A reduction of Allsports' penalty of five per cent granted by the OFT
for cooperation in the football price fixing investigation has been revoked
the Competition Appeal Tribunal (the "CAT") in its judgement on the
penalty on 19 May, resulting in Allsports' fine actually being increased from £1.350
million to £1.42 million. This is the first time the CAT has increased
a fine following an appeal.
The OFT had granted Allsports a reduction of five
per cent of the penalty for cooperation with the OFT. This was based on the
fact that Allsports had admitted organising a meeting with anti-competitive
intent. At the CAT, however, the OFT wanted the tribunal to remove this reduction.
OFT submitted that the CAT should revoke the five per cent discount for
co-operation on the ground that Allsports had acted dishonestly. The issue
a diary in which a mention of a meeting referred to as "Sports trade cartel" had
been discovered by the watchdog. The undertaking admitted that it had been
the organiser of the meeting in question, but it coupled this admission with
an exculpatory reference to the fact that the diary was free of any other references
to further meetings.
Although this was true, this was misleading in that the
diary in fact contained other incriminating evidence to which Allsports
chose to make no reference. Furthermore, when the diary was finally made available,
relevant evidence was "blacked out" and only revealed by forensic
The CAT regarded the suppression, with black marker pen, of various
relevant passages in the diary as a serious matter, but it did not consider
this to warrant an increase in the penalty on that account alone. The Tribunal,
however, considered Allsports’ conduct during the administrative procedure
before the OFT to be open to severe criticism.
To be entitled to a discount
for “co-operation” the cooperation should be forthcoming and frank.
The Tribunal judged Allsports' admission to be a disingenuous one which could
not merit a mitigation of the penalty.