The Super League debacle is over but the recriminations have only just begun. Twelve clubs who sought to shatter the existing structure of European football now face retribution from the organisations they tried to leave behind. UEFA, the national associations and the leagues are each exploring options open to them, both in terms of sanctions for this week’s failed coup and rule changes to guard against it ever happening again.
A delicate balancing act awaits. Those passing judgement know the breakaway clubs still need to be part of a collective, but their actions cannot go unpunished. With the help of Lois Langton and Joel Leigh, two partners at Howard Kennedy, a London-based law firm with extensive experience working in sports litigation, ESPN explores the legal conversations now underway.
Firstly, there will be a financial cost to the clubs for withdrawing from the European Super League. Arsenal director Josh Kroenke confirmed this was the case when addressing fans’ groups on Thursday. A figure of £8 million has been reported but those involved contend it is significantly lower.
Joel Leigh: There may be a commercial liability to [Super League financiers] JP Morgan, having set up all the loan payments. They will incur a loss in time costs and efforts putting all that together so that is highly likely. Of course, JP Morgan will want these clubs as clients in the future so one imagines some sort of deal will be done, but they will have to wave goodbye to a certain amount.
It has been suggested the starting point for the Premier League is Rule L9: “Except with the prior written approval of the board, during the season a club shall not enter or play its senior men’s first team in any competition other than the Champions League, the Europa League, the FA Cup, the Community Shield, the League Cup, Competitions sanctioned by County Associations.”
Lois Langton: They were in the Super League for all of 72 hours so you can imagine if the Premier League tries to sanction the clubs on this basis of L9, there would be a debate, appeals, contests as to whether that rule has actually been breached, depending on paperwork and various legal arguments. But what the Premier League could catch them under is Rule B16, which requires clubs to act in the utmost good faith. It states no club shall “commit any act or make any statement that brings the league … into disrepute.” That, you would have to say, has pretty clearly has been breached. That has to be a less contentious rule for the Premier League to enforce. There could be some ambiguity around L9 and what the definition of entering is. B16 would seem to be a clearer passage for the Premier League to rely on for sanction.
Leigh: There’s a separate provision — W3 — which sets out the possible consequences. They are certainly very harsh penalties. It runs through everything from suspension from playing league matches, points deductions and even expulsion from the Premier League. It really comes down to deciding what they want to do as opposed to what they can do. There’s a lot of anger from the executives at the other 14 clubs about how they can ever sit back down at a table with these guys, and that’s actually the pivot point in all of this: Will they seek to remove them from key committees?
Sources have told ESPN that the “direction of travel” in conversations among administrators is to focus on financial punishments and reducing influence of the big clubs. This is, in part, due to the central role played by supporters in bringing down the Super League plans and a points deduction would hurt the very fans who have upheld the status quo. Football Association chief executive Mark Bullingham stated on Friday that “nothing is off the table” as the organisation examines whether it can change its rulebook.
There will, at the very least, be a curtailing of influence within organisations. The Premier League are looking at cutting Big Six representation on various committees while all 12 clubs involved in the breakaway left the European Clubs Association, the body through which teams proposed changes to the Champions League format. They may be invited back in time, but never on their own terms. UEFA also have a range of punishments open to them but, again, fines and curtailing power are viewed as more likely outcomes.
Langton: Ironically, in trying to give themselves greater power and influence, these clubs may have weakened their standing in Europe because the ECA can now dictate the terms of any return, keeping them in check. That might be the most powerful sanction available to them. Points deductions would hit the wrong people, creating more discontent and ill-feeling.
Leigh: They’ve got to work with these clubs. They aren’t going anywhere. But it seems reasonable to assume these clubs will have to take their medicine and accept a rebalancing of influence. Maybe that is where the government comes into play.
Government reviews into English football are nothing new. In December 2010, a Parliamentary Committee began an “enquiry into domestic football governance to establish the seriousness of the problems facing our national game.” Their report followed in July 2011 calling for significant reform, but little meaningful action followed. Will anything be different this time? Talk of trying to implement Germany‘s “50 + 1 rule” — ensuring clubs, and by extension the fans, retain majority control of voting rights — is unrealistic.
Leigh: They can’t be anti-competitive. It doesn’t fit the politics and it wouldn’t fly. People talk about the German model. It may well be a great model but that ship has sailed in this country. We’ve already sold off the family silver. You can’t get it back. Owners aren’t going to give back 51%.
Sources with intimate knowledge of the conversations praise government for acting quickly when the Super League launch was announced. There was a legal argument to be had over whether the new league broke anti-competitive laws. A legal tool known as “forum shopping” followed, essentially scouring the world to find a jurisdiction more favourable to the outcome you want. This is thought to be why the Super League lawyers lodged motions in Spain and, rumours suggest, America. The FA has to sanction clubs playing in competitions and clearly would not have done so, yet they would not have had jurisdiction if the government had not chosen to act so quickly, described by UK Prime Minister Boris Johnson as a “legislative bomb” in a call with administrators on Tuesday. There is no guarantee, however, that competition law would have upheld the existing structure and this is an uncertainty that could potentially be addressed through a change in legislation, if FIFA allows.
Langton: The FIFA statues state there cannot be any third-party interference in the running of the game in national associations. FIFA have enforced that very robustly. It remains to be seen whether they would take that same approach here because changes arising from government interference would likely be aligned with what FIFA actually want to do. There’s a fine line to tread with what government can do but FIFA will like anything that makes a breakaway harder to deliver in the future.
A middle ground could see the FA and the Premier League given enhanced powers, although sources have told ESPN that the fan-led review is also examining whether the clubs are in breach of the 2006 Companies Act in various ways. The terms of reference for the fan-led review led by formal Sports Minister and current MP Tracey Crouch published on Friday included re-examining the multiple Owners’ and Directors’ Tests, which could include establishing wider grounds for disqualifying new applicants.
Craig Burley credits football fans around the world for their role in pressuring clubs to withdraw from the Super League.
Leigh: Football has struggled with this for years. The “fit and proper” test has never really worked. You’ve got to be some kind of serial killer to fall foul of it. The process by which you get someone to declare not to be fit and proper is so difficult to deliver in practice.
There was widespread surprise at the seeming lack of planning, PR and forethought in such a radical move as setting up new league that folded so cheaply. That may also have extended to the legal ramifications beyond establishing whether competition law would be breached.
Langton: One of the other key aspects that would have been a subject of intense legal debate was the impact of the decision on the players. From an English point of view, pretty much every Premier League contract that a player enters into is going to have an obligation on the club to comply with the rules, meaning Premier League, FA, UEFA and FIFA rules. So, whether or not there would have been any legal debate over the Premier League preventing the creation of a new competition, that on the face of it was a breach of the Premier League rules in those clubs joining the ESL. Therefore, the clubs were breaching their contracts with the players. If the players hadn’t wanted to go into the ESL and risk missing the Euros, future World Cups, that would have amounted to breach of contract and contracts could have been rescinded as a result. They don’t seem to have thought out the repercussions in that way.
The weeks and months ahead will determine what repercussions are coming their way now.