Cole's defence: infringement of human rights

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The Independent Football

Ashley Cole will tell the independent inquiry into the Chelsea "tapping-up" affair that the Premier League rules preventing a player speaking to another club while under contract amount to an infringement of his human rights.

Ashley Cole will tell the independent inquiry into the Chelsea "tapping-up" affair that the Premier League rules preventing a player speaking to another club while under contract amount to an infringement of his human rights.

The Arsenal player's defence would appear to reinforce the increasingly held view that the meeting at the Royal Park Hotel in central London in January was at the instigation of Cole's agent, Jonathan Barnett, and not the Premiership champions. The two-day hearing into the affair will start on Tuesday, with Cole's legal team headed by solicitor Graham Shear and David Pannick QC - one of the country's leading human rights and civil liberties barristers, who successfully represented Greg Rusedski in his drugs case.

Intriguingly, Pannick also chaired the independent inquiry five years ago in which Liverpool were fined £20,000 plus £37,000 in costs after being found guilty of making an illegal approach to Christian Ziege, who was then a Middlesbrough player. Ziege was fined £10,000. That case, the first of its kind, is often cited as a precedent for the Cole inquiry.

A fine for Chelsea, if they are found guilty, is also thought to be the likeliest outcome this time round, although it would be nearer £200,000 than £20,000. However, Premier League sources maintain that "each case is dealt with on its merits", and there appears to be an appetite to hit Chelsea even harder if they are in the wrong. "Everyone is assuming there will be a fine because of the past cases, but that will not necessarily happen this time," one source said.

Although the punishment will be decided by the three-strong panel, led by a 71-year-old former High Court judge, the Rt Hon Sir Philip Otton, the Premier League have stressed that the sanctions could include a points deduction for the start of next season or a ban on transfer activity. If that happened it would spark an immediate appeal and a flurry of legal action by Chelsea that could drag on through the summer.

What may also cause some debate is that sitting on the disciplinary commission, along with the former Football League secretary David Dent, will be Malcolm George, who was a member of the Ziege panel with Pannick. However, the Premier League said yesterday that there was nothing unusual in this, and that such panels always relied on "professional integrity".

Cole, Chelsea and Chelsea's manager, Jose Mourinho, have all been charged under the Premier League rules after the meeting was exposed. The case is complicated further because neither Barnett nor the "super-agent" Pini Zahavi, who booked the Green Room at the hotel and was also in attendance, fall under the Premier League's jurisdiction.

Files have been sent to the Football Association and Fifa respectively, and both bodies say any action they take will follow on from this week's hearing. Zahavi, furthermore, cannot be compelled to give evidence as he is registered as an agent in Israel. The issue has merely increased the tensions between the Premier League and the FA as well as Fifa, who have promised to wage war on agents' behaviour but done little about it.

Of more immediate concern to the Premier League is Cole's defence. He will argue that Rule K5 - which forbids him talking to another club - is a "restraint of trade". Shear, his solicitor, is an expert at challenging the discrepancies between local and European laws and how regulatory rules can be challenged.

Cole's case is strengthened further because no other European football league applies a rule such as K5, and Fifa are unspecific. It could be that the panel have to defer judgment on Cole's segment of the case because of its complexity and because of the threat of legal action. If he is successful it would have huge ramifications for football, with the Premier League having to rewrite their rulebook.

The issue only complicates what is proving to be a difficult case. It is further confused because Chelsea are flying out to South Korea on Tuesday, after Mourinho and their chief executive, Peter Kenyon, have given their evidence, for a five-day trip and friendly match against the team owned by their new sponsors, Samsung. If the inquiry wants more evidence it will have to wait.

Thankfully, no one now disputes the meeting took place, and the primary role of the commission will be to rule on who arranged it; it can do so "on the balance of probabilities" (Rule 36). As well as Cole's charges, Chelsea have been charged under Rule K3, which forbids approaching a player under contract without his club's permission, while Mourinho has been charged under Rule Q, which relates to a manager's conduct and the possible enticement of players.

The versions of events differ but, briefly, Barnett claims he arranged to meet Zahavi to discuss Cole's prospects for a transfer abroad - Real Madrid are interested - after his contract talks at Arsenal stalled. He has said he was surprised when the Chelsea delegation then turned up.

Chelsea maintain they were called to a meeting by Barnett, who gave them the opportunity to sign Cole, which they rejected. Instead, they say they were there to glean information about discontent in the Arsenal camp, and they say that meeting a player does not constitute an approach.

They also believe that Cole's advisers were simply intending to use them as leverage to secure a better deal at Highbury. If true, that was always a high-risk strategy. How risky may well become apparent this week, especially, it seems, for Barnett.