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A distinguished arbitral panel, chaired by Lord Dyson with Charles Flint QC and Andrew Green QC, recently delivered its award in the case of South Shields Football Club 1888 Limited v The Football Association Limited. The decision, which considered The FA’s powers to bring the 2019/20 football season to an end for Steps 3 to 7 of the NLS, in light of the coronavirus pandemic, is one of the first to examine the scope of regulatory decision-making in the field of sport in the wake of the current global health crisis. Nick De Marco QC discusses the case.
The National League System (“NLS”) comprises seven “Steps”, each of which represents a different level of football competition. The various steps are not closed competitions; the steps are ‘interlinked’ and a club may be promoted to or relegated from another step (the NLS comprising one system of competition).
South Shields competes in the Premier Division of the Northern Premier League (“NPL”), which operates at Step 3 of the NLS. The Club has had considerable success in recent years, being promoted more than once as it progresses it way through the ranks of the NLS.
Given the rapid rise of COVID-19 cases, on 13 March 2020 it was announced that there would be no professional football in England for the rest of March. On 16 March 2020, the UK Government announced that mass gatherings, including sporting events, would have to stop. At that time, South Shields was top of the NPL and stood to be promoted. The Club had played 33 out of its 42 games, and had earned 69 points through its on-pitch performances. It was 12 points clear of its nearest rival, FC United of Manchester, which had played one less game.
COVID-19, and the lockdown announcement, prompted regulatory action by The FA. The FA’s various bodies were tasked with deciding if, and if so how, to bring the 2019/20 football season to an end for the various steps of the NLS. Three options were on the table:
- Restarting the football season at a later date;
- Ending the 2019/20 season and adopting a ‘points per game’ approach to produce final standings for each league (upon which promotion and relegation could be determined);
- Ending the season and expunging the associated results (with the effect that no clubs would be promoted or relegated that season)
On 9 April 2020, it was announced that the third option had been chosen. The FA had therefore decided to bring the 2019/20 season to an immediate end, without the ordinary seasonal promotion or relegation, and to expunge the results from the matches already played. Instructions were given to prepare the consequential amendments to its rules and regulations.
The effect of The FA’s decision was to deprive South Shields of its opportunity for promotion. The Club challenged the decision on three grounds:
- First, South Shields argued that The FA’s Council was not empowered to make the decision. It relied on Rule B2(a) of The FA’s Rules, which provides that there “shall be a National League System comprising participating Competitions between which relegation and promotion links shall operate on such basis as shall be determined by the Council from time to time”.
- Second, the Club contended that the decision had been taken without relevant consultation, as required under its Standing Orders.
- Third, South Shields challenged the decision on the basis that it had been unlawfully deprived of an accrued right to the application of the existing system of promotion and relegation for the 2019/20 season.
As the arbitral award records (§19), South Shields did not challenge the substance or merits of the decision (for example, on grounds of rationality).
The arbitral panel dismissed South Shields’ claim.
In respect of the Club’s vires challenge, the panel held that The FA’s decision was not ultra vires Rule B.2 of The FA’s Rules of Association. While that provision mandated “promotion and relegation links”, it did not necessarily require seasonal movement of clubs and did not therefore preclude the voiding of the whole or part of the season. Absent any limitation under Rule B.2, the power to void the season fell “fairly and squarely” within the Council’s powers to manage and control the NLS. The arbitral panel was nonetheless clear as to the limits of any power, which had to be “exercised in accordance with public law principles” and noted that it “would be unlawful for the Council to operate the relegation and promotion links between participating Competitions irrationally” (Award, §47).
The arbitral panel also concluded that, in all the circumstances of the pandemic, The FA had not failed in its duty of consultation. The so-called ‘Sedley principles’ of consultation had to be assessed by reference to the process as a whole, including the “urgency of the situation and considerations of practicability” (Award, §63). The decision of The FA Council did not constitute a “retrospective ratification” of an earlier decision of its Board. Notwithstanding the prior public announcement of the decision, there was “no evidence that the Council was constrained to rubber stamp the Board’s earlier decision” (Award, §73).
Finally, the arbitral panel concluded that South Shields did not have an accrued or vested right to promotion. The presumption against retrospectivity did not prevent in season amendments to The FA’s Rules and Regulations. South Shields did not have a legitimate expectation that the relevant provisions would not be changed after the playing season had begun, nor was The FA estopped from making changes to regulations for the NLS to give effect to its decision. The arbitral panel recognised that the governing body, which had responsibility for “the interests of the football community as a whole”, from time to time would have to make “decisions which will please some and displease others” (Award, §99).
Wider implications of the decision
During the pandemic, football headlines have, for the most part, been dominated by developments from the Premier League and the EFL Championship. But, as the decision in this case records, the restrictions arising in consequence of the ongoing health crisis have had profound effects for all levels of the game.
The decision in this case concerns the lower leagues of the football pyramid; but that belies its potential significance for the game as a whole. That is particularly so in circumstances where other decisions about whether, and if so how, to end the football season are underway. The decision indicates, for example, that if the Premier League or Championship was unable to complete the 2019/20 season a decision to declare those competitions null and void with no promotion or relegation would not, necessarily, be unlawful.
Clubs, such as South Shields, have a genuine and sincere interest in how regulatory decisions in respect of the COVID-19 pandemic are taken and their complaints in this respect will often be met with considerable sympathy. Football competitions, at all levels of the game, are hard fought and promotion positions are often obtained not only through sporting performance, but also through considerable financial investment from owners and fans. As the Award records (§105), it is “impossible not to feel sympathy for South Shields”, where, thanks to good management and considerable expenditure, it had been “well-placed to be promoted” at the end of the season.
The decision of the arbitral panel, however, suggests that in like cases sports governing bodies may be afforded considerable latitude when exercising their discretionary powers to respond to the pandemic. The panel rejected South Shields’ claim of an accrued right to the application of the existing system of promotion and relegation for the 2019/20 season. Clubs whose interest in promotion, or other opportunity, has been frustrated by the pandemic may need to carefully rethink their grounds of attack where the decision suggests that, absent a clear and unequivocal representation to the contrary, sports governing bodies will not be prevented from amending their rules and regulations to address the challenges arising out of the pandemic. As the Award records, taking “difficult decisions” that attempt to balance the (often conflicting) interests of the sporting community is one of the reasons why governing bodies exist“ (§99). The importance of that role, “vividly demonstrated by the facts of this case”, means that judicial and arbitral bodies may remain reluctant to interfere with the decisions taken by sports governing bodies during the pandemic.
The case is not, however, a carte blanche to governing bodies in these uncertain times. The FA, and other regulators in sport, remain bound by ordinary public law and contractual principles. Irrational decisions will continue to be challenged; and procedural fairness must be achieved notwithstanding the unprecedented times in which we live. The ability to amend or vary rules due to COVID-19 must be exercised in accordance with the rules or articles of association of each relevant league. Where decisions are made collectively by votes of member clubs (as is the case in levels above those considered in this case) unfair prejudice and/or competition law principles may also come into play.
Nick De Marco QC is advising the National League with respect to the end of its season as well as a number of Premier League football clubs with respect to ‘Project Re-Start’ and associated issues.
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