A legal challenge to the decisions of the Football Association for Wales (“FA Wales”) arising out of the termination of the 2019/20 football season has been dismissed. Mr Justice Marcus Smith rejected the challenge, brought by The New Saints (”TNS”), a club sitting in second position in the Cymru Premier League (“CPL”) when football was suspended in March. In doing so, the High Court upheld this year’s Welsh nominations to the UEFA Champions League and the UEFA Europa League, which it found had been made in accordance with UEFA’s “sporting merit” criterion.
On 13 March 2020, FA Wales suspended all football activity in Wales, in light of the ongoing COVID-19 pandemic. Thereafter, on 19 May 2020, the governing body decided that it was unable to complete the 2019/20 football season in its existing format and brought the season to an end for all competitions in the men and women’s Welsh National Leagues, including the CPL – the top tier of the men’s football pyramid in Wales.
Neither decision was challenged before the High Court. TNS, instead, challenged two consequential decisions, arising from the termination of the football season.
- The first was the decision not to complete the football season using an alternative format, in particular a system of play-offs that would allow some (but not all) of the clubs that remained in contention for the UEFA competitions to fight for nomination.
- The second was the adoption of an unweighted ‘points-per-game’ (“PPG”) model, to determine final standings and, in turn, the UEFA nominations.
TNS contended that neither consequential decision complied with UEFA’s “Guidelines on eligibility principles for the 2020/21 UEFA Club Competitions – COVID 19” (the “UEFA COVID Guidelines”), pursuant to which nominations for the UEFA competitions are to be made, so far as possible, on the basis of “sporting merit”.
TNS’s challenge was rejected on all grounds. In summary, the High Court held that:
1. The CPL Rules which are applicable where a club ‘ceases to operate’ were of no application in the present circumstances (the provisions instead being designed to deal with the circumstances in which a Club is in financial difficulty).
2. The decisions of FA Wales were not ultra vires. The UEFA COVID Guidelines were designed to “inform a decision-making process rather than to set hard-edged limited as to the vires of member associations like FA Wales”, so that the process of determining the UEFA nominations was essentially a discretionary approach and did not limit the governing body’s powers.
3. The FA Wales’ Board had not ‘rubber stamped’ the decision of its National League Board, which in any event had sufficient delegated authority to make the decisions on its own.
4. The decisions not to adopt some form of playoffs, and instead to curtail the football season, determining final standings using a PPG method, were rational and procedurally fair. The adoption of selective playoffs between only two of the teams that remained in contention was “very much not a sporting process”. As for the various methods for determining final standings in the absence of further matches, the Judge recognised that he could not “possibly substitute [his] view on the merits (whatever that might be) for the considered judgment of the FA Wales”. The adoption of the PPG option was thus upheld.
5. The FA Wales had not unlawfully failed to revisit its decisions, in the period before the hearing, in light of the changing circumstances of the pandemic. Mr Justice Marcus Smith recognised that “the mere fact that there has been a subsequent change of circumstance [did] not necessarily mean that a decision made, and lawfully made, must be re-visited.” Indeed, his Lordship recognised that “there is much to be said for a certain degree of finality in decision-making, otherwise the process of public bodies turns into a “hamster-wheel” of constant review of decisions…” The decisions in this case were not “so long-term that they ought to be re-visited” on a regular basis; rather they were “”one-offs”, intended to resolve, once and for all the problem of bringing the 2019/2020 Cymru Football League season to a proper conclusion” in the extraordinary circumstances of the ongoing global health crisis.
Kate Gallafent QC and Celia Rooney acted for the FA Wales.
The full decision is available here.