Written Reasons of the Regulatory Commission (“The Commission”)

IN THE MATTER OF THE APPEAL BOARD

OF THE FOOTBALL ASSOCIATION

AG/17/1562

ANDREW EVANS (APPELLANT)

and

THE FOOTBALL ASSOCIATION (RESPONDENT)

DECISION

Introduction

1. Mr Andy Evans is the chairman and owner of 100% of the share capitalof World in Motion Limited (“the Company”). The Company is one of the UK’s leading sports management companies. It acts on behalf of a broad range of footballers, including minors (who for present purposes are players who are under the age of 18). A few of the Intermediaries who work for the Company have DBS approval to represent minors. One of these is Mr Mark Bennett. Mr Evans himself does not have such approval.

2. The following is a summary of the undisputed facts which are relevant to the present appeal. On 18 December 2017, (“ turned 16 years of age. He plays for a Premier League Club. Mr Bennett, who has known for some time, asked him to sign one of the Company’s Standard Representation Agreements. We shall refer to the document that both he and Mr Evans signed as “the Agreement”. The Agreement was expressed to be between Mr Evans (described as “the Intermediary”) and (described as “the Player”.)

3. By clause 1 of the Agreement, the Intermediary was appointed by the Player to provide specified services. Other clauses provided for the term of the appointment; the Intermediary’s remuneration; termination; and various other matters. At the bottom of the second page opposite the words “Signed by the Player” were the signature of and the date 18.12.17. Immediately below this were the words “Where the Player is a minor, signed by the Parent/Guardian”, next to which was the signature of mother, Ms and the same date. Immediately below these words and next to the words “Signed by the Intermediary” were the signature of Mr Evans and the date 18.12.17.

4. For an unexplained reason, Mr Bennett did not sign the Agreement. Instead, he left it with Mr Sebastian Waters, an Office Administrator and Trainee Licensed Intermediary who had been employed by the Company since November 2017. One of his tasks was to assist with the presenting of contractual documentation to Mr Evans for him to sign. The Company’s practice was that Mr Evans signed the majority of the documents on behalf of the Company. It was Mr Waters’ job to collate batches of documents for Mr Evans to sign in one session.

5. On 18 December 2017, Mr Bennett asked Mr Waters to complete the representation agreement which and Ms had already signed. Mr Bennett apparently expected the document to have his own name printed on it and he was expecting to sign it.

6. There then followed a misunderstanding within the Company. Mr Waters typed in the name of Mr Evans rather than that of Mr Bennett. He did this because he thought this was a normal agreement. He knew that Mr Evans signs the majority of representation agreements himself (in his own name or on behalf of the Company) “…to avoid a situation where an agent working for me has entered representation agreements in their own name and then leaves the company taking the client with him”: see para 12 of the Written Reasons of the Regulatory Commission (“the Commission”).

7. Mr Waters then presented the Agreement (with a number of other agreements) to Mr Evans for signature. Mr Evans accepted in oral evidence that he took no reasonable care in signing it on 2 January 2018. He did not even notice Ms signature or the words “Where the Player is a minor”.

8. Mr Waters then lodged the Agreement with the FA on 2 January. On 5 January, the FA replied saying that was a minor and its system showed that Mr Evans did not have authorisation to represent minors. This was, therefore, a breach of the FA Regulations on Working with Intermediaries (“WWI Regs”); the Agreement would be rejected in its system; and the breach would be referred to the FA Integrity team for further investigation.

9. Mr Waters then prepared a new agreement to which the parties were Ms and Mr Bennett. On 14 January, this was signed by all three parties. This new agreement was then lodged with the FA.

10. Mr Evans was charged with a breach of Regulation 3.1 of Appendix II of the WWI Regs in that he had entered into a Representation Contract with a minor without obtaining from the FA additional authorisation to deal with minors. Mr Evans accepts that he had not obtained such additional authorisation. His case is that the Agreement was not a Representation Contract within the meaning of the WWI Regs.

The relevant regulations

11. Regulation B1 (page 293 of the Handbook for 2017-2018) provides:

“An Intermediary and a Player or a Club (as applicable) must have entered into a validly executed written Representation Contract prior to that Intermediary carrying out any Intermediary Activity on his or its behalf”.

12. Appendix II Regulation 3.1 provides:

“Prior to entering into a Representation Contract with a Minor or with a Club in respect of a Minor, an Intermediary must obtain from the Association additional authorisation to deal with Minors…..This authorisation shall be valid for 3 years, subject to the Intermediary remaining registered in accordance with paragraph 1.1”

13. Appendix 1 contains various definitions. These include:

“‘Representation Contract’ means any agreement between an Intermediary (on the one hand) and a Player and/or Club (on the other)|, the purpose or effect of which is to cover the provision of Intermediary Activity. A Representation Contract must comply with the Obligatory Terms of the Standard Representation Contract”.

14. Our attention was drawn to a number of other provisions in the WWI Regs and the TPI Regulations. But having regard to the way in which the appeal has been argued, we do not think it necessary to refer to any other regulations.

The Written Reasons of the Commission

15. The members of the Commission were Mr Teertha Gupta QC (Chairman), Mr Tony Agana and Mr Gareth Farrelly (Independent Football Panel Members).

16. The Commission noted at para 16 of its Reasons that the main arguments advanced by Mr Evans in support of his case that he had not breached regulation 3.1 were that (i) neither he nor intended to enter into a contract; (ii) the Agreement was not a valid contract and not an “agreement” either because it was not valid or (if it was valid) then the legal doctrine of non est factum was “activated”; (iii) this was not a case of strict liability; and (iv) the intention of had always been to enter into an agreement with Mr Bennett and not Mr Evans.

17. The Commission rejected all these arguments in its written reasons issued on 22 June 2018 and found the charge proved. It said that it was important not to interpret the WWI Regs too narrowly, since their overriding objective was to protect the interests of minors (para 22). The definition of “Representation Contract” in Appendix 1 as meaning “any agreement….the purpose or effect of which is to cover the provision of Intermediary Activity” was clear and unambiguous. There was no need to depart from its plain meaning (para 24). At para 25, the Commission said:

“Whether the document dated 18 December 2017 would stand up in a court of law is not the point. The issue is whether the player

signed what he thought was an agreement. And if the document looks like an agreement, is countersigned by two other parties and is lodged with the FA as if it was an agreement, then with great respect to Mr Evans and his company and legal team it is for the Commission’s purposes an agreement. The fact that this matter involve a minor and safeguarding issues means all the more that a wider definition of ‘agreement’ should be employed, rather than one in which only legally binding contracts are considered. Consequently, this agreement dated 18 December 2017 falls squarely within the definition section mentioned above and is caught by the regulations….”

18. In its later written reasons of 26 July 2018, the Commission made some amendments to its document. At one stage, these amendments were the subject of criticism on behalf of Mr Evans. But it is now accepted by Mr Bowers QC on his behalf that this criticism is not material to the present appeal. It is for this panel to decide, as a matter of law and on the undisputed facts, whether the Agreement was a Representation Contract within the meaning of the WWI Regs. Even if (as to which we make no findings) the Commission should have given the parties an opportunity to make representations before amending its reasoning, that can have no bearing on the true meaning and effect of the Agreement.

19. In its later reasons, the Commission also set out its conclusions on the appropriate penalty to impose on Mr Evans for the breach. The Commission recorded the FA’s position. This was that the breach was serious “due to the safeguarding principles which underpin these Regulations”. The FA accepted that Mr Evans’ conduct was no more than an oversight so that his culpability lay at the lower end of the scale. The Commission took account of the mitigating factors, did not expect Mr Evans to repeat his “oversight”, but took the view that the breach was serious because it involved a minor. It suspended Mr Evans from all Intermediary Activity for 3 months commencing immediately. Taking into account his disclosed income, it also imposed a fine of £2,500 (which reflected the Commission’s starting point of £5,000, reduced by half to take account of the mitigation). It also ordered him to pay the Commission’s costs of £2,500.

20. In view of Mr Evans’ good character, his role in the breach and his attempts to correct it within days, the Commission decided to suspend the

last month of the suspension for a period of 2 years with effect from 26 July 2018. This meant that he would be suspended from Intermediary Activity up to and including 25 September 2018 “which importantly includes the remainder of the current transfer window, which ends on 9 August 2018 in respect of incoming domestic and international permanent transfers (except Scholars) and 31 August 2018 in terms of English Football League loans (standard and international) and outgoing international players)”.

The Appeal against the finding of breach

21. As finally formulated, the challenge to the decision that Mr Evans had committed a breach of WWI Reg 3.1 of Appendix II was narrow in compass. Mr Bowers submits that the Agreement that had been signed by Mr Evans and was not a “Representation Contract”. For that reason, Mr Evans had not breached the regulation.

22. Mr Bowers argues that the word “agreement” in the definition of “Representation Contract” should be given its plain and natural meaning. It includes a contract i.e. an agreement which gives rise to legally enforceable rights and obligations. But it also includes an agreement which does not have all of the pre-requisites of a contract. A necessary requirement of an “agreement” is that there is a “meeting of minds” between the parties to it (at least as to the identity of the parties).

23. Mr Bowers contends that there was no meeting of minds between and Mr Evans when they signed the Agreement. On the facts found by the Commission (which were not in dispute), both Mr Evans and signed the Agreement by mistake. Mr Evans knew that he was not authorised to act as an Intermediary for minors and did not intend to undertake Intermediary Activity for And intended to make an agreement with Mr Bennett and not with Mr Evans. If A and B intend to make an agreement with each other and by mistake A signs an agreement with C, there is no meeting of minds (and therefore no agreement) between A and C. The written agreement that is signed in these circumstances and which purports to be an agreement between A and B is no more than a piece of paper and is of no legal consequence: it is not an agreement.

24. Mr Bowers criticises the reasoning of para 25 of the Commission’s decision. He says that the Commission was wrong to say that the issue was whether signed what he thought was an agreement. belief was irrelevant. The question whether the signed document amounted to an agreement within the meaning of the definition of a Representation Contract is a question to be determined objectively.

25. For these reasons, Mr Bowers submits that the Agreement was not a Representation Contract. It follows that Mr Evans was not in breach of WWI Reg 3.1 of Appendix II: he did not enter into a Representation Contract with

Our decision

26. We have concluded that the Commission reached the right decision largely for the reasons advanced by Mr Martin on behalf of the Football Association. We start by observing that the definition of a Representation Contract is that it means “any agreement”. The agreement does not have to be avalid agreement. The language used in the definition of a Representation Contract is to be distinguished from the language of other regulations which does import the requirement of validity. An example is WWI Reg B.1 which states that an Intermediary and a Player or Club “must have entered into a validly executed written Representation Contract prior to that Intermediary carrying out any Intermediary Activity on his or its behalf” (emphasis added). The only requirement for a Representation Contract is that it should be an “agreement” between an Intermediary and a Player and/or Club “the purpose of which is to cover the provision of Intermediary Activity” and that it complies with the Obligatory Terms of the Standard Representation Contract.

27. We do not find it necessary to decide whether the Agreement was a contract, because we are satisfied that it was an agreement within the meaning of the definition. It is rightly common ground in this appeal that the question whether the Agreement was an “agreement” within the meaning of the definition must be determined objectively. Would the reasonable informed bystander consider that, by signing the Agreement, and Mr Evans were agreeing to its terms?

28. If two parties sign a written agreement, that is powerful (but not necessarily conclusive) evidence that they have agreed to the terms contained in the document. There may be circumstances which show that they have not in fact agreed to its terms, for example, because their agreement to it is subject to a condition which has to be satisfied before the document becomes agreed (and that condition has not been satisfied). The agreement may not be a valid contract. It may be void or voidable, for example, because it was induced by misrepresentation. But in a case where parties have signed a written agreement, the starting point is that the document represents the bargain they have struck. That is the prima facie position which will apply unless there is something which clearly shows that it is not and that it was not agreed.

29. In our view, the Commission was right to conclude on the evidence that the Agreement was an agreement within the meaning of the definition. It is true that, in the period before signing the Agreement, had been dealing with Mr Bennett and not Mr Evans. But both and his mother noticed that Mr Evans had signed the document. said in his witness statement that he did not know Andrew Evans but “did not think anything of this at the time as I assumed it related to internal reasons at World in Motion that were not my concern”. Ms said: “I did not think anything of Andrew Evans signing the representation agreement at the time as I assumed he worked for World in Motion and he was the appropriate person to sign on their behalf”. In other words, both and his mother knew that Mr Evans was the counterparty to the agreement. They were indifferent as to which World in Motion person signed the document. It is impossible to conclude on that evidence that did not intend to enter into an agreement with Mr Evans when he signed the Agreement.

30. Mr Evans says in his witness statement that he signed the Agreement (together with other documents that were presented to him for signature) without looking at them. In so doing, he followed his usual practice. He relied on his team to prepare the documents correctly and comply with all applicable rules. He says: “Had I realised that the agreement I signed related to a minor I would, of course, have not signed it”.

31. We see no reason to reject his evidence. But that cannot avail him. The answer to the objective question of whether Mr Evans intended to agree to the terms of the Agreement is not to be found by an examination of his

subjective state of mind, still less by considering what he would have done if he had realised that was a minor. It is to be found by looking at what Mr Evans said and did at the time. There is nothing in what he said and did at the time to displace the prima facie position that, when a party appends his signature to what purports to be an agreement, he is indicating to the other party (and to the world) that he is agreeing to the terms of the document. In fact, Mr Evans did no more than sign the Agreement without demur or qualification.

32. We have reached this conclusion by giving the word “agreement” in the definition its plain and natural meaning and applying the objective approach that it is rightly agreed that we should apply. The word is unambiguous. In these circumstances, there is no room for the application of the principle of legality (which was not pressed by Mr Bowers in oral argument). Nor do we need to consider whether the Commission was right to adopt a broader or more generous approach (in favour of because the “matter involves a minor and safeguarding issues means all the more that a wider definition of ‘agreement’ should be employed” or by applying the contra proferentem rule against the FA and in favour of For the same reason, we do not adopt a more generous approach in favour of Mr Evans by applying the “principle of legality” on the grounds that a breach of the regulations can (and usually does) give rise to penal consequences.

33. It will be apparent that our approach differs somewhat from that set out at para 25 of the Commission’s Written Reasons. But we have concluded that the Commission correctly decided that, in entering into the Agreement, Mr Evans acted in breach of WWI Reg 3.1 of Appendix II.

The appeal against the sanction 34. This panel should only interfere with its decision if we consider that it was manifestly excessive or wrong as a matter of principle. We can find no fault with the sanction imposed by the Commission.

35. Mr Bowers submits that the Commission should not have suspended Mr Evans at all and that the fine was manifestly excessive. He says that there were powerful mitigating factors in the present case. The breach was the result of inadvertence. It was not deliberate. Mr Evans attempted to

correct it within a matter of days. His culpability was at the very bottom end of the spectrum of seriousness.

36. The Commission took all these factors into account. This may have been a tough penalty, but it was within the range of permissible sanctions in this case. All the cases show that the Commission was right to regard this as a serious matter. The whole point of these regulations is to protect a vulnerable group, namely young players. The breach would have more serious if it had been committed knowingly and deliberately. But inadvertence is far from being a complete answer. This case shows that the Company’s system was deficient. As the owner of the Company, Mr Evans was to blame for that.

37. We should add two points. First, Mr Evans chose to take a technical point on the meaning of “Representation Contract”: he could have conceded the breach, thereby adding to the mitigation that was available to him. Secondly, the FA rejected the registration of the Agreement on 5 January. There is nothing to indicate when Mr Evans would or might have realised that he had signed an agreement with a minor if the registration had not been rejected so swiftly by the FA. The Commission was somewhat generous to him in referring to his “attempts to correct” the breach within a matter of days.

38. Accordingly, we dismiss the appeal against the 3 months suspension from all Intermediary activity. We think that it is necessary to reflect the structure of the Commission’s decision so that the sanction that we impose is no more and no less severe in its consequences than that imposed by the Commission. We therefore impose the 3 months suspension from all Intermediary Activity with effect from 1 December 2018. This will mean that his period of suspension will include the next transfer window from 1 to 31 January 2019. He will be subject to the final month of suspension, but this part of the sanction will be suspended for two years from the date of notification of these reasons, i.e. 1 October 2018.

39. The Commission explained why it imposed a fine of £2,500. It took a starting point of £5,000 and halved it to take account of the mitigating factors. We see no reason to alter the fine.

Costs

40. Mr Evans must pay the costs of the Appeal Board in the sum of £2,000 and he forfeits the £100 appeal fee. The total financial obligation of £7,000 arising from these proceedings, i.e. £5,000 from the Regulatory Commission proceedings and £2,000 from these appeal proceedings, must be remitted to the Football Association with fourteen (14) days of notification of this decision and reasons. Failure to do so shall give immediate effect to a suspension from all football and all football related activity until such time as the total financial obligation has been paid in full.

Lord Dyson Chairman

Michael O’Brien Independent Football Panel Member

Ifeanyi Odogwu Independent Legal Panel Member

1 October 2018