I hope this article isn’t too boring…I also appreciate this one gets a little technical and probably a bit nerdy, but it feels like it closes the loop on the last couple of articles I’ve written about PSR, SCR (Squad Cost Ratio) and financial fair play more generally.
After disappearing down this particular financial rabbit hole on several occasions, there is one question I keep coming back to.
Why does nobody challenge it?
I am sure most of us have asked this question. I’ve certainly shouted it numerous times out of frustration, but then I started really thinking about that sentence.
Why does nobody challenge it? When I say “nobody”, I’ve always assumed, as many of us probably do, that the challenger has to be a football club. Of course it does, doesn’t it? Newcastle United, Forest, Aston Villa. A club that is directly constrained by these rules. Except… why? Why have we decided that “nobody” has to mean a Premier League football club?
Nobody could be a person.
And that led me to a very different question. What if the challenger was a fan?
Except, from a legal perspective, perhaps that’s not quite the right way to describe us as we’re not just fans. We’re consumers. I mean, the EPL and the clubs treat us that way, we consume a product that we pay for. We buy tickets. Memberships. TV subscriptions. Shirts. Merchandise. We pay to consume a product whose entire value is based upon competition between football clubs. So, could a consumer challenge these rules on the basis that they believe they unlawfully restrict that competition?
Surprisingly, the answer might be yes!
So, could I actually bring a case?
This was the first place I expected my idea to fall apart, except, it doesn’t. Under section 47A of the Competition Act 1998, an individual can bring what is known as a stand-alone competition claim. This is critically important. I don’t need Newcastle United to bring the case. I don’t even need another club to bring it. Nor do I need to wait for the Competition and Markets Authority to decide there has been an infringement. An individual can allege one themselves.
So, hurdle one is passable.
The next question I had was – I’m not after money, I am after a rule change, is that plausible? Now, I’m not suggesting Newcastle supporters should receive compensation because financial rules have restricted the club. I want the rules challenged and what I discovered is competition law provides a potential mechanism for this too as the Competition Appeal Tribunal can, and often does, grant injunctions. Put simply, I could potentially ask the Tribunal to determine that the rules infringe competition law and to then prevent the Premier League from enforcing them. In this instance the case isn’t “You’ve cost me money. Compensate me”. It’s “I say this rule unlawfully restricts competition. Stop enforcing it”.
Then we hit the big one: Standing!
I can’t walk into the Competition Appeal Tribunal and announce to everybody that I’m a Newcastle supporter who doesn’t like the SCR rules as we keep losing our best players and it’s not fair – followed by a big dummy spit and me throwing all of my toys out of the pram.
Nope, that’s a bad idea, what I need to do is demonstrate that the alleged infringement causes, or threatens to cause, legally recognisable harm to me – which sounds ridiculous as a fan, but not so much as a consumer!
This is where being a consumer really matters. The argument wouldn’t be that SCR prevents Newcastle football club competing and therefore I should be allowed to sue on Newcastle’s behalf. The argument would be that I purchase the product affected by the alleged restriction.
So, the argument of standing goes like this:
Premier League clubs are competing businesses.
The Premier League makes rules governing that competition.
I consume the resulting product.
So, if those rules unlawfully restrict competition, could I establish sufficient consumer harm to challenge them?
That’s the million-pound question.
And as far as I can establish, nobody has tested that proposition. We already know football’s rules aren’t beyond legal challenge. Sporting regulations have repeatedly found themselves before courts and tribunals, from Premier League disputes to the European Super League to International Skating Union cases, there are numerous examples. We also know competition law recognises consumers as people capable of being harmed by anti-competitive behaviour even though they’re not themselves competitors in the market. That has been tested in everything from football shirts to train tickets to telephone services.
So, the Premier League cannot simply say “Our league. Our rules. End of discussion”. However, what I can’t find is anybody putting those two propositions together. I can’t find the case where a football supporter, as a consumer of the competition, has challenged the rules governing that competition itself. Maybe there’s a very good legal reason nobody has done it. Or maybe, just maybe, nobody has asked the question! So, the interesting question, for me, isn’t whether the rules can be challenged, it’s whether one of us could be the person who challenges them.
So how would we actually do it? Well, probably not by launching a GoFundMe and filing something at the courts next Tuesday. There are three gates to get through, although I admit upfront, I am no competition lawyer.
Gate One: Standing
Engage a specialist competition barrister and ask one very narrow question: “Can a paying consumer of Premier League football establish sufficient loss, damage or threatened damage under section 47A of the Competition Act to seek an injunction against an allegedly anti-competitive Premier League rule?”. If the answer is no, that’s the end of it, but, if the answer is yes, or even “there is a properly arguable case”, things get really interesting.
Gate Two: The competition case
The next question is do the rules themselves present an arguable infringement of Chapter I of the Competition Act. That would require legal analysis, but again, we’re not looking for certainty, we are looking for an opinion that says “there is a case to answer”.
Then comes Gate Three. Do we actually bring it?
That’s when legal help is really needed. However, the sensible first step wouldn’t be to rush off and file a claim. It would be to get a proper legal opinion from a specialist competition barrister on whether a supporter, as a consumer of Premier League football, has a credible case and whether it should be brought in the High Court or, more likely, the Competition Appeal Tribunal.
That initial exercise would likely cost somewhere in the region of £3,000 to £8,000, depending on who was instructed and how detailed an opinion was required. If the answer came back “no” then we would have our answer and walk away.
But if it came back “yes, there is an arguable case”, then it is game on! Rather than one supporter trying to bankroll the entire litigation, engagement with supporters’ groups, looking at crowdfunding, seeking pro bono representation or taking the opinion to a litigation funder prepared to finance the case would all be options. In other words, we wouldn’t need to fund a court battle to find out whether this can be done. We would need to fund the first legal question. If the answer to that is yes, there are other ways of getting the fight into court.
And yes, the Premier League would fight it to the death. Standing. Jurisdiction. Consumer harm. Causation. Competition. Everything! Of course they would! But, and this is important, they would be fighting it in a public forum.
So, back to my original question, why does nobody challenge it? Perhaps we’ve simply spent years assuming the wrong person has to do it. We’ve been waiting for Newcastle United. Or Forest. Or Villa. Or another Premier League club to finally decide they’ve had enough and take the rules to court.
But clubs have relationships to maintain, votes to win and a warm, cosy, profitable yet corrupt competition they have to continue participating in when the fight is over.
I don’t. I’m a supporter. More importantly, I’m a paying consumer of football.
Football belongs to us, the fans, not the EPL and certainly not big business. It’s our game and without us it ceases to exist. So if the answer is “yes”, the question changes.
It stops being: “Why does nobody challenge it?”
And becomes: “Why don’t we?”