Just after 5pm on Sunday 18 April, Bray Wanderers FC released a tweet confirming they would not be joining the European Super League (“ESL”) - rumours of which were dominating social media discourse everywhere. Hilariously, some of those replying did not get the sarcasm. They thought Bray really had found it necessary to clarify that they would not be one of the three as yet unannounced “founding clubs”, joining 12 other of Europe's biggest clubs, in setting up the ESL - to run from August 2021 onwards. The 12 clubs, six from England, three from Spain and three from Italy, confirmed late on Sunday that they would indeed be founding clubs in the putative ESL and that there will be three other founding clubs to be named in the coming days. These 15 founding clubs will then be joined by five other clubs who will qualify for the competition on an annual basis through competitive criteria that have yet to be outlined. However, the 15 founding clubs will be insulated from regulation from the competition and will be entitled as right to take part every year.
Already sports fans and lawyers (and some of us who are both) are busy thinking through the potential legal and sporting ramifications of this decision. There are many.
Most analysis at the moment is focusing on the positions of either the clubs or the professional national leagues to which they are currently affiliated. For example in relation to the six English clubs, they are currently part of the Premier League (“PL”), a corporate body that is thus governed by Articles of Association, Article 27 of which makes it clear that any resolution will be passed by a vote which obtains support from two thirds of its members. This is problematic for those six want-away clubs as they make up just less than one third of the PL's voting block. Not alone therefore is there no chance of them persuading eight other clubs to vote with them in the vote that will be necessary to get permission to join a break away European competition, but in fact the other 14 clubs have the numbers to pass any sanctioning resolution they want. That could include expulsion for the six.
However, it is another possible knock on consequence and sanction that might be taken against the proposed breakaway clubs that may ultimately be of most interest legally.
In this regard already UEFA, the governing body of football in Europe, have come out indicating that players playing for these break away clubs may no longer be able to play in international competition between countries and thus, for example, could be excluded from future European Championships and World Cups. The basis for this has not been expressly stated - however the 1,004 pages of the 2020 FIFA Legal Handbook appear to have any number of measures that could be problematic for players who find themselves playing for clubs who are no longer affiliated to national bodies (in circumstances where it is these national bodies that organise and indeed pick representative teams to take part in international competitions). Moreover, there is precedent for this. In the early 1950's a non FIFA sanctioned league with huge salaries was set up in Columbia to which footballers from all over the world were attracted due to salary caps elsewhere. Notwithstanding that these players included some of the then World's best (and arguably the best in Argentina's Alfredo Di Stefano) these players were not allowed participate in international football whilst they played in such an unaffiliated league. According to quotes from UEFA President Aleksander Ceferin this Monday afternoon, the same fate awaits players playing for ESL teams – as soon possibly as this summer's European Championships.
So what are the rights of the individual players in that situation? What if they are very unhappy about their club's unilateral actions, taken without notice to them, and want, for example, to continue playing international football? To take a simple example, what if the England Captain, Harry Kane, is ultimately more interested in representing England at the upcoming (delayed) Euro 2020 than in his club career and consults his lawyers today about what he can do to try to bring that about?
Ultimately much will depend on the terms of Harry Kane's own individual contract and obviously we cannot know what that says. Helpfully however the Premier League Handbook for 2020/2021 does contain a specimen draft player contract for players playing in the Premier League. Clause 6 of the specimen contract sets out the obligations of clubs to their players and included in that at clause 6.1.9 is an obligation for the club to “….release the player as required for the purposes of fulfilling the obligations in respect of representative matches to his national association pursuant to the statutes and regulations of FIFA”.
Obviously this clause may not be in individual contracts (though it is likely it will be – and very possibly in augmented terms in some contracts where players have negotiated this). Nor does this clause expressly say that the club will take no steps which might have consequences for the eligibility of the individual players to play international football - but it is very arguably implicit. Clearly the clause accepts that each player is entitled to play international football. It does not seem much of a leap then to argue that any step taken by a club which frustrates that entitlement is an actionable breach of contract.
So what does that mean for players?
Well ultimately that will come down, not just to the individual contracts, but to the relevant national laws in question. For the non-English clubs, EU law may also be relevant. In terms of the English clubs, what we can say is that under normal common law principles it could mean that a disgruntled player or players would be entitled to sue their club for breach of clauses identical or analogous to clause 6.1.9 and they may accordingly seek any number of potential remedies, including at least two that might be of particular wide ranging significance, namely:-
- They could potentially seek an injunction seeking to prevent the club from taking the very action that will lead to their inability to play international football i.e. seek to injunct the club from involving itself in the ESL at all; or
- They could seek as additional or alternate relief to be released from their contracts on the basis that the club are frustrating a fundamental term of same.
Either of the above possibilities would be a doomsday scenario for any of the proposed 12 break away clubs hoping to join the ESL.
The significance of an injunction being obtained preventing the club from joining the ESL is self evident. As with any injunction application, the Court would have to assess where the balance of convenience might lie (and this is up for argument given players will be denied once in a lifetime opportunities to represent their country with the knock on damage to their own earning power flowing from that), whether damages are an adequate remedy, and so forth.
Arguably the other potential remedy of entitling players to tear up their contracts might be an even bigger problem for the breakaway clubs. If, to use an example, Marcus Rashford, Bruno Fernandes and Paul Pogba are all entitled to leave Manchester United mid way through their contracts for no compensation (in the form of the eight or nine figure transfer fees that would otherwise be payable), this would be cataclysmic for them financially - and the same would apply to all the other breakaway clubs.
So there is a lot likely to happen, both legally and otherwise, over the next few weeks which might be even more engrossing than the on-the-field action. There are no doubt going to be footballers for whom international football is their paramount interest. If so, they are not going to take lying down having their international careers potentially ended by their clubs. Accordingly, it is going to be fascinating to see how this plays out. Alas we Irish lawyers will be spectators looking on like everyone else – unless of course Bray Wanderers have a change of heart….
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