Friday, May 20, 2022

Going Beyond The Headlines: What Does This Ruling Mean For SPFL, Hearts And Partick Thistle?

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The big headline of Friday regarding the order from The Court of Session was that Hearts and Partick Thistle’s case against the SPFL had been referred to the Scottish Football Association for arbitration. As often is the case, the headline, however, does not do justice to the story inside. But, before we delve deep into the order from The Court of Session and the Arbitration Act, wanted to give you some positive news in these dark times. Philanthropist James Anderson, who is a Hearts fan, has stepped up and agreed to cover Glasgow City’s COVID-19 testing expenses and travel costs for their Champions League quarter-final outing Vs Wolfsburg. Now, this is something that warms your cockles.

In the end, it was rule 99 of the SFA articles of association which tied Lord Clark’s hands and ensured that the case was referred to independent arbitration. But that is where the good news ends for the SPFL. While Hearts and Partick Thistle were unable to get the hearings in open court as they wanted (something which would have enabled the public to tune in to proceedings), they got their way in their request for documents to be uncovered relating to the case before it is heard by a tribunal.

It would be interesting to see how the Dundee vote is explained away by the SPFL- they were controversially allowed to reverse their initial ‘no’ vote to ‘yes’, which was the decisive vote in swinging the result in favour of the season finishing early. SPFL’s lawyer, Gerry Moynihan QC, confirmed during Wednesday’s hearing at The Court of Session that Dundee’s ‘no’ vote was received by the league at 4.48 pm on 10th April 2020 – the deadline day for the ballot. So why did SPFL claim differently initially? What were the parameters of the Deloitte investigation on this, and what were the costs for that? Now that Lord Clark has ordered the SPFL to hand over all documents to Hearts and Partick, hopefully, the picture will become clearer. I know the public will not know what is in the documents initially, but eventually, we will find out as these things never stay hidden.

Also, according to The Scottish Sun (apologies for linking to them), Dundee United, Raith Rovers and Cove Rangers now face bills of £15,000 each for QCs and teams of lawyers that were hired to fight their case. Imagine the SPFL wanting more clubs facing legal bills by being a respondent in the matter (as requested in the SPFL letter to the member clubs) just so that they could access the legal briefs. That sounds so unlike the SPFL, doesn’t it? Here is where hopefully you are laughing out loud with me. In any matter, the £15,000 figure is probably incorrect according to the research I did for another article (you can read it here; this was exclusively on Patreon and nowhere else) and the legal fee faced by each club should be substantially higher.

Now going to the order set out by Lord Clark which you can read here. I suggest you go through it once as it lays out the dispute perfectly. I will give a light summary of this ruling in case you missed out on anything (unlikely but still covering all the cases). First, the motion to dismiss by Dundee United, Raith Rovers and Cove Rangers to dismiss the Hearts and Partick petition was denied.

Interesting sidebar before I proceed further: In my reading of the order, Lord Clark raised the issue of the legality of Article 99.15 of the SFA’s article of association (where clubs are prohibited from moving to the courts without prior permission of the SFA) but did not make a ruling on it. However, he raised several precedents where it has been ruled unlawful. Presumably, if the matter of dispute was this clause alone in a separate instance, the courts could very well strike this as unlawful. Also noteworthy is that Lord Clark specifically used the word ‘admitted’ when he talked about SPFL lawyer, Gerry Moynihan QC, owning up to the fact that Dundee’s ‘no’ vote was received by the league at 4.48 pm on 10th April 2020. Also, very importantly, Lord Clark wondered if expelling a club for bringing a dispute to court can be viewed as contrary to public policy and hence unlawful. He did not make any judgement on this either, as there were no detailed submissions on the same. Reading the order, you suspect you know which way Lord Clark would have ruled, but since that would be speculation, I would not do it here.

However, despite all the previous red flags, there was no option but to refer this matter to arbitration as according to Article 2 and 196 of SPFL’s articles, Hearts and Partick Thistle were compelled to comply with those rules. Also, Lord Clark put it in his order that he was assured by counsels of the SPFL, Dundee United, Raith Rovers and Cove Rangers that this matter could be resolved by 1st August. More importantly, regarding the arbitration, Lord Clark rejected the SPFL premise that persons with footballing interest should preside over this matter. Instead, it would be an independent (from the SFA or SPFL) tribunal. While each party will appoint one independent arbitrator from Tribunal candidate list, the two arbitrators will select a third arbitrator who has been a solicitor/advocate/member of the judiciary for ten years and shall be the Tribunal Chairman. Again it is to be noted that the SFA will not judge the issue in arbitration.

The last part is probably the most interesting part of the entire proceeding for me (and most of those watching). Lord Clark allowed a complete recovery of all documents (yes all as was mentioned in the order) pertinent to this matter.

Now, this is the hand we are all dealt with. It was a fair outcome and almost everything Hearts and Partick Thistle looked for. Instead of the matter playing out in public, it would be done so with the same vigour but behind closed doors. Since we all know what happened here and as Lord Clark has ensured that the two clubs are given a fair shake of things, I am as hopeful that justice will be delivered here. Time is of the essence though, and a judgement in favour of Hearts and Partick Thistle will undoubtedly shake things up.

Also, let’s be honest. While this can still end up in court, practicality probably dictates that whatever is decided in the arbitration is final, unless there is some gross miscarriage of justice. An aggrieved party can still bring this to court if they feel if it is a matter of law (almost all appeals have some element of issues of law in them), but you have to suspect this is the final venue for Hearts, Partick Thistle Vs SPFL.

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