The independent regulator for football: the hows, whats, whys and whens we know so far

The White Paper regarding the independent regulator for football has arrived, but what does it look like and what happens to all of this next?

It had started to feel a little bit as though it might never get here, but the government has now published its White Paper regarding an independent regulator for football and the results are quietly encouraging. But this is only one step on the route to it actually becoming law, so what does the White Paper say, and what happens next?

There has been talk of a need for football in England to be regulated because time and again over the last three decades it has been found wanting when it has been necessary. The collapse of Bury Football Club at the start of the 2019/20 season was an extreme example of what had been seen time and time again over the years: of clubs in the lower divisions being pushed towards insolvency by a conflation of different routes, which usually had their roots in bad management.

This disquiet with the direction football had been taking itself wasn’t just limited to smaller clubs. The tipping point for action to finally be taken came with the attempted breakaway of the Big Six clubs to join a European Super League, which brought a sudden and immediate protest to the streets and a torrent of criticism from just about every corner. It was a response so viscerally angry that the clubs quickly reversed their positions amid protests which even forced the postponement of a Premier League match between Manchester United and Liverpool.

The White Paper itself has seven key elements to it:

• There will be a new independent regulator for football in the top five divisions in England. The overall aim of the regulator will be to ensure football is “sustainable and resilient”, and to do so it will be given three primary duties. As well as overseeing the financial sustainability of individual clubs and the overall stability of the top five divisions, it will also be responsible for protecting what the Paper describes as the “cultural heritage” of clubs on behalf of supporters.
• Key to the success of this system will be a licensing system, under which every professional club will be required to obtain a licence to operate. To qualify for this license, four main areas will be considered: enhanced due diligence over their source of wealth, a requirement to demonstrate owners and directors are fit and proper, that the best interests of fans are considered, and, that clubs must only compete in competitions approved by the regulator.
• The new tests for prospective owners and directors will be substantially enhanced, and will sit alongside the existing Owners & Directors’ Tests that are already carried out by the Premier League and the EFL. Enhanced background and criminal checks will be carried out, while new owners will have to provide detailed information about the source of their wealth as well as financial plans for the future, including proof that they will be able to support a club should its financial position deteriorate. 
• The regulator will establish a compulsory Football Club Corporate Governance Code. Under the new regulatory system, clubs will be required to apply a new code and report on how they have applied it, to improve transparency and accountability. The code will be applied proportionally, with regard to the size, league and complexity of a club’s business model, and where risk may exist as a result of weak corporate governance.
• The White Paper states that “Fans are the most important stakeholder for any football club, and both parties benefit from their involvement in the long-term decision-making process at a club”. It’s a little fuzzy on what, exactly, this will entail, but there will be a minimum standard for fan engagement which will include a framework to regularly meet a representative group of fans to discuss key matters at the club, and other issues of interest to supporters, with the regulator having “the power to sanction individual clubs if there is a persistent and wilful lack of engagement”.
• One of the areas that the White Paper identifies as being among the “other issues of interest to supporters” will be what is described as “club heritage”. The Football Association introduced new rules last year which give supporters the ability to veto changes to club badges, kit colours and names, and clubs will be expected to stick by these rules. It is also intended that the sale or relocation of grounds will require pre-approval from the regulator.
• The White Paper says that a condition of the licence would require clubs to “only compete in competitions approved by the regulator”. and that among the suggested criteria for this would be for any competition not to undermine English football’s pyramid. The European Super League in the state in which it was presented in 2021 would not be sanctioned by the regulator as an approved competition.

So what happens next?
Next comes a consultation period with stakeholders, which some may choose to interpret as a period during which those who oppose it attempt to get it watered down to the maximum extent possible.

What sort of pushback can we expect?
Premier League clubs are expected to be opposed to any form of regulation from outside. That has been common knowledge for years. For an example of the sort of objections that can be expected, we need only turn to the West Ham United co-owner and life model for garden gnomery David Sullivan, who has already claimed that this will end up as a case of ‘the government running football’. It is important to remember that this is categorically not the case. The key word to remember here is, after all, ‘independent’. In December 2021, the Leeds United chief executive Angus Kinnear compared calls for an independent regulator and a transfer levy on Premier League clubs to Maoism and the Great Chinese Famine.

How long will it take before it becomes the law?
How long’s a piece of string? Some White Papers can become law in a matter of days, while others can take years as they battle their way through stages of consultation and then both the House of Commons and the Lords. It had been hoped that this would all be in place for the start of next season, but it could take until 2025 before it’s actually completed. There seems to be a general acceptance now that the regulator will come. The big battle will be the extent of their powers and the expectations of how they enforce them.

You mentioned a transfer levy up there; what’s that about?
The redistribution of money within the English league system has been an ongoing topic of conversation between the Premier League and the EFL for a couple of years now, but there hasn’t been any agreement yet. The EFL wants 25% of combined broadcasting revenues and an end to parachute payments. The Premier League, which currently pays 16%, wants neither. The government has stated that this requires what it describes as a “football-led” solution – in other words, they really don’t want anyone from outside to have to step in and determine this for them – but it should also be added that the independent regulator may well end up with the power to intervene if a solution that is satisfactory for all concerned cannot be found. The White Paper notes that, “if football fails to deliver a solution, the regulator will deliver one.”

Would these changes affect Qatari interest in Manchester United or other sales of clubs to similar enterprises?
It’s almost certain that it won’t be retrospectively applied, so the Saudis and the Abu Dhabi groups at Newcastle United and Manchester City can rest easy in that respect. There are no references to human rights within the White Paper as being a potentially disqualifying condition, but it is always possible that the law could be worded in such a way as to allow the regulator to do so, though this is unlikely. As the White Paper stands, there would be nothing to prevent Qatar from buying Manchester United because they’re Qatar.

Does this finally nix any possibility of English clubs joining a European Super League?
It should be pointed out that none of the six clubs that signed up to the European Super League in 2021 have returned to the subject since. The visceral – and near universal – nature of the criticism and protests seem to have really struck a nerve. The White Paper is explicit in mentioning that the ESL as proposed two years ago would not have been acceptable, but the organisers of that have already completely reshaped how they’re going about it, so there remains a possibility that it could return in a different form which would be acceptable to any regulator. But considering the outcry two years ago and that attitudes don’t seem to have changed much since, it’s difficult to see how the benefits of joining could be so great that clubs would want a lengthy fight over it.

So is this all good news?
Well we’re into the realms of personal opinion here. The White Paper didn’t go nearly as far as I would have gone, but I never would have expected in a thousand years that it would. But being mildly realistic about it, the Paper itself isn’t as watered down as some had feared and the response from The Football Supporters’ Association has been warm. But the fact of the matter is that the devil of anything like this is in the detail. What it all looks like once the consultation period has been completed will give us a clearer idea, and then how the law that follows is actually implemented once it’s in place.