What went on inside the virtual Court of Session as Hearts and Partick Thistle confront the SPFL
On a ground-breaking day for Scottish football in Edinburgh’s Court of Session, Hearts and Partick Thistle argued they are fully within their rights taking legal action against the Scottish Professional Football League.
Speaking on behalf of both clubs, David Thomson QC stated that litigation was a last resort and insisted the court should deal with the claim that they were unjustly relegated.
Garry Borland QC, acting on behalf of promoted clubs Dundee United, Raith Rovers and Cove Rangers, told Lord Alistair Clark QC that the case should be thrown out because it breaches the rules of the Scottish Football Association.
He added that it was a football issue which does not belong in court and, if not dismissed, it must be sent back to the SFA to rule on because it is a “football matter”.
Mr Borland cited article 99 of the SFA articles of association, which states the governing body should arbitrate when there is a football dispute and clubs cannot take legal action without permission from the SFA board.
He said Hearts and Partick are members of the SFA and SPFL, therefore they are bound by the rules of both organisations.
The court sat online from 11am on Wednesday using webex video conferencing, making for an unusual setting for a Scottish football disagreement.
The coronavirus crisis affects even the Court of Session as Lord Clark and the respective legal experts were left at the mercy of either their own home wifi or that of their office.
Events went as smoothly as could be expected, albeit in an even more impersonal manner than a normal court of law. The preliminary hearing lasted four hours in total, excluding a 60-minute break for lunch midway through, and continues at 2pm on Thursday.
Hearts and Partick want their relegations reversed or they are demanding £10million in compensation – £8m for Hearts and £2m for Thistle.
However, they were also warned that the maximum penalty for raising a civil action was £1m and/or suspension and/or termination of membership of the SFA.
Mr Thomson stressed that the Court of Session was the correct place for Hearts and Partick to take their dispute, which arose after 81 per cent of SPFL clubs voted to end the 2019/20 campaign early and thus relegated both.
He explained that allowing the SFA to appoint an independent panel to rule on the dispute would simply waste more time. With the new Scottish football season due to start on August 1, there is little of that to spare.
“The petitioners [Hearts and Partick] are anxious that a reference to arbitration will not secure an expeditious resolution of the dispute in the timeframe that needs to be met,” Mr Thomson told the court.
“It is manifest that the respondents [the SPFL] are determined to take a stand on what they perceive to be their right under the articles and rules of the SFA and the rules of the SPFL.
“One of those rights, under the SFA articles, is that the SFA itself will only become involved in the appointment of an arbitral panel after a period of 14 days has elapsed from notification by the secretary of the SFA.
“In other words, they would be within their rights not to nominate an arbitrator within that initial 14-day period. No-one’s availability has been checked.”
He added: “We have before the court a petition and substantial answers on behalf of each set of respondents. And we have the court, which is available to deal with this petition.
“While all issues of timetabling have not been addressed, it is at least the case that the court has provisionally indicated available dates by way any appeal could be dealt with.
“The short point is: The court can deal with this. The alternative is to go down a route which has not commenced yet. Arbitration has not commenced. We do not know the position in relation to identification, nomination, acceptance and appointment of arbitrators.
“There will inevitably be some delay in having the matter resolved by arbitration. That delay might turn out to be significant in a way which does not need to arise in relation to litigation.”
Gerry Moynihan, representing the SPFL, told Lord Clark that the dispute was best left to the football authorities. In response, Mr Thomson declared: “That is a surprising admission given that he was at pains to point out that the candidates are retired candidates of this court and retired sheriffs.
“It is not the football authorities who would be dealing with this, but rather in independent tribunal.”
The SPFL’s lawyers asked the SFA for a list of candidates for an independent tribunal in case they are required at short notice. The list was received a few days ago.
One area of Hearts and Partick’s case points to the 1965 dispute between St Johnstone and the SFA, when the Perth club went to court and won. They had been fined £25 and mounted a successful legal challenge without being their membership being revoked.
The SPFL’s lawyer told the court: “The petitioners are alleging that the written resolution [on which SPFL clubs voted] did not meet the requirements of competitive fairness and sporting integrity.
“What are the requirements of competitive fairness and sporting integrity? In my respectful submission, again a paradigm football dispute – a paradigm example of something that ought to come before a specialist tribunal.”
Mr Moynihan added that it was a “disciplinary matter to raise these matters”, with the most severe punishment being expulsion from the SFA. “To use a Glasgow term, you’re oot the game,” he said.
It was claimed that even SPFL officials could be disciplined for having this dispute running without SFA permission.
“The company is actively participating because of the serious implications this has for the conduct of its business. It wants to see these proceedings concluded as swiftly as is possible.” Mr Moynihan added: “The much preferred route is that this goes to arbitration rather than litigation.”
Mr Borland, speaking on behalf of the promoted clubs, said: “Promotion and relegation are fundamental parts of football. They are the meat and drink of football.”
Further submissions will be heard on Thursday afternoon, with the case potentially continuing on Friday if necessary.
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