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A European Super League? Initial thoughts on legal ramifications

19.04.21

“Some people believe football (soccer) is a matter of life and death. I’m very disappointed with that attitude. I can assure you it is much, much more important than that.”– Bill Shankly

 

Six English clubs, and nine other European clubs have proposed to break away from the UEFA-sanctioned Champions League to set up their own “European Super League”. With no risk of relegation, these 15 “Founder Clubs” propose to guarantee themselves European football every season. They propose nevertheless to remain part of their respective domestic competitions. The footballing world has been in uproar since those intentions were announced.

This note looks at the rules in England and what powers the Premier League and FA in particular have to deal with these developments. Fundamentally, the issue is a “political” one and, as so ever with football, the endgame will no doubt be negotiated in the modern equivalent of a smoky backroom. These are some initial thoughts on the legal avenues.

The Premier League and FA Rules

Article 72.1 of the FIFA Statutes says as follows:

Players and teams affiliated to member associations or provisional members of the confederations may not play matches or make sporting contacts with players or teams that are not affiliated to member associations or provisional members of the confederations without the approval of FIFA.

It goes without saying that the proposed European Super League (“the ESL”) falls foul of art. 72.1.

Importantly, rule B.14.5 of the Premier League Rules states membership of the Premier League imports a contractual obligation to ‘abide by the statutes and regulations of FIFA’. There is a similar provision in rule A1.2 of the FA Rules (and all Premier League clubs are bound by the FA Rules). Already, then, we can see that playing in the ESL amounts to a breach by the 6 clubs that propose to join it of the Premier League Rules and the FA Rules.

In addition to this, the FA Rules themselves (at rule B1.1) say that no club affiliated to the FA may play in a competition not sanctioned by the FA.

It may perhaps be of interest to observers to note that FA Rule E9 says as follows:

An attempt by a Participant or any agreement with any other person (whether or not a Participant) to act in breach of any provision contained in these Rules shall be treated for the purposes of these Rules as if a breach of the relevant provisions had been committed.

Premier League and FA penalties

The Premier League Board has a discretion at rule B.6 to pass a Board resolution expelling a club from the Premier League. Short of expulsion, however, there is a suite of penalties the Premier League can impose on rule-breakers contained in Section W of the rules. However, the serious penalties require the convening of a Commission by the chair of the judicial panel: they run from a reprimand on the one hand, to an unlimited fine, unlimited deduction of points or a recommendation for expulsion on the other (see rule W.49).

FA Rule E1 defines “misconduct” as including any breach of the Premier League Rules or indeed the FIFA statutes. The power of the FA Council to impose penalties may be exercised “as it sees fit”.

Finally, Rule G of the FA Rules permits the FA and Premier League to decide between themselves which body will deal with the misconduct.

Other legal penalties

Aside from the regulatory penalties set out above, including expulsion from the Premier League, the general law may provide routes for redress for those affected by the 6 clubs’ decision to enter the ESL.

On the basis of the rules set out above it may well be a breach of contract with the Premier League. They may be able to set out the parameters of a significant damages claim. Commentators may recall the dialogue back in 2018 when the idea of a European Super League was first floated in, if memory serves, Der Spiegel (involving a broader sweep of European clubs and the 6 offending English clubs but not Spurs). The sports law world saw this move at the time as giving rise to potential for a very significant damages claim.

What of players? It is hard to believe that the England Captain and Spurs forward, Harry Kane, is relishing the prospect that, by playing for Spurs he will exclude himself for playing for his country. Indeed, sports lawyers will know that player contracts usually make express and specific provision for national team duties. Players like Kane will no doubt be looking at his legal options.

There may well be competition law issues which are beyond the scope of this note.

The politics

Greg Dyke, former FA Chairman, was on Radio 4 this morning; he said that he thought the proposed ESL was a game the 6 clubs were playing. What he meant was that it was, in essence, political posturing to grab more power and more revenue from UEFA which is due, in a matter of hours, to announce changes to the Champions League. He may well be right. But the proposition highlights a breach in the heart of the beautiful game: for fans – especially fans of those old, venerable clubs whose stadiums loom large over formerly industrial communities – football is far more than 22 men chasing a leather ball around a manicured lawn for 90 minutes. It gives expression to local identities, to hopes and dreams. As Bill Shankly famously said, it is far more important than life and death.

This ESL proposal treats football clubs as little more than cash cows. In the midst of a pandemic, where lower league clubs – lifelines for many communities – are going bust, and the staff at Premier League clubs are being made redundant, many will see these proposals as gratuitous vulgarity. They will hope and expect that the Premier League, the FA, UEFA and FIFA – not always the apple of the football observer’s eye – will do all they can to punish the offending 6.

These are political, cultural and sporting matters, but there are undoubtedly serious legal ramifications too.

By Grahame Anderson

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