Mark Phillips KC

Mark Phillips KC is a barrister at South Square, specialising in commercial law, insolvency and restructuring law, and sport. In relation to the latter, Mark’s clients have included UEFA (including, famously, on their prosecution of Man City), the Football League, Arsenal, Arsene Wenger, Patrick Viera, Thierry Henry, and Lewis Hamilton.[1] A key figure in sport, Mark was instrumental in the establishment of the Premier League (having acted for the "big five" First Division clubs) and remains highly influential in relation to the future of football regulation.[2] Though Mark is ranked in Sport by both The Legal 500 and Chambers, he is an all-round legal expert, boasting forty years’ experience at the Bar (twenty-five of which have been as a Silk).[3] Indeed, Mark recently finished as the runner-up in The Lawyer’s ‘Barrister of the Year’ Award 2024.[4]

1. How did you first start working in sport?
 
In 1987, I was acting for a bank in an insolvency case called Esal (Commodities) Limited. One of the major creditors was David Dein, and David saw me dealing with that. From that moment forward, he has used me on every case he has had!
 
Importantly, in 1991 I believe, David was engaged on behalf of Arsenal with four other then-First Division clubs, and they instructed me to assist on how to set up the Premier League. That is how and why I set up the Premier League and it's all over David's autobiography.
 
From that, I did all sorts, like Arsene Wenger’s twelve-match ban and all the Patrick Vieira incidents. In relation to the latter, I had the idea of, ‘Hang on a minute, you've got 37 cameras, why don't you get me a lip reader and that will determine whether or not Patrick Viera really had made the alleged insult to Andy D’Urso?’. This incidentally explains why every time you see managers and players talking now, they cover their mouths. It’s because I got the lip readers in, and they suddenly realised that they could be lip-read. 
 
I was then working on an asbestosis case for Sue Thackery, a solicitor, who said to me, ‘Mark, you know, you do all this sports work for Arsenal. Would you be interested in motorsport?’. I said, ‘Yes, of course, I’d love to do some motorsport’. She said, ‘Well, I've got this young man, he's in Formula 2 at the moment, but I think he's going to make it into Formula 1. His name is Lewis Hamilton’. So, I said, ‘Fine, great, whatever, never heard of him’. A few years after that, you may or may not recall that there was something called “Ferrari-gate”, which is when a Ferrari technician had passed the plans consisting of two complete two lever arch files of documents to a McLaren technician. I didn’t think anything of it, but I suddenly got an email that read, ‘Dear Mark, you may remember I act for Lewis Hamilton’. It explained the problem and the bottom line said, ‘Would you be prepared to act for him?’. That then led to all the work I've done since forever for Lewis, which includes the Abu Dhabi Grand Prix controversy. 
 
So, that is perhaps a slightly long answer, but I think if you were to encapsulate it with a single line at the front: it’s pure luck. I happened to be doing cases which involved people who became significant players in different sports.

2. How would you define “sports law”?
 
I wouldn't. I don’t think there is such a thing as sports law. There are no freestanding principles of sports law.
 
So, what it is, is the application of mostly company law problems or contractual-based rules to problems, and a number of competition law issues. For example, establishing the Premier League raised a pure question of company law, and that question of company law was how you could get the First Division clubs out of the Football League when the Football League had just introduced a three-year resignation period. The answer to the question was in the articles of the FA, because the articles of the FA provide that any competition approved by the FA had to comply with their basic rules of a competition, one of which provided that you could only have a one-year resignation period. So, the three-year resignation rule of the Football League was invalid and the courts subsequently agreed. However, the point is, that was purely an example of the application of company law. 
 
Furthermore, the F1 cases that I've dealt with are purely cases of construing contractual rules. It is a construction of contracts, and all you do is you look at the rules and you say, ‘This is what the rule means’, and you apply it.
 
The second point is you then have a series of contractual-based appeal processes which again require construction of contractual-based rules. However, for various reasons that I could come on to, they actually don't work and many of them are quite absurd. The contractual-based approach runs absolutely through it, and the reason for that is that this field developed/appeared through, I believe, the 1980s and 1990s. It developed under the auspices of FIFA and UEFA, and the FA to a certain extent (remember it was ‘the FA Premier League’). They created a contractual universe, and they don't want that to change.

3. What makes working in sport unique?
  
Well, it is the Wild West. There are two problems that I would identify, and these are unique to operating in this field:
 
1. At the moment, lawyers are free to take dozens of bad points, and because there's no proper judicial oversight, for the simple reason that you have got these contractual-based appeal processes, there is no control. I have been involved in cases where 16 points have been taken, only one of which was arguable, resulting in two-week hearings which could have been dealt with in two hours. Now, you might think that that doesn't matter, but it does matter and I can give you a number of examples where it plainly does matter: Everton, Nottingham Forest, and I ‘prosecuted’ Man City for UEFA. UEFA were crystal clear that they wanted that case to be dealt with before the next season’s draw for the Champions League, for all sorts of reasons that are obvious to any sports fan. For that reason, a decision was taken to take three points, one of which, which was the cooperation point, was eventually upheld, and the other two were not. Now, of course, if you take a limited number of points and you try and deal with it quickly, there is a chance that you will not absolutely cover everything. However, it's a question of proportionality. In this country, we can see that this has been now going on for years. Whilst I'm sure that the tribunal will be considering everything absolutely properly, you have to ask whether that is a proportionate way of dealing with the problem that they're addressing in circumstances where we have now had I don't know how many years, but it's more than one year, when the title has had an asterisk next to it. Personally, for what it's worth, I'm not in favour of that approach, but it is a consequence of the total lack of control. That total lack of control is a consequence of it not being dealt with by judges. Judges who are sitting as judges will not allow people to take obviously bad points, and I think it is essential that there is proper judicial control of appeals.
 
2. The second problem that I identify in the Wild West is that, because the rules are contract-based, the participants can change the rules if they don't like them. That is why we have had so many changes to the Profit and Sustainability Rules, and it is why Manchester City at the moment are able to argue [at the time of this interview] that those rules have been devised by their competitors and are anti-competitive in relation to Man City. If those rules were part of the Football Governance Bill, for example, it would have absolutely nothing to do with the other clubs, and the question of whether or not they are anti-competitive just wouldn't come into it. You would have a debate, which in fact would be dealt with in Parliament or by the DCMS, about what those rules should look like, and at the end of that debate those rules would be applied, and that would be the end of it. A lot of the problems we’ve got at the moment, I think, come from the fact that they’re contract-based. Politically, the Premier League are fighting tooth and nail to avoid control over this aspect of the game, including the fact that the rules are contractual because they want to control them. That is a political question, but we shall see.
 
However, one of the reasons why people think that sports law cases are so exciting is because of the context of the cases. Nonetheless, it's actually very rarely about exciting legal issues. So, I told you about the critical point of the Premier League, and that was huge: how do you construe Article 9 of the articles of the FA? As a legal question, that is not exciting. If I'd been doing that as, ‘How do you construe Article 9 of Asda’s articles?’, nobody would call that exciting. It's an interesting point, but it's actually the context that's exciting. It's great to meet all these fabulous people, but the legal issues are not. Yes, it's fabulous to be to be dealing with Lewis. I was once  on a Teams call with Lewis at home and my 11-year old son went running down the corridor, saying, ‘Mummy, Mummy, Daddy’s talking to Lewis Hamilton’.  Another good example: I got on a flight somewhere, sometime ago, and a very tall gentleman got on at the very end, because they always do that. It was Patrick Vieira, so I'm sitting there, and Patrick saw me. Of course, nobody knows who I am, and he goes, ‘Mark, hello!’. You could just see every other bloke is going, ‘Who the hell is he, that Patrick Viera knows him?’. That’s what I mean by it being terribly exciting in that sort of context. What was I doing for Patrick Viera? I was arguing whether or not he made the alleged insult to Andy D’Urso. I had had a few cases which raised questions about elbows and feet. Is that the most exciting legal point you've ever done? No. There is a case I just argued [at the time of this interview] in the Court of Appeal in another jurisdiction which had $36 billion turning on it and dealt with some really difficult international construction points, which legally is much more exciting.

4. What are your proudest achievements?
  
My role in setting up the Premier League. David Dein has signed my copy of his autobiography, and he says in it, ‘Without you, there wouldn't be a Premier League’, and that is a nice thing to have. The fact is that I was very young at that stage, and I did the legal nuts and bolts and Rick Parry did the numbers. We were the numbers and the legal guys, and we worked together, and we've had a long working relationship for many, many years as a result.
 
The second proudest achievement is getting my favourite headline in Sky Sports News: ‘QC saves Hamilton’. That was after “Ferrari-gate”.

5. How would you describe your style of advocacy? What makes a great advocate? How does your approach and style change, depending on the court or tribunal?

This is a very difficult question to answer, but what I would say is I have appeared in courts at every level and in several jurisdictions. I have done a two-year trial, I have done a one-year trial, and I've addressed the Supreme Court for two hours. Those hearings all required different skills, certainly if you are doing, say, my one-year trial, which was a massive fraud case in the Cayman Islands. There, I was cross-examining Arab sheikhs for two weeks at a time and it requires huge stamina. If you want to compare that to appearing in front of the FIA in Paris, that is a totally different skill. When I appeared there, after the break that we had, I had to address all 24 members of the FIA. How did I do that? The first thing I did, which Sue Thakeray said afterwards that she couldn’t believe I did, was I looked at every member of the court one by one, all 24, and I got their eye. I made sure they were listening and anyone who was chatting or doing anything else suddenly thought, ‘I better be good and talk to him’. One at a time, all 24. I think it must have taken two minutes, I managed to hold the silence for two minutes while I dealt with that. Then I spoke to them and they listened, and that was that. 
 
I'm described in most of the legal directories as someone you want in your corner in court. I can be tough when I need to be, and I can try to be persuasive when I need to be; I focus on being persuasive. I love cross-examination and I love doing it because what matters and the way you can unlock someone is actually by taking them on a journey and understanding their thought processes and ending up getting them potentially where there's nowhere to go.
 
You absolutely have to adapt to the tribunal, that is a given. I recently appeared in a court of appeal overseas and I didn't know the judges. I was told by my local team, I had a local senior counsel and two juniors, that the court would finish the oral argument in ten minutes, which was a bit of a problem because I had one day of notes and I had intended to speak for a day. So, we start the hearing, and as expected, they tried to stop me in the first ten minutes. So, what I did was I said, ‘Well, I'm terribly sorry, but of course you'll appreciate I'm new to this jurisdiction. I wonder if it would interest you more if we moved on to this point?’. Now, they were really pleased that this very charming English KC was allowing them to control the argument, and once they thought they had control, that was great. The point I'd wanted to start with was the point I suggested when I asked, ‘Would you be helped if we moved on to this point?’. I sat down the following day in the middle of the morning, having spoken for over a day. That is a real example of adapting, which you have to do.

6. What has been the key to your success?

Gosh! Hard work and being all over the detail. A partner at Linklaters, who is one of the people who instructed me on the year-long trial, has recently said, ‘The extraordinary thing about you, Mark, is that you are all over the detail’. Apparently, that's not necessarily the norm. I can give you an example because my mind is perhaps slightly unusual. When we did BCCI, which is the two-year long trial, we had 220 lever arch files of material. The way I work is I mark up my papers with a colour marker and I have a colour code. Once I've marked it, I can see it in my mind. When I went into that courtroom, I could tell you where any document was. So, if we had a point, I know where to go to get to whatever we need to. 
 
So, that's important, and of course, resilience. I am a state-school kid. I didn't go to one of the finer public schools. I didn't go to Oxbridge. I was told I shouldn't go to the Bar because “people like me can't get on at the Bar”. I'm resilient and not interested in people telling me stuff like that.

7. What legal developments do you envisage in sport?
 
At the moment, that is easy: the Independent Football Regulator (IFR). It will introduce a statutory regime that will not be under the control of the participants. The statutory criteria will be clear, and they will not change every year. Critically, in my view, appeals from decisions of the IFR will go to the court, the Competition Appeal Tribunal, under the control of a High Court judge, not to a contractual tribunal. We will have a proper judge and the judge will have power to manage proceedings. The other thing that they're introducing is the judicial review standard, which is that no reasonable IFR could have made that decision. It will be case managed in the same way, so if you don't show a good arguable case that no reasonable IFR would have done that for whatever point you want to run, you can't run it. That is going to be a godsend.

8. What advice would you give to aspiring sports lawyers?
 
Firstly, learn how to be a good lawyer.
 
Then, if you do some sports cases, remember that they are cases in which you apply contractual company law and statutory rules. Don't think of yourself as some animal that's outside of that ambit, because you're not. I appreciate that there are some people who will absolutely hate me for saying that, but just take a textbook on landlord and tenant law. It is a textbook on landlord and tenant law because there are statutes that apply to cases in that context. “Sports law” is just law that's being applied in the context of sport. It's the context that results in people saying that's the relevant body of law. It isn't. You've got a relevant body of law, and it's applied in a context. The context doesn't define the relevant body of law. I hope that makes sense, but that's why I don't think there's any such thing as “sports law”. I think there are many lawyers who practise primarily in the context of sport, and they apply the relevant rules and all the rest of it, and they are very good at it. But there isn't “sports law”. You don't have the law of fouls, resulting in broken legs. You've got the laws on personal injury, and you've got the contractual rules between a sportsman and maybe his club or whatever. You can’t take a context and call it a body of law, it's just not. Sorry about that!
 
I’d rather be regarded as an outsider completely in the “sports law” world. It’s great because I'm a lawyer, practising in a few related fields. I am not someone who only operates in the sports context. For example, in the Derby case on the rules on amortization, what was relevant there was my understanding of accounts and accounting principles, which of course I knew because I do a lot of restructuring law. That's the sort of point I'm getting at. 

9. Please can you describe a typical day in your life?
  
I'm afraid there's no such thing, and that is one of the reasons why it is so much fun. It really is. Obviously, I don't just do these sports things.

[1]https://southsquare.com/barristers/mark-phillips-kc/
[2]ibid.
[3]https://www.legal500.com/firms/9614-south-square/9614-london-england/lawyers/682026-mark-phillips-qc/;https://chambers.com/lawyer/mark-phillips-kc-uk-bar-14:237024; (n 2).  
[4]https://www.thelawyer.com/event/the-lawyer-awards/winners-2024/