Can disgruntled football clubs challenge Project Restart? Exploring the duty of ‘utmost good faith’ in the EFL & Premier League

Tuesday, 09 June 2020 Author: Ashley Cukier, Anirudh Mathur

On 28 May 2020, Premier League clubs unanimously decided to return to contact training, in accordance with the Government’s recently published ‘Elite Sport Returning to Training Guidance: Stage Two.’ The following day, it was provisionally agreed that Premier League fixtures would resume on 17 June. Other decisions are proving harder. Clubs are reportedly yet to decide on issues such as whether neutral venues should be used for some matches, whether the number of permitted substitutes should be increased, or whether to pay an estimated £330m rebate to broadcasters.

Divisions in the English Football League are starker. QPR’s chief executive, Lee Hoos, is quoted as saying the club is “appalled by” and “vehemently opposed to” the EFL’s plans to return on 20 June.[1] Reports suggest that at least six promotion-chasing League One clubs are determined to complete the season, whereas other clubs would prefer to terminate the season altogether.[2] Peterborough United, currently in a playoff position, have already threatened legal action should the final table be decided by points-per-game; which – if applied – would push the club out of the playoffs. Relegation-threatened Tranmere Rovers have similarly threatened legal action.

The Premier League and English Football League (“EFL”) rules provide that clubs and the relevant league shall “behave towards each other with ‘utmost good faith”.[3] But how, if at all, might such a duty bear upon issues such as those identified above?

This article by Ashley Cukier and Anirudh Mathur of Littleton Chambers explores the duty of ‘utmost good faith’ in the context of the Premier League and EFL Rules. Specifically, it examines:

The corporate framework
The duty of utmost good faith
Utmost good faith and ‘Project Restart’

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Tags: Coronavirus | Covid-19 | Dispute Resolution | England | English Football League | Football | Premier League | Regulation | UK

Written by

Ashley Cukier

Ashley is a barrister at Littleton Chambers specialising in commercial litigation and sports law. He was last year named by Chambers & Partners as an ‘Up and Coming’ Sports Law barrister (the only junior barrister recognised as such in last year’s rankings), and is now regularly sought out by solicitors and sporting bodies, as both counsel and as an arbitrator. He was recently appointed as one of the barristers conducting the investigation into unlawful discrimination at Yorkshire County Cricket Club. His sports practice is focused particularly on contractual and regulatory disputes, especially in a footballing context where, over the past year, he has appeared in and presided over a number of FA Rule K arbitrations, FIFA Football Tribunal claims and EFL proceedings, often against counsel much his senior. He speaks several languages and is often sought out to assist on cases containing international elements and/or involving questions of foreign law, jurisdiction and enforcement.

Anirudh Mathur

Barrister, Littleton Chambers

Anirudh has a broad practice across Chambers’ core practice areas of commercial, employment, and sports law. He also welcomes instructions in international law and public law, building on substantial work prior to pupillage and in his twelve-month pupillage at a leading public law Chambers.

His significant instructions and advocacy experience to date include:

- Advising on a £4m asset recovery matter raising issues under the Proceeds of Crime Act and involving multiple jurisdictions (as junior counsel to James Ramsden QC).
- Advising on the merits of a £250k civil fraud claim (as sole counsel).
- Acting for a Claimant in a case raising allegations of sexual harassment, discrimination and victimisation, scheduled for a 7 day ET trial (as junior counsel to Lucy Bone).
- Arguing pro bono for an Indian anti-corruption NGO in hearings against mineral miners, before a Committee comprising retired Indian Supreme Court Justices (prior to pupillage). Anirudh argued against two top-tier Indian Silks over 5 days of hearings. The Committee commended his advocacy.