A Case For Scottish Clubs Playing In England

[YehButNoBut]

I posted on the Hearts thread today about some joker saying Hearts could look at playing in the Championship in England and had a good laugh at it, but the more I read about it made me think it would be a good topic for discussion.

The report below is by Eoghainn MacLean of Ampersand Stable of Advocates, he specialises in commercial law and has a particular interest in competition law, he has recently given a series of talks to a range of bodies on the implications of competition law to the Scottish and English football leagues.

http://www.ampersandstable.com/ampersand/Who_28_view

Full report is on post #2 below but some of the main points are bulleted, may there come a time in the near future where one of our clubs, possibly Hibs, would apply, as a test case, if so would certainly be interesting to see what the outcome would be.


Scottish Football Clubs could sue the FA and any other opposing football authorities in competition law for orders forcing their entry to the English football leagues
their case would be that they are a business undertaking that should be free to provide its services as a football club to the buyers of those services anywhere in the UK
The Court would not require Scottish Football Clubs to enter at the bottom of the English National League System
the likely number of cross-border transfers would be limited. While Hearts, Rangers, Celtic, Hibs, and perhaps one or two other Scottish clubs might, on the same grounds, benefit from entry to the English leagues
Inverness CT, if they got into League 2, would likely find their supporters less interested in fixtures with Exeter City than with Ross County, their broadcast income little higher and their wage, travel and other costs substantially greater. If they stayed, they would be amongst the biggest fish left in the Scottish pool, with better prospects of domestic success and European qualification
Scottish Football Clubs have little to lose and much to gain from finally taking this competition case to court

[YehButNoBut]

Scottish Football Clubs could sue the FA and any other opposing football authorities in competition law for orders forcing their entry to the English football leagues. They could do so in the Court of Session in Edinburgh. It would be Bosman for the clubs.

That is Scottish Football Clubs' route to the FA Premier League. In his 14 years of denying that there is one, Richard Scudamore, its chief executive, has been wrong for, at least, 12 of them.

Rangers have vowed to explore ways for the club to play in the English game. Since 2009, UEFA have made it clear that it would not oppose that. The SFA has now indicated likewise. The Football Conference has suggested the possibility of the club being admitted to its premier division, England's fifth tier.

The English FA, the FA Premier League and the Football League now seem to be the only bodies still insisting on the geographic division of professional football markets in the UK by opposing Scottish Football Clubs' move. The clubs' case in competition law is its prime lever to force or override those bodies' consent. It seems, however, Rangers may not have been advised of it. This whole issue is about restrictive trade practices not sex-discrimination.

Scottish Football Clubs' case would be founded on two pillars of UK competition law, Chapters I & II of the Competition Act 1998. They are applied in accordance with EU law and are directly enforceable by private undertakings in the ordinary courts.

No competition case is "easy" but, in my opinion, Scottish Football Clubs would have a good prospect of success. In essence, their case would be that they are a business undertaking that should be free to provide its services as a football club to the buyers of those services anywhere in the UK. That the buyers are, principally, the organisers of domestic football league tournaments, who distribute shares of revenue in return. That the English football authorities are cartels which abuse their dominant position on those markets in the UK by having rules which exclude professional clubs that do not play their home games in England or Wales. That is a hard core competition abuse, worse than price fixing and Scottish Football Clubs would have a good case in principle.

The English authorities would have two possible defences, on which they would have the burden of proof. Neither would, in my view, succeed.

The first, "the sporting exception for fundamental rules of the game", would require them to show that their rules, which exclude Scottish Football Clubs from the English game, are essential to their conduct of the sport and only have an incidental economic impact. That Welsh senior clubs participate in their leagues and that those rules have helped create a vast and growing disparity in income between Rangers or Celtic and Cardiff City or Swansea City, clubs with no comparable history of on-field success who can now consistently out-bid Scottish Football Clubs for on-field talent, are facts that demonstrate how difficult it would be to prove this defence.

The second, "the competition justification" would require the English authorities to prove that those rules are, in practice, more pro-, than anti-, competitive. That is to say, the splitting of UK football markets produces better economic results for clubs, fans and other consumers throughout the UK. For that, the English authorities would, at least, need to prove that Scottish Football Clubs' admission to the English game would lead to their league matches producing less revenue by attracting smaller crowds and less viewers. Scottish Football Clubs would not have to prove the opposite, though plainly they would have a good prospect of doing so.

If the court accepts Scottish Football Clubs case and rejects the defences, then the clubs would have been the victim of a civil wrong by the English authorities. Ending anti-competitive practices is a fundamental aim of competition law and a court order requiring them to change their rules and admit Scottish Football Clubs who meet their stadium criteria would do that in this case.

The Court would not require Scottish Football Clubs to enter at the bottom of the English National League System. The victim of a civil wrong must, so far as the court can, be put in the position it would have been had the wrong not been committed. If Mr Scudamore and his colleagues have, indeed, been saying "no" consistently for 14 years, then the club has been wronged continuously since, at least, 2000 when the Act came into force. Had Scottish Football Clubs been admitted then, where, is it likely, they would be now? With evidence of their past achievements, domestically and in Europe, their gates and their revenues, even in a small league and over years, including this season in the Scotland's fourth division, there would be a strong argument that they should be admitted to the Championship, at least.

The court could not refuse Scottish Football Clubs a remedy just because it might "open the floodgates" to other cross-border club transfers. Competition law requires the ordinary courts to give private businesses, like Scottish Football Clubs, effective remedies. Its whole purpose in giving them rights is to have them do the job of enforcing that law by obtaining court orders that bring market abuses to an end.

In any event, the likely number of cross-border transfers would be limited. While Hearts, Rangers, Celtic, Hibs, and perhaps one or two other Scottish clubs might, on the same grounds, benefit from entry to the English leagues, for many others it would be unwise. Only Celtic would have a similar case for entry to a higher division. Inverness CT, if they got into League 2, would likely find their supporters less interested in fixtures with Exeter City than with Ross County, their broadcast income little higher and their wage, travel and other costs substantially greater. If they stayed, they would be amongst the biggest fish left in the Scottish pool, with better prospects of domestic success and European qualification.

On the continent, Ajax might well get a transfer to the Bundesliga, relying on the EU competition law from which the UK Act is derived. For most, however, transfers between member states' leagues would be even less attractive for similar, but more marked, reasons. They would be further restricted by additional hurdles in EU law that Scottish Football Clubs would not face under the Act.

Football authorities are not above the law. Since the Bosman case, FIFA and UEFA have repeatedly lobbied for EU legislation and, latterly, non-binding declarations that the splitting of domestic football into national territories within the EU is, nonetheless, compatible with competition law. They have been consistently refused.

What, probably, stopped Scottish Football Clubs going to court in the past, were the rules in FIFA's, UEFA's and the national associations' constitutions which prohibit clubs from taking action against any football bodies in the ordinary courts.

Courts in the UK are unlikely to give effect to such prohibitions, especially in a competition abuse case. The EU Commission has insisted on their removal from the rules of the FIA, motor sport's governing body, and from FIFA's rules, in so far as they affect player transfers, which was scope of the case it was then dealing with.

There is always a risk, however, that a court might not be persuaded to grant all the interim orders necessary to prevent FIFA, UEFA and other football authorities from being able to make sanctions against an "offending club" or its parent association take practical effect in the short term.

While Scottish Football Clubs were competing at the top level in Scotland and trying to be competitive in Europe, with all the expenditure on players, staff and everything else that that required, they may have assessed the risk as too great. Now, however, that they face being cast even further adrift by Scottish league reconstruction, they have little to lose and much to gain from finally taking this competition case to court.

[Gustavo Fring]

im not sure that would work . so say 7 scottish teams force entry to the english league....

do 7 unlucky teams get kicked out to make space for them ?

[Sylar]

I still don't get why clubs would want to.

Once the sheer pipe-dream of playing the top clubs on a weekly basis is eventually replaced by the reality of playing clubs like (and with no disrespect to them) Grimsby Town, Aldershot, Torquay, Hereford, Mansfield and Morecambe (to name but a few), what do you think would happen?

Clubs already struggle to take decent support with them to places across Scotland and some quarters are calling for the League Cup to be regionalised on account of attendance problems.

Once the novelty wears off, how many fans do you think clubs outwith the Old Firm would take to an away fixture in the south of England on a Tuesday night against a League 1/2 Club?

[joe breezy]

If Hibs were to join a British league I'd be over the moon

Lots of people state worst case scenario stuff - Torquay away Tuesday night - think about clubs smaller or similar size than Hibs - Swansea, Norwich, Wigan then consider how far that went

Then think about Man U, Chelsea, Newcastle at home

It would be an absolute windfall just to be in League 1 and we'd work our way up

I'd die happy

[Bishop Hibee]

No thanks. We'd never see Hibs play in Europe again or lift another trophy in my lifetime. Better being relatively big fish in a small pond. We'll be an even bigger fish when a Euro League comes about and Celtc and possibly Newco clear off.

[ScottB]

Considering the investment and players being lured to ****holes in England like Hull and other ****my places, imagine what we could do? If we had the same resources surely Edinburgh would be a much more attractive destination for players?

Ultimately, Scottish football is just going to get weaker. I'm not convinced Sky's money is ever going to dry up, and while no doubt some of the oligarch type money might eventually dry up, there's no shortage of clubs to take the place of any that fall.


I'd be all for Hibs getting involved in the English set up. If Wigan, Swansea and Hull can achieve success, there's no reason why we couldn't at least reach Championship level, and probably fill the stadium against the big names.

[Bristolhibby]

Edinburgh is in Scotland not England - FACT.

Case closed.

[ScottB]

Edinburgh is in Scotland not England - FACT.

Case closed.

The location of Cardiff and Swansea suggest the case isn't...

[YehButNoBut]

The more I think about it the more I think that legally there might be a case if you treat football the same as any other business.

But practically, can't see it ever happening.

Also if Scotland did go independent (a whole different question) then even more unlikely.

[Glory Lurker]

It works both ways, of course. The same principle would allow English clubs to insist on entry to the Scottish leagues. In fact, what is to stop all the Scottish clubs joining the English leagues, and all the English clubs joining the Scottish leagues? I want this to happen!

Alternatively, if for some demented reason that plan won't happen, I will settle for the old firm just going off anywhere else.

[Andy74]

If Hibs were to join a British league I'd be over the moon

Lots of people state worst case scenario stuff - Torquay away Tuesday night - think about clubs smaller or similar size than Hibs - Swansea, Norwich, Wigan then consider how far that went

Then think about Man U, Chelsea, Newcastle at home

It would be an absolute windfall just to be in League 1 and we'd work our way up

I'd die happy

Yep.

[Saorsa]

No thanks. We'd never see Hibs play in Europe again or lift another trophy in my lifetime. Better being relatively big fish in a small pond. We'll be an even bigger fish when a Euro League comes about and Celtc and possibly Newco clear off.That bit will do for me.

[joe breezy]

Unfortunately I see no signs of change - the European league sounds good as well

Just like society the rich are getting richer and the poor are getting poorer

[jgl07]

To get into the English League system any Scottish club would have to start at the bottom of he pyramid. There are 24 levels! Even if if was possible to jump the queue by joining say the Northern League Division Two at Level 10, it would be a long haul to even get to play the likes of Carlisle in League One.

It is not going to happen.

[clerriehibs]

The English league is effectively a shop selling products.

No-one can tell any shop what products to offer in their shop or how their products are composed.

It's like tesco being told to sell Heinz beans when they have decided to sell only HP beans.

[ScottB]

It works both ways, of course. The same principle would allow English clubs to insist on entry to the Scottish leagues. In fact, what is to stop all the Scottish clubs joining the English leagues, and all the English clubs joining the Scottish leagues? I want this to happen!

Alternatively, if for some demented reason that plan won't happen, I will settle for the old firm just going off anywhere else.

Berwick play in our leagues, Gretna started down south then switched from the English structure to play in ours too.

I suspect there's enough there to force a legal case out of it, but still unlikely.


I reckon the end result will be some sort of regionalised European league, as UEFA will have to do something to prevent the top sides just waltzing off on their own.

[YehButNoBut]

To get into the English League system any Scottish club would have to start at the bottom of he pyramid. There are 24 levels! Even if if was possible to jump the queue by joining say the Northern League Division Two at Level 10, it would be a long haul to even get to play the likes of Carlisle in League One.

It is not going to happen.


If the court accepts Scottish Football Clubs case and rejects the defences, then the clubs would have been the victim of a civil wrong by the English authorities. Ending anti-competitive practices is a fundamental aim of competition law and a court order requiring them to change their rules and admit Scottish Football Clubs who meet their stadium criteria would do that in this case.

The Court would not require Scottish Football Clubs to enter at the bottom of the English National League System. The victim of a civil wrong must, so far as the court can, be put in the position it would have been had the wrong not been committed. If Mr Scudamore and his colleagues have, indeed, been saying "no" consistently for 14 years, then the club has been wronged continuously since, at least, 2000 when the Act came into force. Had Scottish Football Clubs been admitted then, where, is it likely, they would be now? With evidence of their past achievements, domestically and in Europe, their gates and their revenues, even in a small league and over years, including this season in the Scotland's fourth division, there would be a strong argument that they should be admitted to the Championship, at least.

This part says different, again think that legally there may be a case for this, but football isn't like any other business and placing say Hibs right into the English Championship would cause all sorts of difficulties in so many ways.

[joe breezy]

The English league is effectively a shop selling products.

No-one can tell any shop what products to offer in their shop or how their products are composed.

It's like tesco being told to sell Heinz beans when they have decided to sell only HP beans.

Any shop owner that doesn't want the brilliance of Hibernian in their shop is a bam

[Glory Lurker]

Berwick play in our leagues, Gretna switched from the English structure to play in ours too.

I suspect there's enough there to force a legal case out of it, but still unlikely.


I reckon the end result will be some sort of regionalised European league, as UEFA will have to do something to prevent the top sides just waltzing off on their own.

Totally off topic, but Gretna (Annan?) made some sort of history the day before we won the Skol Cup by qualifying for one of the early rounds of the FA Cup. I can't tell you what I did yesterday, but somehow remember that!

[MyJo]

I still don't get why clubs would want to.

Once the sheer pipe-dream of playing the top clubs on a weekly basis is eventually replaced by the reality of playing clubs like (and with no disrespect to them) Grimsby Town, Aldershot, Torquay, Hereford, Mansfield and Morecambe (to name but a few), what do you think would happen?

Clubs already struggle to take decent support with them to places across Scotland and some quarters are calling for the League Cup to be regionalised on account of attendance problems.

Once the novelty wears off, how many fans do you think clubs outwith the Old Firm would take to an away fixture in the south of England on a Tuesday night against a League 1/2 Club?

We wouldn't be playing the same teams 3 or 4 times a season making away games, regardless of who they are against, more of an event for the travelling supporter and playing outwith the premiership means that less of our games are likely to be televised so fewer stupid kick-off times to contend with

The reality of playing Ross County, Partick Thistle, Inverness & St Mirren is probably as equally appealing to clubs outwith scottish football as your scenario is to us. After a few years in a british league every club will have found thier level and should be playing against clubs with similar resources and sizes in a more competitive league system. IMO we would be a championship level club at least if given the same funding that the english clubs currently get and the only reason we are losing players to league 1 clubs etc just now is down to money.

[Eyrie]

No competition case is "easy" but, in my opinion, Scottish Football Clubs would have a good prospect of success. In essence, their case would be that they are a business undertaking that should be free to provide its services as a football club to the buyers of those services anywhere in the UK. That the buyers are, principally, the organisers of domestic football league tournaments, who distribute shares of revenue in return. That the English football authorities are cartels which abuse their dominant position on those markets in the UK by having rules which exclude professional clubs that do not play their home games in England or Wales. That is a hard core competition abuse, worse than price fixing and Scottish Football Clubs would have a good case in principle.

Eoghainn MacLean was doubtless well paid to contrive an argument that the situation is anti-competitive, but whilst that argument could be used to allow (say) Sevco Huns to have a stadium in London and compete with Chelsea/Arsenal/Spurs etc for local support, it can't be used to force a private members body like the Football League or Premiership to admit them.

That's the key - the organisers of the leagues in England are the Football League and the Premier League, which are composed of member clubs (72 and 20 respectively) and as such they are entitled to insist on certain criteria for membership in the same way that a single sex golf club can. Neither the FL or PL is a separate body which "purchases" the services of its competing teams. If they were, then they could use his logic to put in bids to attract Barcelona or Bayern Munich to replace Hull or Stoke and increase their commercial income. The Ugly Sisters and ourselves wouldn't get a look in.

[Dashing Bob S]

I find the desire of clubs in smaller populated countries to play in larger populated neighbours cringeworthy and embarrassing. Instead of looking to England or Germany as their solution, nations like Scotland, Holland, Belgium, Sweden, Norway etc, should be looking to start their own European regional league. They could then look at the kind of model they want to set up in advance (ie: premiership v bundesliga) and control their own destinies. Such a league, with countries which have strong English-as-second-language components, would be attractive to broadcasters.

A West European premiership or championship berth for a club like Hibs, would be preferable to starting in some Blue Square League.

[Deansy]

And what happens (IF it comes off) when after the first 2/3 games, the rangers (and possibly their age-old business-partners-in-grime, Septic) fans are banned sine did from attending matches due to their usual behaviour (rioting, rampaging etc) as soon as they set foot over the border ???

[Billy McKirdy]

We wouldn't be playing the same teams 3 or 4 times a season making away games, regardless of who they are against, more of an event for the travelling supporter and playing outwith the premiership means that less of our games are likely to be televised so fewer stupid kick-off times to contend with

The reality of playing Ross County, Partick Thistle, Inverness & St Mirren is probably as equally appealing to clubs outwith scottish football as your scenario is to us. After a few years in a british league every club will have found thier level and should be playing against clubs with similar resources and sizes in a more competitive league system. IMO we would be a championship level club at least if given the same funding that the english clubs currently get and the only reason we are losing players to league 1 clubs etc just now is down to money.

Your post absolutely drips with common sense and truths.

Scottish football is in truth, two massive clubs in the Old Firm, 4 or 5 potentially big clubs on a par with clubs outwith the big 5 or 6 in England, and a multitude of various sizes diddy clubs.

As a fan of football, I want to see my club, compete with the best, and I really believe that Hibs could succeed in a British context.

I'm up for this big style.

[FifeHibernian]

Nooooooooo, **** this

[Bostonhibby]

Just when wee Eck is trying to move the whole shooting match the other way? Not a politically correct idea methinks. Maybe the rest of us will be allowed to go South and the yams could be left as the "big" team in Scotland? Win win I think Ian Murray MP (Independent Chairman) called it.

[Miguel]

I can see some kind of Euro breakaway league coming.
The big clubs don't need UEFA any more. If, say, the 20 richest clubs got together, they would corner the TV money and sponsorships.
They certainly don't need FIFA, and international football is just a pain for them - from their point of view, why would, for example, Real Madrid pay £90m for Bale and risk him getting injured playing for Wales?
Where does it all leave us? Eventually, probably a return to real grass roots football that is about a much lower standard even than now and fewer, but perhaps more closely connected fans.

[Hibercelona]

We already ponder to the English in Scottish Football.

They may as well call this league EPL2.

[Sir David Gray]

We are a Scottish football club and should remain in the Scottish league.

I agree with the point about never playing in Europe again or winning another trophy as well if we moved down to England. Although it doesn't happen a lot at the moment for us, we are still in with a realistic chance every year. If we played in England, there would be about 40 clubs ahead of us in terms of qualifying for Europe and winning cup competitions.

As others have said, we can barely take a half decent support to Aberdeen on a Saturday at 3pm, what chance would we have if we were playing Plymouth on a Tuesday night in December? We would probably have more players there than fans!

[LancsHibs]

What's to stop the Football League creating a League 3 and say inviting the top 12 Scottish clubs and the top 12 from the football conference. The Scottish clubs within a few seasons would find their natural levels! This would appease the existing English clubs who would, quite rightly oppose the likes of Celtic being parachuted into their premier league or championship at he expense of one of their member clubs.

[Jones28]

Lets just give on scottish football, pander to England and follow the money.


That's the objective here, and I can't stand it. Christ, the renaming of the spl to the premiership is bad enough

[Ozyhibby]

My preference would be a merger with the scandinavian countries.
One way or another it will happen soon. Leagues all over Europe will consolidate.

[JohnStephens91]

We are a Scottish club, we should be playing in a Scottish national league set-up. All the league needs is a mix-up to try and make it more exciting for the fans and then also (hopefully) some extra investment from somewhere. The English league wouldn't be what it is without huge sponsorship deals and television rights. In my view Hibs, Hearts and Aberdeen are bigger clubs than the likes of Fulham, Norwich, Swansea, Everton, hell even Newcastle and Sunderland too, but the money not being pumped in via Barclays, Sky etc it doesn't help matters at all.

[GoldenEagle]

I wouldn't be adverse to seeing more British clubs in a new GB league.

[clerriehibs]

Your post absolutely drips with common sense and truths.

Scottish football is in truth, two massive clubs in the Old Firm, 4 or 5 potentially big clubs on a par with clubs outwith the big 5 or 6 in England, and a multitude of various sizes diddy clubs.

As a fan of football, I want to see my club, compete with the best, and I really believe that Hibs could succeed in a British context.

I'm up for this big style.

Why do people persist in putting down Scottish football because it has 2 big teams and then a number of also rains?

Virtually every senior league in the world has 1,2 or 3 big teams and every other team is an also ran.

Why ever start supporting Hibs if you don't like the competition? And if you don't like the competitions we're in, why not piss off and watch a team in a competition you do like?

All this play in a British league is just rantic claptrap, PARTICULARLY when people seem to think Scottish teams have a right to choose which level of the English leagues we should parachute into! Unbelievable up your own erchie tosh.

[BoltonHibee]

Totally off topic, but Gretna (Annan?) made some sort of history the day before we won the Skol Cup by qualifying for one of the early rounds of the FA Cup. I can't tell you what I did yesterday, but somehow remember that!

Are you thinking of this?

http://www.scotsman.com/sport/football/latest/gretna-grit-forged-in-fa-cup-battle-with-bolton-1-1117823

[clerriehibs]

We are a Scottish club, we should be playing in a Scottish national league set-up. All the league needs is a mix-up to try and make it more exciting for the fans and then also (hopefully) some extra investment from somewhere. The English league wouldn't be what it is without huge sponsorship deals and television rights. In my view Hibs, Hearts and Aberdeen are bigger clubs than the likes of Fulham, Norwich, Swansea, Everton, hell even Newcastle and Sunderland too, but the money not being pumped in via Barclays, Sky etc it doesn't help matters at all.

Have you seen the crowds the toon pull in while winning nothing? They have all of the NE of England from Newcastle up to themselves, which is a fair amount of bodies. They're bigger than us.

[Keith_M]

Why don't we just join the spanish league? Think of the away matches..

..and the senoritas! :greengrin

[Kaiser1962]

This would be the end of FIFA and UEFA and possibly the national associations. Most other clubs would then be applying to join the leagues of Germay/Italy/Spain/France whichever geographically suited.

Then players contacts would surely follow.

[Billy McKirdy]

Why do people persist in putting down Scottish football because it has 2 big teams and then a number of also rains?

Virtually every senior league in the world has 1,2 or 3 big teams and every other team is an also ran.

Why ever start supporting Hibs if you don't like the competition? And if you don't like the competitions we're in, why not piss off and watch a team in a competition you do like?

All this play in a British league is just rantic claptrap, PARTICULARLY when people seem to think Scottish teams have a right to choose which level of the English leagues we should parachute into! Unbelievable up your own erchie tosh.

Because Scottish football is, has been, and always will be up it's ain erchie, you might be happy watching the same teams four or five teams every season ad infinitum, but I am simply bored with the status quo and have been for years.

I am certainly no fan of the old firm and other than them ****** off to anoher league, see no real future for the rest of Scottish football in it's current format, with or without the ugly's.

What do YOU propose to make the game better for Scottish clubs with ambition's beyond thier current season to season struggle to survive in a dying league.

The debate is on...jump in with something better please :aok:

[Scouse Hibee]

If English clubs want to join the Scottish league let them apply and start from the bottom.