The Labour government’s Football Governance Bill is an ambitious piece of legislation with some lofty goals for English football, one of the UK’s most lucrative and culturally significant sectors.
Introduced to the House of Lords as a revamp of legislation first launched by the previous Conservative government, the Bill’s central aim is to create an independent Football Regulator which will oversee the sport’s finances and ownership – but how feasible are these ambitions?
In part one of a two-part Q&A, Insider Sport speaks with Ben Thomas, Senior Associate at Bates Wells, a law firm which worked with the Fair Game football campaign group on the government’s amendments to the Football Governance Bill.
Insider Sport: To start off things off, could you please explain what role Bates Wells played in drafting the new Football Governance Bill?
Ben Thomas: When the first draft of the Bill came out in 2022, I got in touch with campaign group Fair Game, offering to collaborate on putting forward recommendations for how to amend and improve it.
Together, we compared the draft legislation with a set of requirements that Fair Game had already developed to make English football fairer, identifying issues that either weren’t adequately addressed or missed out altogether. We went through the Bill line-by-line, making mark-ups and suggesting improvements.
Our amendments were put forward by a Labour MP at the committee stage of the legislative process. However, the general election meant the bill was temporarily put aside.
After the election, the Labour government put forward an updated version of the Bill, which contained some, but not all, of our recommendations. We returned to the drawing board, assessing to what extent our requirements had been adequately addressed in the new draft.
This time, the Bill is going through the House of Lords under a different legislative process. We put in a lot of work to prepare a new set of suggested amendments and present them in the preferred style of the House of Lords. They are now being considered in the Lords.
IS: This legislation originated under the previous government. How is this new version under Labour an improvement on the original under the Conservatives?
BT: The new Bill is a significant improvement on the pre-election Bill. In particular, it removes the requirement for the regulator to have ‘regard to the foreign and trade policy objectives’ of the government when implementing the owners’ and directors’ tests. This would have essentially held state-owned clubs to a lower standard than other clubs.
It is also pleasing to see a requirement to consult fans regarding decisions about club relocation. The so-called ‘Wimbledon clause’ is named after the controversy in 2003 when Wimbledon Football Club relocated from south London to Milton Keynes. Such clauses recognise the unique role that clubs play in their local communities. They are not just assets to be bought, sold and moved like any other asset.
There were limited improvements in closing the gap between the broadcast revenues of the Premier League and lower leagues, although that still hasn’t gone far enough. This is integral because it affects the financial flow in football and therefore the gap between the top and bottom of the pyramid.
Finally, the revised Bill deals with transactional conflicts of interest but, crucially, not vested interests. It is vital that the new regulator is seen to be free of any vested interests.
IS: How can financial inequalities in football, particularly the well-publicised gap between the most valuable and less valuable clubs, be addressed legally?
BT: First, by ensuring the gaps do not grow. A few clubs have been lucky enough to have “benevolent” owners who were able to invest at a loss. The Profit and Sustainability Rules now partially prevent this. The law should supplement this by ensuring that football clubs are governed sustainably.
This will ensure that the disparities do not grow while reducing the risk that lower league clubs are run into the ground by owners who chase the pot of gold at any cost. Many lower league clubs are technically insolvent (e.g. wage bills in the Championship largely exceed income). Sure, there are success stories, but it is all too often the fans who are left to pick up the pieces.
Second, by ensuring that the historic imbalances are corrected. One way to address this legally is to look at the distribution of broadcast revenue. The most recent Premier League domestic broadcast deal is worth £6.7bn while the English Football League’s equivalent is worth just £935m. The new Bill should address this by implementing parameters around TV rights deals. This is not about limiting commercial freedom, but ensuring the equitable distribution of money throughout the football pyramid.
IS: Will there be any practical challenges to bringing some of the law’s rules into effect?
BT: As with any new law, there will be lots of practical challenges. The aim of the Bill is to make football fairer, which inevitably means upsetting the apple cart. To put it bluntly, the status quo suits some clubs and organisations, and they hold all the cards. They may either seek to have influence within the regulator or to undermine its integrity.
We need more robust vested interest provisions in the Bill because: first, decision-makers must be willing to act in unpopular ways. The regulator will operate in an emotive ecosystem; and second, it will give lower league clubs faith in the integrity of the regulator. Such clubs will not perceive justice as being done if they see the same faces staffing the regulator. Justice must be seen to be done.
Additionally, it will be interesting to see to what extent the regulator is willing to use its powers under the Bill. For example, the regulator has the power to assess the suitability of incumbent owners of clubs if it has “grounds for concern” as to whether the ownership criteria are met. There will be a period where the regulator is testing the water, which will present practical challenges.
