‘Decisions should not be subject to microscopic examination’

THE independent commission appear to have taken a swipe at Nottingham Forest as they rejected the club’s appeal against their four-point deduction.

The Reds were back in front of a three-person panel last month to challenge the sanction imposed in March for their breach of Profitability and Sustainability Rules. However, their bid to get any points back was unsuccessful.

Forest had argued the original commission did not take into account the sale of Brennan Johnson to Tottenham Hotspur on deadline day last summer – two months after the end of the relevant financial year – as a mitigating factor. The club also felt not suspending some or all of the points deduction was “a further error”.

Both were rejected by the appeal hearing. And in the overall conclusion of the written reasons behind their decision, they seem to have a dig at the club and their legal team.

The appeal board said the original ruling was “commendably clear and comprehensive”. The club had described the basis of their appeal as being on “two distinct and fundamental points of principle”, but the commission said neither argument fell into that bracket.

Summing up their decision, they said: “Some of the criticisms of the decision have involved a minute examination of the words used by the commission. Decisions such as these should not be subjected to microscopic forensic examination and interpreted as if they were statutes which have been drafted by Parliamentary Counsel. Allegations of infelicities of language or errors which are not material to the ultimate decision add to the complexity and costs of proceedings and are rarely likely to lead to a successful challenge of a decision.

“A further practice that adds to complexity and cost is the citation of other decisions on sanctions imposed for breach of the PSR. We have been assisted by being referred to the appeals in Sheffield Wednesday and Everton 1. That is because decisions in both cases contained statements of general guidance. But reference to individual cases on particular facts is generally unhelpful and should be avoided.

“It is understandable clubs wishing to appeal against sanction will search for other cases to compare the seriousness of the breach in the instant case with that in other cases. As the numbers of these cases increases, there will be growing temptation to examine them in detail and burden commissions and appeal boards with minute examination of the similarities with and differences from the instant case. Such an approach will rarely be helpful. For the reasons we have given, we are unanimous the commission was entitled (and right) to impose the sanction of a deduction of four points and to refuse to suspend it.”

In their appeal, Forest made “a number of criticisms” of the way the original commission dealt with the “suspension issue”. But the appeal hearing rejected their argument.

The written reasons state: “We reject all the criticisms made by the club of the commission’s approach and reasoning. The question remains whether its decision not to suspend the sanction was wrong.

“We consider that, in a case where a breach of the PSR threshold is sufficiently serious to attract the imposition of a deduction of points, it will rarely be appropriate to suspend the sanction. Fairness to the other clubs and need to maintain the integrity of the sport will usually require the deduction to be immediate.

“The commission was not only entitled, but right, to say suspending the sanction ‘would not change anything’. That is why in a case of serious breach the points sanction should be immediate. A breach of the PSR threshold is different from other kinds of breach where a suspended sanction might well deter repeat breaches and thereby serve a useful purpose.

“The scheme of the PSR Rules and Rule W is to ensure a penalty for breach of the PSR regime is imposed as soon as possible. The rules do not contemplate ‘spreading’ a sanction over more than one season.”

The Reds were found to have breached permitted maximum losses of £61 million across a rolling threeyear period by £34.5m. The club are not expected to issue a statement in response to the appeal hearing’s verdict.

Everton had a 10-point deduction reduced to six on appeal earlier in the season.

They have appealed against a two-point deduction for a second PSR breach.