‘Golden Mitigation’ in football: Lessons from the Nottingham Forest's Profitability & Sustainability Regulations Appeal decision

This article analyses the legal reasoning in the recent decision of an independent Appeal Board in Nottingham Forest Football Club Limited v The Football Association Premier League Limited. It goes on to consider whether (and, if so, to what extent) there exists a principle of ‘golden mitigation’ under the EPL Profitability and Sustainability Regulations, concluding with an assessment of possible future changes to financial regulation in football.

Article Highlights

• Introduction
• Understanding the PSR
• Forest’s breach and the first instance decision
• “Golden mitigation” or “near miss” argument
• The Board’s decision
• Was there ever “golden mitigation”?
• The future of PSR
• Future applicability of the Board’s guidance on mitigation under the new financial rules
• Conclusion

Introduction

The 2023/24 Premier League season will be long remembered by sports law practitioners as the season in which the league enforced compliance with its profitability and sustainability regulations^[1] (“PSR”) with unprecedented vigour.

While a hearing of the 115 charges against Manchester City (relating to alleged breaches in 14 consecutive seasons) is awaited,^[2] Everton were deducted 10 points on 17 November 2023 for an admitted breach of the PSR,^[3] reduced to 6 points on appeal.^[4] Everton were charged with, and on 8 April 2024^[5] were sanctioned for, a second breach, resulting in a further deduction of 2 points. Nottingham Forest, meanwhile, were deducted 4 points by the decision of an independent Commission dated 18 March 2024.^[6]

Although Everton withdrew their appeal against their second sanction,^[7] Forest continued the fight. On 6 May 2024, less than two weeks before the final round of League matches, an eminent Appeal Board (comprising the Rt Hon Lord Dyson, David Phillips KC and Daniel Alexander KC) (“Board”) dismissed Forest’s appeal.^[8]

This article examines the reasoning of the Board, considers whether (and, if so, to what extent) there exists a principle of ‘golden mitigation’ under the PSR, and contemplates the changing landscape of financial regulation in top-tier English professional football. Before embarking on that exercise, however, it is worth noting that the Board’s decision in the Forest appeal discloses an assumption on the part of the Board that such cases (i.e. charges relating to breaches of the PSR) are likely to increase in number.^[9] That observation was made in the context of the Board’s indication that it will “rarely” be helpful to compare the factual similarities and differences between such cases for the purposes of constructing arguments as to sanction.

Notwithstanding the withdrawal of the latest Everton appeal, the authors respectfully agree that the number of such cases may well increase, but whether the recent spate of PSR charges becomes an inundation will depend largely on future changes to the model of financial regulation, as discussed below.

The first instance decision is available here^[10] and the appeal decision is available here^[11].