UEFA's licensing system & the Role of the SFA

-
It has been stated in previous posts that all the latest developments regarding Rangers FC, have the potential of giving rise to different sports law issues. In the last few days, there has been a rather complicated discussion as to whether Rangers FC could potentially play in Europe, next season, either with their current status or under a new status.


Firstly, I wish to point out [as my disclaimer also states] that the content of this post does not, in any way, give rise to any kind of legal advice, nor should it be interpreted as such. My personal views relate to the analysis of the regulatory framework currently in place and to my experience in licensing matters before the Court of Arbitration for Sport [CAS] in the last two years.

Having said that, it would also be prudent to point out that the Rangers FC situation is more complicated than other matters, simply because of the legal position of the club at the moment. In terms of sporting analysis, the club has won the right to participate in the qualifying rounds of UEFA's Champions League competition. Such sporting right, however, is conditional upon the club satisfying a series of different and stringest requirements, in relation to UEFA's licensing and fair play system.

In terms of the legal position of the club, it could be argued that any legal advice would depend on the business decision making of those who are currently in charge. Given that the club may be acquired by a potential investor, its future legal position would very much depend on what the investor has in mind. He may require an immediate participation in Europe and the SPL, or a period of time for putting the club's finances in order, or perhaps, both.

If the investor decides to transfer, or even sell the club's assets to a newly formed company, he would have to use his powers of negotiation to persuade the SFA and the SPL as to why the new corporate entity deserves to participate in Scotland's top flight of football. This would be the first hurdle. The second hurdle would require Rangers FC's new investor to persuade the SFA, who in turn, would have to persuade UEFA to make an exception and allow the new Rangers FC into the qualifying rounds of the Champions League competition.

Here, most of you would argue that such participation is not allowed given the existence of the 'three-year' rule for new entities. This, however, is not an absolute rule. A persuasive legal approach towards interpretation would be not to examine what is written, BUT, instead, what IS NOT written [and could, therefore, be argued in favour of the omission].  A careful consideration of the rules currently in place [along with the several documents and circulars regarding licensing] could indicate the several 'open' windows that may allow Rangers FC its participation in European competitions. Could it be done? The answer is yes. Whether UEFA would consent to such interpretation that would allow a new Rangers FC into its competitions, could give rise to a different matter altogether. UEFA would have to consider the integrity of the competition and whether a decision to allow Rangers FC to participate in European competitions, could, potentially, jeopardise the legal interests of other clubs [in this instance I am thinking out loud and pointing towards Motherwell].

All this, of course, could also depend on the support a new Rangers entity could receive from the SFA and the SPL. If the two regulatory entities welcome a new Rangers FC into the SPL competition, they would, automatically, 'recognise' the club's legal right to sporting competition. Even if the new Rangers FC does not participate in Europe in 2012-2013 season, its presence in the SPL and its acceptance of the terms, conditions and regulations regarding participation, would give the club a legal right to safeguard any sporting rights won in the SPL, towards European qualification for the 2013-2014 season. Given the potential satisfaction of the 'break-even' licensing principle by the new Rangers FC entity, UEFA may find itself at odds with its 'three-year' rule prohibition. Whether such rule could be determined as being anti-competitive and against the established decisions of the European Court of Justice, could be the subject-mater of a different analysis.

Finally, my personal view is that a new Rangers FC entity would probably fail to gain European participation this season. But this is an academic forum which respects an open discussion with critical and constructive analysis and it does not preclude the submission of different ideas. I am not suggesting that Rangers FC will play in Europe next season. Instead, I am saying, without a doubt, that the club could put a persuasive and comprehensive case forward, simply because of the potential interpretation the current rules allow.

It is, therefore, not all about the law, but also about how far politics could determine the literal application of the current regulatory framework.

Dr. Gregory Ioannidis

8 May 2012.


Comments

Post a Comment

Popular posts from this blog

Preliminary (Provisional) & Conservatory Measures before the Court of Arbitration for Sport (CAS): Procedure & Practice.

-
Image
  An important aspect of procedure and practice before the CAS, relates to the ability of applicants to seek urgent protective measures, in the form of an application for a Stay of execution of the appealed decision. The legal basis for such application can be identified in Article 183 of Swiss Private International Law and R37 of the CAS Code. The latter, provides that the CAS may, upon request of a party, order preliminary or protective measures. According to CAS practice and jurisprudence (See  CAS 2003/O/486; CAS 2013/A/3324; CAS 2013/A/3199; CAS 2010/A/2071. CAS 2001/A/329; CAS 2001/A/324 ), there is a three-stage test that needs to be satisfied for a successful application on such protective measures (provided that the issue of jurisdiction has been settled): The requested measures must be necessary to protect the Applicant from irreparable harm; There must be a likelihood of success on the merits of the claim; The interests of the Applicant in the reques
Read more

An Insight into the World of Football Transfers

-
Image
This is an interesting, unique and controversial area of modern sport that deserves further examination. Football transfers are, of course, not a new phenomenon. A series of important developments, however, such as the modern and increased commercialisation of sport, as well as the implications and consequences of the decision in the Bosman case, have created a complex framework of individuals, regulations and financial opportunities that determine the present situation. 
Read more

A Civil Action: Recipe for Disaster?

-
The developments in Scottish football, this year, have been astonishing and rather controversial. For the sports lawyer, this is a remarkable opportunity to examine and critically analyse further the perennial battle between state regulation and self-regulation. Rangers have certainly given us this opportunity with their decision to challenge the transfer embargo imposed on them, by submitting an application to a civil court in Scotland. Irrespective of the Scottish court's decision, the question remains whether the football authorities in Scotland would impose further sanctions on Rangers as a result of this development.
Read more