No (although I have been known to be wrong occasionally)

Place yourself in the shoes of the judge [arbitrator].

You're being asked to decide how the rules are applied. You can't really re-write the rules (although tbf it has been known!):

1) Ending the Season: You have one rule that says each team is entitled to play all other teams twice home and away. That's an easy default position for that one. If a decision is taken 'not' to play all games, we have to argue that the decision to not play out the remaining games is so unfairly prejudicial to us (in all the circumstances, including balancing prejudice to other shareholders) that it would be (if injuncting) or was (if after compensation) the wrong decision.

2) Relegation: There is a clear rule that the bottom three at the end of the Season (defined as when the last match is played, so if there are no more matches...) go down. That's the default. It isn't qualified by how many matches have been played. It isn't qualified by whether the EFL has played all of it's matches. It isn't qualified by whether mathes have been played in the usual H/A manner, or at neutral venues. You'd have to imply all of that stuff. To imply a term it has to be really obvious that that's what the parties meant, or that it's the most sensible way of interpreting an unclear provision. Trouble is, I think the provision is quite clear as written. When the season ends, the bottom three in the current table go down. It's just really duff drafting*. The courts won't correct bad drafting just because it has unpleasant side effects in some scenarios. [*In fairness someone will have raised it, but the prospect of spending weeks and months trying to define how much of a season needs to have completed for it to stand, and how you calculate placings in a curtailed season, would have been put in the 'too difficult, we'll sort it out when it happens' box. Been there...]

3) In terms of continuing at neutral venues etc. This comes back to unfair prejudice and whether the measures adopted unfairly prejudice clubs like us. That's much more subjective. (As an aside, neutral venues are clearly contemplated in how 'home' & 'away' games are defined: the home team is the team whose stadium is 'or should have been' the home stadium.) The difficulty for us here is that, whilst we might be more adversely affected than others, what are the realistic alternatives? If Plod is saying we can't use our normal stadia, you've got to play somewhere, and you've got to do something around social distancing, otherwise we are back to the default of waiting for when the games can be resumed normally (or agreeing to end the season). So the Restart plan might be s**t for us, but if the alternatives are even s**tter, I don't see much hope in 'unfair prejudice' really. This, though, is where we'd have most leverage in threatening legal action (as long as the EPL and other clubs believe we, Villa and the others would press that button and f**k the football industry over by holding things up). In some ways the EPL threatening clubs with deductions etc doesn't harm an after-the-event argument that we've been unfairly pressured into agreeing to something that unfairly prejudices us. So it's going to come down to what form Restart takes and how we're impacted, and (crucially) whether there was a less prejudicial way of doing it. Always remembering the defaults are either waiting indefinitely or ending early and dealing with that relegation issue.

The other thing for us is that even if we sue following relegation, we currently have (say) a 1/20 chance of survival, so we're looking a lost 1/20 chance at staying up, so compensation being a small percentage of whatever we can convince someone would have been the likely profit for next season [not all EPL teams make a profit!]

Villa & Bournemouth might do better of course. Which now makes me wonder - given we're likely to be going down, and given compensation (for us) is likely to be negligible, ought we get fully on board with Restart to undermine the credibility of any argument Villa etc make? Maybe a bit too Machiavellian.

I still remain convinced that this will be sorted out exec-to-exec in the fairest way possible but in a way that preserves the existing league structures. The lawyers won't really be weaponised beyond veiled threats, it would be too bloody for football.

I think we're in a morally very strong position, but a legally weak one, and sadly (and more importantly) a commercially weak one. So whichever way this pans out, I think we're f**ked, unless we win the lottery and relegation is scrapped!

Posted By: CWC on May 8th 2020 at 16:09:57

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