- “No scenario” in which Premier League or EFL don’t risk some kind of legal action
- Leagues attempt to balance sporting integrity, safety, economic concerns and commercial contracts
- Authorities should be ‘coronavirus-proofing’ 2020-21 season already
For a sporting competition with as many moving parts as the Premier League, planning its restart after a lengthy enforced break due to the Covid-19 pandemic was a hugely complicated endeavour. The league’s organisers faced the unenviable challenge of balancing public, player and staff safety with the economic interests of clubs, the demands of broadcasters and the needs of sponsors.
With the Premier League now playing to conclusion behind closed doors in a highly compressed end to the season, squeezing 92 fixtures into six weeks, there will inevitably be some within the game who feel the outcome is unfair, with legal challenges to any outcome almost unavoidable.
“I don’t think there’s any scenario where there’s no aggrieved party,” Satish Khandke, partner and specialist in corporate sports law at Charles Russell Speechlys, tells SportBusiness. “Whatever the solution is, someone is going to feel that they haven’t got what they paid for or haven’t received what they were entitled to receive.”
For the Premier League and the EFL, he says “it’s not a question of avoiding all potential legal claims, because I would say that’s probably impossible. What they need to look at is which of the available pathways creates the least amount of damage”.
Potential legal challenges
That is easier said than done. The loudest objectors so far to many of the proposed solutions put forward by the Premier League have been those clubs threatened by relegation, some of whom are almost certain to claim unfair treatment unless their status in the top flight is secured. Even if the season is played to a conclusion, they may argue that the circumstances compromise the sporting integrity of the competition, says Khandke.
In opposition are the Championship clubs who were anticipating ascending to the Premier League.
For a club such as Leeds United, top of the second tier going into the break, the stakes could not be higher. The club did not publicly comment on its intentions should it be denied promotion due to Covid-19, but its owner, Andrea Radrizzani, made pointed comments on Twitter about the early decision taken in France to call an end to the season.
The issue of promotion from the Championship to the Premier League is difficult because the agreements which ensure it are between multiple parties. Leeds, for instance, is not a member of the Premier League and therefore has no direct contract with the league regarding promotion and is unlikely to be able to act against it.
“But if promotion was cancelled unilaterally by the Premier League, then the legal case would probably be brought against it by the EFL, because there is an expectation between the two which says the Premier League will accept three promoted teams from the Championship,” says Tom Cassels, dispute resolution partner at Linklaters legal practice.
On the other hand, if the Premier League finds a way reach a conclusion while the EFL doesn’t, “then it would be harder for the EFL to justify why it hasn’t done so, and Leeds would probably have a case to bring against the EFL”.
As it stands, the EFL has cancelled the seasons for League One and League Two but the Championship is underway, something Cassels says had to happen due to the nature of its relationship with the Premier League. “I’d have thought that the EFL should try and mirror whatever the Premier League does, because they’re going to create all sorts of problems for themselves if they don’t.”
“The simplest way to think of it is that the Premier League’s and EFL’s rules are effectively contracts between them and their clubs,” Khandke explains. “If one side fails to abide by the rules, around the criteria for European qualification, promotion, relegation, they’re probably breaking a contract and will be open to legal action. The legal burden would be on the clubs to prove that the leagues have breached contract by not upholding their end of the deal.”
Dutch clubs SC Cambuur and De Graafschap, which were set for promotion to the Eredivisie when the 2019-20 campaign was declared null and void, have confirmed they are taking legal advice with a view to suing the Dutch FA (KNVB). SC Cambuur manager Henk de Jong has urged Leeds United and West Brom to follow suit should the English Championship be similarly curtailed.
Likewise in France, at least two clubs have outlined their intentions to take legal action after the country’s Ligue de Football Professionnel curtailed the season with the current standings counting as final. Lyon, who miss out on European qualification and potentially tens of millions of euros in revenue, and Amiens, who will be relegated to Ligue 2, both claim the outcome lacks sporting integrity.
That, says Cassels, will be among the Premier League and EFL’s highest priorities as they look to restart action.
“If they change the rules mid-season, if they take any action that disadvantages one club or another, then there’s a far stronger case for legal action,” he says. “That’s what was behind the ruling out of neutral venues, which the relegation-threatened clubs claimed was an unfair disadvantage. It’s also behind some of the legal challenges that have already been mooted in this country and beyond.”
Phil Wallace, chairman of League Two side Stevenage – which has been confirmed has having finished bottom of that division and therefore relegated to the National League thanks to the EFL’s points-per-game system for deciding the final standings – has already objected on these grounds.
“I don’t see any integrity in arbitrarily forcing relegation on any club that has every reasonable chance of avoiding it by playing, but is denied the opportunity to do so,” he wrote in a club statement on Monday. “There is absolutely no integrity whatsoever in using a mathematical formula to expel a club from the EFL. That is unjust and wholly wrong.”
Unfortunately, as Cassels points out: “The difficulty they’ve got is I don’t think there is any way to preserve sporting integrity available. No one’s really been able to come up with anything, which means that whatever you do, I think, the door is open for a claim.”
‘Null and void’ versus playing to conclusion
Comparing the French and Dutch approaches, Cassels suggests that the latter’s – completely voiding the 2019-20 season – is more legally sound, as it does not advantage or disadvantage anyone in a sporting sense.
It relies, however, on the league being able to demonstrate that there was no feasible way of concluding the season on the pitch, either because the government decided it wasn’t safe enough to play, or because they simply ran out of time to complete.
Cassels believes that writing off the season entirely was only ever an option of absolute last resort due to the implications for the Premier League’s relationships with its mediarights partners. The BBC has estimated that the Premier League clubs would collectively owe over £340m to its broadcasters if it fails to fulfil the contractual obligations for the season.
“The legal threats from within football are obviously important, but they’re manageable,” Cassels says. “It may litigate on for some time, but when you think about these things, it’s always worth looking at what happens if there isn’t an agreement: the games don’t get played, and everyone is £340m down. That is a pretty strong incentive to find a way to complete the season.”
One proposed solution for compromise had been to simply expand the Premier League to 23 teams for 2020-21, accepting three teams from the Championship but relegating no one.
Even had that played out, there were likely to be dissenters from the smaller Premier League sides who are more heavily dependent on their share of the broadcast money, says Khandke. “The deal is that the media-rights fees are shared equally among 20 teams next season, and a club that’s relying on their one-twentieth share of the money will say, ‘hang on, we should still get that five per cent, not a one-twentythird share.’”
That, says Khandke, is a demonstration of the point that there is no situation that does not lead to someone claiming unfair treatment.
Even with competition back underway, the Premier League and EFL must continue to work towards solutions that “take into account everyone’s positions, allow representations to be made, and are robust enough and inclusive enough to be defensible in some way”, says Khandke. “The defence [against any potential legal action] isn’t going to be, ‘no, you haven’t been hard done to’. It will be, ‘yes, you have suffered a detriment, but not disproportionately, and it wasn’t unreasonable for us to take that decision, taking everything that we’re responsible for into account’.”
Cancelling the season could potentially have become an option if the Premier League was able prove there was no way to have completed it. “Frustration is a legal concept that basically says you can’t perform the contract anymore,” says Cassels. “And if you can demonstrate that there’s no way you can perform the contract, then you are immune from consequences and failure to perform.”
Lyon’s legal challenge, for instance, has so far been based on the accusation that the LFP acted prematurely, that the situation as it stood, and the prevailing guidance from the French government, did not represent a frustrating event, and that the league could have waited longer and made a greater effort to conclude the season. “This government position did not seem to impose in a prohibitive way such a final stop today from Ligue 1 and Ligue 2,” read the club’s statement.
With regard to the Premier League, Khandke says, regardless of the ultimately outcome, “that means they’ll need to be able to prove they took every reasonable action available to them to finish the season, and that their response to the crisis has been reasonable.”
Even with a generally amicable solution now arrived at for this year, “the next season is even more problematic,” says Cassels, who urges the leagues to use this opportunity to draw up more robust plans for similar scenarios in the future.
“There’s no guarantee they’ll be able to start the 2020-21 season in August or September, nor any guarantee they’ll be able to finish the season if they start it. And the results of any legal challenges regarding this season are going to have long-lasting implications and set precedents for the future. So if I were them, I’d be trying to wrap up a much better codification of what you would do in the event of another Covid-19 outbreak, as part of any and every deal they do, be it with the clubs, the broadcasters, or anyone else.”