News of the breakaway Super League has rocked the world of football. It has already claimed its first casualty, with Jose Mourinho destined, ironically given the empty trophy cabinet, to leave Spurs a hero apparently, rumour has it following his refusal to take the team to the training ground in protest. If he was going to be shown the door anyway, as Spurs will claim, such actions would certainly have made the decision final. Doubtless there will be more casualties to come, likely those with significantly less financial means than Jose – and I include clubs in that analysis.
The Super League promises immunity from the perils of relegation to the founding members, six of them from the Premier League. With that, comes guaranteed income, against which Clubs can borrow, and financial security. Nice if you can get it. The gap between the top clubs and those below will grow yet greater, to a point where it is difficult to see it being bridged. Of course there are arguments over the whys and wherefores for the selection of certain clubs but to argue that, for example, Everton has much of a right to be at the table as Spurs is somewhat to miss the point, as that is to subscribe to the belief that the table should exist.
UEFA and FIFA, perhaps as much out of a desire to protect their own commercial interests at the wresting of power and the devaluing of their own events (the Champions League will acquire Europa League status, and frankly it is difficult to see the future of the Europa League at all), are up in arms. Fans of the big six are resigned, other fans angry, and players are beginning to pipe up – though I wonder when or if any player contracted to the Super League clubs will speak his mind – or hers, given the stated plans to extend the project to the women’s game – in what would likely amount to a transfer request for the refusal to toe the corporate line.
Instinctively, of course, it feels ‘wrong’. Despite the polluting influence of limitless cash injections, our belief ultimately in the meritocracy of football, bolstered by the recent success of Leicester and the multiple failures of attempts to bring success by money alone, has just about remained intact. No longer.
In the world of law, whether something feels ‘wrong’ is sometimes not enough. The question is whether it is ‘unlawful’, or criminal? Is there a breach of statute, of rules and regulations, of contract, or is there a breach of duty owed to someone in tort?
Of course there may be mutterings as to whether free movement will extend to players from these English breakaway clubs, post Brexit, but it is difficult to see how that position could be adopted without at the same time challenging the ability of any English sporting professional to ply their trade on the continent. FIFA have threatened to exclude Super League players from the World Cup: whilst no doubt that threat would carry some sway, it would be somewhat counterproductive, and would no doubt be subject to its own legal challenge (why should a player’s ability to play on the world stage be dictated by the actions of his employer, to whom he is bound?). Query also whether the clubs would actually hold the trump card, given the players’ ability to take part in international competition depends on their being released by the clubs.
So much power lying in the hands of so few, to the detriment of others, in any other arena or area of commerce would be considered a cartel. The word ‘cartel’ is bandied around in football from time to time, but there are laws and regulations which provide protections from the actions of cartels. The Competition Act 1998 is very clear on the point (with equivalent measures enshrined in Article 101 of the Treaty on the Functioning of the European Union). Section 2 states that “agreements between undertakings, decisions by associations of undertakings or concerted practices which (a) may affect trade within the United Kingdom, and (b) have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom, are prohibited unless they are exempt in accordance with the provisions of this Part.”
Without insight as to the detail, and I cannot imagine that lawyers will not have advised on this point, what is proposed looks to be an agreement between undertakings which has the effect of preventing, restricting or distorting competition. With no relegation for 15 of the 20 clubs, the barriers to entry for clubs besides the chosen few are almost insurmountable, and the effect is both prevention and restriction of competition, huge loss of revenue (it is difficult to see the rights in the existing European competitions commanding the same price), and at the end of the line, it is the consumer who is hit hardest – the fan. If it looks like a Cartel, and sounds like a Cartel, then it probably is one. With the ability of the Competition and Markets Authority to impose maximum penalties of 10% of global turnover, as well as potentially to investigate possible criminal sanctions, that might be enough for the big six to take stock. After all, money talks.
Oliver Fetiveau
