Action without consequences: do football’s authorities have the power to sanction players breaching lockdown?

When Boris Johnson announced the introduction of Tier 4 restrictions in London and the South East less than a week before Christmas, long term holiday plans were thrown into chaos.  With household mixing banned indoors, many people spent Christmas 2020 alone, rather than eating, drinking and relaxing with loved ones. 

It is unsurprising, therefore, that news of professional footballers breaching those restrictions has triggered a flurry of negative press and touched a nerve within the football community and beyond.  The clubs involved have issued statements to the effect that matters will be dealt with internally and the players in question have apologised. However, some of those players were immediately involved in subsequent matches and it is not clear that these breaches led to any significant punishment.  Bearing in mind professional football’s exemption from the new national lockdown, the high profile of the players, and the increasing number of positive tests in clubs, not to mention the severe health risks posed by Covid-19, The FA and the leagues may begin to feel more pressure to act.    

Indeed, games in both the Premier League and the EFL have already been postponed or cancelled as a result of positive tests within clubs.  If more games are cancelled and there is evidence that a cancellation has directly resulted from breaches of Covid-19 protocols or a lax approach to enforcement at club level, the pressure on the FA and the leagues to sanction those involved, potentially with suspensions and match forfeiture, will only increase.  

(In)action at club level  

Generally speaking, the first port of call in matters of this nature are the clubs themselves.  In addition to each club’s bespoke Covid-19 protocol, both EFL and Premier League standard player contracts include an obligation to comply with all lawful instructions of club officials.  Breaches of a club’s Covid-19 protocol or other lawful instructions is therefore likely trigger the club’s internal disciplinary process.  However, if players subject to that process continue to take part in matches and it emerges that clubs are not appropriately sanctioning their players, it is possible that The FA and the Premier League or EFL might consider further action. 

In each case, every player is under an obligation to follow the rules of The FA and the league in which they play.  This stems both from the FA Rules (which define misconduct as including a breach of league rules) and the players’ standard contracts (which include an obligation to comply with the FA Rules and league rules).   

Who has the power to act? 

In the case of the Premier League, action against individual players is unlikely because its Covid-19-related rules are drafted to be binding on clubs, rather than individuals.  For example, Premier League Rule O.25 provides that each club, as opposed to individual players, must comply with the Premier League’s Covid-19 Training Protocol.  Significantly, under section 25 of the Training Protocol, each club must require its players to comply with Government requirements regarding isolation and social distancing whilst not at the training ground (whether at their own homes or otherwise).  From the Premier League’s perspective, the relevant obligation therefore falls on the clubs.  The EFL similarly states that clubs, rather than individual players, are required to enforce protocols around training and matchdays to maintain safety and mitigate transmission of the virus. 

Every Premier League and EFL club’s Covid-19 policy will undoubtedly include a direction to players stating that they should comply with Government requirements.  But if clubs do not properly police or enforce that direction, it could be argued that those clubs are not truly requiring compliance with the requirements and that they are therefore in breach of the applicable protocols and league rules, such as Premier League Rule O.25.   

In the case of The FA, the FA Rules contain the ability to take disciplinary action against any Participant – which includes both clubs and players – in respect of any misconduct.  In this regard, the FA Rules contain a broad conduct requirement, Rule E3, which requires Clubs and Players to “at all times act in the best interests of the game” and to “not act in any manner which is improper or brings the game into disrepute”.  In the time of Covid-19, it is arguable that this rule is broad enough to encompass misconduct allegations against individual players found to be breaching Government restrictions.   

The potential for sanctions is real  

It is therefore possible that a breach by an individual player could cause the player and his club to fall foul of both the FA Rules and the Premier League or EFL rules.  Cases where there is a breach of both FA and league rules are generally dealt with by The FA, unless The FA and the league in question agree otherwise (FA Rule G3).  In either case, though, the potential sanctions are serious and include fines, a suspension for the player, or even a points deduction.   

Players and their representatives would therefore be well-advised to note that The FA does have the power to sanction individuals for misconduct and that, in light of the escalating Covid-19 crisis, it is increasingly likely to take a tough stance on breaches of the Government restrictions.  This would certainly not be without precedent in sport, with the RFU fining and suspending rugby players for a breach of Covid-19 rules which led to the cancellation of England’s match against the Barbarians in October last year. 

Further, clubs who deal with these incidents internally should also consider their obligation to require compliance from players: if rule-breakers are perceived to be escaping punishment via internal processes, the clubs themselves also run the risk of very serious sanctions. 

In review: World Rugby governance review findings

In June 2020, World Rugby launched an independent-led working group, chaired by British Olympic Association chairman Sir Hugh Robertson, with the objective of enhancing the fairness and effectiveness of World Rugby’s governance structures.  On 7 January 2021, the working group released its interim recommendations, which are:

  • the establishment of an ethics and conduct charter for elected officials;
  • the introduction of a fit and proper persons test for members of members of World Rugby’s Council, its Committee (“EXCO”) and all standing committees under its jurisdiction;
  • the introduction of a robust conflict of interest management process which protects the integrity and effectiveness of decision-making;
  • a target of at least 40 per cent female representation on committees with the promotion of women leaders in the sport;
  • player representation throughout all the committee structures, including EXCO, to ensure player-centric decision-making;
  • a continued focus on diversity, skill set, independence, capability and geographical representation when forming committees; and
  • Council meetings to continue to occur twice a year – one meeting in person and one remote.

The working group will now turn its focus to the election and composition of EXCO and other committees, the definition and classification of unions, and further work on diversity and inclusion strategies.

At first blush, these recommendations provide for welcome updates to World Rugby’s governance structures.  However, on further inspection, the lack of detail in the proposals means it is difficult to discern whether they amount to meaningful changes.  For example, as an international federation under the auspices of the IOC, World Rugby has already undertaken to adopt a code of ethics based on the principles and rules of the IOC Code of Ethics.  An announcement that World Rugby will establish a code of ethics therefore does not advance matters in any significant way: the devil will be in the detail of the obligations enshrined in the proposed code and how it will be enforced. 

Similarly, whilst the adoption of a fit and proper persons test is an encouraging sign, the key to its effectiveness will be its scope and the consistency of its enforcement.  The same is true of the proposed conflict of interest management process: without more detail, stakeholders and the public are left in the dark as to how the new process will differ from the current regulations.

The working group’s findings relating to diversity and player representation are, of course, a very positive development, and the recommendation of 40% female representation on committees is one of the few areas in which any specific details are published.  Hopefully, the second phase of the working group’s review will be similarly ambitious (and similarly specific) in relation to other aspects of diversity and player representation.

Finally, it will not have escaped the notice of the Pacific Rugby Players Welfare organisation, authors of the highly critical Veilomani Report, that the governance review has so far remained silent on the thorny issue of Council voting rights, which are currently weighted heavily in favour of a handful of “Tier 1” nations.  It would appear from World Rugby’s statement regarding phase two of the review that this issue will remain unaddressed.

Given that transparency is one of the cornerstones of good governance, World Rugby could be encouraged to publish more details of the working group’s recommendations and to give stakeholders an opportunity to provide further input.  Further, whilst a “top down” refresh of World Rugby’s governance has been much-needed, it does little to address issues relating to player welfare such as Covid-19 and the highly-publicised concussion litigation in which World Rugby is a respondent. 

Against a backdrop of what could be one of the most defining years in the progress and development of the professional game, the fairness and effectiveness of World Rugby’s governance structures could never be more critical and so we hope that World Rugby will manage to address these issues in a way which promotes,  and indeed balances, commercial efficacy, player welfare, good governance, and the rugby values we hold so dear.

A great start to 2021 as two more lawyers choose Level

This week, Level announces two more specialist lawyers have joined the team – a strong start to the new year.

The latest duo joining the firm take the number of new senior lawyers choosing Level to six in the past six months alone.

Experienced litigation lawyer Alastair Campbell joins Level from magic circle firm Allen & Overy, where he has acted on behalf of high profile and complex clients, with a particular focus on sports law and arbitration.

He will be joined by North-East based sports lawyer Liz Coley, who moves to Level from Walker Morris. Liz has a long track record working in football both before and after becoming a lawyer and brings significant experience in advising Premier League and EFL clubs.

Both have chosen Level’s progressive platform as the home for the next stage in their career, which allows lawyers to work the hours and the days they want to, keeping 75% of what they bill and working with likeminded peers on high-profile legal work.

Other new recruits have included commercial and IP Lawyer Alec Cameron and commercial lawyer Natalie Kadas, who both joined in December, as well as music lawyer Halina Wielogorska and film and TV lawyer Jennifer Parker, who both joined in the summer.

Level’s Head of Growth Amy Sullivan said: “This is a great start to 2021 for us. We are delighted that both Alastair and Liz have chosen Level. Their experience and passion for what they do, allied to the existing specialists we have in the firm, gives Level an even stronger offering for our sports industry clients. Our unique specialist platform continues to attract lawyers wanting to develop their careers on their terms and it looks like 2021 will be another strong year for us.”

Alastair added: “I was interested in Level from the first time I read about the firm. Level offers me a unique opportunity and platform to further develop my sports disputes and regulatory practice and to work alongside the very well-respected established sports lawyers already at the firm.”

Liz, who worked for Premier League clubs Fulham, Southampton, West Ham and Sunderland before qualifying as a lawyer and was ranked as a Rising Star in the latest Legal 500 directory and the only Associate to Watch in the latest Chambers Sport rankings, said: “I’m really excited to be joining such a progressive business. It’s a great opportunity to expand my practice and work with some great colleagues to support clients but which also suits my lifestyle.”

Both Alastair and Liz join a growing sports law department at Level which a few months ago enjoyed one of its busiest transfer windows ever.

Alastair has acted on a broad range of commercial disputes, is experienced in advisory work and has extensive knowledge of regulatory structures in football. He also specialises in disciplinary and regulatory work, advising on non-contentious issues such as the drafting of regulations and procedures, as well as acting on contentious disciplinary cases. 

Liz, who has worked in football since 1995, has since becoming a lawyer focussed mainly on advising Premier League and EFL clubs on their transfer dealings, player contracts, regulatory issues and disputes. She also holds a Masters in International Sports Law and is the volunteer co-ordinator of Sunderland parkrun, with sport a key part of her personal life too.

One to watch: Gambling advertising and sponsorship in sport

It is unfortunate timing for sports who are already struggling with the effects of the pandemic but we’ve been here before.

The Department for Culture, Media and Sport has launched a review of UK gambling laws, in particular considering the All Party Parliamentary Gambling Related Harm Group report which proposed eradicating betting sponsorships in sport by the end of 2023.  The report suggested that no gambling advertising should be permitted in or near any sports ground or venue.

The move would follow similar directives by certain European countries, namely Italy – which no longer permits such sponsorships – and Spain, where a ban will come into force at the end of the current football season.

While any ban would affect all sports, football, which within the UK has suffered considerably as a result of the Covid-19 pandemic like a number of sports, would be particularly hard hit since half of the clubs in the Premier League and 15 out of 24 clubs in the Championship currently carry betting company sponsorship on their shirts. Reliance on revenue from betting companies only increases in the lower leagues of the English Football League. 

The timing of this seems a little off to many. Although we all of course want to see responsible gambling, sports are already struggling to survive, especially at lower levels, due to the ongoing pandemic. Key figures within the industry have been outspoken about the timing of the review and any imminent change potentially being catastrophic for the game, but we have been here before – although arguably not in the midst of a global pandemic of this magnitude.

Just under 20 years ago, by virtue of the Tobacco Advertising and Promotion Act 2002, tobacco companies were banned from entering into sponsorship agreements whose purpose was the promotion of tobacco products in the UK, with a stronger and more wide-ranging EU-wide ban on tobacco companies and sports sponsorship coming into effect in 2005.  At the time, tobacco sponsorship was a key revenue stream for Formula 1, which ultimately adapted and repositioned itself with significant success. 

Either way, rightsholders and betting companies alike will want to pay close attention to the outcome of the review also where considering longer term commercial strategies which could be directly affected by any change. This is one that interested parties need to keep an eye on and prepare for what might come next.

(Transfer) Window shopping

Reflections on one of the busiest transfer windows ever seen at Level, despite the predictions for a quiet year.

The popular view was that the 2020 summer transfer window would be quieter than normal. Covid-19 was predicted to curtail the spending of the 20 Premier League clubs and many thought that the usual round of rumours, signings and near misses would be more muted.

That’s not how it played out however, certainly in England’s top division, where a cool £1.3 billon was splashed out from the start of the window in July until its close on Friday, 16th October.

It would be wrong, of course, to say that the pandemic had no impact at all. In Leagues One and Two, a combination of salary caps and the loss of much-needed matchday revenue hit all clubs hard. That led to greater caution in transfer business further down the pyramid than we’ve seen previously – and sadly, most clubs face a continued struggle.

However, despite the unique challenges posed by the pandemic, our expert team of sports lawyers at Level had one of our busiest transfer windows ever – advising agencies and players on over 75 permanent transfers, loan deals, new playing contracts or contract extensions. In the process, we dealt with 16 Premier League clubs and advised on deals involving clubs in Belgium, Holland, Germany, Sweden, France, Russia, Turkey, Saudi Arabia and India.

We were delighted to work with a broader range of agencies and players than ever before. Working remotely turned out to have limited impact on our work, partly because Level has always been an agile business, with lawyers well-used to working flexibly. Whilst our clients have faced significant challenges during the pandemic, we’ve been available 24 hours a day to assist them as and when required.

Business as usual? Only for some

The truth is that, though revenue is down for every club in the football ecosystem, Premier League clubs were somewhat sheltered from the worst impacts of the pandemic due to the league’s lucrative broadcasting deals. Whilst the matchday experience, and the revenue generated by it, disappeared overnight, little changed in the transfer dealings we saw in the upper echelons of the industry.

But in the lower leagues, clubs were notably reticent to commit to long-term contracts and we saw a significant number of loan deals between clubs. The ongoing financial struggle being endured by clubs from the Championship down, and indeed the financial viability of numerous EFL clubs, is by far and away the single biggest challenge facing English football.  

So what next?

Many assume that as sports lawyers working in football, we take a break when the window shuts, but of course that’s not the case. Football never sleeps. Our attention, as well as the focus of many of our clients, shifts to non-transfer related business. We’re also just two months from the start of the 2021 January transfer window and already things are moving. Injuries, clubs’ positions in the table and the inevitable managerial merry-go-round will see the pace pick up over the coming weeks.

Having worked with a broader range of clients than ever before in the last window, we’re likely to have a busy January too. The winter window is usually quieter, but we’re sure there will be plenty to keep us busy, and 2021 looks like being a fascinating year, with Project Big Picture, the potentially huge changes to the regulation of agents’ activities and other significant issues on the horizon. In the meantime, we can reflect on a hectic, at times challenging, but enormously satisfying summer window and look forward to helping clients, both existing and new, come the 1st of January.

Will Hill is a specialist sports and media lawyer at Level

FIFA’s ‘guiding principles’ for national associations during the COVID-19 crisis

A FIFA Working Group is reportedly considering whether, in response to COVID-19, the FIFA Regs on the Status and Transfer of Players should be amended.  A number of “guiding principles” for national FAs and stakeholders have been mooted, with the current situation viewed as a force majeure issue for FIFA / football.  It’s important to emphasise that there has not yet been an official announcement from FIFA, but it’s understood that amongst the proposals being considered are:

  1. Contracts due to expire on 30 June should instead expire at the actual (revised) end of the season;
  2. Contracts due to commence on 1 July should be delayed until the new start date of nextseason;
  3. Transfer agreements should be delayed until the new start date of next season (and payments due before then should be delayed accordingly;
  4. Clubs and employees should be encouraged to work together to agree on the potential deferral /reduction of salaries whilst the crisis halts football;
  5. Alternatively, employment contracts should be suspended “provided adequate alternative income support arrangements” are available / implemented for employees;
  6. All FAs should be permitted to extend this season’s finishing date;
  7. All FAs should be permitted to extend/amend registration periods (so that the summer transfer window can fit around revised season dates); and
  8. FIFA has also developed guiding principles for myriad further issues, inc termination of loans, unilateral termination, refusal to report for work, etc.

It remains to be seen what principles FIFA decides to announce formally. As the sport’s world governing body, it understandably favours a harmonised response, but herein lies the problem: it has 211 national FAs as members. That’s 211 sets of potentially different national laws, notably employment laws, which govern or at least affect employment contracts.  

Whilst FIFA can permit or even advise FAs to alter dates of transfer windows, and the date this season expires and next season commences, under English law, FIFA (or The FA) cannot compel an employee to work against their will or enter a renewed/extended contract – players’ contracts expire on 30 June, not when the season ends.  If a player’s contract is to be extended, the player’s agreement would be required.

Likewise, PL/EFL playing contracts do not contain force majeure provisions or entitle the club to suspend the contract.

Whilst FIFA will feel it’s incumbent upon it to recommend guiding principles, their inevitable inconsistency with some national laws will likely be, in certain areas, stark.

#sportslaw #football #footballlaw #rstp #fifa #COVID19