RANGERS could sue the Football Association 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 Rangers’ 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’ Charles Green has 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 Rangers’ move. The club’s case in competition law is its prime lever to force or override those bodies’ consent. It seems, however, Mr Green may not have been advised of it. This whole issue is about restrictive trade practices, not sex discrimination.
Rangers’ 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, Rangers 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.
If the court accepts that, Rangers would have been the victims 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 Rangers would do that in this case.
The Court would not require Rangers 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 Rangers 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 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 Rangers 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 Rangers, 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 Celtic, Aberdeen, Dundee United, Hibs, Hearts 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 among 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 Rangers 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 Rangers 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 Rangers 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 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.
• Eoghainn Maclean is an Advocate practising competition and other commercial law. He is a member of the Ampersand Stable. The stable will be holding a seminar on legal issues affecting Scottish football (www.ampersandstable.com).