Commercial | Risk Advisory
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The end of the football season is fast approaching.
All those connected with football - owners, directors, players, managers and supporters will have eyes firmly on the remaining fixtures – either on the end of the Premier League season or in the EFL's playoffs.
The domestic season provides a roller coaster of emotions, which the playoffs seem to magnify in intensity. Emotions really do run high. When the emotion gets too much then sometimes, just sometimes, supporters go on to the pitch.
All clubs want to look after their supporters and those of the visiting club, to make sure they are kept safe whilst they are at their ground. The same applies when it comes to players and match officials. The pitch is their workplace – and laws that protect our right to be safe at work have been enshrined in law for 50 years.
But what might happen when there really are people on the pitch?
Clubs will need to prepare thoroughly to reduce the risk of people entering the pitch in the first place. In our experience, clubs take this matter extremely seriously.
The risk of supporters entering the field of play needs to be addressed as a specific risk, with a suitable and sufficient risk assessment prepared. This will need to capture higher risk areas in the ground (and why they are high risk) and the steps the club will take to reduce the risk here.
Effective monitoring on the day of the game, to ensure that stewards know what they are doing, will also be important to reduce the risk of an incident occurring.
This approach will also reduce the risk of the Football Association (The FA) bringing disciplinary proceedings for Misconduct against the club. An FA Misconduct charge could lead to heavy fines and reputational damage for the club concerned.
FA Rule E.20 applies stipulates that:
FA Rule E.21 stipulates:
"Any Club which fails to discharge its said responsibility in any respect whatsoever shall be guilty of Misconduct"
It does not matter whether any incursion on to the pitch occurred during the match or at the end of the match. If there are people on the pitch, there is potential for regulatory action.
A club will have a defence to a Misconduct charge where it can satisfy the FA's Regulatory Commission that
It shall be a defence in respect of charges against a Club for Misconduct (under FA Rule E20) by spectators and all persons purporting to be supporters or followers of the Club if it can be shown that all events, incidents or occurrences complained of were the result of circumstances over which it had no control or for reasons of crowd safety and that its responsible officers or agents had used all due diligence to ensure that its said responsibility was discharged’.
Clubs will find it difficult to show they carried out all "due diligence", but the following will be of particular importance:
A point that is sometimes overlooked is that the stewards must have been given a briefing – and must have understood it. How does your club know that your stewards have understood what they have been briefed to do?
Clear risk assessments identifying this specific risk are going to be important together with a clear set of documented risk mitigations that the club will monitor as the operation develops will be important.
If a club is charged by the FA, they will be required to either accept or contest the charge. If the charge is accepted, the club will then have to decide whether to seek a hearing in-person. In our experience, there are many advantages to this approach.
The Regulatory Commission will, as necessary, have to adjudicate on the question of sanction. These sanctions could include points deductions or ground closures – however the more likely outcome is a fine. The Regulatory Commission will consider, specifically:
We know from experience when advising and representing clubs that thorough preparation and ongoing monitoring of procedures is essential, so that 'culpability' is identified as being low and 'mitigation' is identified as being high.
Clubs should be aware that even if there are supporters on the pitch, they can still take steps to reduce the level of their 'culpability' and increase the mitigation that is available to the club.
Swift and decisive action may mean that an FA charge is less likely in the first place. Where people are on the pitch, they need to be removed swiftly with information passed to the police and other agencies to ensure that decisive action may be taken by them. It is imperative that clubs do everything they can to assist the police and others here - delivering up CCTV and imposing long-term stadium bans go a long way to demonstrate how seriously clubs take this behaviour.
The FA has imposed fines in a number of high-profile cases running into tens and hundreds of thousands of pounds. Clubs in the Premier League are unlikely to escape with a penalty below the £100,000 mark given the amount of income they derive from footballing activity.
Clubs in the EFL Championship and Leagues 1 & 2 may be unlikely to face fines at that level, but should still expect to receive a fine measured in tens of thousands of pounds. Directors are unlikely to have sufficient flexibility in the budget for a fine of tens of thousands of pounds to be paid without any adverse impact and so reducing risk of regulatory intervention is business critical.
So, as we approach the business end of the season there is so much to play for. One thing is clear however, the risk of supporters entering the field of play is significant and the FA will take seriously any such incidents, often culminating in heavy fines.
It is vitally important for clubs to think clearly and extensively about the specific risks posed and to make sure that they have robust procedures in place to reduce risk, deal with an incident should it occur and engage meaningfully and effectively with the FA and other regulatory bodies to ensure that the club's own position is protected so far as possible.