UK Football Regulator Risks Missing a Mediation (and Med-Arb) Opportunity?
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3rd June 2024
Noting that with an election being called in the United Kingdom in recent weeks, it has resulted in the UK Parliament being prorogued and thus the Football Governance Bill, and subsequently the realisation of an Independent Football Regulator (IFR) being ‘put on hold’.
There was the suspicion that the bill would get ‘waived’ through before the suspension of parliament given many of the ongoing governance issues, standoffs, worries and disputes that exist in British football ….. and also the possibility that such a bill may ‘win votes’ in the forthcoming election, with those more concerned with football than politics.
Hence, some have been left frustrated by this delay, whilst others (myself included) whilst welcoming in an ‘effective’ Independent Football Regulator (IFR) as soon as possible, still see many gaping holes in the football governance bill and the IFR. Thus, would like to see amendments during the next parliament to result in the IFR not being a huge ‘white elephant’ with little or no purpose, value or influence – but a thoughtful, viable and effective regulator.
Footballs Financial ‘Stand Off’
One specific area of the football governance bill that I have heard referenced on multiple occasions (and increasingly so in recent weeks), whether it be in articles, at conferences and in general discussion, is that of the split of TV revenues between the English Premier League (PL) and the likes of the English Football League (EFL). Thus with money being the heart of what makes modern day professional football ‘tick’ for many of those running the game, (apologies to football purists), this is often the key area of disagreement between two of English footballs heavy weights; the PL and the EFL.
In recent times, with a renegotiation of the deal being up for discussion between the PL and EFL, it has been reported as there being a ‘stand-off’, although it could be argued the 2 parties are closer to a reasoned agreement than they have been in the past (albeit they are arguably still someway apart).
Such a key part of the remit proposed for the IFR has been that of interjecting on the matter of fairer distribution of revenues throughout the English football ‘pyramid’, and where such consensus cannot be agreed between the likes of the EFL and the PL, the regulator can step in and assist in them reaching an agreement, if not ‘bang heads together’.
Does it Have to Be The ‘Better of Two Evils’?
Accepting that the football governance bill and subsequently the IFR are still subject to change (and hopefully enhancement) before being passed into law, we can only work on that information which is openly available. For which some is arguably unclear and very much open to interpretation and guesswork as to what will eventually come to pass.
As such, the way in which the current literature professes for the IFR to handle such a stand-off in regards to negotiation of the split of the likes of TV revenues for football, has been referred to as a ‘blind-bidding’ process, and is something similar to a ‘blind auction’ (but with a few variations).
From the information available, both parties submit their ‘bid’ (or ‘terms’) on which they would like to reach an agreement, and one of those is accepted, which in the concept of a one dimensional ‘blind auction’ based solely on one financial figure, MAY seem reasonable. Yet, the matter of the split of revenues for rights in football is far more complex and multi-faceted; and is not simply a question of ‘how much (money)’.
It is important to note, that from the information released thus far on the IFR in regards to this matter, the ‘blind bid(s)’ appears to be a single round process with each party submitting one bid. Then the IFR accepts the bid that they deem to be more reasonable and then that is subsequently approved.
For me, this approach seems fraught with problems, if not a bit of a lazy approach to an important and complex issue. It even arguably undermines a supposed key remit of IFR in promoting effective communication and positive relationships between football stakeholders, and ultimately it results in the IFR being perceived to ‘take the side’ of one party over the other rather than a neutral role akin to that of a mediator or even an arbitrator.
PLUS, there is a likelihood that both parties may well take a strict positional bargaining stance, with unrealistic bids and thus be further apart than ever, and the IFR effectively has to consider and select the ‘better of two evils’.
A Missed Mediation (or Med-Arb) Opportunity?
Whilst the normally accepted process for ‘blind-bidding’ may be over multiple rounds and with certain other variations; it does have the flimsiest of connections with mediation. Yet, to be quite frank it is NOT mediation; and thus, the method here seemingly suggests that the ‘bidding’ process to be deployed by the IFR is definitely NOT mediation on so many levels and aspects.
As such, I believe the IFR is missing out on a key opportunity here to employ mediation (or even a hybrid ‘Med-Arb’ approach) to resolve what is in essence a ‘dispute’ (although it may be presented by some as a negotiation).
The reasoning for this is that there are many facets to such a ‘dispute/negotiation’ that cannot be solved by a ‘sealed/blind bid’ as in the case of an auction. Plus, accepting one ‘bid’ over another, is risking the IFR not only losing their neutrality but also a further breakdown in communication, and relationships if not worsening the dispute (and stakeholder relationships) over a longer term.
I would like to refer back to the first day of my mediation training and an analogy my trainer repeatedly referred back to in encapsulating mediation at the most basic level :
“there are two children fighting over an orange,
there are no other oranges ………
so what do you do?”
If you want to know the mediation answer to this question, I am sure it is available somewhere on the internet …………….. but in essence, employing the rumoured approach to be adopted by the IFR on the matter of revenues in football – you effectively give the orange to one party and nothing to the other. Thus, more than likely resulting in, amongst other things, upset, resentment (including towards the IFR) and potentially a deepening of the dispute along with worsened relationships.
With such a multi-faceted ‘dispute’/negotiation akin to that of the split of revenues between English footballs stakeholders, mediation is the perfect tool in: (i) keeping the IFR neutral, (ii) understanding the reasoning behind the parties needs, (iii) developing a mutually satisfactory solution and possibly most importantly (iv) allowing the parties to take ownership and feel like they have won (to an extent).
…… which many would say is especially important in the world of football’s fragile egos.