RANGERS were last night told they could become the Bosman of football clubs around the world by going to court to smash the restrictions that bar their entry to the English Leagues.
As chief executive Charles Green took his seat at the European Club Association annual meeting in Qatar yesterday, a leading Scots advocate was insisting the courtroom should be the Yorkshireman’s next battleground in his bid to move the Ibrox club south of the border.
Eoghainn Maclean, an expert on competition and commercial law with the Ampersand stable of Advocates in Edinburgh, believes Rangers – or Celtic for that matter – would almost certainly win their case.
In fact, he reckons the mere threat of hauling the English FA through the courts, might be enough to get the clubs, who have consistently refused to consider allowing Scottish teams into their set-up, around the negotiating table.
Maclean believes the time is right for Rangers to take the lead on the issue because Green seems so desperate to leave Scotland – and any threat of UEFA sanctions for taking football into the courtroom will be limited by the club’s non-participation in European competition for the next few seasons.
The Glasgow advocate has been studying competition law as it affects football for six years and will speak at a seminar on the subject in his home city in May.
He cannot believe no Scottish club has challenged the English FA in court and is convinced they would succeed if they went to the Court of Session in Edinburgh to sue in competition law.
He said: “The rules of football in the English Leagues state that all clubs play their home games in England or Wales. That has the effect of preventing any Scottish clubs from ever entering their Leagues, even at the very bottom.
“That is, in economic terms, a geographic splitting of the market. Football clubs are sporting entities but they are also businesses. Football is big business – clubs sell their services to the organisers of football tournaments, they sell tickets, broadcast and merchandising rights and they do lots of purchasing, from pies and bovril to players and coaches.
“So they are economic entities as well as sporting entities. Any economic entity is subject to competition law.
“Rules that require a club to play only within its territory of where its home games are, is a geographic restriction and we refer to that as a ‘hardcore competition abuse’.
“It is worse than price-fixing because if you fix the price of a car, it might be the same price everywhere but you can still compete in terms of quality, colour, delivery and after-sales.
“But when you have a geographic restriction where no one from one territory can compete economically in another, then you are stopping all competition across that barrier and you can’t compete on any grounds.
“There is a very clear case in principle that Rangers, Celtic and all of Scotland’s senior clubs would have a good case. It would come down to the defence that the English Leagues would put up and I believe they would not stand up in court.
“They would have to show their rules are essential to the conduct of the sport and only have an incidental economic impact on their clubs.
“But the long-term effect of Rangers and Celtic being marooned here in Scotland while the English Premiership grows and grows economically – it is now the second biggest broadcast-grossing league in the world after the NFL – is that Swansea, with no comparable history to Celtic, can easily outbid them for players.
“The rules they have in place to exclude clubs on the grounds of geography do not have a merely ‘incidental’ economic impact. The game is withering in Scotland by reason of its competitive disadvantage to the English game. That’s what happens in competition.
“You get cartels, you get monopolies, and they flourish while the competition dies.”
The English would also have to prove their current set-up is more competitive than it would be if they admitted Scottish clubs.
Again, Maclean does not believe they have a good case. He said: “The addition of Rangers and Celtic would increase interest, competition and revenues in England. So I don’t see how they could argue that it would be less competitive if they were admitted.
“I also think that given time, Hearts and Hibs could argue that with their fanbases and status in Scotland’s capital city, they could make the same kind of contribution to the English League system as Cardiff and Swansea have over the years.”
So why haven’t our clubs taken the courtroom route before now? Maclean said: “They’d hoped for an agreed solution with the English authorities and that hasn’t happened. Also, the fear of sanctions if they took the case outside football and into court.
“The law accepts you can do that but many cartel agreements in many industries threaten sanctions like this against anyone who goes outside the cartel and goes to court. The clubs fear they will become pariahs within the sport.
“But the risks for Rangers are much less now and the benefits of a successful court action are much greater, given where they are at the moment. They have a much lower wage bill and of all the powerful clubs in Europe – in terms of a large, loyal customer base – and with no immediate prospect of playing in Europe, they have much less to lose than any other club.
“They are in a unique position to instigate this litigation. Any result that went in their favour at the Court of Session would be enforceable and recognised throughout the EU. I do not understand why Rangers, Celtic and the other big Scottish clubs, who want access to the world’s biggest football market, have not publicly threatened a competition law case before now.
“Why they have not used this lever, I don’t know. If I were them, I would be saying we have a right to this as a matter of law, let us talk about this. If they threatened proceedings, it is my view that an agreement would be reached.”
If not, and it went to court, the advocate believes a decision would be made within 18 months and even if it went to appeal, Scottish clubs could be permitted by law into England a year later.
He said: “My opinion is: this is the answer.We can all see that Scottish football is withering because the cartel next door is taking up all the revenue.”
And the cost of dragging the issue through the courts? Maclean said: “Around £2million. That does not buy you much of a footballer these days but it can still buy you quite a lot of litigation.”