Detail behind the collapse of Lewis O’Brien’s move from Nottingham Forest to Blackburn Rovers has been revealed.
The midfielder had been set to join the Championship side on loan for the rest of the season, in a deal which would also include a purchase clause should promotion be achieved. However, an issue over the timing of the paperwork being filed before the January transfer deadline meant the switch was not approved by the English Football League.
Rovers challenged that decision and the case was moved to an independent arbitrator. The independent arbitration panel then dismissed the club’s claim, with the judgement set out in documents which show the timeline of the events on deadline day.
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Independent arbitrator’s verdict
The independently appointed arbitrator, William Norris KC, said: “For all the foregoing reasons, I consider that the appeal must fail, unfortunate though the consequences are for the club and, perhaps more seriously, for the player in question.
“But I am afraid the reality is that somebody failed to upload the documents in time, which may be understandable in the particular circumstances faced by the player and the club’s officials as the 23:00 deadline passed and the 23:15 long stop time approached, but it is not a sufficient excuse.
“In my view, the board was entitled to approach matters as it did and was also entitled to decide not to exercise its discretion in the club’s favour. For those reasons, the appeal must be dismissed, and I will await the parties’ submissions on costs before making any further award in that respect.”
Deadline day timeline
An “agreed chronology of the events of January 31” is included in the judgement. It reads:
20:28: In accordance with Regulation 47.3, a draft copy of an option deed between Lewis O’Brien (LO’B) and Blackburn Rovers FC (BRFC) was submitted for EFL Board approval.
The loan transfer of LO’B from Nottingham Forest FC (NFFC) to BRFC (the Loan Transfer) included an option to buy. This necessitated the preparation of the option deed between BRFC and LO’B to ensure that in the event the option in the Loan Agreement was exercised, BRFC would have already concluded an agreement with LO’B to join on a permanent basis as opposed to running the risk that terms could not be agreed at that point in time.
20:47: The EFL’s Player Administration Team confirmed that the form of the option deed was in order. At the same time, the EFL Executive requested a copy of the draft playing contract that would be entered into by BRFC and LO’B in the event the option was exercised.
21:21: BRFC received a copy of the Loan Agreement signed by NFFC.
BRFC subsequently printed and signed the Loan Agreement.
21:21: BRFC provided a copy of the draft playing contract to the EFL Executive.
21:21-21:48: Emails and calls between Louise Smith (EFL) and Ian Silvester (BRFC) regarding the terms of the draft playing contract.
22:54: BRFC submitted a signed copy of Form H4 in respect of LO’B on iFAS system (the electronic portal which registration documents are uploaded to).
22:55: Quick Application for the Loan Transfer submitted to the iFAS system.
23:03: BRFC submitted a copy of LO’B’s passport on iFAS system.
23:03: BRFC submitted a further signed copy of Form H4 (a repeat of the document sent at 22:54) in respect of LO’B on iFAS system.
23:04: BRFC submitted a signed copy of LOB’s Bonus Schedule on iFAS system.
23:05: BRFC submitted a signed copy of the Tripartite Representation Agreement between BRFC, Kevin Sharp and LO’B on iFAS system.
23:09: The Loan Agreement, signed by BRFC and NFFC, was sent to LO’B for counter-signature.
(LO’B had been undergoing a medical in Manchester earlier in the evening, at or around 21:00)
23:15: BRFC received LO’B’s signed copy of the Loan Agreement.
23:27: BRFC submitted a signed copy of form IM1 in respect of LO’B on iFAS system.
23:28: BRFC submitted the fully executed copy of the Loan Agreement in respect of LO’B on iFAS system.
Rovers’ argument
Rovers’ argument is set out as: “The club contended that, although the required documentation was sent through after the 23:00hrs deadline on transfer day, 31 January 2023, it was made under the “Quick Application” process and had been initiated within time (prior to the deadline of 23:00). Further, it was contended that, since the supporting documentation was permitted to be sent through “immediately following” the passing of that deadline, the board and executive were in error in approaching the time of 23:15 which they had set for receipt of such documentation as a legal deadline with the same status as that of 23:00.”
Since 2018, the EFL has operated a “quick application” process to “assist club secretaries”, effectively granting a 15-minute extension for registration documents to be uploaded to iFAS. The rules state: “This, however, is provided that basic details about the transfer, as well as the relevant transfer form (which in this case was a H4 loan transfer form) is uploaded and submitted (i) from 22:45 (when the quick application process becomes available); and (ii) before the 23:00 deadline.”
Rovers argued that the “EFL was wrong to regard 23:15 as a hard deadline with the same status as the 23:00 deadline”. The EFL countered: “The only significance of 23:15 in context was that it acted as an endpoint or long stop for what would be regarded as the period ‘immediately following’ that deadline of 23:00 and that submission of the requisite material as late as 23:28 could not sensibly be regarded as coming within the prescribed timescale as having been received ‘immediately following’ 23:00 (or 23:15, for that matter).”
Counterargument
The EFL board’s written reasons for rejecting Rovers’ claim said: “The suggestion that use of the word ‘immediately following’ in the guidance to Regulation 44.8 should be read as affording the club some latitude was rejected; the context had been clarified to all clubs in clear and simple terms which were well understood by all clubs. Accordingly, the board confirmed that the EFL shall apply the same rigour to both full applications and ‘Quick Applications’. BRFC had reasonable opportunity to provide its evidence in support of its position but on both the Loan Transfer and the Permanent Transfer these applications were submitted late.”
Rovers set out various arguments as to why the submission was late. They included: Delays caused by communicating with EFL regarding the Option Deed which BRFC argue delayed their preparation by circa 30 minutes in respect to the Loan Transfer; BRFC had a FA Cup replay, away against Birmingham City, on deadline day and so BRFC were at a disadvantage to 80% of its competitors in the transfer market as senior executives of the club were at the FA Cup replay and delayed due to traffic; LO’B’s medical was also conducted late in the day due to the FA Cup replay; LO’B’s signed Loan Agreement was late in being received and uploaded to iFAS (at 23:29) as the player was at the BRFC training ground (whereas the club secretarial team were at the stadium); complexity of transaction – BRFC provide submission as to the complexity of the transaction in respect to LO’B.
The EFL’s response was: “The EFL’s submission, reduced to its simplest formulation, is that whilst the strict deadline was indeed 23:00, nevertheless the time of 23:15 was legitimate and helpful guidance as to what would be regarded as a ‘long stop’ for what is meant by the guidance as to ‘immediately following’ under Regulation 44. As such, the Board and the Executive were entitled to treat it in the way they did."
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