Relegation Rumbles On & One, Part Two: The SPFL

by | Jul 21, 2020

Sometimes you wonder why certain lies are told. They fool no-one important. And on 14th July, Scottish Professional Football League (SPFL) clubs Heart of Midlothian and Partick Thistle fooled no-one at all.

They claimed to be “incredulous” to receive a “Notice of Complaint from the Scottish Football Association (SFA)” during the clubs’ on-going legal dispute with the SPFL, after curtailing the 2019/20 season relegated them. Rather than go to independent arbitration, under SFA rules, they went to Edinburgh’s Court of Session (CoS). And this very fact all-but-guaranteed the Complaint.

SFA Disciplinary Rule 78 is hardly impenetrable legalese: “No member or Associated Person shall take a dispute which is referable to arbitration in terms of Article 99 to a court of law except as expressly permitted by the terms of Article 99.” Article 99 contains impenetrable legalese. But the key point is clear from sub-article 15, a DR 78 tribute act: “A member, an associated person and/or the SFA shall not take an SFA dispute to a court of law, except with the prior approval of the board.”

Hearts and Partick appeared in court on 1st July, 15 days after lodging a petition challenging “the unfair and unjust decision of the SPFL to enforce relegations.” And on 3rd July, after a “by-order hearing” which lasted three truncated days, Judge Lord Alistair Clark QC ruled that there was a case to answer, via the SFA’s independent tribunal system, and ordered “full and proper disclosure” (“recovery”) of all documents “of potential relevance” to the case.

The hearing dealt only with “procedural issues.” The “orders sought by Hearts and Partick,” Lord Clark stressed “were not the subject matter.” But everyone involved got something from his 16-page, straight-down-the-line ruling. The SPFL wanted and got arbitration, not court, while Hearts and Partick wanted and got full document disclosure. And some of Scotland’s football media, notably, the Scottish Sun newspaper’s Steven Fisher, offered informative insight.

Some, though, predictably interpreted the ruling as a defeat for the SPFL, chief executive Neil Doncaster in particular (the Daily Record ‘newspaper’s’ sensationalist tosh headline was “The SPFL ‘secret’ documents law lord demands Neil Doncaster makes public…”, suggesting, falsely, that they’d obtained the actual documents), This has been an unjustifiable running theme of most coverage of this dispute, despite Doncaster’s not always commendable involvement in it.

For instance, on 27th June, Hearts and Partick shouted their distaste at an SPFL all-clubs letter. They didn’t state what it said, just that it was “wrong,” “misleading,” “questionably” timed and required ”legal advice on what needs to happen next.” The Sunday Mail ‘newspaper,’ the execrable Record’s sister publication, DID “obtain a copy of the letter” and revealed it as a response to clubs asking for “copies of the petition.” Proper journalists would have wanted copies too before pontificating incessantly on how ‘unfair’ it all was . But…well…you know…

The letter was reproduced in full. But only after article author Scott McDermott ranted about Doncaster “sparking the latest battle in a brutal civil war,” by trying to “solicit courtroom support” from other clubs. McDermott claimed that (unspecified) “Jags and Jambos…fear he is trying to turn 40 clubs against two” and are “astonished that SPFL lawyer Rod McKenzie appears willing to provide advice to clubs who wish to go up against the pair in court.” And Hearts and Partick were “livid at what they perceive as a clear conflict of interest” for Doncaster and McKenzie.

The actual letter called it “arguably unlawful” to send copies of the petition and related documents to “non-parties to the litigation” as they were “the property (or at least under the control) of the court.” And the SPFL would receive “potentially severe sanctions” for so doing. Doncaster suggested that to receive the documents, clubs must “become a respondent in the action.” And he said McKenzie would be “pleased to advise on the required procedure.”

No club took this opportunity to multiply their legal costs. And McDermott offered no evidence that he’d fact-checked the letter or even tried to establish Doncaster’s actual intentions. Instead, he reverted to the “civil war that has torn Scottish football apart” stuff.” Oh…and the “legal advice on what needs to happen next”? Erm…

Elements of the petition WERE evident from the ruling. The clubs alleged that SPFL “affairs” were “conducted in a manner…unfairly prejudicial to them” and sought to suspend the Written Resolution for which SPFL clubs voted on 15th April, “insofar as it deals with relegation and promotion,” to “prohibit” the implementation of its relegation and promotion terms and to cancel it “in that regard.”

The petition was opposed by the SPFL and the lower-league champions denied promotion by it, Dundee United, Raith Rovers and Cove Rangers. This trio wanted it dismissed, citing Article 99.15. Lord Clark noted that SFA board permission to go to court “was not asked for or granted.” However, he ruled that it was not appropriate “to dismiss a petition” at “this early stage,” when it raised “legal issues requiring full and proper discussion and detailed submission.”

He wasn’t over-happy with Article 99.15, anyway, suggesting that it “plainly” raised “a number of legal questions.” He cited one arising “from a point by (SPFL QC) Mr Moynihan about potential sanctions,” namely “penalties of up to £1m and/or suspension or termination” of SFA membership. He opined that these raised doubts on “the lawfulness or otherwise” of 99.15, because it could “be viewed as contrary to public policy and hence unlawful.” Moynihan may yet regret making this point.

Clark then said the “Dundee vote,” the no-wait-yes vote which brought matters, ultimately, to Clark’s court. Given that vote’s story, you can’t fault the good Lord’s logic in concluding that “the nature and complexity of these issues makes it inappropriate that I deal with dismissing the petition at this early stage.”

The issue with the SPFL request to suspend/sist (ouch!) court proceedings to allow for arbitration was whether conditions of Scotland’s “Arbitration Act 2010” were “satisfied.” The condition Clark cited was “that the respondents have taken no step to answer” the clubs’ claims. And, here, legalese took back control from logic.

The 24th June BBC headline “SPFL respond to Hearts and Partick petition” hinted that one respondent had…well…responded. And Clark, “on a literal view,” agreed. But “interpretation of legislation is more sophisticated than…the literal view (and) if any responses…are subject to the clear qualification that a sist for arbitration is requested, then no step has been taken which should bar that request.” Thus, the clubs’ “argument on this point must fail.”

Other Hearts and Partick arguments also failed (though you’d not know it from the media coverage); “that there is nothing in the SPFL’s Articles which refers this matter to arbitration”; that the “dispute is not the subject of arbitration as provided for in Article 99 because of its nature,” Clark ruling that “unfair prejudice” could be “determined by arbitration”; that the SFA Arbitration was “incapable of being performed,” (they failed to even say why) and that the SPFL is not “an associated person” and this was not a “Football Dispute,” both Article 99 terms.

Clark had (relative) fun dismissing that last one. With his sarky boots fitting perfectly, he had “no doubt that issues of relegation and promotion…are related to football.” And he joked that Hearts and Partick “contend that the Written Resolution did not meet the requirement of competitive fairness and sporting integrity, which I view as integral aspects of football.” That, in a 21st century Scottish Football context, is a zinger..

Mercifully, the clubs had more success at the “recovery of documents” stuff. Having ruled at length that SFA rules required an SFA Tribunal to have sufficient legal experience to deal with complex disputes, Lord Clark refused to cede this power to them, given the limited timescale. He insisted that “in these unprecedented circumstances, it is open to me under the inherent jurisdiction of the court” to order document recovery. “Far from usurping or interfering with the tribunal’s powers, I am seeking to assist,” he said, the legalese for “I’m only trying to help.”

He swatted away SPFL attempts to blame Hearts and Partick for delaying matters. “On the contrary,” they “were faced with the decision, which would result in their relegation”, which could “readily have been avoided if the league was played out and which will have drastic financial and other consequences. Quite understandably, the opportunity was taken, which the SPFL actively facilitated, to try to obtain (league reconstruction) which would result in their relegation not occurring.” The clubs couldn’t, and haven’t, put it better themselves.

Lord C accepted that there were “issues about the relevancy of some of the documentation sought” (issues which might inform Hearts and Partick’s case against the SPFL). But he was “satisfied” that they were all “of potential relevance” and should be released even if that potential was unfulfilled. Eschewing legalese, he said the parties should “put their cards on the table.” Yet while “entirely accepting the media and public’s “great interest in this dispute,” he could not “as a matter of law have the issues aired in open court” when “the parties have agreed” to arbitration, by the very fact of their SFA membership.

BBC Scotland asked Paul Reid from Edinburgh legal eagles Ampersand Advocates to walk them through the “what next?” column. He noted the arbitration’s binding nature and stressed the panel’s independence, despite each side in the dispute nominating a panellist. “The clubs arrange match officials but you still expect them (to be neutral),” Reid said. “These (panellists) are independent and very experienced lawyers” As the BBC report on his comments said: “Despite being convened under SFA rules, the SFA has nothing to do with determining the dispute.”

Reid was brought in while claims of victory and defeat abounded, based exclusively on pre-judgments. Sadly, those pre-judgments still abound. Even some observers who usually know better still regard the arbitration as the SFA judging itself. But, for once, Scotland’s football media is blameless overall for such fundamental misconceptions

Immediately after the ruling’s publication, Dundee United, Raith and Cove declared themselves “pleased,” though “very disappointed and unhappy” at being “drawn into this dispute.” And three days later, they were still “incensed” at “having to devote considerable time and incur significant legal costs,” potentially £150,000. United fans Paul McNicoll and Andy Crichton reportedly raised £40,000 through a 55-mile sponsored walk to Dundee United’s Tannadice stadia, starting cheekily at Hearts’ Tynecastle home.

But United noted further costs. Hearts and Partick wanted compensation, £8m and £2m respectively, if their relegations stood, and “this would have potentially catastrophic consequences” for SPFL clubs as it would come “directly out of SPFL funds distributed to all clubs each season as prize money.” Thus United, Raith and Cove sought support from “our fellow member clubs in defending this action.”

That call appeared to accelerate Hearts’ and Partick’s descent into madness. “As a matter of urgency” (four days later) they sought to “clarify our position” regarding the three clubs opposing “our case against the SPFL.” They claimed they were “never in direct dispute with them,” as if seeking to deny them promotion was “indirect.” They said “that any club in our position would take similar action,” momentarily forgetting how their petition sought to put Dundee United in EXACTLY “our position,” in the Championship not the Premiership.

And they claimed that “encouraging clubs to fund anyone’s costs could create further division.” Well…they should know. But it was still phraseology to file under “bloody cheek!”

Relegation rumbled on in France and Belgium too. The situations are not analogous, the convolutions of Belgium’s Pro-League would puzzle Franz Kafka. And Amiens and Toulouse’s French top-flight relegations were overturned and turned back. However, Waasland-Beveren had their Pro-League relegation quashed. And supporters of Hearts’ and Partick’s fight have drawn comfort from that.

The arbitration hearing began last Friday and it needs to finish pretty sharpish as Scotland’s Premiership is due to start on 1st August. The “principal hearing date” on the SFA Complaint is 6th August.

And relegation rumbles on. “Incredulous,” indeed.