It is alleged that a member of staff of Southampton Football Club spied on Middlesbrough Football Club’s training sessions in breach of Rule 127.1 of the EFL Regulations (the Regulations) ahead of the Championship play-off semi-final between the clubs. In this article, Zachary Sananes and Matt Caples consider the appropriate sanction to be imposed on Southampton if the club is found guilty of spying.
The alleged spying took place in respect of training sessions immediately prior to the first leg of the semi-final play-off fixture between the two clubs.
The EFL subsequently charged Southampton with a breach of the Regulations and confirmed that the matter would be referred to an independent disciplinary commission.
The Regulations
The Regulations are clear on the issue of spying. Rule 127.1 prohibits a club from observing or attempting to observe another club’s training sessions in the 72 hours prior to any match scheduled between them.
What is less clear is the sanction appropriate for that breach. Famously, when Marcelo Bielsa’s Leeds United was caught spying on Frank Lampard’s Derby County training sessions, the sanction was a £200,000 fine. Importantly, at that time, there was no specific rule in place to prohibit such conduct. That breach related to Rule 3.4 and the general obligation of clubs to act towards each other with the utmost good faith.
Following that case, the Regulations were updated to include Rule 127.1, which explicitly prohibits spying. However, the rule change did not go so far as to set the appropriate sanction for a breach of that rule. This is in contrast to various other parts of the Regulations for which there are prescribed or guideline sanctions, for example, in respect of insolvency events or breaches of profit and sustainability rules.
Appropriate sanction
Since the Leeds case, there has been considerable judicial consideration of the correct approach to sanctioning clubs that breach the Regulations or their Premier League equivalent. That judicial consideration has clarified the correct approach for determining sanctions and highlighted the importance of proportionality in doing so.
To be proportionate, a sanction needs to achieve the aims of the rules breached but without exceeding what is reasonably required to achieve those aims. This is set out in paragraph 194 of the Premier League appeal board’s decision in the case against Everton in relation to the club’s breach of profit and sustainability rules in the 2023-24 season (Everton).
In Derby v EFL (SR/017/2020) (Derby), an EFL disciplinary commission set out four purposes a sanction must serve:
- Punishment of the club for the breach
- Vindication for other clubs not engaged in conduct that breached the rules
- Deterrence from future rule breaches, whether by the breaching club or other clubs
- Restoration and preservation of public confidence in the fairness of EFL competitions.
The appeal board in Everton, when considering Derby, went on to clarify that punishment is far less important than maintaining the integrity of the competition and the sport of football, with deterrence being an important overlapping aim (paragraph 199). In applying this approach, the appeal board in Everton determined that where the unfair advantage obtained by the breach was most immediately a sporting advantage, the sanction for the breach can legitimately focus on the sporting disadvantage. In other words, a sporting sanction is most appropriate for a breach that immediately confers a sporting advantage.
It is difficult to see that spying on an opponent is intended to or does achieve anything other than a sporting advantage for the club carrying out the act. If that is right, the application of the principles set out in Everton would appear to render a sporting sanction most appropriate for a club in breach of Rule 127.1. The pertinent question is then: what kind of sporting sanction should be imposed?
Nature of the competition
Various sporting sanctions are available to a disciplinary commission exercising its broad discretion when considering breaches of the Regulations. The nature of the competition in which those breaches occur and, therefore, in which the sanction should be applied, is a relevant factor that a commission should take into account.
The recent decision of Swindon Town (SR/020/2026) (Swindon) concerned the club’s fielding of ineligible players in an EFL Trophy match and therefore provides guidance on how sporting sanctions ought to be applied in a knock-out (rather than league) competition.
The EFL argued for Swindon’s expulsion from the EFL Trophy, specifically on the basis that a points deduction was not practically possible in the context of knock-out football (paragraph 24.1). The commission agreed, and that sanction was ultimately imposed on Swindon, notwithstanding its argument that the breaches were inadvertent rather than deliberate. The commission accepted that an inadvertent breach may justify the imposition of a non-sporting or financial sanction in appropriate circumstances (paragraph 26.3).
Indeed, at paragraph 26.2 of Swindon, the commission considered the unfair advantage conferred to have been competitive (sporting) as the ineligible player(s) had directly influenced the fixture in question. By analogy, if the premise set out above (ie, that the sole reason for spying is to gain a sporting advantage in a specific fixture) is accepted, it is difficult to see how the alleged breach of Rule 127.1 by Southampton did not give them a sporting advantage. The extent to which it did is arguably a more difficult question.
Comments
If a sporting sanction is appropriate for a spying breach, a points deduction might be appropriate in the context of league football, where overall success is measured in points and, with it, league position. In a league scenario, a points deduction can be an effective means of punishing the club in breach, thereby vindicating those not in breach, deterring future breaches and restoring confidence in the fairness and integrity of the competition. However, a points deduction is meaningless in the context of a knock-out competition, where progress is made only by winning games and not by accumulating points.
In a knock-out competition, a points deduction serves no punishment and provides no vindication to non-breaching clubs within that competition, including specifically the club that is the victim of the particular breach. Without effective punishment or vindication, it is difficult to see how a points deduction can act as an effective deterrent in this context. If that is correct, then the fairness and integrity of the knock-out competition are harmed.
As a matter of principle, a points deduction could only potentially serve as a deterrent if carried over to the following season’s league competition. However, if the breaching club has secured promotion to the Premier League, a points deduction will offer no benefit or vindication to Middlesbrough, the club that remains in the Championship and has been wronged.
This issue also raises a wider concern: whether the Regulations in this area are fit for purpose. If the sanction for a breach of Rule 127.1 does not disincentivise clubs from breaching that rule because the potential benefit to be obtained from a breach outweighs the potential risk of sanction, the effectiveness of the Regulations may be called into question.
Conclusion
If Southampton is found to have breached Rule 127.1, it can only be said to have been a deliberate act committed with the intention of obtaining a sporting advantage over Middlesbrough in a football match that Southampton went on to win in a knock-out competition.
Taken together, if a sporting sanction is appropriate for a sporting breach, there seems to be a persuasive argument that, in the context of knock-out football, the only effective sporting sanction would be expulsion.
The EFL Commission’s decision is eagerly awaited, given the high stakes involved and imminent conclusion of the Championship season with the play-off final. In the meantime, the hopes and dreams of many fans hang in the balance.
