One of the few objectively true statements about life is that, ‘The thing about football – the important thing about football – is that it is not just about football’. This maxim has been proven true over the last week, as twelve global football brands (previously and unfashionable called ‘football clubs’) announced their intention to create a new European Super League (ESL) in which they would play, could not be relegated from, and whose rules, revenues and the choice of other competitors would be completely controlled by them.
As football is not just about football, opposition to the ESL drew on narratives of tradition, class, fairness, and of the emotional ‘ownership’ of local clubs by fans and communities, all of which transcend (and, it is said, prevail over) the financial ownership of the club’s various owners. For a sport based on fierce rivalries on and off the pitch, much has been made of the existence of a ‘football community’ which draws together the fans, players, and managers, all of whom have an interest in maintaining the health of the sport as a whole. The popular narrative places this community in opposition to mega-rich club owners whose greed and financial self-interest lay behind their attempt to upset the prevailing footballing order in order to reserve for themselves more of the financial pie in defiance of tradition and sporting merit. In short, the ESL proposal was just not cricket.
In response, the UK government threatened a ‘legislative bomb’ to prevent the ESL from functioning, and has kick-started a review of the governance of English football led by Tracey Crouch MP. Longstanding ideas around fan ownership, board representation, and independent regulation have all been re-floated as suggestions as to how to ‘reclaim’ or ‘remake’ English football.
Ideas for reform aimed at the financial arrangements of the game – such as salary caps, fairer revenue sharing, and making more games free-to-view – would be welcomed by many football fans. However, these could unintentionally incentivise the creation of a new league not subject to such financial restrictions. Any substantial reform proposals generated by the Crouch Review must therefore – at least in part – focus on governance to have any lasting impact to ensure the future integrity of the game. And governance is what constitutional law scholarship is about. What, therefore, might constitutional law scholarship in general offer to the Crouch Review?
Political and Legal Constitutionalism
The first is that, inevitably, there is more than one possible response. If one of the foundational debates of constitutional law scholarship is between legal and political constitutionalism, then the same could be applied to debates about the governance of English football: is it most effective to have strong rules-based regulation constraining the potential actions of clubs, or rely on the effectiveness of formal and informal pressures applied by the clubs ‘constituents’ (fans, players, the commentariat, government etc.)?
Both the English Premier League (EPL) and English Football League (EFL) are run by the clubs, for the clubs. The system is premised on the basis that clubs can be trusted to vote in EPL and EFL meetings for their self-interests. In most cases, this can ensure that the best interests of the whole are pursued. Turkeys do not vote for Christmas, and so clubs will not readily vote to be excluded from revenue streams, TV audiences, or to make rule changes which make the game less competitive or interesting (c.f. VAR). Indeed, the demise of the ESL proposals – and similar ones over the years – could be cited as evidence for the effectiveness of a form of political constitutionalism within English football governance. Once the plans for the ESL were announced to the media, supporter groups started to organise public and political pressure against the ESL, comprising calls to politicians, interventions by media figures, and street protests by fans. Within days the ESL unravelled, with all six English clubs who had initially joined the ESL withdrawing, and Atlético Madrid, Inter Milan and AC Milan leaving shortly after. One of the key reasons cited for the success of the fans’ campaign was that the owners of Chelsea (Russian, Roman Abramovich) and Manchester City (Sheik Mansour of the UAE) – the first to announce their reverse ferret – are particularly susceptible to public pressure because their motivations for owning football clubs are (at least in large part) about enhancing their reputations rather than in making money from their ownership.
Counter to this – and highlighting the fragility of relying on clubs’ self-interests to ensure the stability and interests of the game as a whole – is the fact that the ESL unravelled because the self-interests of the ESL founding clubs’ owners did not align on this occasion. A different set of circumstances with a different set of owners may have resulted in a different outcome. Indeed Real Madrid and Barcelona have recommitted to the principle of an ESL, and the mobilisation of English fans to apply political pressure has been contrasted with the ‘resignation’ of fans elsewhere. Further evidence for the strong possibility of an ESL emerging in the future under current governance patterns is the very existence of the Premier League, which itself was a breakaway from the Football League designed to boost the revenue of the top clubs. The EPL was possible because the self-interests of the clubs involved aligned with the creation of a breakaway league. It would be naive to suggest that such an alignment of interests amongst the biggest clubs, and Tottenham, could never again emerge to create an ESL.
This reliance on the self-interests of the constituent clubs’ self-interest has manifested itself in the ESL saga, particularly in the fact that there are unlikely to be serious sanctions emanating from the EPL itself. The EPL is owned by its twenty competing clubs as shareholders. They set the Rules (acting as the legislature) and select the EPL’s board (choosing the executive); albeit with the Football Association (FA) having veto right over the latter. The board (or executive) has broad powers to sanction rule breaking (meaning it also constitutes a judiciary). Rule breaches can be further investigated by a Judicial Panel and Commission, but only if the clubs collectively agree to set one up (Rule W.14). External arbitration can only be invoked on limited grounds comparable to the grounds of judicial review of ultra vires, irrationality, and procedural impropriety (Rule X.4).
These breaches of the principle of the separation of powers helps explain why the six English clubs felt able to join an ESL, and why sanctions from the EPL are unlikely: ultimately the rules are written and enforced by the clubs themselves. One published comment (at 16:10) on the state of the EPL’s rules bears quoting in full as highlighting the issue:
I wish the six could be punished but having looked at Rules B.15, B.16, B.17 and 18 and 18C [acting in good faith; prohibition of offensive or discriminatory statements or statements which bring the EPL into disrepute; misuse of confidential information; requirement to provide information] which are the ones people say are relevant, then they should read them again. They do not apply. The closest you can get to a breach of rules is that the 6 acted without “good faith”.
The six could justifiably argue that in announcing a half-arsed proposal with no details agreed, as they did, then in fact they acted in extreme good faith and had they waited until everything was in place and presented a fait-accompli then that would have been acting in bad faith. The now fabled rule L9 [prohibiting the playing in non-sanctioned competitions] does not apply either. To break that a club must play in a competition not sanctioned by EPL and UEFA and the six did not. They announced an intention to do so but that is a very very different thing. And the competition did not exist so how could they be said to have played in it?
Any judge would advise the EPL that if they were stupid enough to write rules that allow this to happen then they cannot expect a court to rewrite their rules for them retrospectively.
Finally, the ultimate sanction of expulsion from the EPL can only be required by a resolution supported by three-quarters of the member clubs (Rule B.6). Given that the six would-be ESL participants represent just over one-quarter of the voting power, such a sanction is fanciful.
The Separation of Powers
It is said that the purpose of the separation of powers is both to prevent abuses of power and to best protect the community as a whole by ensuring good governance. Given the harm that an ESL would do to the football community, and the opportunity that the Crouch Review has to consider the structure of the governance of English football to prevent such harms from arising in the future, addressing this lack of separation of powers within the EPL seems critical.
The separation of powers is also a more stringent principle than those related to representation or ensuring that fan voices are heard. The idea of supporter representation on the boards of football clubs has been suggested, including by at least one Conservative MP. However, a cynic might suggest that fan representation on boards might simply provide an opportunity for ‘fan-washing’ of decisions taken by boards which are still predominantly controlled by the club’s owners. Hearing the views of fans representatives is meaningless if structures of control mean that those views can be ignored.
It is clear that football clubs run for profit will continually seek to maximise their revenues, even if that means literally changing the rules of the game to do so. The idea of open competition is anathema to profit-maximising bodies and competition laws exist for a reason. Football’s competition rules – those that guarantee table position, and relegation and promotion based on on-field performance – present the greatest challenge to the revenues of the “big-six”. That commercial context will remain, whatever governance reforms are made.
The most radical change being realistically touted for changes to the ownership model of English football clubs is a German-style ‘golden-share’ arrangement (whereby supporters associations possess controlling voting rights over defined key decisions). The government might also provide support (whether financial or regulatory) to supporter-trust owned clubs so that true fan-ownership may become a more realistic prospect for more clubs. But reforms to club ownership are not incompatible with wider reforms of the governance of English football as a whole, and indeed complement each other. Indeed, a longer exposition of principles of constitutional law would include the importance of subsidiarity: in the case of football governance this could help to ensure that decisions which are harmful to the interests of the whole game can be resisted at club boardroom level rather than having to rely on the EPL as providing the only guardrail.
However, the principle of the separation of powers is not just about ensuring that certain voices are heard within a system of governance (although, as the structure of the US Senate demonstrates, it can also have that function). It is instead about creating independent centres of power which must both compete and compromise in order to advance any agendas. The application of the principle of the separation of powers to commercial bodies is also more than just about legal status. Reformulating the EPL as a Community Interest Company, for example, may be one positive option available for reform, but one which by itself would not address the problem of the concentration of power. In the context of English football, the separation of powers would require the creation of power centres which are out of the control of the clubs (and thus ultimately, their owners).
Applying principles and theories developed for the governance of a state to other bodies – be they private enterprises or public interest bodies – is also not a simple question of the superficial grafting of structures from one to the other. However, there are multiple different possible models or options for the governance of English football which incorporate the principle of the separation of powers. The Nationwide Building Society, for example, has its members elect its board. Similarly, the EPL board could become answerable to fans, for example by giving members of a registered supporters associations the power to vote for board members. Alternatively, one could turn to the charity sector as inspiration and involve a group of independent trustees with a public interest remit – again, with the option of election by fans – as a check and balance against the EPL board and clubs.
Another possibility, not mutually exclusive to either of the above, would be a standing disciplinary committee and a well-resourced investigative arm which could independently investigate and punish breaches of the EPLs rules by its members’ clubs.
Whatever options are pursued, the solution is likely to be as sui generis as the football league is as an institution.
This post has argued that one of the problems in English football’s governance is that its rules are controlled by the same clubs who see those same rules as barriers to their profitability. Along with some of the flashier, fan-friendly considerations of club-ownership and control, and financial limits, engaging with ‘Constitutional Law 101’ is essential for the Crouch Review to have meaningful long-term impact on the integrity of English football as we know it.
Dr Jonathan Collinson, Senior Lecturer, Huddersfield Law School, University of Huddersfield
(Suggested citation: J. Collinson, ‘Redesigning English Football: Lessons from Constitutional Law Scholarship’, U.K. Const. L. Blog (30th April 2021) (available at https://ukconstitutionallaw.org/)