The Arsenal midfielder Jack Wilshere’s recent comment that only English people can play for England has sparked a storm of controversy which, on the face of it, is a storm in a tea-cup. It could be argued that it is common sense that the English representative national team should be a team of Englishmen. That isn’t xenophobic or racist: France’s national team should be a team of Frenchmen; Ghana’s national team should be a team of Ghanaians; China’s national team should be a team of Chinamen; Jamaica’s national team should be a team of Jamaicans; and so on.
But if you scratch the surface it is easy to understand why the subject matter is controversial. One reason was highlighted by the South African-born English cricketer Kevin Pietersen on Twitter. A number of English sporting stars aren’t actually, English at all.
Former England cricket captain Andrew Strauss was born in South Africa; as was fellow-English cricketer Jonathan Trott. The British winner of the 2013 Tour de France, road cycling race, Chris Froome, was born in Kenya. And who can forget the British patriotic euphoria when Somalian-born Mo Farah won Great Britain’s first ever Olympic gold medal in the 10,000 metres at the 2012 London games.
Can none of these sporting greats claim to be English? Well, no. Actually they can’t. But then neither can anybody else. As a nationality “English” doesn’t exist (although “Scottish” does). If you don’t believe me, check your passport. In most cases this isn’t an issue because our nation is generally represented in sports by a national team which encompasses Wales, Scotland, Northern Ireland and England. Where it doesn’t, the regulations need to make more detailed provision about who can play for which country. Those rules have to take account of little local difficulties, such as the history and politics of the island of Ireland where people born in the six counties that make up Northern Ireland are entitled to both Irish and British citizenship.
So what are the regulations?
Football – FIFA
The Fédération Internationale de Football Association – FIFA – is the governing body of world football. Its eligibility criteria is set out in Articles 15 to 18, or Part VII, of its Regulations Governing the Application of the Statutes, last updated in May 2008.
In principle, the regulations provide that “any person holding a permanent nationality that is not dependent on residence in a certain country is eligible to play for . . . that country.” So, it’s simple: if you’re French, you play for the French national team; and if you’re British, you play for. . . well, they cover that in Article 16.
A person whose nationality would entitle him to play for more than one national team – such as a Brit – can choose which one to play for; so long as at least one of the following conditions are met in relation to his chosen sporting nationality: he or his biological mother or father or his grandmother or grandfather must have been “born on the territory of” the relevant football association; or he must have lived continuously in the territory of the relevant association for at least two years. National federations sharing a common nationality are allowed by FIFA to agree to either extend the qualification period for residence (the latter of the conditions listed above) beyond two years or to remove residence as a criteria completely. The home nations have agreed to remove the residency criteria.
There are other exemptions too. If a player changes his nationality and has not previously played for a national side, he can play for his new national side so long as he, his biological mother or father, or his grandmother or grandfather was born on the territory of his new national football association; or if he has lived for at least five years after reaching the age of 18 on the territory of the relevant football association.
A player who has played for one national team can only change to another national team in two circumstances: firstly he can switch to another national team – but only once – up to his 21st birthday so long as he is otherwise eligible to represent that other nation and has not played in an official Category A international competition match for his existing team; or if he loses his nationality through the involuntary actions of a government authority. In the latter case he will need to have obtained nationality of his new team before being eligible to play and in both cases he will need the prior consent of FIFA’s Players’ Status Committee.
The situation in the island of Ireland has caused FIFA no little amount of grief. The Irish Football Association, the national association for Northern Ireland, can only select players for its national team who are eligible through links to the territory of Northern Ireland; while its counterpart in the Republic of Ireland, the Football Association of Ireland, can select players who with links both to the Republic and to Northern Ireland, because the Irish government recognises people born in the North as Irish citizens.
The matter reached the Court of Arbitration for Sport which upheld FIFA’s interpretation of the rules. Despite the “unfair ‘one-way situation’”, the court said that “Players born in Northern Ireland have a right by birth to an Irish and British passport which entitles them to be selected for the representative teams of the IFA as well as of the FAI, whereas, in contrast, players born in the Republic of Ireland do not have such dual-nationality from birth and, as a consequence, are confined to playing for the association teams of the FAI” (Irish Football Association v Football Association of Ireland, Daniel Kearns and FIFA  CAS 2010/A/2071).
Cricket – ICC
The governing body for world cricket is the International Cricket Council (ICC). Its rules are set out in the International Cricket Council’s Player Eligibility Regulations, which were last updated on 18 September 2013.
The international eligibility rules for cricket are slightly more complex because they cover not only what player is eligible to play for which national federation; but also restrictions on the number of different types of player each national federation can field in a match. There are also different rules that apply to the three different membership categories: full, associate and affiliate; and different rules for men and women.
The full members are the elite cricketing nations: Australia, Bangladesh, England, India, New Zealand, Pakistan, South Africa, Sri Lanka, West Indies and Zimbabwe. There are 37 associate members, including Scotland and Ireland; and 59 affiliate members. Associate and affiliate memberships are those national federations where the game is under development.
The core eligibility criteria is that a player must have been born in the country; is a national of the country; or has resided in the country for a minimum period of 183 days in each of the immediately preceding two years for women and four years for men.
However, a country whose national federation is an associate or affiliate member of the ICC can only select up to two players who are eligible by the four-year-residence qualification. This limit doesn’t apply to players who have fulfilled the residence criteria for a minimum of seven continuous years.
There are a number of additional eligibility criteria for players wanting to play for associate or affiliate member countries; these are participation in the national domestic leagues; working for 100 days coaching, playing or working in the administration or development of cricket during the previous five years; or having represented the country before the eligibility regulations changed.
A player can switch national federations much more easily than his footballing counterpart; but male players can’t switch to another country if he has played in an international match for a different full member in the preceding four years. This period is reduced to two years if he is returning to an associate or affiliate member that he previous played for before switching to a full member country.
It is a much simpler criteria for female players: they can’t switch countries if they have played for another country in the preceding two years.
A player can only switch countries once; unless the second switch is to return to an associate or affiliate country they played for prior to switching to a full member country.
Rugby Union – IRB
The International Rugby Board (IRB) is the world governing body for rugby union. Its player eligibility rules for international teams are set out in Chapter 8 of Section three of the IRB Handbook 2013. The rules are very simple and clear – even though the handbook contains nine pages of explanatory guidelines in addition to the two pages of rules.
A player is eligible to represent a country in a senior fifteen-a-side or Sevens teams if he, a parent or grandparent was born in the country; or if he has resided in the country for three full years immediately prior to his first game. Unlike FIFA, the IRB’s definition of “parentage” includes formal legal adoption. And the rules on transferring to a different country are simple too: he can’t; or at least he can’t since a no-swap rule was introduced on 1 January 2000.
In their guidance notes, the IRB helpfully sets out the reasons for their eligibility criteria; and says that the rules are “to ensure that players . . . have a genuine, close, credible and established national link with the country of the Union for which they have been selected. Such a national link is essential to maintain the unique characteristics and culture of elite international sporting competition between Unions.”
Rugby League – RLIF
The RLIF’s international eligibility rules are set out in section three of the Laws of Rugby League.
At first glance, the rules are very similar as for Rugby Union: A player is entitled to play for the country in which he, either of his parents or any of his grandparents was born; or the country which has been his principal place of residence for a period of three years up to the date of his selection.
Where the rules differ is that Rugby League players with dual eligibility can switch countries, but only at the end of the next World Cup tournament, or the expiry of two years, whichever is earlier; but in any case not during any international tournament in which that player is participating.
Swimming, Diving and Water Polo – FINA
The Fédération Internationale de Natation (FINA) is the world governing body for swimming, diving, water polo, synchronised swimming and open water swimming. Its eligibility criteria is set out in General Rules 1 to 2 of the FINA Constitution and Rules.
Most competitors compete as individuals but they must be registered with their national federation in order to do so. A competitor who moves his residence – either temporarily or permanently – can simply register with the new national federation, and will come under their jurisdiction.
Where competitions involve national teams, or a competitor is officially representing his country, for example in the Olympics, the competitor must be a citizen by birth or naturalisation. If a competitor is a naturalised citizen he must have lived in the country for at least one year prior to the competition.
A competitor can’t change his affiliation from one national governing body to another unless he has lived in the territory of the new national governing body for at least a year before representing the new country.
Can only an Englander play for England?
Jack Wilshere’s comments appear to be in response to media reports of comments by England manager Roy Hodgson that he and and the Football Association are watching the talented young Manchester United winger Adnan Januzaj with a view to a future England call-up.
But, as things stand, Januzaj would not be eligible to play for England under FIFA rules. His options are Belgium, the country of his birth; or Albania, Turkey and Serbia through his parental links. He would also be entitled to play for Kosovo but there is no FIFA affiliated team in that country.
If Januzaj accepted any approach to play for England, he could qualify; but only if he applied for and was granted British citizenship. Many media reports suggest that he could qualify after five years of residence; but as a citizen of an EEA member state he would need to live in the UK for six years, not five, before he could apply.
The UK immigration rules require EU citizens to hold Permanent Residence status for 12 months before applying or naturalisation. Permanent Residence status comes automatically for EU citizens after five years of continual residence in the UK. So the earliest that Januzaj could apply for UK citizenship would be March 2017; by which time he would be still only be 22 years old – but he may not be willing to wait that long before starting his international career.
Of course, all of this is entirely hypothetical on the assumption that Januzaj actually wants to play for England. The Kosovan newspaper Gazeta Express quotes the former Belgium youth coach Marc Van Geersom saying that Januzaj has repeatedly rejected call-ups to the Belgium national side because his father would prefer the player to play for Albania.
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The play-off competition to decide who will be promoted from Campeonato Brasileiro Série D to Série C, the fourth and third divisions of the Brazilian football league, descended into farce on Saturday and is now destined to be decided by a judge in a court of law rather than footballers on the field of play.
The first leg of the play-off quarter-final between Associação Atlética Aparecidense and Tupi FC had finished 1-1; and the teams were level at 2-2 with a minute-to-go of the second leg. The rules of the competition, organised by the Confederação Brasileira de Futebol, the Brazilian Football Confederation, meant that if the scores remained that way at full time, Aparecidense would progress to the semi-final on the away-goal rule.
But in the 89th minute Tupi forward Ademilson Correa cleared past the advancing Aparecidense keeper and had a clean shot on goal. He would have scored, putting Tupi through to the semi-final, but for the bizarre actions of a member of Aparecidense’s backroom staff.
Their Masseur, Romildo Fonseca da Silva, was hanging around the goal just off the playing area, and took it on himself to enter the field of play and block not only Correa’s shot but the resulting re-bound.
The Tupi players chased da Silva out of the ground, providing a little “masseur” moves of their own. There were no more goals after the game eventually re-started and Aparecidense advanced.
The Aparecidense team bus was attacked by angry Tupi fans as it left the stadium; while Tupi’s management say they will take the matter to the courts.
As it stands, Aparecidense are set to play Mixto Esporte Clube in the semi-final at the E Stadio Anibal B stadium in Toledo on Sunday. But Flavio Zveiter , President of Brazil’s Supreme Court of Sports Justice, has told tv channel STV that a hearing to determine the outcome of the match should take place by the end of this week. Article 243-A of Brazil’s rules provide for a fine of between 100 and 100,000 US dollars and forfeiture of the match in cases where a person related to a club acts contrary to sporting ethics.
The Football League has maintained that a commitment by SISU-owned Otium Entertainment Group to return Coventry City Football Club to the city of Coventry was a condition of their permission for the club to “temporarily” ground-share with Northampton Town.
Coventry City’s chief executive, Tim Fisher, has repeatedly stated that the club’s owners intend to return the club to the Coventry area and they have agreed a £1 million bond with the Football League should the club not do so (the Football League has since revealed that this “bond” is nothing of the sort – it is, instead, a promise to pay should the club default on its promise, rather than a sum that has been lodged with the League or an Escrow service).
Tim Fisher has made a number of promises and self-offered deadlines over the past few months, stating that more information about the company’s (or companies’) plans for their new stadium would be forthcoming. But despite this, Coventry City Fans remain in the dark.
Tim Fisher’s first – and most significant – promise was made in May this year when he said that the new stadium would be built within three years. Four of those 36 months have now passed and fans still don’t know where the proposed new stadium will be built.
And on 26 July Tim Fisher told the Coventry Telegraph that “terms had been agreed” on one site, subject to contract and that they had entered “exclusive talks on a second site”. He said that they were “aiming to finalise a deal within eight weeks.”
That is a self-imposed deadline of the 20th September for the fans to be told where the new stadium will be built; although he still has not said which SISU-owned entity was seeking to buy the site and build the new stadium (and therefore own it).
In order to build a stadium CCFC will not only need to buy the land but they will also need to obtain planning permission. It is usual practice when developments on such a scale are envisioned for discussions to take place with the local authority planning offers prior to the purchase of a site.
While these discussions can’t bind the local authority on which way the decision will go once any planning application is eventually made; they can help developers identify whether planning permission is likely to be particularly difficult on the proposed site and whether it is appropriate to purchase land for the intended purpose.
Using the Freedom of Information Act, the Footy Law Blog asked Coventry City Council and all six neighbouring local authorities whether their planning offers had “engaged in formal conversations with third parties over the past 36 months about any proposed new sporting stadia within the council boundary area”.
The local authorities were also asked for the number sites discussed as a proposed location for any new stadia; whether any discussions were still on-going; and whether the planning department had received any indication that a planning application for new sporting stadia was to be expected.”
The local authorities were deliberately not asked for the identity of any third parties engaged in such discussions: such a request was likely to have been refused on the basis that the information was exempt from disclosure on the grounds that it would breach the Data Protection Act or prejudice the third parties’ commercial interests.
In response to the requests, Coventry City Council – which covers the area that the Football League regulations say CCFC should be based (not that the Football League has followed its regulations in its handling of CCFC’s move away from the Ricoh Stadium) – say that its planning department “has not engaged in formal conversations with third parties over the past 36 months about any proposed new sporting stadia within the council boundary area” and that it has “not received any indication that a planning application for new sporting stadia is expected.”
The same is true of North Warwickshire Borough Council, Solihull Metropolitan Borough Council, Stratford upon Avon District Council and Warwick District Council.
Nuneaton and Bedworth Borough Council was slightly more nuanced: it’s head of development control said that she was “not aware” of any formal conversations with anyone about a new sporting stadium; and that no planning application was expected.
Rugby Borough Council, on the other hand, has had discussions with third parties during the past three years about proposed new sporting stadia. Six locations were identified but discussions “primarily revolved around one specific location.” Those discussions are no longer on-going and the planning department has received no notification that a planning application should be expected.
So, the question remains: “Where does Tim Fisher plan to build CCFC’s new stadium?”
Or, perhaps a more pertinent question is: “Does Tim Fisher really plan to build a new stadium for CCFC?”
And a key question that the Football League can no longer duck: What information have they received to show that Otium Entertainment Group intend to return the Club to the confines. Are the Football League presiding over another Wimbledon franchise by stealth?
Note: The FOI requests were made in separate emails to the local authorities on 12th August 2013. On 13th August the request to Solihull Metropolitan Borough Council was clarified to make clear that the question referred to large sporting stadia with spectator seating rather small community facilities. Responses were received in the period from 13th August 2013 to 6th September 2013.
The Prison of Measured Time blog, which focuses on football finance, has published leaked player transfer documents which clearly contradict statements by Coventry City FC chief executive Tim Fisher and administrator Paul Appleton.
The leak is important – and the blog should be congratulated for getting hold of these documents and having the courage to publish them – because Tim Fisher and Paul Appleton have repeatedly stated that key assets of Coventry City Football Club – player registrations – were not held by Coventry City Football Club Ltd (the company in administration) but by Coventry City Football Club (Holdings) Ltd, a different SISU-owned company that was not in administration.
This information would have seriously affected the so-called “sale”-process of Coventry City FC Ltd which saw another SISU-owned company, Otium Entertainment Group Ltd, emerge as the preferred bidder. In the end the sale didn’t go through because Ricoh Arena owners ACL rejected a CVA and the administrator has announced his intention to liquidate the company that was in administration (but doesn’t appear to have made any progress on this).
The information would have been key to the Football League’s decision to transfer its “golden share” in the League from the company in administration to Otium Entertainment Group.
Tim Fisher, writing in the Preston North End match-day programme on 25th August, claimed that the Football League had been registering players in Holdings, rather than Ltd since “way before SISU took over”, adding: “there is a myth that somehow SISU have set up this structure because they have something to hide when, in fact, it was a structure they inherited.”
The documents obtained by A Prison of Measured Time show this to be false.
They have published compensation agreements from Aston Villa for Richard Blythe and Kofi Poyser, dated 17th December 2007; a transfer agreement with Newcastle United for Leon Best, dated 1st February 2010; transfer agreements with Walsall for Dan Fox (28th January 2008) and Scott Dann (31st January 2008); and a transfer agreement with Bolton Wanderers for Temitope Obadeyi, dated 19th September 2006.
All these documents show that the agreements are between the respective clubs and Coventry City Football Club Ltd.
Of interest to most football fans will be the financial agreements for the transfers and associated add-ons. Those details have, however, been redacted. But they are very significant for fans of Coventry City and other football fans who are concerned about the lack of transparency and fair-dealing by those tasked with regulating football.
Last night the Football League said:
“Following the failure of Coventry City FC Limited’s Company Voluntary Arrangement earlier today, the Board of The Football League has considered an application by the Administrator’s preferred bidder, the Otium Entertainment Group, for a transfer of the club’s share in The Football League under the ‘exceptional circumstances’ provision of The League’s Insolvency Policy.
The Board has agreed to transfer the Club’s share on the basis that it accepts a 10 point deduction for the 2013/14 season. This decision will enable Coventry City to continue its membership of The Football League, despite the failure of its CVA, and participate in the 2013/14 Sky Bet League 1 season.“
These three sentences leave so many questions unanswered, so I thought I would list them:
- Why is the Football League’s “Insolvency Policy” secret?
- What were the “exceptional circumstances” that applied to the situation at Coventry City?
Following the failure of the CVA, the administrator of Coventry City FC Ltd said he would now seek to liquidate the company. This has not yet happened. Coventry City Football Club Ltd remains in administration and can only be liquidated by an order of the High Court.
If disputed, as is the case here, a High Court liquidation order will only be made after a hearing at which the court will inquire into the circumstances that led up to the insolvency. The hearing will include questions about the transfer of assets; such as the “sale” by the administrator of the assets of Coventry City FC Ltd to the Otium Entertainment Group Ltd.
- Why has the Football League transferred an asset of Coventry City Football Club Ltd (the “golden share” in the Football League Ltd) to Otium Entertainment Group Ltd before awaiting the outcome of the legal process?
- Why does the Football League refer to a “preferred bidder” when talking about a company heading towards liquidation, bearing in mind that liquidation is about the closure of a company rather than its sale?
- Bearing in mind the implication behind the immediately preceding question, on what basis have the Football League decided to allow Otium Entertainment Group Ltd to be given a “golden share” in the Football League Ltd, to operate a club called Coventry City Football Club?
In an earlier statement, the Football League said it would allow Coventry City to play its home matches at Northampton Town’s Sixfields Stadium, contrary to its own rules and regulations, and the FAs rules and regulations, but that this agreement was “entirely conditional on the Club ultimately exiting administration in accordance with The Football League’s conditions and achieving a successful transfer of its League share.”
- Why did the Football League deem it appropriate and necessary to ignore both its and the FAs rules and regulations when agreeing to the ground share with Northampton Town?
- Why has the Football League overturned its own position that the ground-sharing agreement was “entirely conditional on the Club ultimately exiting administration”, bearing in mind that Coventry City Football Club Ltd is still in administration?
At a number of points during the administration process, the Administrator of Coventry City Football Club Ltd has stated that he could not operate the club in administration, as other football club administrators have done, because while Coventry City Football Club Ltd owned the “golden share” in the Football League, the players were contracted to and registered with a different company, Coventry City Football Club (Holdings) Ltd. This is contrary to the Football League’s rules and regulations that define a club as the company holding the “golden share.” This arrangement came to light after the club went into administration.
- Now that this irregular arrangement is a matter of public knowledge – and, effectively, a matter that the Football League is now aware – has the Football League insisted that the players’ contracts and registrations be transferred to Otium Entertainment Group Ltd as a condition of the transfer of the Golden Share?
- If not, isn’t it the case that Otium Entertainment Group Ltd are in the same position that the Administrator was in – ie, they have the “golden share” entitling them to play in the Football League, but no players contracted to it?
- If the “new” Coventry City Football Club (ie, Otium Entertainment Group Ltd) play a Football League match with players who are owned by another company (ie, Coventry City Football Club (Holdings) Ltd) are they not in breach of Football League and Football Association rules and regulations concerning third party ownership?
- If the players’ contracts and registrations have not been transferred to Otium Entertainment Group Ltd, are the Football League not sanctioning a further breach of their rules and regulations (and, in fact, their Articles of Association) by allowing a “club” to be operated by two separate entities?
- If the players’ contracts and registrations were transferred to Otium Entertainment Group Ltd, when did this transfer take place, and why did the Football League not publicly announce the transfer as they do with every other payer transfer?
And finally, In its earlier statement about ground-sharing, the Football League said: “with the new season less than four weeks away, the Board required certainty as to where the Club would play its matches from the start of the new campaign.” It continued: “the Board was placed in an unenviable position – with the very real possibility of Coventry City being unable to fulfil its fixtures for next season.“
In its statement last night, the Football League said its decision, in “exceptional circumstances” to transfer its share to Otium Entertainment Group Ltd “will enable Coventry City to continue its membership of The Football League, despite the failure of its CVA “
- Is it correct to read into the Football League’s statements, that its position that its rules and regulations will never be applied correctly by the Board if it means that a club will be forced to exit the Football League?
- If that is the case, aren’t the Football League saying that owners and directors can flout the rules with impunity; so long as they get their timings correct and allow things to happen right next to the start of a Football League season?
The Football League concluded its statement last night by quoting its chairman Greg Clarke saying that the Board were “dismayed at the level of intransigence being shown.”
The Board need to be aware that football fans up and down the country – not just Coventry City fans – are dismayed at the actions of the Football League and the lack of proper transparency and accountability in holding football club owners and directors to account for their mismanagement.
As one football fan said on another club’s message board last night: “Before a ball is kicked in its 125th season, the football league betrays its legacy.”
It was reported in the Coventry Telegraph last night that an agreement had been reached for Coventry City to ground share with Northampton Town at the latter’s Sixfields Stadium while a new permanent stadium is built at an undisclosed location somewhere in the Coventry area.
The Telegraph reports that the Football League Board were due to discuss the proposal today. The League has made no announcement so far.
Northampton’s chairman David Cardoza told the BBC that “There’s some legs in this, but it’s not near done and dusted,” adding: “It’s speculation at the minute.”
If Northampton and Coventry do reach a deal to share the Sixfields and the proposal is ratified by the Football League; Northampton will play second-fiddle to Coventry City on the 10 occasions when both teams are due to be home.
Internet forums and the media have quoted Football League regulations on ground sharing, particularly regulation 13.4 which states: “Ground sharing will only be approved at the discretion of the Board. The Board will not generally approve any ground-sharing arrangement where the club plays its matches outside the conurbation, as defined by the Board, from which the Club takes its name or with which it is otherwise traditionally associated.”
Many people have interpreted this by saying that a club can only ground share within 30 miles of its existing stadium – but such a condition is not stipulated in the regulations. That may be one of the Football League’s unpublished rules, or it may be that it has been applied to a different club. But the regulations themselves state it is at the discretion of the board; and the conurbation requirement will only be applied “generally”.
But little attention has been paid to the Football Association’s rules which would also apply to any ground sharing.
The Football Association’s rule 2.3.1 states that where two clubs enter a ground-sharing agreement “the Club playing in the most senior competition has priority of ﬁxtures at all times”.
This means that if Coventry City and Northampton Town do agree a ground-sharing arrangement, League One Coventry City’s fixtures would take priority over League Two Northampton.
Northampton’s home matches against Newport, Torquay, Scunthorpe, Exeter, Morecambe, York, Southend United, Bristol Rovers, Mansfield and AFC Wimbledon would have to move to a Friday or Sunday (FA rule 8.13) to make way for Coventry’s home matches against Bristol City, Preston North End, Colchester, Gillingham, Brentford, Crawley Town, Carlisle, Shrewsbury, Port Vale and Stevenage.
But the possibility of a ground share being ratified by the FA is slim, if the Association applies its rules correctly. The same rule (2.3.1) states that: “Ground sharing may not be permitted when one of the sharers retains the use of another ground unless that club can show by means of a refused planning permission or similar that it cannot meet the requirements of the Criteria Document at that ground.”
Coventry City’s present landlord, Arena Coventry Limited (ACL), has repeatedly said that it wants Coventry City to continue playing at the Ricoh Arena. The difficulty is that it won’t negotiate with the proposed new owners while the club is still in administration. ACL says it can only negotiate with the administrator as legally, the administrator is the person responsible for running the club until it exits administration.
The FA rule also states that, except in an emergency, any ground sharing agreement must be completed by the 31st March if a club is to be permitted to ground share in the following season.
- The Northampton Chronicle and Echo’s report of the story contains a peculiar line: “The deal would not be a groundshare, but purely a rental agreement.” I have absolutely no idea what they mean by this. Both the Football Association and the Football League require member clubs to have their own ground with security of tenure; but will allow the sharing of a ground, either with another member club, or with another sporting club, but such sharing agreements require the consent of both the FA and the Football League. The rules do not cover any situation that could be described as “purely a rental agreement”.
How can you make a footballer redundant without closing down the football club?
That was the question that came to mind when I read that Trevor Birch, the administrator for Heart of Midlothian FC, had made striker John Sutton redundant and that four other players from the club could follow suit.
In English employment law, it isn’t the employee who becomes redundant; but the post they hold: you can’t make somebody redundant and then employ somebody else to do the same job on a lower wage. That’s English law, but Hearts are a Scottish club based in Edinburgh and playing in the Scottish Premier League; so Scottish law applies.
Fortunately, the Employment Rights Act 1996 extends (for the most part) to Scotland! So the same law about redundancy that applies in England applies equally in Scotland.
Section 139 of the Act specifies the two conditions under which a person can be made redundant:
The first of these, section 139(a), covers the scenario where an employer has either ceased to trade, or intends to cease trading; or if he intends to cease doing business in the place where the employee was employed.
This condition does not appear to apply in the case of “the Hearts’ Five” because the administrator is striving to sell the club as a going concern and there has been no announcement of a plan to move the club from its Tynecastle stadium.
The administrator is encouraging fans to buy season tickets and he has thanked a commercial sponsor for bringing forward their payment for next season’s sponsorship fee, saying: “All these gestures have played their part in keeping the club afloat and giving it a lifeline.”
This does not sound like there is an intention to cease trading; unless the administrator’s intention is that the present company behind the club, Heart of Midlothian PLC, will cease to trade when new owners purchase the assets through a new or different company.
The second of the two conditions, section 139(b), is more interesting. This applies where the requirements of the business are such that the employer no longer requires employees to carry out work of a particular kind, whether that is at all or just at the place where the employee was employed.
I don’t think that anybody would seek to suggest that Hearts no longer requires employees to carry out work as professional footballers!
But Heart’s website lists 22 first team players (I don’t know if the list is up to date, but John Sutton’s name isn’t amongst them). It could be argued that the club didn’t need as many footballers in order to carry out their business; or it could equally be argued that they didn’t need as many of the same type of footballer.
Of the 22 players listed on the club’s website, five are strikers: Dale Carrick, Callum Paterson, Billy King, David Smith and Scott Robinson; so it is quite possible that the administrator no longer needed six strikers to carry out the business of the football club.
If John Sutton has been made redundant under this condition, the club (or rather its administrator) would be unable to sign another striker because doing so would demonstrate that the company did need an employee to carry out this type of work: the redundancy would then be unlawful dismissal.
Of course, circumstances change; and this does not preclude the company from signing another striker in the future should other players leave or if one of their remaining strikers receives an injury.
Redundancy isn’t fun for anybody – employees or employers. Fortunately, in this case, John Sutton wasn’t unemployed for long. STV reports that within hours he had returned to his previous club Motherwell.
The player told Motherwell’s website: “It’s good to be back, good to see some familiar faces and there’s a lot to look forward to. I wasn’t desperate to leave here last time and I was glad for the opportunity to come back again and work with the manager and the staff who always made me feel welcome any time I returned.”
In yesterday’s statement about the sale of assets from Coventry City Football Club Ltd to Otium Entertainment Group Ltd, the administrator Paul Appleton said: “as I’ve stated on many occasions, it is Holdings which employs the players…”
This statement is in line with previous public comments made by both him and by Tim Fisher, a director of Coventry City Football Club Ltd, its owner Coventry City Football Club (Holdings) Ltd and its owner, the proposed purchaser, Otium Entertainment Group Ltd.
This is the reason that Mr Appleton gives for the joint administrators not running the football club during the administration: that the football club is Holdings rather than Limited.
In my post yesterday I spoke about this bizarre set-up of two seemingly interchangeable and interoperable companies running a football club; and I did so, on the basis of the statements made by Mr Appleton and Mr Fisher.
But I did so knowing that something wasn’t right with the statement and I wanted more time to consider the implications.
The difficulty with the statement is that the players aren’t registered to Holdings, as Mr Fisher and Mr Appleton have said; but to Limited.
What’s my source for this?
My source is Mr Appleton and Mr Fisher themselves.
In his report to the creditors, Mr Appleton includes an appendix listing the director’s estimates of Coventry City Football Club Ltd’s assets as of the 21st March 2013 – that’s Mr Fisher’s estimates.
Appendix 4 of Mr Appleton’s report clearly shows that Mr Fisher believes that the company in administration owns players’ registrations as an asset with a book value of £466,742; and an “uncertain” release value.
The players’ registrations can’t be an asset of Ltd if the contracts are held by Holdings.
The Footy Law Blog is a vehicle for legal analysis rather than personal opinion; and I do not want people to assume that I am accusing or implying that Mr Fisher and Mr Appleton are lying. What I am saying is that they have made seemingly contradictory statements.
As I considered how to approach this self-contradictory position, a story appeared in the Coventry Evening Telegraph, reporting a similar claim from a different source.
Arena Coventry Ltd, owners and operators of the Ricoh Arena, told the paper that: “CCFC (Holdings) Ltd did not employ the Sky Blues players as per the most recent set of accounts filed for the business reporting upon the financial year ending 31 May 2011, signed off by BDO as an independent auditor on 20 June 2012.
“On the basis of this publicly available information, Mr Appleton’s statement today is not entirely factually accurate.”
We don’t know the current position, because neither Coventry City Football Club Ltd or Coventry City Football Club (Holdings) Ltd have filed their 2012 accounts with Companies House; and it could be that the players’ registrations are amongst the assets sold by the administrator yesterday to Otium Entertainment Group Ltd.
If they are, then the administrator has definitely has jumped the gun because until the Football League agrees to transfer its share to Otium, the proposed new owner has no right to compete in the Football League or its associated competitions.
“The sale of Coventry City Football Club Limited to Sisu company Otium has been completed,” the Coventry Evening Telegraph trumpeted today on its website. It wasn’t alone. ITV News said: “Breaking: Coventry City sale ‘completed’”.
This is a major milestone in the history of the Sky Blues.
Or, it would be if it had happened; but it hasn’t. Or, rather, this isn’t what the administrator has announced.
The statement issued by Coventry City Football Club Ltd’s administrator, Paul Appleton, said: “I can confirm that the asset sale by Coventry City FC Limited to Otium Entertainment Group Limited has been completed. Otium has purchased the right and title to certain assets possessed in Limited including the shares in the Football League and the Football Association.”
To me that’s clear as day: Paul Appleton has sold “certain assets” – not the whole company.
The full extent of those assets isn’t clear; but the administrator does say the sale includes the shares in the Football League and the Football Association.
I’ve not researched the Football Association’s rules – that’s a job for another day; but I do have information about the Football League.
There are 100 shares in the Football League; of which 72 have been issued at a cost of £0.05 – five pence each: one for each club in the League. They can be sold, but only for five pence; and any transfer is subject to the approval of the Football League.
When Mr Appleton placed the company for sale, he warned potential bidders that Coventry City Football Club (Holdings) Ltd asserted beneficial ownership of the Football League and Football Association shares; and he repeated this caveat in his announcement today:
“I stress that I have only been able to sell such right and title to these as Limited possesses because CCFC Holdings Ltd asserts beneficial ownership over them.”
This statement is nonsense.
The Football League’s Articles of Association, the legal document setting out how it does its business and how its shares can be transacted, makes it very clear in unambiguous language that a share can only be owned by a single company; and that joint or trust ownership is not allowed.
I covered this in a separate post last night about the Football League’s insolvency policy.
In a nutshell, there is no such thing as beneficial ownership of a Football League share. The share is owned by a single company and can be transferred only with the consent of the Football League.
In addition, the Articles state, in clause 4.5, that the Football League can give notice to a shareholder to transfer the share to “such person as the Board [of the Football League] may specify” for the price of just five pence, if one of a number of conditions are met.
One of those conditions (4.7.1) is that if somebody other than a Member Club becomes a shareholder. If Mr Appleton has sold the Football League share to Otium Entertainment Group Ltd in the way he has announced, then this condition is met and the Football League can now order this share to be given to any company that they choose to run Coventry City FC.
I qualified that statement by saying “if Mr Appleton has sold the Football League share…” because another one of the conditions (4.7.4) is a club going into administration; and another (4.7.5) is a group company suffering an “insolvency event”.
I understand that it is usual practice for the Football League to implement these conditions when a club goes into administration by effectively suspending the share – having it returned to the League for redistribution when they are satisfied that the administration has been completed with owners who pass their Owners and Directors Test.
If this is the case, what has Mr Appleton sold?
He doesn’t claim to have sold the company, merely its assets; but if the Football League followed their Articles of Association and usual practice, the company didn’t own the assets he says that he has sold.
Coventry City Football Club is in a bizarre position: two distinct companies, Coventry City Football Club Ltd and Coventry City Football Club (Holdings) Ltd, appear to be operating interchangeably. Mr Appleton acknowledges this in his statement by saying that “This has been no ordinary football administration and I have tried to undertake a sale process which allows the club to compete in all of next season’s competitions. Obviously, one of the key points now is to determine where the club plays its football next season, but that is a matter for the purchasers and the Football League.”
He adds: “In this regard, the offer made by ACL”, the company that owns and operates the Ricoh Arena, “to allow the club to play at the Ricoh was dependent on Limited remaining in administration and was based on the mistaken belief that Limited had the ability to field a team.
“However, as I’ve stated on many occasions, it is Holdings which employs the players and, consequently, Limited was never in a position to take up the offer.”
According to public statements, Coventry City’s players are contracted to Coventry City Football Club (Holdings) Ltd. But without a share in the Football League this company can’t play in the League.
The share – and with it the right to play in the League – is owned (or was owned) by Coventry City Football Club Ltd. Under insolvency laws it is for the administrator to control this company until it exits administration. But if Holdings insist the players belong to them, his hands are tied.
Mr Appleton adds: “The Football League have been kept closely informed of developments and I am continuing to work closely with them so that the process of transferring the share can begin. This will involve sending out proposals for a voluntary arrangement to creditors which will be considered at a meeting of creditors to be convened within the next three weeks.”
In other words, nothing has changed.
- Coventry City Football Club Ltd is still in administration.
- Coventry City Football Club Ltd is still owned by Coventry City Football Club (Holdings) Ltd.
- Otium Entertainment Group Ltd is still the preferred bidder; but has now brought some assets.One of these assets, according to administrator Paul Appleton, is the Football League Share; but according to the same Paul Appleton, the process of transferring the share hasn’t begun and can’t be started until the club comes out of administration.
We are this evening in exactly the same place as we were this morning.
Mr Appleton’s announcement might be an attempt to circumvent the bizarre structural mess behind the Sky Blues so that they can begin preparations for next season; but it looks incredibly like the runners have jumped the gun.
Mr Appleton’s statement has not been followed up by announcement from the Football League. They need to make clear where Coventry City Football Club and its fans now stand.