How a 141-point deduction became 6 – FAW v Pontypridd United AFC

Background

The Football Association of Wales (the “FAW”) is the governing body for football in Wales and governs domestic football competitions in Wales. It sets the rules and regulations with which clubs participating in its domestic competitions must abide (the “Rules”).

Pontypridd United were promoted to the Cymru Premier – the top division in Wales with 12 clubs – for the 2022/23 season. They survived relegation during that season by finishing 8^th, 6 points ahead of 11^th placed Flint Town United, and therefore remained in the Cymru Premier for the current 2023/24 season where at the start of December 2023 they were in 10^th place.

The Rules requires clubs to register all their players properly and in accordance with the Rules – a failure to properly register a player means that player is ineligible to play in competitive fixtures for the club. In relation to professional players – that is, players who are paid more than merely their expenses – a copy of the relevant contract must also be submitted and registered with the FAW. Registration of players is made through an online portal known as COMET.

What is arbitration?

Where the FAW charges a club, the FAW’s Chief Executive may either:

• refer the matter to a disciplinary panel. A disciplinary panel is a panel made up of three of the FAW’s councillors appointed by the FAW’s Chief Executive (and therefore is not a panel independent of the FAW) and may be subject to either an appeals panel or an arbitration panel; or
• refer the charges to an independent arbitration panel.

In this instance, Noel Mooney – the FAW’s Chief Executive – decided to refer the charges to an independent arbitration panel.

Arbitration is a procedure undertaken by an independent arbitrator or arbitration panel to resolve a potential dispute between parties (such as an allegation of breach of the Rules). The decision the arbitrator/arbitration panel reaches is usually final and binding on the parties and is not capable of appeal (as is the case in this instance).

Pontypridd's defence

Pontypridd United did not raise any legal arguments as part of its defence. They accepted that the professional contracts of the three players were not shown on the COMET system. Instead, they seemingly sought to tug at David Phillips KC’s heart strings. They explained that:

• they were a volunteer-led club and did not have the resources of a professional club
• having been promoted to the Cymru Premier for the 2022/23 season they had expected support from the FAW but they felt this had not been forthcoming but rather they had been bullied by the FAW in what was a new and complex regulatory environment for the club
• COMET was unreliable and simply did not work properly and that any failure was a failure of that system, not of the club’s
• There was no motive for them to have registered the majority of its players properly, but not register three players
• They had taken the necessary steps, but had been let down by a failure of the system

The sanction

Having determined that Pontypridd had in fact breached the Rules, David Phillips KC was then required to consider the appropriate sanctions to be applied.

He was clearly impressed by the sincerity of the Pontypridd officials who had provided evidence at the hearing and did not doubt their loyalty to the club and determination that the club thrived not only for the benefit of its immediate supporters, but for the surrounding community as a whole. He also believed that the club had learned from their failings and were willing to take the steps necessary to ensure proper compliance. He also accepted there was no motive for the club not to have registered players correctly and he was of the view that no sporting advantage flowed from that failure. He did not believe this was a case of deliberately flouting the rules to secure some advantage and that they were inadvertent breaches caused by a failure to operate the COMET system properly.

As a result, David Phillips KC believed that substantial mitigation was available to Pontypridd United and that a deduction of 87 points would be a disproportionate penalty for the club’s blameworthiness. He was of the view that it was not the Rules’ intention to impose such a sanction in such circumstances.

Whilst David Phillips KC agreed that the Rules required him to impose a 3 point deduction for each offence. Whilst not expressly clear in the decision, it seems that David Phillips KC deducted 3 points per player per match for each instance of an ineligible player appearing in a match – that is, there was an element of “double counting” where both Knott and Richards played in the same game, resulting in 6 points being deducted for such a game, and 3 points where only one of Richards or Knott appeared. This resulted in a total of 141-points (therefore in excess of the 87 points the FAW had sought which accounted for “double counting” and only sought to deduct 3 points for a match where both players appeared).

However, he was also of the view that the Rules permitted him to suspend points deduction in respect of some of the charges. He believed that, considering that the charges resulted from failings that originated from the same failure to properly register players, it was appropriate for him to impose an immediate deduction of 6 points with the remaining points suspended for a period up to the end of the 2024/25 season. As such, on the basis that Pontypridd committed no further breaches relating to player registration up to the end of the 2024/25 season

In relation to a transfer ban, again David Phillips KC believed that a two-window ban was mandatory but that he had the discretion to similarly suspend that sanction until the end of the 2024/25 season.

In relation to the Nathaniel MG Cup, David Phillips KC believed that expulsion was not a compulsory sanction, but a discretionary one. He did not believe it was appropriate to impose any separate penalty on the basis that the club had already been sanctioned for that failure by way of points deduction and that playing Jordon Knott had not created any sporting advantage.

Finally, he decided that it would not be appropriate to issue a monetary fine in addition to the above sanctions.

Comments

This decision has generated a lot of attention, including passionate debate about whether it was right or wrong.

On one hand, it could be seen to be a decision that may be inconsistent with previous decisions and/or one which risks unfairness and inconsistency in application of rules with which all clubs must abide.

For example, compare the sanctions given by Williams Norris KC in a similar arbitration to Connah’s Quay Nomads during the 2021/22 season for playing an ineligible player in six games. In that instance, William Norris KC believed he had no discretion to reduce the mandatory 3 point per game deduction on the basis that it may be disproportionate and that he was required to deduct 3 points per game. The fact that such a deduction may result in a club’s relegation could not amount to mitigation to reduce the mandatory punishment. Similarly, in the 2021/22 season Aberbargoed Buds were deducted 30 points which resulted in their relegation, Goytre were deducted 15 points, despite the relevant player being an unused substitute in the five games in question, resulting in them descending from top spot to finishing 5^th, 7 points behind a playoff sport and Treharris were deducted 12 points.

As for the Nathaniel MG Cup, again the decision not to expel can be compared to the litany of expulsions from that competition over the last three seasons for failure to comply with rules relating to use of youth substitutes. Additionally, the decision not to expel was arrived at on the basis that the club had already been sanctioned otherwise by way of points deduction – however, they are separate competitions subject to their own rules. It may be the fact that Pontypridd had played intervening games between the first round during which the breach had occurred and the date of the decision (having, by then, reached the quarter finals) played some part in the decision as to expel the club at that stage may have created a logistical nightmare in rewinding the competition a few rounds.

However, on the other hand, it could be seen that the decision supports the view that sporting competitions should largely be decided on sporting merits and that what could be described as administrative errors should not results in catastrophic sporting outcomes, especially in the context of a semi-professional club, and that such sanctions are proportionate to the nature of the breaches.

It will certainly be interesting to see how future charges relating to failure to properly register players are dealt with – watch this space!

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Find out more about how our sports lawyers can assist here and listen to snippets of Tomos discussing the decision on a Sgorio podcast here and here.