THE LAWYER representing Hearts and Partick Thistle at the pair’s civil case against the SPFL has insisted that there are no grounds for the dispute to be arbitrated by the Scottish FA.
During Wednesday’s first virtual sitting of the Court of Session in Edinburgh, the court heard from Garry Borland QC, representing Dundee United, Raith Rovers and Cove Rangers, and the SPFL’s legal representative, Gerry Moynihan QC, said their interpretation of the SPFL’s articles of association meant that the SFA would have to resolve the matter.
But David Thomson QC, on behalf of Hearts and Thistle, was adamant that in his interpretation, SFA arbitration is “incapable as a matter of practical reality”.
Thomson argued that there is no valid arbitration clause within the SPFL articles of association, meaning that the dispute must be resolved by the courts.
The SFA articles of association state that the body should be the principal arbitrator in disputes but Thomson said those provisions “have not been incorporated” by the SPFL rules.
He added that the matter cannot be considered a ‘football dispute’ – in which event, there would be grounds for the national association to arbitrate – instead making the case that it was a matter beholden to company law.
Thomson said that Hearts and Thistle had brought the dispute to court as “shareholders in the SPFL” and that the disagreement centred around the “manner in which SPFL affairs are being conducted”. There is no obligation for the SFA to arbitrate, he said, as the national association are only required to rule on “certain disputes” and not all of them.
Thomson said that any case involving clubs could be seen as a ‘football dispute’ but argued that not all are treated as such by Scottish football’s governing body.
He also stressed that there is a significant public interest in the issue being resolved in court, referencing the “debacle” of Dundee’s missing vote from the resolution to prematurely curtail the 2019/20 season, saying the matter was one of “significant concern”.
On Wednesday, Thomson said that handing the matter over to the SFA arbitration process could result in a delay “that might turn out to be significant” and with the Premiership scheduled to restart on August 1, this must be avoided at all costs.
Responding to that claim, Borland said that Thomson had failed to provide a legal basis for that conclusion and that there are “no substantive grounds whatsoever” that arbitration by the SFA cannot be performed.
He added that in his view, the fact that Hearts and Thistle are suing the SPFL as shareholders was irrelevant because the clubs, as members of the organisation, were bound by the laws set out in the articles of association.
“The petitioners [Hearts and Thistle] are contractually obliged to comply with SPFL rules,” Borland said, adding that his opponents’ position was “plainly wrong”.
Borland concluded today's submissions by insisting that he considered the case to be a ‘football dispute’ before asserting that “if it falls under a football dispute then we must move to arbitration”.
The case will resume tomorrow at the Court of Session at 10am, where each party is expected to make their final submissions.
Thomson added that should the court decide to uphold the petition and arbitrate the dispute, then witness statements and cross-examination “might be necessary” in order to achieve resolution.
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