How Everton's Independent Commission decided it wasn't biased

The panel that deducted 10 points added a £35m award to Burnley

Before Everton lost the Burnley compensation case, they tried to lose the judges. We learnt about that 2024 battle yesterday as part of the package of documents in the Commission’s decision. Everton had argued the panel could not give them a fair hearing. That panel has just sent them a bill for £35m.

The background is the part of the Everton saga everyone remembers. In November 2023, the Independent Commission of David Phillips KC, His Honour Alan Greenwood and Nick Igoe ACA hit Everton with a 10 point deduction for its admitted £19.5m 21/22 PSR breach. Everton appealed on nine grounds and won on two. The Appeal Board found in February 2024 that the Commission had wrongly held Everton to be “less than frank” and in breach of the Rule B.15 duty of utmost good faith, findings the Premier League had never pleaded, never put to witnesses and never argued. It also found the Commission had failed to consider the sanctioning benchmarks Everton had relied on, most obviously the EFL guidelines. The sanction came down from 10 points to 6.

Days later, Burnley revived its compensation claim, and under Rule W the claim goes back to the same Commission that determined sanction. Everton’s position, set out in its now published Grounds for Recusal of 12 April 2024 and argued by Laurence Rabinowitz KC at the IDRC on 10 May 2024, was blunt. A panel whose decision had been found to contain errors of that character, including a finding of bad faith reached without the point ever being argued, could not fairly and properly determine a £50m claim arising out of the very same breach. Burnley, through Ruth Byrne KC, said the threshold for a tribunal removing itself is high and nowhere near met.

Everton ran two routes. The first was apparent bias on the Porter v Magill test, whether the fair-minded and informed observer, having considered the facts, would conclude there was a real possibility the tribunal was biased. Rabinowitz pointed to the gravity of the errors combined with the exceptional public interest in the case, and handed up press coverage to prove the scrutiny. The second was an “appropriateness” argument built by analogy with sections 24 and 68 of the Arbitration Act 1996, the provisions for removing an arbitrator and for refusing to remit an award where there has been a serious irregularity causing substantial injustice. The B.15 duty of good faith finding, reached without the point being pleaded or argued, was said to be exactly that kind of irregularity.

There were two quieter points underneath. Phillips had past professional contact with Burnley’s solicitors and had sat on two FA tribunals with Matt Williams of Burnley. And Igoe’s seat on the panel exists because a PSR Commission requires an accountant, a requirement that says nothing about a commercial damages claim, which a fresh tribunal of three lawyers could hear. Everton recognised that this past activity did not of itself constitute a basis for recusal but pointed to such issues in the context of what was a “peculiarly sensitive” case.

Perhaps surprisingly to observers, the very same Commission was constituted to consider the Grounds for Recusal essentially asking itself if it was biased and unfit to continue.

Less surprisingly, the Commission dismissed the application on 22 May 2024. It refused to accept that appointment under the Premier League Rules differs from judicial or arbitral appointment: once appointed, the panel is under a duty to sit, and that a judge must resist the temptation to recuse simply because it would be more comfortable, otherwise litigants select their judges by criticising the ones they do not want.

On apparent bias, the Commission said the informed observer would read both decisions, see that seven of nine grounds failed, that the breach finding itself was never appealed (given the PSR breach was admitted by Everton it is hard to see how this was a relevant point), and that the injustice had already been remedied by the reduction from 10 points to 6.

On the Arbitration Act analogy, it noted the Appeal Board never used the specific words “serious irregularity”, characterising the failures as “legal errors”, and that the Premier League regime is built differently from arbitration. The compensation claim was a separate exercise focused on Burnley’s losses rather than Everton’s conduct, arriving before the panel effectively as a new claim. The panel, it said of itself, comprised senior professionals selected from a specialist panel who could be trusted to decide dispassionately.

So Everton stayed in front of the three men whose findings on frankness and good faith had just been set aside on procedural fairness grounds.

Two years on, that same panel has found against Everton on causation, on the date of breach, on the counterfactual, and on quantum, preferring Burnley’s experts at almost every contested turn, and Everton’s club statement calls the decision fundamentally flawed in both law and fact. None of that proves the recusal application was right. Tribunals decide against parties who challenged them without that being evidence of anything, and the Commission accepted several of Everton’s quantum points along the way, cutting Burnley’s £51.7m claim to £26m before interest.

Nevertheless, it is worth standing back and thinking about how Premier League Rule W works. Rule W routes a compensation claim of an unlimited size back to the very panel that sanctioned the original breach, with no mechanism at all for removing a Commission member, with limited impact of any Appeal Board disagreement and with the panel ruling on its own impartiality.

This Commission decided, about itself, that a fair-minded and informed observer would conclude that it could be trusted. Everton, another £35m lighter, are entitled to wonder what that observer would say now.

Stefan Borson is a lawyer, football finance commentator and Partner and Head of Sport at law firm, McCarthy Denning.