As the festive fixture list peaks, Brodies' sports law team has taken the opportunity to review the key legal developments in UK elite football in 2023. There has certainly been a lot to keep us engrossed both on and off the pitch this year. With that in mind we have summarised some of the top legal issues that the stakeholders, governing bodies, legislators, governments, and courts have had to tackle this year.

Player gambling / elite footballers as business assets 

Player gambling is a recurring issue particularly in the world of football where gambling companies are one of the most prolific sponsors in the game. However, Sandro Tonali's transfer from AC Milan to Newcastle United F.C. ("Newcastle") for a reported £55 million in July of this year, and subsequent 10 month ban from football in October due to his personal betting activities during his time at AC Milan, raises an interesting legal question. Should high profile footballers be treated in the same vein as an expensive business asset in a sale to another entity and as such should the seller/agents be under the same duty to disclose information which might affect the assets' value as would normally apply in such a sale? In other words are selling clubs or agents (where they are representing both the player and the buying club), under a duty of good faith to disclose information (where known) regarding the sale of their players to buyers and if so can buyers like Newcastle sue them for breach of their duties where they fail to do so?

This is something that has not yet been tested in the courts as purchasing clubs have to date sought to rely on their own pre-transfer due diligence, which in the modern game can even involve private investigators. However, it is certainly a possibility in the near future and one which we would be fascinated to see play out due to the legal intricacies, for example the conflict between the duty to disclose information relating to a player against a player's right to privacy under data protection legislation such as UK/GDPR.

Financial Fair Play 

In September the Premier League introduced new rules to expedite Financial Fair Play cases so that they are completed within 12 weeks of a charge and ultimately to ensure that penalties such as points deductions take effect within the season that the rules breach occurred. This means that we may see more sanctions before the end of the 23/24 season.

UEFA's Financial Fair Play regulations are in place across the footballing ecosystem to ensure that clubs don't spend more than they can afford in their pursuit of success on the pitch. The key requirement in the Premier league's implementation of these rules is that clubs must avoid making a loss of more than £105 million over a three-year period.

Everton F.C. fell foul of these rules and were subsequently awarded a 10-point deduction in November of this year with an independent commission finding them guilty of breaching the £105 million limit. Everton have since filed an appeal to the Chair of the Premier League's Judicial Panel which will be addressed before the end of the 23/24 season.

Independent regulator for football

In November of this year the UK government re-affirmed its plans to legislate for an independent regulator of the game in England. King Charles III acknowledged, in his annual address to parliament, that the legislation shall be put forward to "safeguard the future of football clubs for the benefit of communities and fans".

It is anticipated that the new independent regulator will be responsible for: the re-distribution of broadcasting profits across the English pyramid, the establishment of more stringent club Ownership tests, the implementation of minimum levels of club engagement with fans and the maintenance of a licensing system which (i) requires clubs in the top 5 tiers to maintain a professional licence and (ii) prevents any club from forming or joining an unlicensed league.

FIFA Football Agent Regulations 

The new FIFA Football Agent Regulations (FFAR) regulating the activity of football agents across the globe, were due to come into force, in full, on the 1st of October however certain aspects have been delayed in different jurisdictions due to legal challenges.

These regulations were unpopular with agents for a variety of reasons, namely the fact that they restricted their ability to earn an uncapped income. In the UK various agencies challenged the Football Associations' implementation of the National Football Agent Regulations (NFAR), which replicate the FFAR at a national level for domestic transfers, raising claims that the regulations breached aspects of UK competition law.

On 30th November the FA's disputes tribunal ruled that two parts of the rules were incompatible with UK competition law, the fee cap on agent commissions (limiting fees to 3% of a player's gross salary) and requirements that agents be paid on a pro rata basis. This decision is in line with other national rulings across Europe challenging or rejecting the regulations, due to competition law issues.

This week the Football Association published their updated national regulations, "The FA's Football Agent Regulations", which shall come into force on the 1st of January 2024. These national regulations which are applicable to transfers within England adopt a large proportion of the FFAR, but following the decision of the tribunal, are currently devoid of any cap on agency fees or restriction on payment structuring. There are also a number of other important clarifications such as confirmation that agents (not including legacy agents) must have passed the FIFA Football Agent Exam in order to continue practising in January.

The divergence between the FFAR and these newly introduced regulations will be particularly noticeable for those stakeholders involved in international transfers during the January transfer window, for which the FFAR (including the agent fee cap) shall apply.

Until further authoritative rulings have been reached on the legality of the FFAR, agents and their clients have to deal with complex legal implications of international transfers, giving due regard to the varying approaches to the applicability of the FFAR in different jurisdictions.

Boost for European Super League 

The European Court of Justice ("ECJ") this month ruled that UEFA's rules requiring the preapproval of football competitions such as the European Super League ("ESL"), were contrary to EU competition law. The court found that the rules blocking the formation of the ESL in 2021 were not transparent, objective, non-discriminatory or proportionate and therefore constituted an abuse of a dominant market position. Importantly, the court stressed the ruling was not an approval of the ESL and that this would still be for UEFA to decide in accordance with EU law, rather it was merely a check on UEFA's dominant position preventing rival competitions.

Despite EU law no longer applying within the UK, the ECJ's judgement does bring the ESL one step closer for those UK clubs wishing to participate in this breakaway league which promises competition with some of Europe's best.

If you would like to discuss anything raised in this blog please contact one of our sports law experts: Andy Nolan, Calum Lavery or Catriona Salton.

Contributors

Calum Lavery

Senior Solicitor

Andy Nolan

Partner

Catriona Salton

Solicitor