So the spin has begun in full force. Apparently, most clubs in the Premiership are out for blood if we are to believe Keith Jackson and Gary Ralston of the Daily Record. If you want to read the article, you can find the link here. Or if you want to just know what they are saying, here is the summary: Many clubs outraged and would support calls to expel Hearts and Partick Thistle from the Scottish leagues.
Following up on that story, Keith Jackson had another exclusive lined up. Here is what the story says: Compliance officer Clare Whyte is currently assessing if Hearts and Partick Thistle have broken the by-laws of the SFA by dragging the SPFL into the Court of Sessions.
The article further reminds us that clubs must go for arbitration first and must ask for the permission of SFA before heading to court. Jackson ominously continued that breaking the rules of the SFA could lead to ‘even expulsion’.
Let me break this down for you. SPFL are in full damage control mode and are leaking selectively to their favourite media houses. And unfortunately, journalists (like always) are simply publishing what they are being told without running a simple fact check.
Just spending a couple of hours made it clear that the SFA and the SPFL are simply scaremongering. This is a fascinating part that I found in the book, Private Regulation and the Internal Market: Sports, Legal Services, and Standard Setting in EU Economic Law: ”While due importance were given to federations and their by-laws, the vast majority of the sports law cases after Bosman were based on Competition law. After Regulation 1/2003, national competition authorities have clear authority over sporting bodies on the basis of EU law and may apply both Article 101/1 and Article 101/3.”
Also, until the UK officially leaves the EU (which is still months away), the same law applies. We must also remember that even after Brexit is official, these laws will stay in place until the Government replaces it with something else. So all in all, for the foreseeable future, Competition and Markets Authority will have full authority over what is legal and which is decidedly not.
Now, let us analyse what constitutes an infringement of competition law in the EU. The European Commission sums up whether sporting rules are consistent with the competition law by applying the below three principles.
- Are the competition law rules applicable (primarily does the EU have jurisdiction and is there a restriction of competition or an abuse of a dominant position)?
- Does the rule infringe the law (Article 101 TFEU which prohibits anti-competitive agreements, or Article 102 TFEU which prohibits abuse of a dominant position)?
- Is the rule exempt? Under Article 101, a rule can be exempt if pro-competitive effects outweigh anti-competitive effects, and under Article 102 an infringement can be exempt if there is an objective justification for it.
The answer to the above questions are yes, yes and no. So as long as these standards are met (or at least there is a prima facie evidence), there cannot be any question that a case arises in the Competition and Markets Authority. Only under Article 102, can SPFL make a case that infringement can be exempt due to the COVID 19 situation. However, now that the Government of Scotland has allowed football to resume from Monday and most of the other countries have started again, there is no justification for demoting teams based on an early call to end the league on PPG.
So avoid the spin from the media and know the facts. Expelling Hearts and Partick Thistle will result in another round of court actions and fines against SPFL that the executives already know. The entire house of cards is on the verge of falling down, and they are just trying to protect the status quo for as long as possible.
