Spygate 2.0: Should Play-Off Final be CANCELLED?

0:01This is a Global Player Original Podcast.

0:30that away, that eats away at the integrity of the game, it eats away at the popularity of the game and the magic of the game.

0:42Welcome to the Sports Agents. We're talking Southampton today. Espionage. It's cost£200 million so far to the club. This sounds like a story that Ian Fleming should be writing and this is the season that just keeps on giving. The tale of the Championship playoffs Southampton's failed attempt to appeal their expulsion from that final means that Middlesbrough will be heading to Wembley to take on Hull in football's richest game. But how have we got here? What is the legality of that punishment? What are the ramifications? Where's the fallout coming on that? Whose heads are going to roll? And is there anybody we should be feeling sorry for here?

1:21Just before we get into our guest today, a quick reminder, you can catch up with all our previous episodes on YouTube, Global Player, or wherever you get your podcasts. And please do follow, subscribe and leave a review if you can. We're going to be speaking to David Prutton, former Saints midfielder, and Tom Murray, who is co-founder of Three Points Law. So we've got the passionate football person and the legal brain to disseminate this incredible story. OK, so let's start with stating what we know and the latest, which is this morning, the Football Association has confirmed it launched an investigation into Southampton's conduct after the club admitted spying on three clubs in the championship this season.

2:01Southampton's appeal against being thrown out of the championship playoff final on Saturday has been rejected. The match is going to go ahead, as we know, between Hull and Middlesbrough, Hull City, at 3.30 on Saturday. The punishment shocked many, both in the legal world and the football world. But is it a punishment that fits the crime? And I think we might have different answers on this one. So let's start with the legal answer to this. And I think, Tom, you didn't see this being quite as draconian and heavy as it is. Yeah, I think it took many people by surprise, me included. So my prediction on this was that we would follow a similar precedent to what happened in Leeds, which was a£200 ,000 fine and a slap on the wrist.

2:43I think many people in football were surprised by this. I think perhaps the difference and the distinction to be drawn between what happened in Leeds and what happened here is that following the Leeds scandal, there was a new regulation that was introduced in the EFL regulations which prevented spying or attempting to spy and here we have a very you know a very clear regulation that states what you can and can't do everyone was aware of the potential ramifications and the other big distinction that has to be drawn with Leeds is potentially the significance of the of the game so Leeds also admitted responsibility admitted and committedness on various occasions but I think it's the significance of the playoff semifinal, which is what's captured the attention of the panel.

3:25And the speed of the decisions and the speed of the appeal, the certainty, I think that's taken many by surprise. We thought this might drag on and on. But actually, when you look at the Wembley kind of booking system, and they've got things going on every weekend in the few weekends afterwards, they had to come to this decision very quickly. Does that mean it's the right decision or it's a quick decision? Well, I think whenever you're operating at speed, there's a potential that certain arguments are not going to be successfully run. I think there are very limited options in this case. Typically, under the regulations, you would have 14 days to respond, and it's a much more drawn out process.

4:01But here with the final happening on Saturday, things had to happen fast. Lawyers would have been working round the clock. You know, Southampton found out the decision of the Independent Disciplinary Commission on one day. They had to appeal the same day and then heard the appeal the following day, which is an exceptionally fast pace to follow. And for footballers, David, they need certainty and Hull City needed some certainty. I said there's two sides to this. There's the spirit of the game and there's the legal side of this. and this punishment, where do you sit on that? Was this a punishment that you feel fits the crime?

4:38Yeah, I think it's appropriate. I think the breaking down of what the points deduction is and what the sanction is with being expelled from the actual competition, obviously one's done from a league point of view, as in the league season, one's done as a cup competition point of view, and these sanctions were delivered for each one. I understand that sense of frustration for everyone involved. The first part of call is that you feel for the fans. And it's very, very important to separate the entity that is Southampton Football Club and the people that have done this, two different things, under the same umbrella, unfortunately, which is where the mud of this sticks.

5:15So Southampton have got a big problem now to work out how they move forward, more importantly, with who they move forward. They've said their piece. They've gone to the appeal. The appeal has been knocked back. I would have been shocked the other way if it had gone so big, the independent panel, then rode back from it, because that would have suggested a sign of a weakness to it. Maybe weakness is the wrong word. And it wasn't an example, as in the sense of going after Southampton Football Club. It was an example of a club that had put itself in this position, absolutely put itself in this position, and a reaction was needed.

5:50Now, the post-Bielsa spy gets stuff with leads. This article comes in. And for a lot of people discussing about there seems to be no real set sanction to it off the back of that, every single club in the EFL knew that once they've been put back in or put in, you can't do it. So if you do do it, you've willfully gone against something that is there in law that you can't do. so when people are discussing about the severity of what's come off the back of that and being quote-unquote shocked it's quite hard to listen to because you've got to take each case on its own merits you've got to take each kind of situation and the benefit or or the attempt at the benefit so I'm to make point to the fact that they didn't win these games that's rubbish that's got nothing to do with it so the point being made that this has been proven on more than one occasion.

6:44So therefore, something sizable had to be done about it. So when it comes to being shocked and the kind of counter-argument with regards to statements that were made, pointing out Leeds, pointing out Chelsea, pointing out other football clubs, again, does not wash. This is solely, solely about these people who are employed by Southampton Football Club and what they've done. Fear for the fans, fear for the players, all that. But something seismic had to be done to make sure that this doesn't happen again. I think that article would have been put in place legally and, of course, broken down and kind of worded in a certain way.

7:20And I would like to think they put it in thinking, well, no one's going to be daft enough to do that again. They have. And as someone who's quite green and fresh to his job, Eckhart, this is a very inexperienced young manager who is pointing to cultural differences, that this might have been something that was a practice that he saw more widely in his home country of Germany. I would counter that, Gabby, by you speak to Daniel Farker, you speak to German managers across the board that work in England, German coaching staff that have worked in England, Michael Heffler is a man that I've worked with a lot.

7:55The big, big coaches, I mean, and coaches that are far better and have worked in different situations at football clubs. I really have a struggle with working out that that is any form of mitigation whatsoever Is it any form of advantage do you think? I mean a lot of football voices have come out and said what are you gleaning from those snatched moments in open training or at least training which it was not difficult for anybody to go along and walk their dog and kind of wander by what are you actually taking from that? Well, that again is the intangibles, I think, that are very much open for debate.

8:34I think there's a bit of a generational shift, I think, in who you might listen to that might say their opinion, which is, ah, well, you don't know anything. Football's not four days of five asides and set pieces on a Friday anymore. You're working out what's going on, what's coming. and there'll be a certain sense of what the EFL is and maybe people looking at the pyramid. If you are an ardent follower of Premier League football or Champions League football and sometimes it looks like football played from a different planet and I totally get that. I love that. But I love what the EFL is and I love what it means to people in this country and how it kind of fosters so many wonderful, wonderful things.

9:16and you could watch a championship game with the greatest respect and kind of go, well, tactically, I've got no idea what's going on here. There's an element sometimes cynically when I speak to peers of mine that have become coaches and managers of just going out and hoping the players aren't crap that day. You know what I mean? That's simplifying something to a certain degree. But being able to work on tactics, marginal gains was used by Dave Railsford to conquer the cycling world, the tiny little incremental bits that you can add together. there so yeah you could look at the games well they didn't win the games doesn't matter doesn't matter you you're gleaning things that you it's a really shouldn't be afforded interesting moral gray nuanced uh area isn't it because you know marginal gains lance armstrong would say is one thing uh dave brailsford says it's another thing players who throw themselves to the ground in dramatic fashion in the box looking for a penalty when they've not been touched it's again another thing isn't it so so you know footballers never tried to sit on the moral high ground David I'm sure you'd agree and there and there are there's there's gamesmanship that goes on all the time in the game and and then I mean that when it comes to the sporting kind of integrity of situations the the I totally get that Gabby and I absolutely do buy into that I do a lot of co-commentary as well where sometimes you are stupefied by what you're watching on a replay where you're going, there's a player going down there holding his face who's been hit on the knee.

10:45So you've got to, depending on who you work for, you've got to word that in a certain way or kind of just let the pitches speak for themselves. And I do totally get that. I do a lot of work with the PGMO, helping with their decision-making and how difficult their job is because you've got 22 different people on a pitch all wanting something slightly different and trying to do as much as they possibly can. However, that moral, the word that you use, moral, and without wanting to sound too twee from what football is, because it is a brutal industry, a brutal industry to some regards, but we get into it knowing that.

11:21And if you've got the good fortune and the luck of being able to do it as a job, i.e. playing and working in that realm, you do understand what it is. However, it's popular because people believe in it. It's popular because people believe in what they're seeing. The minute you hear about something like this, you then start thinking well how many games unbeaten how many of those were decided in that sense and again like I said I'm a 44 year old man talking about the romance of what football is that's in your bones as a boy, the minute you scratch that away, that eats away at the integrity of the game, it eats away at the popularity of the game and for want of a better word the magic of the game because once you pull the curtain back and it's people stood there with binoculars and phones filming stuff kills the mistake, doesn't it?

12:09Absolutely. And I guess the next legal kind of repercussion, the fallout that potentially could come, has been already kind of mooted. And we're hearing players contacting the PFA, Southampton players, wondering if they have a case because their earnings presumably could be drastically affected from a position where they thought they were going to be Premier League players potentially next season to being at a club which now has a real job in rectifying any kind of sense of reputation as well. And, you know, David, what it's going to be like next season for Southampton, every single ground they go to, including their own probably, it's going to be an uphill battle, isn't it, to fight the gift that they've given to opposition fans.

12:53Absolutely. And players will have clauses in their contracts so that their salary will increase or decrease quite significantly, whether you're a member of the Premier League or whether you're a member of the EFL Championship. and Southampton players will be very, very disappointed that their salaries could be reduced by 50%, 60 % as a result of not being in the Premier League. They have expressed and it's been reported that they've spoken to the PFA that potentially there's maybe an employment law claim there. Who would that be against? Because presumably Southampton as a club is a legal entity.

13:28The individuals involved obviously might take responsibility. we don't know where Southampton is going to apportion that blame. So who would you be suing? I think it would be the club. So the contractual relationship is between the player and the club. And then the club sues the individual? Well, I think it depends to what level of management did this go up to. So employers are vicariously liable for many of the acts and omissions of their employees. So if I do something within the scope of my responsibilities, then an employer can be held liable for that. There's a question here about whether the person was an intern, whether he was an analyst.

14:07Whether it was in the scope of their work? Whether in the scope of their responsibility, which you think is an analyst, there's a kind of overlap there. Whether, and there's been reports, obviously we don't have the written reasons at the moment, so we're kind of speculating. When will we get those? It could be a couple of weeks, I suspect, perhaps next week, perhaps a week after. Typically there's a, but yeah, perhaps before, but we'll be looking. There's two sets of written reasons. There's the written reasons from the Independent Disciplinary Commission and the written reasons from the league arbitration panel, which could differ.

14:35It would be interesting to get the facts from there. If you were advising Southampton right now to try and mitigate as much as they can in terms of financial liability from players and indeed wider clubs who decide that they also want their wrongs addressing, would you be very quickly getting rid of the characters within the club that they saw as being responsible? I think, again, it depends to what level of the management team. And I don't mean as the manager or the head coach. I mean, did this go up to the executive level? Was this known behaviour to be going on? If not, then potentially you can create a distance between those involved and the club itself and deal with them through disciplinary mechanisms or potentially terminating their contracts.

15:17and I think for the players I think the primary thing here would be to have conversations with them and to try and allay their concerns I don't think a legal route is necessarily going to be beneficial here and I think some of the conversations that Southampton will be having with their players will be to try and placate them and show that action has been taken against these individuals And what about the fans for whom obviously an expensive away day was booked? Oh absolutely Yeah, I mean, they sold out their 37 ,000 allocation. All of those fans are going to be looking for refunds. That creates a financial and a logistical nightmare.

15:55There's also people who will have been flying in from abroad. They will have booked trains. They will have booked hotels. And, you know, they're going to be thoroughly annoyed with what's happened. I think the most likely redress that they will receive is a refund for their ticket. But, yeah, it causes a real headache for Southampton. and this isn't going to be the end of it. And the relationship, David, between the fans and the club as well, never mind between other fans and Southampton fans, that's been damaged. Yeah, and I think going off Tom's point there, what helps with that is swift action with regards to working out where it goes, how high it goes, how far down it goes and ultimately where the responsibility lies because there's reports, isn't there, about the owner not being happy, being absolutely furious with what's gone on.

16:46And if that's happened, there's a reputational part of it for him. There's an ego part of it for him. You're kind of working out in an organisation who's responsible for employing these people and what they're capable of. And then suddenly that happens and you're kind of going, well, someone put them in place. So who takes responsibility for that? Whether that becomes something of real kind of a bone of contention over a long period of time. It needs to get sorted sooner rather than later. I'm in no way, shape or form informing people that own football clubs with far greater minds than me exactly where they should go.

17:20But from a PR point of view, the first port of call would be make sure that what Southampton fans have seen to be the thing, and I use the word the thing, that's really ruined the end of this season as responsible has to be pushed aside because you can't go into the next... I mean, from a media point of view, Gabby, can you imagine sat there doing pre - and post-match if nothing changes? Congratulations, you've won this game. You know what we're all thinking. Well done for winning the game. Brilliant. Move on. And you've got to be professional at that. I totally get that. It would be like doing an interview with the winner of the 100 metres at the Olympic Games and knowing they failed a drugs test and it just hadn't been released yet.

17:59What happened? Yeah. The other part about that as well... Which, by the way, has been done. Anyway, sorry, go on. But of course as well, if you're, again, from a player's point of view, and I'm not saying that these players are kind of bastions of moral virtue, but if you're sat there in the dressing room going, like looking at this man, this staff to get you going, when you've cost, and it's slightly hypothetical, they might have gone to Wembley against Hull on Saturday and come back empty-handed. So there's an element of that. But to go again under the same setup, I think would be very, very odd to see.

18:36I mean, just going back to the point about players taking legal action and you don't know how kind of concrete the take on that is. I mean, that's very, very shaky ground. I mean, what's to stop an owner saying, lads, you were terrible for nine tenths of last season and we got relegated and you've cost me X, Y and Z. Yeah, I had to get rid of a manager mid-season because you were so bad. You were 21st at the table. Yeah. Yeah. And so there's too much grey area in that. we all buy into that in football that there is an element of that you play poorly you get relegated your money goes down that's kind of the way it goes not getting rewarded for failure I think is pretty straightforward we can all kind of get on board with that but then to hypothetically think well oh well it could have gone back up off the back of this game you can't surely launch legal action on the back of a hypothetical David as a player if you're a whole player you're a whole city player and you're you know you think you're preparing for one thing and then you're preparing for another thing.

19:36How much is that a hindrance? How much do you think they will have been able to adapt very quickly? Does it make much of a difference to them? I think, especially in team sports and I think in game sports such as this, the better players are the ones that are more consistent and have good long careers. You've got to be proactive in your preparation about what you want the game to look like or the tyre to look like. But football is inherently reactive. They're used to reacting to stuff, whether it's quick information, whether it's a change in formation, whether it's scoring a goal, whether it's letting a goal in, you've got to react very quickly to that.

20:12And I think they'd have been exactly the same. I do feel in the sense of there has been a little bit of insecurity about who they may be coming up against. But it's really very simple on the biggest game in domestic football, play well and win. In fact, sort of playing well, win. That's the only really important thing. I think what I would say when we are discussing all this and from a media point of view and as we'll cover the game on Saturday and we'll speak and listen and kind of throw around opinion and talk about what's happened. At half past three at Wembley on Saturday, the only two teams that anybody should care about are Hull City and Borough.

20:58do hole have a legal case at all to say they should just be going up without this game well their their owner certainly thinks so at the moment so i think he put out a statement saying that the lawyers that the lawyers believe that um hole should go directly up without even playing basis would they have that i think i've been struggling to understand that the legal basis for that um i think the idea would be that middlesbrough were knocked out of the playoffs and southampton have also been expelled and therefore there's no team to play therefore however that just goes completely against what the what the two two panel decisions have been which has been it's not only that southampton should be expelled but middlesbrough should take their place and so i think the likely kind of legal outcome here or what action someone takes depends who wins or loses on Saturday.

21:46So Middlesbrough will be watching this case. They've got an exceptional lawyer involved in this case, Nick DiMarco. They tried to intervene in the disciplinary proceedings and were told that they weren't able to attend, but they would have been providing information to the EFL. Why? I found that quite unusual. Was that just to try and get the whole thing going very quickly, to expedite it? Why would they not be allowed to attend? So there's restrictions under the EFL regulations as to how clubs can intervene in different proceedings and they have to show that they are sufficiently linked or sufficiently affected by the outcome of the case.

22:22You would think by reading that, how could they not be affected by the outcome of this case? But it is incredibly difficult to be included as a party. middlesbrough tried a similar thing with um derby county um a few few years ago and and failed on that one but i that wouldn't have stopped them here just because they weren't able to intervene in the case wouldn't have prevented them from obviously sharing information to the efl they might have provided a witness statement from someone at the club who who um who saw the the individual at the training ground they would have been pushing for a particular outcome here as you can understand they would want.

23:01But yeah, just because they weren't involved in the case doesn't mean that they weren't able to influence things. And there were multiple admissions from Saints, obviously, as to where they'd cheated throughout the rest of the season. Did those clubs have any legal recourse now? Theoretically, but I think it depends on, I think if we go back to the outcome of those games. So we had Ipswich, I don't think they're going to be concerned. No, their life's happy. Their life's happy. Exactly. Oxford United will be disappointed, but they won their game. So I think Middlesbrough and Hull are the two that I would be looking at.

23:37And it will be very much subject to the outcome of the final. I suspect that the team that goes off is not going to be particularly worried about this, but the team that doesn't will definitely have something to say. At the moment, as things stand, is there any way that this could turn in a different direction in the next three days? I don't think so. Two days, really? We've had an appeal process that's been followed. There's no further appeal. So there was a suggestion at one point that could we go to the Court of Arbitration for sport here? That's not something that's open to clubs under the EFL regulations.

24:07In order for a case to go to CAS, you either need to have an agreement which gives jurisdiction to CAS or a set of rules. And it would be the appeal of a body which ultimately defers to CAS, which the EFL isn't, is a closed domestic competition. and i think what will what will likely happen what could potentially happen is the fa taking further action so the fa have their own set of rules and regulations there's misconduct offenses there so action could be taken against the individuals and the fa have said they're investigating it they said originally that they were waiting to hear the outcome of of the appeal before taking any further action but that's definitely something that'll be looked at there's potential claims left right and center from from from aggrieved teams obviously the players as well so i don't think we have heard the end of this but i don't think it's going to change the outcome of of saturday which is going to go ahead okay the outcome you know the score well i wish i could um so so david obviously um i'm sure the atmosphere will be great it will have more eyes on it than ever before this final because there will be a um a sense of from the neutral of wanting you know to see this spectacle we always enjoy this match but it has given it so much attention, hasn't it?

25:16So the EFL has got to pivot quickly and turn this into a positive, hasn't it? Yeah, very much so. I know for a fact as well, speaking to a lot of people at the EFL that I work with, logistically, it's been a nightmare. I mean, there's so many things off the back of putting this football match on a wonderful stadium that comes into it and it's stressful and hectic at the most straightforward of times when you know the two people that are playing. Now it's been a slightly different thing but that's what it's got to be. I mean, 40 years of the playoffs, there's so many memorable moments that have been at this stage of the season over that period of time and this none more than this because of what it means the precedent that's been set as we keep discussing what it means for the football clubs involved the fans involved the football club that's not involved anymore in this there's so much to take from it but inherently it's a wonderful part of the season and I'm not saying this just with my Sky Sports and EFL hat on and it's the most amazing part of the season and there's some properly magical moments and there's some beautiful things to see.

26:17And that's where it needs to pivot. And that's the thing that undercuts this whole thing, as you said earlier on about. Situations like this can change the way you feel about something that is inherently great. I hope that that isn't the case. I hope that that ship can be steered back into whatever form of reality you think that is or perception of what that kind of reality is and honesty is. I totally get that. but it's a celebration and it should be a celebration of two clubs that had very very good seasons and unfortunately one that had a very good season but did something extremely ill-advised and have paid the price for it And just very briefly would you at the beginning of next season be surprised if Eckhart was still Southampton manager?

26:59I would yes Okay he's a goner Okay a young man whose career seems to have hit a bump in the road shall we say so who knows where he'll turn up but thank you very much guys it's been fascinating I'll tell you what will happen probably on Saturday and this is what I can predict there might be a drinks break it's going to be like 30 degrees isn't it at Wembley so yeah make sure you wear your factor 50 any more legal points you need to leave us with Tom? No no that's very well covered thank you yeah good okay thank you so much for coming on we could probably employ our own lawyer on the sports agents actually because at any time any day soon there's going to be a big story breaking from Manchester City I imagine and we might need a team of people here to go through that.