The UK government has announced that no professional sport, even behind closed doors, will be staged in England until 1 June 2020 at the earliest. The government’s 50 page guidance document details how the country will ease its lockdown measures. Step two of that plan, which will not be allowed to start before 1 June, includes “permitting cultural and sporting events to take place behind closed doors for broadcast, while avoiding the risk of large-scale social contact”.
This seems to confirm (subject to changes to reflect any subsequent spikes in the infection rate) that it will be possible to play professional football matches this summer, and for professional football leagues to conclude and to produce a result to the season. But will the legal and commercial concerns of the leagues and the clubs allow this to be done in a way which avoids disputes and litigation?
The legal issues around whether, and if so how, to conclude this season are arguably the most extraordinary to face the football industry since the Bosman ruling in 1991, which allowed players to leave clubs on free transfers after their contracts expired. The number of clubs involved in the question of resolving the Premier League (including the clubs in the lower leagues who are affected), and the vast sums involved, make this a potentially explosive issue.
The Premier League held a meeting on 11 May 2020 with all clubs to discuss Project Restart, with 12 June 2020 being their target date to resume playing. The issue creates significant disputes between clubs, with those facing relegation particularly reluctant to agree to anything which is likely to confirm their relegation, including playing a reduced number of matches, playing at neutral grounds and calculations of league positions based on performance to date.
Proposals for restarting the Premier League
Resuming the season involves endless issues and consequences involving public health, policing, gate receipts, the rights of season ticket holders, TV and sponsorship rights, and player safety and contracts, about which every club will have its own views.
So far, the Premier League Board has suggested publicly that the following measures will enable the league to resume:
- Players will be tested for COVID-19 frequently to identify any of those infected and protect others.
- Rules prohibiting spitting, shirt swapping, and even hugging!
- Matches are to be played behind closed doors and all matches will be televised to allow fans to watch.
- Matches be played at neutral grounds so that there is no football in the city of supporting fans.
- Mini-leagues will decide close league positions.
PL rules and governance
Arguably the most pressing issue for the Premier League to decide is who is to be relegated, promoted and be awarded with playing European football next season, in the event that the season is not concluded or played out in full.
As a matter of contract law, the Premier League is governed by its own rules in the Premier League Handbook, which provide a lot of discretion for its board. The rules are effectively a contract to which all the participating clubs sign up. However, unsurprisingly, its rules do not provide for the extraordinary position we find ourselves in now, during the COVID-19 pandemic. The Premier League rules permit matches to be postponed or even abandoned, but they do not provide for resolving the season other than by finishing the competition by playing or deciding all of the matches.
Decisions of the Premier League Board in its discretion are expressed to be absolute and subject to no appeal. Disputes can be brought before an arbitration, where the board’s decision can be challenged but only on certain limited grounds, including that the decision:
- Was outside the board’s jurisdiction.
- Could not be reached by any reasonable board.
- Was reached as a result of fraud or malice.
- Was contrary to the law.
Technically, there is nothing explicit in the Premier League rules which allow for changes to the league competition as a whole. Individual matches can be declared to be abandoned by the board, but that power cannot happily be applied to curtailing or changing the format of the season.
Some clubs are very likely to consider carefully the grounds for challenge to any exercise of the Premier League Board’s discretion. The grounds for challenge are wider than those which are available generally for the challenge to an arbitration decision under the Arbitration Act 1996. This may give clubs encouragement to consider a challenge to any decision which is made. For example, some clubs at the lower end of the league have argued that they should not be relegated based on anything other than a fully played-out league, including matches played at the home ground, to avoid the disadvantage of losing home support. If the final league positions take into account too heavily the clubs’ performance to date, some clubs have complained that they may be disadvantaged compared to their rivals, due to the matches they have played to date, if those have involved better opposition.
A way forward? Consensus and compromise is needed
The Premier League Board cannot decide on its own to declare the season void, even if it heeded certain clubs who have argued for that conclusion. To do so would allow the Premier League unilaterally to make decisions affecting the English Football League (EFL), which is responsible for the Championship, by cancelling promotion and relegation.
Under the agreement by which the Premier League was created, back in 1991, the Football Association (FA) has a veto over any decision by the Premier League to declare the season void, or otherwise change the usual rules on relegation and promotion.
The FA has reportedly made it clear at yesterday’s Premier League meeting that the FA will insist that, one way or another, this season produces a result and that the usual three teams are relegated from the Premier League and teams promoted from the Championship.
As explained above, it will be difficult to reach a consensus on how to conclude the season, given the numerous parties needed to agree a way forward and the widely varying commercial considerations of the clubs. In a situation where no agreement is reached and a solution must be imposed on clubs, that may cause strong resentment among clubs. This in turn may result in one or more of them bringing a claim against the Premier League through the arbitration mechanism provided for in the Premier League rules.
Alternatively, sharp-minded lawyers to clubs may advise using the current uncertainty, and the Premier League’s and FA’s desire for consensus, as leverage to seek favourable agreed terms to soften the blow of any relegation or other unwelcome consequences (for example, loss of gate receipts and TV revenue). For example, clubs could negotiate for increased “parachute payments” for relegated clubs, or, for Championship clubs denied promotion, they could negotiate a financial reward or seek damages for the loss of revenue that this would cause.
Although commercial solutions may be scant consolation to fans, for whom results and success are everything, clever negotiations with the assistance of lawyers may provide workable and commercially agreeable solutions for clubs and the Premier League. The alternative seems likely to be fierce disputes which may turn into significant arbitration cases in due course.