A legal challenge to The FA’s decision to end the 2019/20 football season in Steps 3-7 of the English football National League System without promotion or relegation on account of the COVID-19 pandemic has been dismissed. The arbitral panel, chaired by Lord Dyson with Charles Flint QC and Andrew Green QC, rejected the challenge brought by South Shields FC, a club sitting in an automatic promotion position at the point of cessation of the season.
The NLS is part of the pyramid of English football, of which the Premier League sits at the top. The NLS comprises seven ‘Steps’, each of which represents a different level of competition. The Steps are interlinked, such that ordinarily at the end of each season, a number of clubs will be promoted and relegated between each Step.
On 9 April 2020, The FA decided to bring the 2019/20 season to an immediate end for all clubs in Steps 3 to 7 of the NLS, in light of the ongoing global health crisis, removing the ordinary requirement for promotion and relegation between the various Steps of the NLS and expunging the results for the part-completed season.
South Shields is a football club which competes in the Premier Division of the Northern Premier League (the “NPL”), which operates at Step 3 of the NLS. South Shields challenged The FA’s decision on three grounds.
1. First, the club argued that the decision was ultra vires Rule B.2 of The FA’s Rules of the Association, which requires the ongoing existence of “relegation and promotion links” in the NLS and the amendment of which is a shareholder-reserved matter.
2. Second, the club argued that The FA had failed to engage in relevant consultation with the various clubs in each affected Step of the NLS prior to the decision.
3. Third, South Shields alleged that a change to remove promotion for the 2019/20 season unlawfully interfered with accrued rights. By that ground, the club contended that The FA had a contractual obligation to promote and relegate clubs at the end of each season. That was said to be an essential term upon which clubs participated in the relevant competition, such that the rules and regulations could not be amended once the season had started and/or, inter alia, a relevant legitimate expectation to similar effect.
The arbitral panel dismissed South Shields’ claim on each ground. It held that:
- The FA’s decision was not ultra vires Rule B.2 of the FA’s Rules of the Association in that the mandated promotion links did not necessarily require there to be promotion and relegation at the end of each season and did not therefore preclude the voiding of the whole or part of a season.
- The allegation of breach of the (admitted) duty of relevant consultation was not made out in all the circumstances.
- South Shields did not have any accrued or vested right to promotion. The presumption against retrospectivity did not require an interpretation of The FA’s Rules that only permitted the amendment of its rules and regulations before the commencement of any playing season. Nor did South Shields have a legitimate expectation that the rules and regulations would not be changed during a playing season. The FA had never given a clear and unequivocal representation to that effect, and in any event was entitled to take the decision it did.
Ian Mill QC and Tom Mountford acted for South Shields FC.
James Segan QC and Celia Rooney acted for The FA.
The independent Rule K Arbitral Tribunal was chaired by Lord Dyson and was also composed of Charles Flint QC and Andrew Green QC.
The full decision is available here.