The Football Creditor rule is explicit, simple, and solves all of Derby's issues

[PistoldPete]

1 minute ago, David said:

 

The administrators will have filed a moratorium, which means Boro or Wycombe cannot pursue their cases against us through arbitration/court.

Once we exit the administration process, all claims are settled, dead, they cannot be resurrected.

If they are not football creditors, they will be at the bottom of the pile, get nothing.

If we are liquidated, they will get nothing.

The only way they will get paid is if seen to be football creditors, which is the point we need to push, they are not football creditors.

David i-ram made the very important point that the moratorium applies to "legal" processes. That might not include arbitration , depending on definition of "legal".   

[Gaspode]

2 minutes ago, PistoldPete said:

I haven't heard it but maybe the presenters were worried about anything libellous.  And they probably like him leaking stuff to the press, that's how they get stories. 

People forget that Jordan and White are ONLY interested in clicks/listeners - the truth; what is right or wrong; or common sense are a long way down their list of concerns - they say whatever they consider will generate the biggest response, regardless of how much hogwash they may appear to be speaking......

[Eddie]

9 minutes ago, David said:

 

The administrators will have filed a moratorium, which means Boro or Wycombe cannot pursue their cases against us through arbitration/court.

Once we exit the administration process, all claims are settled, dead, they cannot be resurrected.

If they are not football creditors, they will be at the bottom of the pile, get nothing.

If we are liquidated, they will get nothing.

The only way they will get paid is if seen to be football creditors, which is the point we need to push, they are not football creditors.

Absolutely.

When have Middlesbrough ever played football?

[Sparkle]

Is there a bit in there where it says the EFL can ignore what’s written and take a different view like they have for the previous 2 years ?

They can make all this go away - simply reduce our 9 point deduction as too harsh because we followed the law of the land and replace it with a suspended 9 point reduction, the Middlesbrough and Wycombe issue disappears and the EFL will have room to breath before The Parasite clubs owners go after them which they can’t according to the rules.

Edited January 18, 2022 by Sparkle

[Day]

This has now been raised in the House of Commons. Huge progress. 

[kevinhectoring]

3 hours ago, David said:

Three parties have made offers, any one of which would allow the club to exit administration with a substantial payment to creditors.

These offers need clarity, that the claim by Boro and the potential claim by Wycombe do not qualify as Football Creditors.

The football creditor rule is not defined in the EFL regulations, it is part of the Articles of Association of the Football League Limited, of which all clubs are minority shareholders (the golden share).

The football creditor rule is in Article 48, which clearly defines what constitutes a football creditor, copied below from Companies House.

The rule clearly states that it is to cover payments of "debts due". How possibly, can an unproven, unquantified claim such as Boro's be consider a debt due?

If the EFL is suggesting that any claim by a football club or employee, which is unproven, should be classified as a football creditor it would create mayhem. And, bona fide football creditors with debts due, and other preferential and unsecured creditors would lose out as a result.

The EFL can't have this both ways. If they choose to say Article 48 does not qualify Boro's claim as a football creditor the EFL are suggesting they might be sued by Boro.

However, if they choose to say that Article 48 should be interpreted (which is a wild stretch) in a way that Boro should be classed as a football creditor then it is almost certain that the EFL would be sued by the Administrators and the creditors including genuine football creditors, and HMRC for their easily quantified losses. 

The EFL also risk being sued under section 994 of the companies act for acting prejudicially against the interests of a minority shareholder of the football league ie. DCFC.

We need to apply pressure on the EFL to get off the fence, see that their actions alone are preventing the Administrators from getting a deal agreed. 

Article 48 says that Boro's claim cannot be a football creditor and the EFL must state that and stop this nonesense.
"48         FOOTBALL CREDITORS
48.1      Where a Member Club defaults in making any payment due to any of the following persons, 
the Member  Club ('Defaulting  Club')  shall be subject to such penalty  as the Board may decide 
and subject also to Article 48.2:

48.1.1        The League, The FA Premier League and the Football Association;
48.1.2        any of the Pension Schemes;
48.1.3        any Member Club and any Club of The FA Premier League;
48.1.4        any holding company  of The League and any subsidiary  company  of that holding 
company;
48.1.5        any sums due to any full-time employee or former full-time employee of the Member 
Club by  way  of arrears  of remuneration  up to the date on which that contract  of employment is 
terminated. This excludes for these purposes all and any claims for redundancy,   unfair   or  
wrongful   dismissal   or  other   claims   arising   out   of  the termination  of  the  contract  
or  in  respect  of  any  period  after  the  actual  date  of termination;
48.1.6        any  sums  due  to  the  Professional  Footballers  Association  in  repayment  of  
an interest  free loan together with such reasonable  administration and legal costs as have been 
approved by the Board;
48.1.7        The Football Foundation;
48.1.8        The Football Conference Limited trading as "the National League";
48.1.9        The Northern Premier League Limited;
48.1.1O      The Isthmian League Limited;
48.1.11      The Southern League Limited;
48.1.12      Any member club of the League or organisations listed in Articles 48.1.8 to 48.1.11 
inclusive;
48.1.13      Any County Football Association affiliated to The Football Association; and
48.1.14      Any Leagues  affiliated to The Football Association  and any clubs affiliated to any 
County Football Association recognised by The Football Association.

48.2      Subject to the provisions of Articles 48.3 and 48.4, the Board shall apply any sums 
standing to the  credit  of  the  Pool  Account  which  would  otherwise  be  payable  to  a  
Defaulting  Club,  in discharging  the  creditors  in Article  48.1.  As  between  the Football  
Creditors,  the  priority  for payment shall be in accordance with the order in which those 
Football Creditors are listed in Article 48.1.

48.3      If,  having  discharged  all Football  Creditors  in  any  preceding  class  of  Football 
 Creditor  (as
· required by Article 48.2) the sum then available is not suffident to discharge in full the 
Football Creditors listed in Articles 48.1.1, 48.1.2 or 48.1.4 the Board will decide the 
allocation.

48.4      If,  having  discharged  all Football  Creditors  in  any  preceding  class  of  Football 
 Creditor  (as required by Article 48.2) the sum then available is not sufficient to discharge in 
full the Football Creditors listed in Article 48.1.3, 48.1.5, 48.1.12, 48.1.13 or 48.1.14 the sum 
will be allocated pro rata amongst the creditors of the same class.

Note - Clubs are reminded that any assignment of future entitlements from the pool account are 
subject to Article 45 and this must be brought to the attention of the other party. Furthermore 
assignments must be in legal form and registered with the office. Assignments are given priority 
according to the date and time of registration."

David

 the EFL is not saying that there is a debt due to Boro. They are not saying Boro is a creditor 

What they were saying is : this could become a football creditor claim and it’s not up to us to opine on whether it will, it’s got to be arbitrated 

What they are now saying is: OK we will look at the detail of Boro’s claim, and if we think it’s unfounded (I think they will) then we will try to resolve it 

[RoyMac5]

2 minutes ago, kevinhectoring said:

David

the EFL is not saying that there is a debt due to Boro. They are not saying Boro is a creditor 
What they were saying is : this could become a football creditor claim and it’s not up to us to opine on whether it will, it’s got to be arbitrated 

What they are now saying is: OK we will look at the detail of Boro’s claim, and if we think it’s unfounded (I think they will) then we will try to resolve it 

Where did you garner the last para from as that would indeed be a step forward.

Edited January 18, 2022 by RoyMac5

[Woodley Ram]

2 hours ago, PistoldPete said:

Can you maybe raise another point David. Gibson has said (in his rant to your Boro forum equivalent) he could have spent the £45 million on his family. Since when has his family been a football creditor?  

I'm serious. Gibson is funding Boro via soft loans. So really any losses Boro make are being absorbed by him, they are not losses to Boro.Its Gibson's personal loss, not Boro's he is trying to claim for.

Also he is saying Derby cheated. Well if so then it was Morris that cheated not Derby. If Morris really knew he wa sbreaking th erules, none of us did. So wouldnt Morris lose his protcetion of limited liability? So Gibson could go after Morris.

Basically it should be Gibson v Morris. Not Derby v Boro.

 
 

 

Unfortunately @PistoldPeteDerby and Mel are interlinked during his ownership period.  It’s not unheard of re the soft loans everyone does it. Sorry but if breaking the FFP rules is cheating then Mel/Derby did cheat. 
 

the 2 things I would say is

1- despite what the Middlesbrough statement says they don’t have the strongest case as there are far too many if and buts to a football season.  If I remember rightly we were over spent by small amounts each year (thanks to the sale of PP (which was taking the P really)). Unless they have some killer evidence I don’t see where it can go, but I have not seen the evidence.

2 - I’m not sure how a claim for damages that Derby refutes can be classed as a football debt. I understand why Middlesbrough want it done that way but how can it be? If it had been through a process and Derby were found guilty then yes. I’m not sure how you can be found guilty before a trial or tribunal, which is essentially what they are trying to do. 
 

i don’t accept if the comment you don’t think we will win just say you will pay for it if we do, that’s childish. We should find a way to say that we accept this going to an arbitration hearing after the takeover and will abide by its decision that’s seems fair and a way forward.

we need to play this with a straight bat

[PistoldPete]

10 minutes ago, kevinhectoring said:

David

 the EFL is not saying that there is a debt due to Boro. They are not saying Boro is a creditor 

What they were saying is : this could become a football creditor claim and it’s not up to us to opine on whether it will, it’s got to be arbitrated 

What they are now saying is: OK we will look at the detail of Boro’s claim, and if we think it’s unfounded (I think they will) then we will try to resolve it 

What they are now not saying is the truth, which is that MPs and Ministers have leant on  EFL sort it out. Not just sit on the fence like they were.

The message they are being given is  its not just about the merits of the claims, (which are weak anyway)  it it's not just about the details of your pettyfogging rules (which they you don't even know themselves)  it's about the the future of our club and the future of football. So be pragmatic and sort it out.  

[PistoldPete]

7 minutes ago, Woodley Ram said:

Unfortunately @PistoldPeteDerby and Mel are interlinked during his ownership period.  It’s not unheard of re the soft loans everyone does it. Sorry but if breaking the FFP rules is cheating then Mel/Derby did cheat. 
 

the 2 things I would say is

1- despite what the Middlesbrough statement says they don’t have the strongest case as there are far too many if and buts to a football season.  If I remember rightly we were over spent by small amounts each year (thanks to the sale of PP (which was taking the P really)). Unless they have some killer evidence I don’t see where it can go, but I have not seen the evidence.

2 - I’m not sure how a claim for damages that Derby refutes can be classed as a football debt. I understand why Middlesbrough want it done that way but how can it be? If it had been through a process and Derby were found guilty then yes. I’m not sure how you can be found guilty before a trial or tribunal, which is essentially what they are trying to do. 
 

i don’t accept if the comment you don’t think we will win just say you will pay for it if we do, that’s childish. We should find a way to say that we accept this going to an arbitration hearing after the takeover and will abide by its decision that’s seems fair and a way forward.

we need to play this with a straight bat

No, cheating is being dishonest. We didn't cheat, unless we knew what we were doing was wrong. 

[Day]

Where an insolvency process such as liquidation, administration or the new standalone moratorium (under the Corporate Insolvency and Governance Act 2020) remains ongoing at the time the arbitration is commenced, an automatic moratorium will prevent the arbitration from proceeding unless leave has been granted by the court. For liquidation, section 130(2) of the Insolvency Act 1986 (IA) restricts any “action or proceeding” from being “proceeded with or commenced against the company or its property, except by leave of the court and subject to such conditions as the court may impose”.

http://arbitrationblog.practicallaw.com/impact-of-restructuring-and-insolvency-on-arbitration-part-1/

[Woodley Ram]

2 minutes ago, PistoldPete said:

No, cheating is being dishonest. We didn't cheat, unless we knew what we were doing was wrong. 

Mel must have know we were over FFP even then

[curb]

25 minutes ago, Woodley Ram said:

Unfortunately @PistoldPeteDerby and Mel are interlinked during his ownership period.  It’s not unheard of re the soft loans everyone does it. Sorry but if breaking the FFP rules is cheating then Mel/Derby did cheat. 
 

the 2 things I would say is

1- despite what the Middlesbrough statement says they don’t have the strongest case as there are far too many if and buts to a football season.  If I remember rightly we were over spent by small amounts each year (thanks to the sale of PP (which was taking the P really)). Unless they have some killer evidence I don’t see where it can go, but I have not seen the evidence.

2 - I’m not sure how a claim for damages that Derby refutes can be classed as a football debt. I understand why Middlesbrough want it done that way but how can it be? If it had been through a process and Derby were found guilty then yes. I’m not sure how you can be found guilty before a trial or tribunal, which is essentially what they are trying to do. 
 

i don’t accept if the comment you don’t think we will win just say you will pay for it if we do, that’s childish. We should find a way to say that we accept this going to an arbitration hearing after the takeover and will abide by its decision that’s seems fair and a way forward.

we need to play this with a straight bat

We weren’t found guilty of breaking FFP rules, we were given a token fine for not explaining our policy properly.

we accepted a nine point deduction for failure of FFP because we were in administration and had no stomach for another fight. If it had gone to arbitration we would probably have been found guilty and given a similar punishment to Reading, but we weren’t actually found guilty of anything but a technicality.

Edited January 18, 2022 by curb

[PistoldPete]

7 minutes ago, Woodley Ram said:

Mel must have know we were over FFP even then

Even when? 

[RoyMac5]

19 minutes ago, Woodley Ram said:

Unfortunately @PistoldPeteDerby and Mel are interlinked during his ownership period.  It’s not unheard of re the soft loans everyone does it. Sorry but if breaking the FFP rules is cheating then Mel/Derby did cheat. 

And the EFL punished us.

[duncanjwitham]

10 minutes ago, David said:

Where an insolvency process such as liquidation, administration or the new standalone moratorium (under the Corporate Insolvency and Governance Act 2020) remains ongoing at the time the arbitration is commenced, an automatic moratorium will prevent the arbitration from proceeding unless leave has been granted by the court. For liquidation, section 130(2) of the Insolvency Act 1986 (IA) restricts any “action or proceeding” from being “proceeded with or commenced against the company or its property, except by leave of the court and subject to such conditions as the court may impose”.

http://arbitrationblog.practicallaw.com/impact-of-restructuring-and-insolvency-on-arbitration-part-1/

That's a good find ?. I did wonder if they were trying to argue some difference between legal action and EFL arbitration, but that seems pretty clear.

[Woodley Ram]

2 minutes ago, RoyMac5 said:

And the EFL punished us.

Yes and following that it should the end, we should be able to move on

[Woodley Ram]

4 minutes ago, PistoldPete said:

Even when? 

When Frank Lampard was in charge

[kevinhectoring]

42 minutes ago, RoyMac5 said:

Where did you garner the last para from as that would indeed be a step forward.

I think it’s what they said in last night’s statement

[kevinhectoring]

33 minutes ago, David said:

Where an insolvency process such as liquidation, administration or the new standalone moratorium (under the Corporate Insolvency and Governance Act 2020) remains ongoing at the time the arbitration is commenced, an automatic moratorium will prevent the arbitration from proceeding unless leave has been granted by the court. For liquidation, section 130(2) of the Insolvency Act 1986 (IA) restricts any “action or proceeding” from being “proceeded with or commenced against the company or its property, except by leave of the court and subject to such conditions as the court may impose”.

http://arbitrationblog.practicallaw.com/impact-of-restructuring-and-insolvency-on-arbitration-part-1/

Yes, this is relevant and there’s an argument along these lines. The problem for us is, if the claims are not addressed in the restructuring plan they can be brought when we come out of administration. What the EFl is saying is: paying football claims “in full” does not mean paying them in accordance with a compromise that the prospective creditors did not sign up to. It’s hard to deny they’ve got a point

(Not sure it’s relevant but in fact these claims were notified to the club before administration )