PROTECTING CLUB HERITAGE
Ms. Crouch’s starting point is that football clubs are NOT ordinary businesses. This is because they have extraordinary value to the communities that they represent, in terms of history, tradition and simple pride in their achievements. They need specific protections that reflect this.
What sort of protections ?
The central plank is that fans of a club should hold a “golden share” which would allow them a right of veto if their club proposed to to do anything that fans did not support on certain heritage matters.
Clubs would not be able to avoid this veto power. It would be a condition of their licence that such a power be created, and incorporated into the club’s Articles of Association.
What are heritage matters ?
Ms. Crouch identifies four main areas where the veto right could be exercised, but she is careful to describe these as only the minimum extent of the veto :
• in respect of a proposed sale of the club’s stadium (or the granting of security over it)
• any proposed relocation of the club outside the local area (with some exceptions for temporary moves as part of an agreed redevelopment)
• any attempt by a club to join or play in a competition not sanctioned by or affiliated to FIFA, UEFA or the FA
• proposed changes to the club’s name, first team colours, badge
Is this a big issue?
Yes, increasingly it is. Most people are familiar with the forced re-location of Wimbledon to Milton Keynes without supporter consent. But in recent years we have seen :
• attempts to change the club name (at Hull City)
• changes to first team colours without proper consultation (Cardiff City)
• six EPL clubs proposing to join the European Super League without consulting anyone beforehand
• clubs selling their stadium to others, or to arm’s length companies (Derby County, Sheffield Wednesday)
Is the golden share like an equity share?
No. It confers no voting rights upon the body that holds it, and as it has no intrinsic financial value it cannot be traded like ordinary shares can.
In fact, if cannot be transferred at all, except from one authorised supporters group to another, by agreement with the regulator.
As stated above, the golden share would have to be incorporated into the club’s own governance arrangements, and having one would be a condition of clubs having a licence to play in League and Cup competitions.
Who would hold this golden share?
Ms. Crouch stipulates that the body that holds the golden share should be a recognised supporters group. She specifically recommends that this be a body that enjoys the status of a Community Benefit Society (CBS).
CBS’s have a long list of features that make them especially attractive :
• they are incorporated and thus have legal personality
• working for “community benefit” is enshrined in such a body’s constitution and working practices
• CBS’s are democratic, and operate on a “one member, one vote” basis
• they are run on a not for profit basis
• they are subject to regulation by the Financial Conduct Authority (FCA)
At the time of writing, 73 of the 92 clubs who make up the English Leagues have a CBS. At Blackpool, the body that has this status is the Blackpool Supporters Trust.
What are the practical implications of being the “golden share” holder for BST?
We have a fair amount of preparatory work to do. In particular we will have to liaise with the FCA :
• to ensure that we have minimum standards of corporate governance, including an election policy that is fit for purpose
• to ensure we have an open door policy on memberships for over 16s
• to ensure that we have minimum standards on conduct and performance for office holders…
• … and that members have the ability to remove office holders where they fall below those minimum standards
How does the process of using the golden share work?
If the Trust is contemplating using its golden share veto rights for any reason :
• it must proceed on an “inform and consult" basis with all fans (not just Trust Members) before acting
• it must hold a democratic vote before exercising its powers
• any vote should be open to all qualifying fans (see below) and steps must be taken to ensure that the vote is fair and not subject to manipulation
Both the club and the Trust (in our case) would be under a duty to act reasonably where there was a dispute about a golden share matter. This would, in practice, mean :
• that the club would have to give the Trust reasonable notice of any proposal to act in a area subject to veto so that the latter had an opportunity to respond
• the process should not be overly bureaucratic such as to impede the club’s ability to conduct its business
• and there should be an appeal and/or dispute resolution process
Who can vote on these matters?
Ms. Crouch recommends that those supporters who would be able vote would consist of :
• all members of the CBS / Trust
• current season ticket holders
• supporters who can evidence that they attended at least one home match in the previous season
Resolving disputes / arbitration process
Hopefully, the need to exercise any of these procedures will be very rare. But decisions arising from them may have significant consequences, and it is right that there should be some form of arbitration process where there are problems.
Ms. Crouch anticipates this, recommending that :
• the regulator sets the detailed rules for arbitration and identifies a suitable body to manage it
• the costs of the process should ordinarily be met by the club, unless the parties agree otherwise
Will there be any other protections?
Ms. Crouch recognises that the golden share process, whilst it will be a major step forward, will have its limitations. She notes in the Review that the Government is also embarked upon a process of planning reform. This is expected to lead to a Planning White Paper in 2022 which will address related issues such as security of tenure. She recommends that the Government use the consultation process afforded by this White Paper to consider what extra protections for football clubs can be enshrined in planning law.