First written for and published by LawInSport. Click here to view the original article.
What’s in a name? Rather a lot it would seem if the Hull City v Hull Tigers debate is anything to go by. In March 2014 the FA Membership Committee recommended that The FA do not permit Hull City’s owner, Assem Allam, to change the playing name of the club to Hull Tigers.
The company behind Hull City has already changed its name to Hull City Tigers Limited (“the company”) but the decision over the playing name of the club is not theirs to make.
The process is managed by the FA rules and the committee structure provided by The FA. Standing Order 53 provides the powers and duties of the various Committees of Council. Within the remit of the Membership Committee is consideration of matters pertaining to Club names. The Membership Committee is tasked to report on such issues to the FA Council.
The FA Membership Committee recommendation was subsequently followed when The FA Council meet on 9 April 2014.
Under the FA rules, rule 3 (l)
“A Club competing in any one of The Premier League, The Football League, The Football Conference, the Southern Football League, the Isthmian League and the Northern Premier League shall not be permitted to change its playing name (i.e. the name under which the Club competes in a Competition), as recorded on Form “A”, save with the prior written permission of Council.
Any application for a change of playing name must be received by The Association before 1st April in any calendar year in order for it to be considered by Council for adoption in the following playing season. Council will use its absolute discretion in deciding whether to approve a change in a Club’s playing name.”
So the decision was for the Council in its absolute discretion.
The Courts are routinely asked to adjudicate on the exercise of discretion by a party. The cases are clear that even where discretion is not expressly fettered it must still be exercised rationally and reasonably. Reasonableness is a question of whether the decision is one which a reasonable person or body could reach. Rationality implies principles of honesty, good faith and genuineness and the absence of perversity, arbitrariness and caprice (Socimer International Bank Ltd v Standard Bank Ltd (2008)).
Perhaps inevitably the debate over the change of name is emotive. The football club was founded in 1904 and picked up the nickname of the Tigers from around 1905. Fans have strongly opposed the change in name using an emotionally charged video to argue the case for retaining the name as Hull City, the campaign operates under the banner ‘City till we die‘.
On the other side of the debate Assem Allam and his family claim to have contributed over £74million to the club and they have overseen the rescue from administration to top flight football. They say that they need the club to be self-sustaining and to do that they need to expand to appeal to an international audience, to differentiate themselves, and to have a brand that gives them an edge over their competitors. Commercially the club belongs to them and they have the right to do as they please with their asset.
The Premier League Financial Regulations put the onus on clubs to be self-sustaining, not loss making. They encourage the sort of ‘business minded’ rather than ‘donation minded’ approach, which was being proposed by Mr Allam. In business the decision over a rebranding exercise can be equally divisive but those who will stand or fall on the financial and commercial success of the venture take the final decision.
I would be the first to say that football is much more than just business, it is because of that that I want to see clubs prosper financially and avoid the depressingly common spectre of administration. Hull City fans are rightly proud to be ‘City till they die’ but in the international community saying that you support ‘City’ may lead to an initial assumption that you support Manchester City – surely that risk alone merits consideration of the name change!
If the business case for changing the name is sound and football clubs must work towards balanced books under the Premier League Financial Regulation is there an argument that the proposed refusal is irrational? Injections of equity from the owner is one element considered by the rules in calculating the level of permissible loss. Owners will be discouraged from injecting equity if key commercial decisions are taken out of their hands.
Interestingly a brief look at the history books suggests that when a club moves base it is easier to change the name. Wimbledon FC became the Milton Keynes Dons when they moved in 2002. Arsenal emerged from Woolwich Arsenal when they crossed the Thames. Perhaps if Mr Allam were to relocate the club he would find it easier to rename it. Probably not the result the fans are after