A review of the regulations that govern ground sharing arrangements in the Premier League and Premiership Rugby

Published 01 July 2016 | Authored by: Tom Cripps

The shared use of grounds or stadiums in sport is not uncommon. For some clubs, financial circumstances can necessitate the temporary or ongoing use of another club's ground. Conversely, for wealthier clubs, stadiums are a potentially lucrative asset, the licencing of which to other users provides ample commercial opportunity.

This article will, in two editions, explore the mechanics of ground-sharing in the English football Premier League ("EPL") and the English rugby Premiership ("ERP") (collectively "the Leagues"). This edition will summarise and compare the regulatory conditions to be satisfied by an application to ground-share in each of the Leagues. The next edition, to follow shortly, will explore the commercial and legal considerations for teams entering such agreements.

 

WHAT IS GROUND-SHARING?

Most readers will be familiar with the term "ground-sharing". It refers to the shared use of a stadium, for hosting fixtures, by two or more sports teams or organisations. This might be for a single event like a major final, such as Manchester United hosting Rugby League's Super League Grand Final each year; or it might be a long-term arrangement for ongoing use, such as Wasps RFC and Coventry FC's ongoing shared use of the Ricoh Arena.

Ground-sharing can be "intrasport", such as when Crystal Palace and Wimbledon shared Selhurst Park. However, "intersport" sharing is as common, if not more so, with current notable examples including Wasps (Rugby Union) and Coventry (Football) at the Ricoh Arena, Reading (Football) and London Irish (Rugby Union) at the Madejski Stadium, and Wigan Athletic (Football) and Wigan Warriors (Rugby League) at the DW Stadium.

Multi-purpose stadiums, such as Wembley and the Olympic Stadium are another variation. When they eventually take occupation, West Ham will find themselves sharing the latter with athletics, rugby union, rugby league and football events during the course of a season.

 

WHY DO CLUBS GROUND-SHARE?

The reasons for ground-sharing vary. Stadiums and the land on which they are situated are expensive and for a few clubs, ownership is unrealistic. It was financial realities that forced Coventry City into selling their home,1 the Ricoh Arena, where they are now a tenant of Wasp RFC's. For some, it is merely a temporary arrangement. Chelsea, Tottenham and Liverpool all have major forthcoming stadium redevelopments2 and will need to make ground-sharing arrangements in the interim. Less common but possible is that ground-sharing is the more commercially advantageous option. West Ham's recent concession of the Olympic Stadium is widely considered to be a good example of the latter.3 Whatever the reason, applicant clubs are all expected to satisfy their respective League as to their ground-sharing proposal. Below is a summary of the Leagues' requirements.

 

LEAGUE APPROVAL

Each of the Leagues are governed by their own respective sets of regulations. The EPL's regulations relating to stadia are contained within the Premier League Handbook4 ("the Handbook"), which is updated annually and made publically available online. This article is based on the Handbook for 2015/16. The ERP's stadium regulations are within the Minimum Standards Criteria5 ("the MSC"). The MSC fall under the remit of the Professional Game Board (PGB), a joint body made up of members of the Rugby Football Union ("RFU") and are also updated annually. The current MSC are not in the public domain and this article is based on the MSC for 2013/14.

The Handbook and the MSC require the provision of a home stadium by member clubs. They also contain detailed criteria for such stadia. Whether they own or share their stadium, every club is expected to comply with these regulations. Every ground-share application will be scrutinised by the League against these regulations and rejected or approved accordingly.

 

The Barclays Premier League

Is ground-sharing permitted?

Section K of the Handbook sets out the rules relating to stadia. EPL clubs are expected to have the use of a stadium for hosting fixtures. This basic requirement is set out in Rule K.3, which states:

"K.3 Each Club shall either own its Stadium and training facilities or have a legally enforceable agreement with its owner for its use by the Club, expiring not earlier than the end of the current Season".6

A "legally enforceable agreement" does not entail ownership, so provided it is enshrined in a legal document securing such use for at least the remainder of the current season, a ground-share would be permitted. This simply protects the EPL's operational integrity, enabling club and League to schedule fixtures and deliver the commercial rights of sponsors and broadcast partners with certainty.

Under the Handbook, EPL clubs are required to register their ground with the EPL Secretary.7 The Handbook does not specify when registration should take place but it is assumed this is when a club first enters or re-enters the league. Once a ground is registered, a club cannot move to another ground without the written consent of the EPL Board ("the Board"), such consent not to be unreasonably withheld.8

What are the criteria for determining applications?

While Rule K.3 is the starting point for any ground-share application, a number of other criteria must be met before it will meet with Board approval. Perhaps the most fundamental requirement is enshrined in Rule K.4, which provides an express condition stating:

"K.4 No Club shall have or enter into a ground-sharing agreement unless the agreement contains a legally enforceable provision to the effect that the playing of the Club's League Matches shall always take precedence over the activities of the other party to the agreement".

Rule K.4, elsewhere described as the "overriding priority principle"10 for its effect of prioritising EPL fixtures, underpins Rule K.3. It provides certainty for the delivery of EPL fixtures. It ensures they are played on schedule, protecting the fundamental commercial interests of the EPL and its key stakeholders, fans and broadcasters.

Any club making a ground-share application to the EPL should ensure their application meets with the absolute requirements of rules K.3 and K.4. No exceptions are permitted to these rules and the Board cannot approve any application unless they are both satisfied.

Notwithstanding the satisfaction of rules K.3 and K.4, the Board must also consider the adequacy of the proposed stadium's facilities. Extensive criteria are set out in Rule K, spanning 120 rules. Some of these are non-discretionary, like the following examples:

Rule K.25 – No matches are to be played on an artificial surface11

Rule K.26 - Each club's stadium "must have installed" the goal line technology specified by the Board from time to time.12

Rule K.46 - Each Club shall is to internet connectivity with a total bandwidth capacity of 40 megabits per second, burstable to 100 megabits per second is available.13

Other rules are discretionary, whereby lesser facilities may be permitted with Board approval. In some cases, the Board must consult member clubs before applying their discretion. Examples of such rules include:

Rule K.10 – Stadiums are not permitted to have fixed or moveable rooves that cover the playing area "without the prior written approval of the Board. Before giving or refusing to give any such approval the Board shall consult with all Clubs and shall take into account their representations".14

Rule K.15 - Pitch dimensions are required to be 105m x 68m, "unless otherwise permitted by the Board".15

Rule K.38 – Giant screens are not permitted for relaying closed circuit pictures of the live match "except with the prior written consent of the Board".16

Applicant clubs should check shortlisted stadia against both discretionary and non-discretionary criteria and ensure they are of a high enough specification to meet the requirements. In respect of discretionary criteria, the Rules do not specify how long the Board will take to deliberate, or whether clubs will be given a chance to make improvements to proposed stadia if required. It would seem advisable therefore that a persuasive argument is in place for applying discretion before any application is made.

The final hurdles, and the most interesting from a decision-making perspective are those contained within Rule K.6, which states:

K.6. In considering whether to give any such consent, the Board shall have regard to all the circumstances of the case (including but not limited to the factors set out in this Rule K.6) and shall not consent unless reasonably satisfied that such consent:

K.6.1. would be consistent with the objects of the League as set out in the Memorandum;

K.6.2. would be appropriate having in mind the relationship (if any) between the locality with which by its name or otherwise the applicant Club is traditionally associated and that in which such Club proposes to establish its Stadium;

K.6.3. would not to any material extent adversely affect such Club’s Officials, Players, supporters, shareholders, sponsors and others having an interest in its activities;

K.6.4. would not have a material adverse effect on Visiting Clubs;

K.6.5. would not to any material extent adversely affect Clubs (or Football League clubs) having their registered grounds in the immediate vicinity of the proposed location; and

K.6.6. would enhance the reputation of the League and promote the game of association football generally.17

The factors listed in K.6 give the Board wide-ranging discretion for rejecting or approving ground-share applications. Before considering their impact, this article will summarise the conditions for approving a ground-share in the ERP.

 

The Aviva Premiership

Is ground-sharing permitted?

As per the Handbook, the MSC contain specific criteria relating to ground tenure and ground moves, and the stadium facilities. Article 2, "Ground Tenure and Ground Moves"18 is principally concerned with "Primacy of Tenure", the ability of a club to schedule its fixtures and the legal enforceability of its right to use the stadium. Article 3, "Facilities",19 sets the physical and technical criteria to be met by stadia.

Compliance with the MSC is assessed annually, on a compulsory basis for existing ERP clubs and voluntarily for Championship clubs who request an audit, in practical terms those with the realistic ambition of promotion.

Article 2 of the MSC contains two clauses that roughly equate to clauses K.3 and K.4 of the EPL Handbook. Article 2 Clause G2, like K.3 of the Handbook, requires each club to have a legally binding agreement in place to occupy their "Principal Home Ground" for at least the next season, that being the ground at which the club will play all 1st XV home games that season. Again, like with the EPL, an agreement to occupy does entail ownership therefore ground-sharing is permitted.

Article 2, Clause G1, like K.4 of the Handbook, requires each club to satisfy the Primacy of Tenure requirements at its Principal Home Ground as a pre-condition to stadium approval. Unlike rule K.4, this clause does not expressly mention ground-sharing but clearly envisages such a scenario. The Primacy of Tenure requirements are discussed in further detail below.

What are the criteria for determining applications?

Like the EPL Board, the PGB must consider the facilities of a proposed stadium when assessing a ground-share application. Article 3 is similarly detailed in this respect to clause K, covering everything from playing facilities and seating provision to media areas. As with all of the MSC, criteria are graded A, B or C. Sanctions for non-compliance vary with a fine, points deduction, or refused promotion for Championship clubs.20 When scoping potential ground-share stadia, applicant clubs should ensure they meet these criteria where possible.

The concept of Primacy of Tenure has historically been central to determining applications for ground-sharing in the ERP. It has been the subject of two key decisions in the recent past, concerning Rotherham RUFC and London Welsh RFC. Firstly, Primacy of Tenure is defined as:

Primacy of Tenure

Primacy of Tenure shall be deemed to be satisfied where a Club demonstrates that it can: -

i) schedule its home matches in 2013/14 (other than those at (iii) and (iv) below) on any Friday, Saturday, Sunday and any bank or public holiday during the season, in all such cases with a kick-off time between 12 noon and 8.00pm and on any other day during the season with a kick off time between 6pm and 8pm.

ii) meet the requirements of PRL‟s broadcast partner (namely, to be able to allow the broadcast of its home games in 2013/14) on receipt of the requisite notice from the broadcast partner, being 6 weeks‟ notice for matches no later than 3 months before the end of season or 4 weeks‟ notice for matches within 3 months of the end of the season; and

iii) play its home match (if applicable) in Round 22 of the 2013/14 Premiership at any kick-off time on the afternoons of both Saturday and Sunday of the last weekend of the season in order to ensure simultaneous kick off times for all Round 22 matches; and

iv) play its home matches in the end of season play offs, being any Premiership Semi-Final on Fridays, Saturdays.21

On a strict reading of sub-clause i), ground-sharing appears practically impossible. It requires the applicant club to have the ability to use the stadium at all of the stated times, not in the alternative. Finding a host, in most cases EPL or Championship football clubs, willing to give up the priority of their own fixtures is unheard of. However, this clause was the subject of an Office of Fair Trading investigation in 2004.

Rotherham RUFC were denied promotion to the ERP, due to a failure to meet the Primacy of Tenure requirements. First Division Rugby filed a complaint with the OFT, arguing this breached competition law as, since a number of ERP clubs already fell short of the same requirements, it discriminated against First Division clubs and was disproportionate to the aim of ensuring clubs could provide a home venue when required. After discussions with the OFT, the ERP subsequently revised and clarified the MSC, with the following effect:

Under [ERP’s] revised Criteria, aspirant clubs are no longer required to have first call over the ground at which they play their home matches. Instead, all clubs have to demonstrate that they are able to provide a venue with certain minimum facilities for home matches on dates specified in advance by the League. Clubs may utilise two grounds if necessary to meet this requirement. The new Criteria also allow for a play-off for promotion/relegation, in the event that neither the aspirant club nor the Premiership club at the bottom of the table meets this requirement.22

Requiring the ERP to specify fixture dates in advance allows time for clubs to liaise with their ground-share host and the League to ensure there are no fixture clashes. The MSC even provide for Clubs to have a "Standby Ground"23 for hosting a particular match or matches, where fixture clashes are unavoidable, provided such ground is within 30 miles of their Primary Home Ground.

The Standby Ground was the subject of London Welsh RFC's 2012 appeal to the RFU. After winning the 2011/12 Championship, London Welsh were denied promotion after failing to meet the MSC. This was on the basis that their Standby Ground, Brentford's Griffin Park, was some fifty miles from their Principal Home Ground of Oxford United FC's Kassam Stadium.

London Welsh appealed the decision. At appeal, the RFU argued a strict reading of the MSC was crucial to scheduling fixtures and meeting broadcasting obligations. The appeal panel rejected this argument, referring to an exemption clause in the MSC, allowing for 3 teams (now 524) that do not meet the Primacy of Tenure requirements to play in the ERP. Furthermore, it emerged that a fourth and fifth team had previously played in the ERP in breach of the Primacy of Tenure requirements. The panel again found the requirements breached competition law and were unduly restrictive.

In essence, applicant clubs should strive where possible to meet the Primacy of Tenure requirements. This has been made eminently more feasible by the provision for Standby Grounds and exemptions for up to 5 teams. The findings of the OFT and London Welsh appeal panel nevertheless indicate that failure to meet these requirements may not be fatal to a ground-share application.

In light of all of the above provisions, this article will now briefly analyse the prospects of any club making a successful ground-sharing application to the EPL or ERP.

 

ANALYSIS: WHAT ARE THE CHANCES OF APPROVAL?

The circumstances in which an EPL club would ground-share are limited. Of the 20 clubs to play in the EPL next season, only 4 do not own their stadium: Bournemouth FC, Hull City FC, Swansea City FC and West Ham United FC. Bournemouth have exclusive occupation of Dean Court in a sale-and-leaseback arrangement, Hull and Swansea both have licences with their respective City Councils, and West Ham's concession agreement with the London Legacy Development Corporation has been discussed.

The above arrangements are permitted by the EPL because the strict criteria within the Handbook have been met. Each club's fixtures are given overriding priority by a legally enforceable agreement and the arrangements do not conflict with any of the principles outlined in Rule K.6.

It is easy to see how ground-sharing for EPL clubs might otherwise be difficult. Rule K.6 introduces some broad concepts presenting real obstacles to a ground-sharing application. Even where rules K.3 and K.4 are satisfied, and the facilities of the proposed stadium meet all of the required technical criteria, the Board may still refuse an application that materially adversely effects supporters, shareholders and sponsors, as well as other member clubs. It may also reject an application that appears inappropriate in light of the applicant club's traditional locality and may fail to promote and enhance the League and its reputation.

The availability of stadia with adequate facilities for meeting the Handbook's criteria and that enable an EPL club to have overriding priority of its fixtures is already sparse. Being at the top of English sport's financial pile, adequate stadia are realistically limited to those within the top tiers of football, creating an obvious hurdle. In addition, clubs are restricted geographically by rule K.6. The difficulties of ground-sharing with a local rival are easy to imagine and would likely have a material adverse effect on the stakeholders mentioned above.

It is understandable why clubs like Chelsea, Tottenham and West Ham have to look to multi-purpose stadia such as Wembley and the Olympic Stadium to fulfil their needs and satisfy the Handbook's criteria. However, with Chelsea and Tottenham proposing to share Wembley stadium in 2017/18 and its already packed schedule, it will be interesting to see how the EPL applies the Handbook to this unique situation.

By contrast, the MSC and their interpretation have evolved to ensure ground-sharing is significantly easier for ERP clubs. Proposed stadia must still demonstrate they have adequate facilities, but the Primacy of Tenure requirements have been substantially diluted by the Rotherham and London Welsh decisions. These decisions are augmented by the increase in the number of clubs exempt from the requirements to 5 in the 2013/14 MSC.

Finally, the broad, discretionary criteria found in rule K.6 of the Handbook are not found in the MSC. Part A, Article 225 contains some objectives of the MSC's ground tenure provisions, but these are not set out as criteria to apply to decision-making like those in K6. In any event, they speak largely of commercial rights and value and of increasing the prosperity of rugby for the greater good of the game. Given these broadly commercial goals, it is clear why many more ground-sharing applications would be successful under the MSC. Clubs can choose from a much greater pool of prospective stadia when the ERP Board are not bound to approve only applications that meet such strict geographic, sentimental or restrictive criteria as those found in K.6 of the EPL Handbook. There is no better example than Wasps, traditionally a London club, who now find themselves at home in Coventry.

Whilst the current crop of ERP clubs includes many with ownership of their own ground, the MSC are now drafted in such a way as to prove far less of an obstacle to clubs in need of a ground-share, such as might be the case for Championship clubs on the rise. The same cannot be said for the EPL Handbook. This is broadly a reflection of the relative wealth of each League and its clubs. The EPL's financial growth shows no signs of slowing down and with Championship clubs benefitting from it, the more relaxed requirements of the MSC with regards to ground-sharing are unlikely to be applied to the EPL anytime soon. It is just as well that most football clubs find themselves in an enviable position where ground-sharing is no necessity. The case of Chelsea and Tottenham will be an interesting exception.

The next edition of this article will explore the legal and commercial considerations of ground-sharing agreements between clubs.

 

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About the Author

Tom Cripps

Tom Cripps

Tom is a paralegal who most recently worked in property litigation at Wedlake Bell, assisting on a broad range of matters across the department. He previously spent six months in commercial property and prior to that worked in international litigation.

He is a University College London LLM graduate.

Tom has a passion for sport (particularly tennis and American football) and the legal issues within sport.

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