Caught Offside: The Legal Tactics Behind the Takeover of Liverpool Football Club
Posted in Commercial

When Liverpool players take to the pitch, they are greeted by a chorus of cheers as tens of thousands of Liverpudlians sing “You’ll Never Walk Alone” - the Club’s theme. 

In the last 2 months, however, it was the form, tactics and results of lawyers off the pitch which had Liverpool supporters most vocal.  To try and do justice to football pundits, it would go something like this:  “Build-up play by Club’s current owners.  Oh, a strong purchase move by the would-be owners has the current owners playing defence … it’s one-way traffic, but, a couple of dodgy corporate tackles by the current owners … they are trying to block the sale … wait, the English Courts are having none of this blockage … but wait, an American referee is going to give them a restraining order … ball back to the would be-owners, audacious bid … they are going for it … GOAL!!” 

For the uninitiated, Liverpool is one of the world’s most famous football (ok “soccer” on this side of the Pond) clubs, having won 18 League Titles and 5 European Cups.  It has an estimated value of between 300 - 600 million pounds.  It is Liverpool’s most successful team - John, Paul, George and Ringo a close second.  With respect to the passion that the English feel towards football, a famous Liverpool manager (or “gaffer”) was once asked, “Is winning a matter of life or death?”  He responded, without irony or sarcasm, “Oh no, I can assure you it’s much more important then that.” 

In 2007, the American duo of Tom Hicks and George Gillett Jr. (“H&G”) bought Liverpool Football Club for 174 million pounds.  This was not their first foray into sports ownership as Hicks Sports Group had previously owned the Texas Rangers and Gillett, the Montreal Canadiens.  Their ownership was very unpopular with Liverpool fans.  Indeed, American ownership of totems such as Liverpool, Man United, Sunderland and Aston Villa is not most Englishmen’s cup of tea.

The sale of Liverpool was announced by H & G in April, 2010.  In addition to a noticeable absence of trophies on the field in recent years (a pattern simply not countenanced by Liverpool fans), Liverpool had amassed a debt to the Royal Bank of Scotland in excess of 200 million pounds.  If Liverpool went into administration as a result of RBS calling the debt, Liverpool would be docked 9 points in the standings by the Premier League (the top League in England which Liverpool plays in).  There was a perfect storm brewing both on and off Anfield (Liverpool’s Home Stadium).

By the beginning of October, H&G had received 2 bids - one from Asia, the other from NESV (New England Sports Ventures) the owners of Major League Baseball’s Boston Red Sox.  NESV’s principal is John W. Henry.  To round out the roster of players, the take-over bid involved a US Investment Bank, Inner Circle Sports.  BBC Sport’s, Dan Roan described Inner Circle as a football finance “dating service.” [1]

This is where the legal fun starts and moves in real time.

First off, on or about October 4th, H&G attempted to remove two of Liverpool’s Directors from the Board, Managing Director, Christian Purslow and Ian Ayre (there were 5 Directors at the time, H&G, Purslow, Ayre, and Chairman Martin Broughton).  This palace coup failed.

The very next day, the Liverpool Board agreed to sell Liverpool to NESV for 300 million pounds.  Two days later, the Premier League cleared NESV to continue with its bid, NESV having passed the “fit and proper person” test administered by the League.  But, H&G were not going down without a sizable fight, a Texan-size legal dust-up.

First, on October 13th H&G tried to get an injunction in England’s High Court to block the NESV sale.  The High Court was having none of this and ruled against H&G.  Undaunted, that afternoon, in a Dallas District Court, Judge Jim Jordan (one speculates whether His Honour knows who Steven Gerrard is or where you would find a “Kop”) granted a temporary restraining order, blocking the take-over of a football club thousands of miles and an ocean away.  The football club was not the Cowboys. 

Along with the injunction, H&G filed a $1.6 billion (US) damages lawsuit in Texas, claiming that Liverpool had conspired with, among others, RBS to sell the club below market value.  The District Court required that H&G post the whopping total of $15,000 as security for their restraining Order. 

This was just half-time though. 

On October 14th, the English High Court (Mr. Justice Floyd) granted an anti-suit injunction, restraining the Texas restraining order.  His Lordship held that the Texan order had no validity, was “unconscionable” and that H&G had until the 15th to withdraw their Texan restraining order or face contempt of court proceedings in England.  Richard Snowden, QC, counsel for RBS described H&G’s allegations as “outrageous” and the Texas proceedings were “plainly inappropriate.”[2]

You think H&G were done?  Not a chance.

That same day, Hicks attempted to sell his shares to hedge fund, Mill Financial and have them enter the fray.  The Premier League would not allow this tangential proposal - potential purchasers may only negotiate directly with the Liverpool Board who had already accepted the NESV bid by vote of 3 to 2.

Oh, to catch up with a point I mentioned earlier - if RBS called the Liverpool debt (which was looming), Liverpool would potentially have been docked 9 points in the League standings.  The thought of Liverpool being relegated from the Premiership seems almost, well, it seems unthinkable.  Let’s put it this way - what do you think the public response in the Big Apple would be to the Yankees playing Triple A?

October 15 dawned on both sides of the Pond.  H&G removed the Texas restraining order but vowed to pursue their billion dollar lawsuit in the Longhorn State, claiming the NESV deal was “illegal” and an “epic swindle.”  Their Texas counsel said that the outcome “not only devalues the club, but will also result in long-term uncertainty.”  This is a puzzling statement given that the sale achieved a palpable sense of certainty on many fronts:  NESV completed the deal and paid RBS; the Club was not docked points; Liverpool fans sighed.  They could now focus their energy on the field and, none too soon - Liverpool lost its derby to Everton in a listless performance and slumped 2 - 0 recently to Stoke City formidably nicknamed “The Potters.” 

For an insightful commentary on the take-over, see also Robert Peston’s (Business Editor) blog on BBC News. 

I will update you on where the Texas case goes - but, for now, Liverpool’s new owner, John Henry, is learning the words to “You’ll Never Walk Alone” and the intricacies of less complicated laws - those of the game. 

[1] Liverpool’s corporate Solicitors are Slaughter & May, NESV’s is Shearman & Sterling (David Chivers, QC).

[2] Lawson Lundell LLP has been involved in one of the key cases on jurisdictional issues and “territorial competence” (Teck Cominco Metals, 2009 SCC 11).  This case involved whether the BC Courts should decline jurisdiction of coverage proceedings in respect of environmental damage regarding Teck’s Trail smelter.  Proceedings were commenced in Washington state with parallel proceedings commenced in BC the same day.  Washington State asserted jurisdiction.  Our BC Court refused to decline jurisdiction.  The SCC agreed. 


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