Football Governance Bill [HL]

Lord Maude of Horsham Excerpts

Committee stage
Wednesday 18th December 2024 Lords Chamber

[Baroness Brady (Con)]

My Lords, the amendments in this group cover a wide range of issues relating to the backstop. While I understand the intentions behind many of these amendments, I fear that they collectively risk making an already contentious and divisive mechanism even more complex and counterproductive.

I respect that Ministers believe they have designed a balanced mechanism that places incentives in the right place, but I think what we will come to unpack is that that is wholly mistaken. I believe this Committee will see that this backstop has not and will not incentivise industry-led agreements, which is supposedly its overreaching policy purpose. I believe we will see that it will not result in a balanced, pragmatic solution that will be good for football.

It will instead drive posturing, game playing and the development of extreme and damaging solutions. We will see that this backstop is legally untested and uncertain, and it could sink football and the regulator into a legal and political quagmire that could drag on for years. Worst of all, we will see that this backstop has already poisoned, and will continue to poison, the well of football bodies’ relationships, when we all need to work together for our continued collective success.

I will briefly address some of the amendments in this group. The proposal to expand the scope of the backstop to include multiple parties all at once—for example, the National League, or potentially the FA and, even in the future, the women’s game—is concerning. This risks creating division where none currently exists. The Premier League, far from being at odds with these stakeholders, has made intensive and carefully considered efforts to support them, just as it has with the EFL.

Just a few months ago, the Premier League announced a £12.6 million package for the National League system over three years, a substantial increase on previous arrangements. For the women’s game, the Premier League has provided significant financial assistance, including a £20 million interest-free loan to help the new Women’s Professional Leagues Limited in its formative years.

These are examples of proactive, voluntary agreements that demonstrate collaboration rather than conflict. This set of amendments would encourage all stakeholders to start competing, simultaneously claiming the Premier League’s revenues, fracturing relationships and introducing adversarial dynamics where none currently exist.

This is not the way to build a sustainable and co-operative football ecosystem. Indeed, I will make a prediction: it is far more likely that the National League will seek to trigger the backstop in relation to the EFL, which does not provide any financial support to the leagues below it. The idea of the IFR triggering the backstop mechanism independently is particularly troubling. The purpose of the backstop, as described in the Bill, is to act as a last resort when the parties fail to reach an agreement; it is not supposed to be a front- stop. Allowing the IFR to bypass this voluntary process would undermine its very purpose and disincentivise genuine negotiation.

The idea that any change—not even a reduction—in revenue received by one party could automatically trigger the backstop is, frankly, unworkable. Revenue distributions in football are dynamic and fluctuate according to complex interrelationships. The amounts change every year, almost always upwards. A mechanism that automatically treats any change as a potential trigger would, with the greatest of respect to the noble Lord, Lord Bassam, be absurd. It would trigger perpetual uncertainty, which is the last thing that football needs.

Finally, and more positively, the suggestion that the IFR could impose its own settlement deserves careful scrutiny. I have tabled my own, slightly different amendments to that effect, which will be debated in a later group. I fully agree with noble Lords that the binary mechanism in the Bill is unworkable for football. However, with respect, I am not sure that this particular amendment would place incentives in the right place. To allow the IFR to impose its own settlement only where both parties’ proposals are inconsistent with the IFR’s objectives would allow parties to offer unrealistic proposals. It would mean they could anchor with a very extreme demand, knowing that the IFR would be forced to step in and create a compromise. This would further entrench division.

What is striking about the amendments in this group is that they demonstrate a fundamental dissatisfaction with the mechanism in the Bill from all sides of the House, as well as the main competition parties involved. The Premier League has raised serious concerns about the divisive nature of the backstop, while the EFL has, I believe, inspired the amendments in this group. It too sees significant flaws in the process as designed. This really should give the Government significant pause for thought.

Let us not forget that English football’s success has been built on collaboration and solidarity. UEFA has made this very point about the deficiencies of the current Bill’s mechanism. A backstop requires thoughtful, proportionate regulation that respects the autonomy of its stakeholders. These amendments, and indeed the existing backstop mechanism, would disrupt that delicate balance. I urge the Government to reflect carefully on whether the backstop as designed is fit for purpose. It should be fostering co-operation, not driving division. If that requires revisiting the mechanism, we should do so without hesitation. Football’s future really does depend on getting this right.

[Lord Maude of Horsham (Con)]

My Lords, I want to pick up one particular word that my noble friend Lady Brady raised: divisive. There is no doubt that this Bill has turned what was intended to be a backstop—a last resort or nuclear option, however it was described—into something that can be used pre-emptively. Some of the amendments proposed tonight—which would make it more aggressive and interventionist, and more able to be used pre-emptively—have behind them the sense that this is bound to be aggressive, antagonistic and adversarial. I want to contest that.

The truth is that, wherever a club is in the pyramid of English football, it has an interest in the whole pyramid being strong. There is no benefit to the Premier League in keeping lots more money to itself and weakening the rest of the pyramid, because it depends on the pyramid; its strength is drawn from all the way through the pyramid. It is really important that we try to take ourselves away from the sense that there is a finite pie of limited size and so we should work out how to enable different parts of it to get more for themselves.

English football—the whole pyramid—has seen tremendous growth. It had the huge challenges of the pandemic, but it survived and came out strong. As we have repeatedly said, the Premier League is not just the most successful football league in the world but the most successful sporting league in the world. The Championship is the sixth most successful and richest league in Europe. It is strong and it will grow more, but it will not do so if the whole mindset behind how this is constructed just puts one set of interests against another. The aim should be to ask how we grow the pyramid further and encourage the different parts of it to work together and see the mutual benefit, to make two plus two add up to five, rather than—as I fear the danger is in how this is constructed—add up to three. I urge the Government to take this away and look again at how it is constructed.

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[Lord Maude of Horsham (Con)]

With respect to the Minister, it was not just a random individual; it was a really significant player in the whole scheme of what we are talking about here.

[Baroness Twycross (Lab)]

I appreciate the noble Lord’s point, but if the EFL triggers the backstop or makes a proposal in bad faith, it could end up worse off if the Premier League’s proposal is more reasonable, so this does not encourage the EFL or Premier League to be confrontation or divisive. I am sure we will come back to this at a later stage, probably this evening, but definitely when we come back in the new year on Report.

I am really happy to sit down with noble Lords and talk this through, but I will continue to use my speaking notes for some time and then, I hope, give some reassurance that we are considering this carefully. I am always happy to meet with noble Lords, as is the team that has been working on this. As noble Lords are aware, a number of the officials working on this have been doing so right the way through from the fan-led review, so this is a really good example of the consistency of advice both to this Government and the previous Government, notwithstanding the fact that not everybody here liked the Bill’s previous iteration.

To return to my speaking notes—although I am fairly sure I have got slightly out of order now—we think that this approach encourages future collaboration. We might need to agree to disagree on that point and come back to that debate.

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[Baroness Brady (Con)]

My Lords, I support Amendment 263 in the name of my noble friend Lord Markham, which seeks to exclude parachute payments—the financial lifeline provided to relegated clubs—from the definition of “relevant revenue” under the backstop. This amendment is essential to addressing the profound risk created by the current drafting of the Bill.

Parachute payments are not just a feature of football finance, they are a key part of the scaffolding that delivers the competitiveness, the investability and the financial sustainability of the English football ecosystem. Without them, relegation would become a financial free-for-all—a cliff edge that would devastate many clubs and their communities. Parachute payments are designed to manage the significant financial shock of relegation, where clubs can lose enormous amounts of revenue almost overnight, yet their overheads stay the same.

I speak from some personal experience here. At West Ham United, we have known the daunting realities of relegation. Without parachute payments, the response in 2011 would have been wholesale disinvestment, a disorderly fire sale of players, job cuts, and a complete halt to critical investments in infrastructure. That is exactly how clubs start to spiral. Parachute payments do not come close to eliminating the pain of relegation but they provide some breathing space to make difficult but measured adjustments.

Yet this Bill places the very existence of parachute payments on the table, making them a part of the binary backstop process that pits two competing visions of football finance against one another. This is an intolerable risk. The EFL has been explicit that its proposal in this process would be for massive reductions in parachute payments, based on the argument that the financial gap between the Premier League and the Championship should be closed. But this argument fundamentally misunderstands the problem. The central issue here is not the gap itself, which reflects the commercial realities of two very different leagues, but whether clubs can transition effectively between those levels, between those two leagues.

Here the evidence is clear. Parachute payments work. If they did not exist, you would simply have to invent them. Crucially, parachute payments do not lock up promotion opportunities. Look no further than the examples of Luton Town and Ipswich Town from each of the last two years. Well-run, innovative clubs have every chance of success in the Championship, which is a highly competitive and appealing league.

Parachutes are not a significant distortion but a significant stabiliser, providing clubs with the tools to manage transition responsibly and sustainably. The EFL’s proposal is essentially to level down the Premier League to meet the Championship; to stretch out the bottom half of the Premier League. But that would destroy the top-to-bottom competitiveness that makes the Premier League the most watched and admired league in the world. Enabling such a proposal, as this Bill now does, expressly privileges the Championship over the Premier League. That is an astonishing position to take. It risks reducing the quality of the game at the top of the pyramid and undermining the ability of clubs to compete both domestically and internationally.

Let us also consider the impact on investment. Investors are rational. They are drawn to football because of its structures, parachute payments central among them, that provide clear pathways for responsible investment and sustainable growth. Without parachute payments, the Championship clubs become less investable. Why would anyone seriously invest in a club that cannot make the financial journey to the Premier League without risking complete collapse on relegation? The logic of the previous Bill was that, if there are challenges with parachute payments—challenges that the Government’s state of the game review may or may not identify—these can be addressed through increased solidarity payments. The exclusion of parachute payments in the previous Bill meant that the very existence of parachute payments was not placed at risk. It recognised the critical value of parachute payments to protect their role in managing these vital transitions. But now parachute payments are suddenly on the table. It is a hugely significant change of policy.

I know that the Minister would prefer that I should refrain from pointing this out, but the process by which this expanded backstop mechanism has been introduced has been alarmingly inadequate. As we know, the Secretary of State held just one 30-minute meeting with seven hand-picked Premier League clubs between July and October. The backstop was one of the many things that were discussed at the meeting, but at no time during the meeting were we given any warning that this decision was even being considered, let alone added to the Bill. Those seven clubs wrote to the Secretary of State following the meeting, which was five or six months ago, and we still have not had a reply. We also know that UEFA explicitly advised Ministers to reconsider the previous mechanism before parachute payments were even included. But, instead of narrowing the scope, the Government have significantly broadened it. I ask again: why? Parachute payments do not create financial irresponsibility. They are its enemy. They do not distort competitiveness; they enable it.

If you are Championship club newly promoted into the Premier League, you need to know that you can invest in your team to give you any chance to be competitive and to stay there. Clubs invest when they are promoted only because they know that they can rely on the parachute payment to cover some of the investments they have made in order to be competitive in the Premier league. Those investments are almost always in transfer fees and players’ wages. Clubs need that parachute to cover those things if they are relegated. If you do not have a parachute payment to soften the blow, you know that you cannot make the necessary investment in your team and in transfer fees when you get into the Premier League to try to stay there. You know your team will not be competitive enough, because you know that, if you are relegated without a parachute payment, you will face the real risk of administration.

Parachute payments help soften the blow. Without them, you cannot cut your overheads in any way, because there is no cause to terminate players’ contracts—that is part of the PFA agreement. So this means that, if you get promoted into the Premier League knowing you cannot contribute to the competitiveness of the Premier League—the idea that on any day any club can beat any other—you are going to affect the competitiveness and the global appeal of the Premier League, as my noble friend Lord Markham said, but, most of all, you are going to damage your own club.

Parachute payments do not reward failure. They allow clubs to recover, rebuild and stay financially sustainable. Frankly, I think that is the whole purpose of Bill. So I urge the Government to reconsider and to protect the stability of the football ecosystem, protect the ability of clubs to manage the transition between leagues responsibly, and protect the investment in both the Premier League and the Championship, which make English football the global success story that it is today.

[Lord Maude of Horsham (Con)]

My Lords, it is a pleasure to follow my noble friend Lady Brady, who speaks with passion and deep expertise. I support this amendment.

I suspect I am not the only football supporter sitting in your Lordships’ House who had never heard of parachute payments until I started to get my head around the Bill. It took me a little time to get my head around the concept. I have listened very carefully to, and interrogated, the arguments for it, and understand them. The essence seems to me that it is simply a fact—an irrefutable fact and not readily to be changed—that there is a huge gulf in the financial rewards that come to a club in the Premier League compared with one that is in the Championship. One might regret that, but the only way you could possibly change it would be, as my noble friend said, by levelling down and reducing the competitive tension that there is in the Premier League.

The arguments that my noble friends Lord Markham and Lady Brady made about how parachute payments can narrow the gulf between Premier League and Championship are powerful and compelling. But the truth is that, without the ability for clubs that have been promoted to invest to become competitive, you would not have the competitive tension within the Premier League that is part of what makes it so successful. We have said repeatedly, but it bears repeating, that the Premier League is the goose that lays the golden eggs that reward the rest of the pyramid. If we damage that, we inflict damage not just on the Premier League but on the whole of English football, and that is what we have to be incredibly careful of.

There is a high degree of mobility within the Premier League. I say this with regret as a supporter of a club that is always regarded as in the top six but is languishing —temporarily, I hasten to say—in 10th. It is, as we know, the hope that kills you, not the despair. Nottingham Forest were promoted two or three seasons ago and are now fourth in the Premier League, in a Champions League spot—there is strong mobility. Could they have done that without the confidence to be able to invest and to grow the team and the players? This is part of the magic of it, and to suggest that this is somehow a game and a racket and that it should be put in jeopardy is not to understand the magic of a degree of competitiveness that exists in English football all the way through the pyramid.

This is something that the clubs and leagues have themselves come up with, and it is something that works. The idea—frankly, this thought applies to quite a lot of what the Bill is about—that what has worked and been proven to work will somehow suddenly be improved by the introduction of a state regulator might turn out to be true, but all the evidence of history suggests that it will not.

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[Lord Maude of Horsham (Con)]

My Lords, I find my noble friend’s arguments very persuasive, and I will ask just one question. I do not know what the answer is, so others who know much more about this will correct me if I am wrong. My understanding is that no one made the Premier League make the already unprecedentedly large distribution from it down to the EFL. There was no regulator or Prime Minister threatening legislation that forced that to happen. It was because the Premier League saw it as in its interest to have a strong pyramid. It did not see this as “us against them”; it wanted competition within the pyramid but not between the segments and the different layers. I therefore question the idea that you somehow have to force a better distribution when it is plainly in the Premier League’s interest—and the way it has historically behaved illustrates that it understands that it is—to commit, through a voluntary agreed distribution, to the money trickling and cascading down through the pyramid. That illustrates that this is not necessary.

The danger is that the money that is creamed off by the regulator to sustain it—and is drained off from the clubs to comply with its demands—will mean that there is less to distribute. That money is already efficiently and pretty fairly distributed by agreement, so I am persuaded by my noble friend’s arguments that this part of the Bill is not only unnecessary but potentially very harmful.

[Baroness Brady (Con)]

My Lords, I rise to speak to Amendments 271, 307 and 316 in this group. My noble friend Lord Maude is right: the Premier League’s distribution outside our ecosystem is the highest amount of money of any other sporting competition in the world, and no regulator has forced the Premier League to do that.

My amendments seek to embed principles into the backstop mechanism. My aim in doing so is to ensure that it operates in a way that is proportionate, legally defensible and fit for purpose. At the heart of the amendments lies a simple but critical idea: any intervention by the IFR on this issue must be guided by clear, fair and transparent principles.

The backstop mechanism in its current form lacks sufficient criteria to direct the IFR in exercising its powers. It dictates that the IFR must choose the proposal that is “more consistent” with its principles. But what are those principles? The first is to “advance the IFR’s objectives”, and we have already discussed at great length how nebulous those objectives are. The second is not to place any “undue burden” on the parties’ commercial interests. The third is to ensure that relegated clubs have a one-year transition for any changes to parachute payments. That is it. There is no other guidance for the regulator in making this enormous and binary choice. This is quite incredible, and it creates huge risks, not only for the clubs and the leagues but, more importantly, for the very integrity of the regulatory process itself.

Let me begin with a fundamental principle of protecting property and contractual rights. It is vital to understand that the revenues subject to redistribution under the backstop are not collective funds but revenues generated solely by the Premier League and the Premier League clubs. So the backstop is not a neutral act; it is interference in the property rights of Premier League clubs only.

Under Article 1 of Protocol 1 in the Human Rights Act—A1P1—any interference with those rights must therefore be justified on clear and compelling public policy grounds, and adhere to principles of proportionality and necessity. There are concerns that this crude mechanism, with so few transparent criteria, is legally challengeable under A1P1, even more so now as a result of parachute payments being included, and that is not a good thing; it is in everybody’s interests for this backstop to be legally defensible. But without robust principles to guide the IFR’s decision-making, any determination risks being challenged, leaving the IFR open to judicial review and the entire system mired in uncertainty and delay.

A1P1 case law also emphasises the principle that less intrusive measures must be considered before more significant interventions are imposed, so this is also enshrined in my proposed amendment. The backstop mechanism, as drafted, establishes a binary process that compels the IFR to choose between two competing proposals, but it provides no framework for the IFR to tend towards the least intrusive option, particularly in relation to respecting the Premier League’s property rights as the sole funder of financial redistribution. That is a very dangerous oversight.

Without explicit guidance to the IFR that it should tend towards the least intrusive measure, particularly in its treatment of Premier League revenues, there is a real risk that the backstop could lead to legal overreach. Including this principle in the Bill would provide the IFR with a clear steer, reflect the unique role of the Premier League as the funder of any distribution order and ensure that the mechanism operated in a way that respected property rights.

The principle of good faith is another cornerstone of these amendments. The binary nature of the backstop mechanism incentivises brinkmanship rather than genuine negotiation. These amendments seek to create a framework that rewards constructive engagement and discourages posturing. Without this principle, the backstop risks becoming a tool for division rather than collaboration.

Another critical safeguard in the amendments is the requirement that any backstop decision must not force clubs into breaching their own league’s or UEFA’s existing financial rules and covenants, including profit and sustainability rules or the IFR’s own licence. A sudden and drastic redistribution could reduce Premier League clubs’ revenues, which in turn could destabilise their own business plans, which in turn leads them to breach the profitability and sustainability rules in their own leagues. That would lead to fines, sanctions or even points deductions for Premier League clubs. It would be a remarkable irony if a mechanism intended to promote sustainability instead penalised clubs for failing to meet their own financial obligations.

Finally, let me address the amendment tabled by my noble friend Lord Maude, which would ensure that the backstop could not be used as a first resort. The IFR must first regulate clubs in the EFL to ensure that they are financially responsible and not conveniently reach for the Premier League’s revenues before it has even sought to impose those controls. If the IFR cannot deliver sustainability through its own regulatory tools, what confidence can we have in its ability to manage a redistributive mechanism fairly or effectively? My noble friend’s amendment rightly prioritises the use of all other tools before triggering the backstop.

These amendments would provide the IFR with the steers that it will desperately need to navigate one of the most consequential issues in football. Without these amendments, or something very similar, the backstop risks sinking into a legal and political quagmire. We should all be aligned in preventing that outcome, so I hope the Minister will listen carefully and sympathetically to these arguments.