In the latest article for The Legal Pitch, Toby Newton-Dunn discusses the new rules the FA have introduced following the publication of the Fan-Led Review of English football by Conservative party MP, Tracey Crouch.
Introduction
In April 2021, the football world was shocked when 12 Clubs in England, Spain and Italy attempted to break-away from their domestic leagues to form the European Super League. The outrage that followed from English fans protesting outside their Club’s stadium amidst the pandemic caused all six English Clubs to withdraw from this proposal. This provoked serious questions over the integrity of these Club’s owners and consequently, with Government intervention, caused for a fan-led review into English Football. In August 2022, The English Football Association (The FA) introduced new rules aimed at protecting the historical heritage of English Football Clubs, which will apply to the Premier League, the English Football League, the National League, the Women’s Super League and Women’s Championship. This article will evaluate the inception of these new rules and whether they do enough to protect the heritage of English football, whilst offering a cross jurisdictional analysis on whether these changes would be compatible in Spanish football.
What are the new rules?
The FA stated in a statement: “Under the new rules, if a club wishes to make a material change to its club crest, or change its recognised home shirt colours, it must undertake a thorough and extensive consultation process with supporters. A club must also be able to evidence that a majority of its supporters are in favour of any proposed changes (such as via an independently-run poll of season ticket holders, the club’s Community Benefit Society, and supporters that have attended a certain number of home matches). In the event a club is found to be in breach of the rules, The FA is able to take appropriate action, such as ordering a club to revert back to a previous crest or home shirt colour combination. The aim of the new rules is to put supporters at the heart of the decision-making process regarding these important club heritage matters. As part of our ongoing response to the fan led review, we will be continuing a consultation process regarding potential ground relocation rules this season.”
The introduction of the new rules for the start of the 2022/23 season follows a consultation process with the relevant Leagues and the Football Supporters Association (FSA).
Do the new rules provide enough protection?
Undoubtedly, the changes bring a welcomed step forward in terms of protecting the heritage of English Football Clubs and ensuring supporter consultation is embedded in the FA rules to prevent any significant and unfavourable changes to Clubs. Of the six clubs involved, the aftermath of the European Super League brought all of the owner’s integrity in disrepute and it was absolutely vital that change was needed. The trust between the fans and the owners was at an all-time low and, as custodians of their Clubs, it was obvious that fans needed to be involved more in the decision-making process of certain important aspects, as concluded by the fan-led review.
Even prior to the Super League, we have seen cases such as Cardiff City’s owner Vincent Tan changing the club’s home kit colour to red, a lucky colour in his country, despite the club’s traditional home kit being blue and the club’s nickname being “The Bluebirds”. The change occurred in 2012 and lasted until 2015 as fans organised anti-red protests and thousands of season tickets were threatened to not be renewed which left Vincent Tan to reverse his original decision and return to the club’s home colours to blue. Similarly, we have also seen Hull City’s owners attempt to change the club’s name to Hull Tigers in 2015, which was incidentally blocked by the FA for the second time.
One major criticism of the new rules is that the FA has only partially followed the key recommendations of the fan-led review by omitting additional protection for key items of club heritage through a “Golden Share” for fans requiring supporter consent and overseen by an Independent Regulator for English Football (IREF). The Golden Share was outlined in article 8.11 of the review which suggested a series of items whereby the consent of the shareholder will be required:
A. Sale of club stadium (including the grant of security over a club stadium);
B. Re-location of club outside of the local area (excluding temporary relocation as part of an actual (i.e. not just planned or hoped for) development of an existing stadium e.g. Tottenham’s relocation to Wembley);
C. The club joining a new competition that is not affiliated to FIFA, UEFA and the FA and/ or leaving a competition in which it currently plays. This would mean that a future European Super League would not be possible without fan consent;
D. Club badge;
E. First team home shirt club colours; and
F. Club name (i.e. the team playing name rather than the name of the legal entity owning the club).
Despite the FA ruling that the new rules ensure no changes can be made to the club’s badge, name or first team colours, the FA has disappointingly ignored the first three recommendations of Article 8.11. Therefore, it has left these critical club heritage items without the necessary legal powers held by those most emotionally invested in them – the fans and local communities.
This model approach has already been successfully introduced at Brentford FC, as they already had a Golden Share in existence which provided certain veto rights over a stadium move. Despite the fact that this did not prevent Brentford from moving stadiums, their Golden Share guaranteed that fans were consulted and supportive of the move, evidencing how Golden Share rights can create a collective unity over certain club heritage items to the benefit of all those concerned. A contributor to the Fan Led Review Online Survey stated: “I am from Brentford.... We pioneered the Golden Share idea and it was absolutely crucial in preventing the loss of our club because of an unscrupulous owner. Football clubs should not just be considered as ‘businesses’ but instead should be formally designated by Local and county authorities as a key part of the historical and cultural heritage of their areas and communities.”
As Brentford’s example shows, owners who are truly custodians of their clubs should have no issue implementing this, these owners are the ones whom a club least needs protection from. Instead, it is the less suitable owners who may not be so keen on adopting a Golden Share provision that the clubs need the most protection from. Therefore, it is surprising that the FA has not considered adopting this approach which has proven to be successful. One possible explanation is that the FA is waiting for the enactment of the IREF into English Law which would require parliamentary consent, thus making it a legal requirement to introduce a Golden Share licence provision, requiring license holders to include certain relevant provisions in their articles of association – including stadium rights and consultations regarding potential relocations. The FA perhaps has been hesitant over introducing this provision immediately, as the review concluded that the Government should explore ways to clarify some aspects of planning law before providing these additional protections, however it remains unclear as to why point (C) of Article 8.11 has not been considered after the furious fallout of the Super League.
Are these changes compatible in Spanish football?
From the Spanish legal perspective, it is far more difficult for loyal supporters of a Sports Limited Company (Sociedad Anónima Deportiva, most commonly known in Spain as a SAD) or Football Club to make decisions regarding the club’s badge or colours of the home shirt. For example, Atlético Madrid and Real Valladolid have recently modified their badges, which caused protests by sections of their respective fans, which ultimately served no purpose as the decisions were never reversed at the time (despite the fact Atlético Madrid have returned to their previous badge for this upcoming 2022/23 season after originally changing it in 2017). This is because these types of decisions could be portrayed as an external interference in the operation of a commercial or private association which is not considered by existing legislation, as the Spanish Royal Football Federation does not have the capacity to take the same measures implemented by the FA.
Although it cannot be denied that the fans are the biggest driver of the sports sector through purchasing TV subscriptions and tickets, these fans are instead protected by the regulations of consumers and users, which could be considered sufficient to defend their interests as clients or consumers but not in the same realm as owners or shareholders of a club. Measures such as those applied by the English FA would be easier to introduce for the shareholders than for the general fan that attends matches at the stadium, but that is not necessarily to say that the shareholders will have the best interests of the Club in mind, especially to the same extent as the Club’s supporters.
The interference of the fans in these types of decision could be problematic for the evolution of the brand and economic development of the Clubs and SADs, which according to multiple reports, have allowed them to generate a large number of profits. Nevertheless, it has created a large disconnection between the owners and the fans in Spain with many clubs, such as Valencia C.F. frequently protesting against the Club's owner, Peter Lim – where fans have staged boycotts against Singapore-based Lim and president Anil Murthy due to the pair’s disregard towards the fans’ feelings. The focus should now be on organisations such as the Federation of Shareholders and Partners of Spanish Football (Federación de Accionistas y Socios del Fútbol Español, known as ‘FASFE’) to take into consideration a similar approach to the English FA in Spanish sport to ensure that the rights of Spanish fans are greater than what they currently are in relation to the SADs and Clubs.