Penalty.That being the basis upon which we will proceed, what then is the appropriate penalty? In determining that, we have taken into account and given West Ham credit for the pleas of guilty and we have taken into account their hitherto exemplary disciplinary record. We are of the view that these are exceedingly serious allegations because they amount to not only an obvious and deliberate breach of the Rules, but a grave breach of trust as to the FAPL and its constituent members, because in our finding the club has been responsible for dishonesty and deceit.
The Rules of the FAPL allow us to penalise a club by deducting points. That is a course that we consider would normally follow from such a breach of these Rules. Many clubs may be of the view that all competitions should be decided on the pitch and not by tribunals. Whilst that is a natural and understandable view, the fact remains that some breaches will be of such a serious nature that only a deduction of points would be appropriate.
Some clubs, here perhaps those who are locked in the relegation battle with West Ham, may be of the view that only a points deduction would be appropriate. Here, we have finally come to the view that a deduction of points would not be proportionate punishment.
We have taken the following factors into account:
One, the club's pleas of guilty.
Two, the fact that the club is under new ownership and management. True it is that Mr Duxbury remains, but we are impressed by Mr Sturman's point that Mr Magnusson could have cynically dispensed with his services so as to reflect more favourably upon the club.
Three, had the club in time made disclosure of the third party contracts to the FAPL, then, in all probability, contracts could have been entered into which would not have offended the Rules. Mr Mascherano is now playing football for Liverpool. He is doing so pursuant to a contract entirely different in form to these contracts, and which has been approved by the FAPL. We have no reason to suspect that the same could not have been achieved with West Ham in August 2006.
Four, there has been a delay between the discovery of these breaches and these proceedings. Whilst that delay is due to no party's fault, the consequence is that a points deduction, say in January, whilst unwelcome, would have been somewhat easier to bear than a points deduction today which would have consigned the club to certain relegation.
Five, Tevez has continued to play for the club after the discovery of these breaches. The FAPL had the power to have then terminated his registration. For understandable reasons, they did not. Had it not been for these proceedings, the club and the FAPL might have reached a similar situation to that pertaining to Liverpool and Mascherano. Tevez, we note, has played in more games post-24th January than before it.
Six, we have considered the position of the players and the fans. They are in no way to blame for this situation. Of course, if the impact upon players and fans was to be the overriding consideration, there may never be a deduction of points. However, in this case, the fans and the players have been fighting against relegation. They have been doing so from between January and April. They have been so doing against the ever-present threat of a deduction of points. Those efforts and that loyalty would be to no avail were we to now, on what might be termed the eve of the end of the season, to deduct points.
Seven, it was Mr Igoe, thus the club, then under new ownership, who brought attention to these breaches.
Thus we do not order any deduction of points.
