Bryan O'Donnell

Arrigo Sacchi once proclaimed: “Football is the most important of the least important things in life”. He has clearly never visited Scotland. Inch upon inch of column space, and hour upon hour of radio and television airtime have been devoted to opinion on the effect of the current lockdown on the nation’s favourite sport.

Scottish football is in a unique position across European football, as shown by UEFA in their latest Club Licensing Benchmark report. Scottish Premiership clubs earn a greater percentage (43 per cent) of their income from ticket sales than any other top league in Europe. That figure is almost three times the European average of 15 per cent and places the SPFL in a uniquely precarious position in light of football being suspended.

Coverage has focussed around the resolution on the end of the season. The ultimately successful resolution to end the season in the Championship, League 1 and League 2, declaring the current standings as final on an average points basis and allowing for distribution of prize money of almost £2 million has been mired in controversy. The vote effectively relegated two clubs, and promoted a further three. Although the vote was not primarily determinant of the Premiership, the SPFL board have been granted the power to follow the same course of action in the top division.

One SPFL Premiership team, Rangers, submitted an alternative proposal for distribution of prize money. Rangers’ proposal, aimed at aiding clubs struggling to meet their financial commitments, called for the SPFL to distribute prize money immediately, but to declare that the leagues be not could be ‘completed’ until all scheduled 38 games were played. This resolution was rejected and described as “not competent” by the SPFL board. This preliminary decision was made due to the fact that the payments to clubs would be by the vehicle of interest-free loans equivalent to the prize money which would ordinarily be distributed. The SPFL ruled that their articles of association do not allow for prize money to be paid out until final league positions have been determined. The SPFL stated; “The clear and unequivocal legal advice received by the SPFL is that the resolution received from Rangers is ineffective in terms of company law. As a result, the Board determined this morning that it cannot be circulated to members.”

In the two weeks since the approved resolution, calls for an independent enquiry have been met by the SPFL board, and on 24 April 2020, it was announced that a major professional services network had undertaken an independent investigation into the vote on the resolution on the end of the season. The investigation determined that the vote was carried out properly, and that there was no evidence of improper behaviour by SPFL staff.

Going forward, there are important decisions to be made by the various stakeholders in the Scottish game. The Scottish and UK governments, as the legislative decision makers, have the power to enact laws which could render the Scottish football season complete. As unprecedented decisions are being made around the world on a daily basis, precedent has begun to form. In the Netherlands and France, events including professional sports and music festivals have been banned until at least 1 September 2020 to prevent a resurgence of coronavirus infections. For this reason, the national Dutch football association, the KNVB, has cancelled their league seasons but announced that the current standings will be used for determining entry to European competition. They now face legal action from a number of clubs who have been adversely affected by this decision, having spent significant sums of money on a championship campaign which has now been effectively ruled null and void. Questions have also been raised about the legal rights of third parties, such as sponsors and TV broadcasters, who have now effectively paid for something which is null and void. France, on the other hand, has crowned Paris Saint Germain as champions after the season was forced to end early. A similar decision by the UK government to ban sporting events could have the same controversial effect and force difficult decisions to be made which will almost certainly be met with legal challenges.

Consideration also must be made by Scotland’s professional clubs about their duty of care towards their players and fans. If the season was to be continued, be it behind closed doors, or with fans at games, consideration will no doubt be given to the liability which football clubs could be opening themselves up to. Any actions which could place the health of employees at risk could result in clubs being found liable for personal injury claims by those who they owe such a duty of care, if they have acted negligently. Although it may be difficult to establish a causal link between attending or playing in a football match, and thereafter suffering the effects of coronavirus, public health authorities are to investigate a potential link between a Champions League football match in Liverpool, and the city suffering a rise of coronavirus thereafter. This specifically relates to the opposition, Atletico Madrid, who travelled from Madrid with 3,000 fans at a time when Spain had already entered into a partial lockdown. It remains to be seen if a causal link can be established which could open the door for personal injury claims, however the approach of the president of Getafe to not allow his team to travel a match in Milan, which at the time was at the epicentre of the virus outbreak, has almost certainly limited the spread of the virus among his club’s players and supporters. Similar considerations will undoubtedly have to made by Scottish clubs.

The Professional Footballer’s Association Scottish has been clear that if the Premiership season is to be finished on the pitch, they will require assurances about the safety of their members, the players. In the relatively modest financial setting of Scottish football, with many players contracts due to end on 9 June 2020, this a major consideration.

UEFA, European football’s governing body, announced on 23 April 2020 that they urge all national associations and leagues, such as the SPFL, to explore all possible options to play all domestic competitions. This is with the aim of ensuring that entry to next season’s elite European competitions is fairly determined. This idealistic conclusion recognises that the health of players, spectators, and all other stakeholders remains the primary concern. UEFA have therefore announced that legitimate reasons to prematurely end competitions may be:

1. If there is an official order prohibiting sporting events, and/or;
2. If there are unsurmountable economic problems facing clubs.

The decisions of the Netherlands and France therefore falls into category 1, and Scottish football’s unique dependence on ticket money may necessitate a decision based on the second reason.

UEFA have requested that if seasons are concluded in this manner, sporting merit should determine final standings. Recently established precedent in the Scottish lower leagues suggests that an average points calculation to proportionately decide final rankings would be the preferred solution. France have also used the average points calculation to decide their leagues, whereas the Netherlands have voided the current season, and aim to use current standings to determine entry to European competition.

This constantly evolving situation will require detailed consideration by all stakeholders, and will almost certainly result in protracted litigation due to the many opposing interests and considerations.

Bryan O’Donnell is a trainee at Jones Whyte