Can disgruntled football clubs challenge Project Restart? Exploring the duty of ‘utmost good faith’ in the EFL & Premier League
On 28 May 2020, Premier League clubs unanimously decided to return to contact training, in accordance with the Government’s recently published ‘Elite Sport Returning to Training Guidance: Stage Two.’ The following day, it was provisionally agreed that Premier League fixtures would resume on 17 June. Other decisions are proving harder. Clubs are reportedly yet to decide on issues such as whether neutral venues should be used for some matches, whether the number of permitted substitutes should be increased, or whether to pay an estimated £330m rebate to broadcasters.
Divisions in the English Football League are starker. QPR’s chief executive, Lee Hoos, is quoted as saying the club is “appalled by” and “vehemently opposed to” the EFL’s plans to return on 20 June. Reports suggest that at least six promotion-chasing League One clubs are determined to complete the season, whereas other clubs would prefer to terminate the season altogether. Peterborough United, currently in a playoff position, have already threatened legal action should the final table be decided by points-per-game; which – if applied – would push the club out of the playoffs. Relegation-threatened Tranmere Rovers have similarly threatened legal action.
The Premier League and English Football League (“EFL”) rules provide that clubs and the relevant league shall “behave towards each other with ‘utmost good faith”. But how, if at all, might such a duty bear upon issues such as those identified above?
This article by Ashley Cukier and Anirudh Mathur of Littleton Chambers explores the duty of ‘utmost good faith’ in the context of the Premier League and EFL Rules. Specifically, it examines:
- The corporate framework
- The duty of utmost good faith
- Utmost good faith and ‘Project Restart’
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- Tags: Coronavirus | Covid-19 | Dispute Resolution | England | English Football League | Football | Premier League | Regulation | UK
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About the Author
Barrister, Littlton Chambers
Ashley is a commercial barrister whose practice encompasses a wide range of commercial and civil fraud litigation, company, insolvency and sports law matters. He is ranked by Legal 500 as one of the ‘Top 10 Under Eight Years’ Call’ for Commercial Litigation, where he is described as “Assured and skilful, an eloquent orator on his feet, and trusted by our team”. Ashley was called to the Bar in 2013 after graduating top of his year at Cambridge University, where he was awarded a starred first.
Ashley is regularly instructed in commercial disputes in the Commercial Court and Chancery Division, both led and as sole counsel. He has appeared in the Court of Appeal and the Privy Council and regularly appears in FA Rule K Arbitrations and before other sports arbitral panels. He speaks several languages and is often sought out to assist on cases containing international elements and/or involving questions of foreign law, jurisdiction and enforcement.
Sports law work forms an increasingly prominent part of Ashley’s practice. His current and recent sports law work includes:
- Acting as sole counsel in three (ongoing) FA Rule K Football Arbitrations;
- Successfully representing the former Australia football team captain, James Troisi, in the Court of Arbitration for Sport in Lausanne (led by John Mehrzad) in a claim (on appeal from a FIFA Tribunal) for non-payment by the player’s Saudi former club, Al-Ittihad;
- Acting for the successful claimant (a prominent FA Registered Intermediary) in a Rule K claim against a former client (an international footballer) for unpaid commission;
- Acting for the respondent to a National Anti-Doping charge, brought by the Rugby Football Union;
- Acting for the respondent to a Misconduct charge brought by a National Sporting Body (ongoing);
- Advising a La Liga footballer in respect of a breach of contract claim brought against him by a former agent, involving complex issues of jurisdiction and governing law.
- Advising a National Sporting Body in respect of its selection procedures for Team GB athletes, both in the run-up to, and subsequent to, the Rio Olympics 2016
Ashley is a member of the Table Tennis England Board of Appeal, and was recently appointed to the Sports Resolutions Panel of Arbitrators and Mediators.
His significant instructions and advocacy experience to date include:
- Advising on a £4m asset recovery matter raising issues under the Proceeds of Crime Act and involving multiple jurisdictions (as junior counsel to James Ramsden QC).
- Advising on the merits of a £250k civil fraud claim (as sole counsel).
- Acting for a Claimant in a case raising allegations of sexual harassment, discrimination and victimisation, scheduled for a 7 day ET trial (as junior counsel to Lucy Bone).
- Arguing pro bono for an Indian anti-corruption NGO in hearings against mineral miners, before a Committee comprising retired Indian Supreme Court Justices (prior to pupillage). Anirudh argued against two top-tier Indian Silks over 5 days of hearings. The Committee commended his advocacy.