-20-PL-Handbook-110620.pdf (10/22)
It has widely been reported that the takeover was approved subject to completion of the Owners & Directors test which can be found at Section F of the Handbook. (11/22)
Interestingly the O&D test makes no reference to ‘Owners’, only to Directors. A Club is owned by its Shareholders & run by its Directors. But, the definition of Director in the Rules is wide and effectively includes anyone exerting direct or indirect control over the Club (12/22)
The O&D test sets out the basis on which a person is to be disqualified from acting as a Director of a Club. (13/22)
Dealing specifically with the WTO report, I cannot see any basis on which the findings would be deemed to constitute a disqualifying reason under the O&D test for the reasons set out below... (14/22)
The breach of Art.61 is not an ‘offence’ in & of itself & so does not meet the O&D test criteria in Rule F1.5. The finding did not hold KSA responsible for the IP infringements or confirm a direct link between KSA & BeOutQ (the organisation responsible for the breaches). (15/22)
It simply found that KSA failed to provide criminal procedures / penalties against those that had seemingly committed IP offences within its jurisdiction. KSA’s failures in that regard are Civil as opposed to Criminal. (16/22)
Whilst F1.5 is concerned with offences resulting in a conviction, Rule F1.6 allows PL to disqualify a potential Director where “in [their] reasonable opinion... he has engaged in conduct outside the UK that would constitute an offence of the sort described in Rule F1.5”. (17/22)
Rule F1.5 does refer to certain specified offences contained in Appendix 1, including an offence of “dishonestly receiving a programme broadcast within the UK with intent to avoid payment” as well as any offences analogous (ie. Comparable) to such an offence. (18/22)
Broadcast piracy would undoubtedly fall into this definition, but there has been no finding against KSA in that regard. It would be very risky for the PL to form a ‘reasonable opinion’ that KSA has engaged in conduct satisfying Rule F1.6 in the absence of such a finding (19/22)
It is important to add that there is no way of knowing at this point whether the PL will approve the takeover. There could be other relevant factors that aren’t within the public arena that could have a bearing on any decision. (20/22)
For example, if KSA have not provided all relevant info to the PL in the context of the O&D test, or have given any info deemed inaccurate or misleading, this could lead to a disqualification under Rule F1.1. (There is nothing to suggest this is the case FYI). (21/22)
The purpose of this post is purely to set out my views on whether the WTO findings could jeopardise the #NUFCTakeover, and in my view the answer is... No (or at least that they shouldn’t!). #NUFC (22/22)
