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Stuart Thomson
Head of Public Affairs

Matthew Smith
Partner

Emma Watson
Trainee Solicitor
18 May 2020

Project Restart: last minute winner, or potential own goal?

Premier League shareholders met on Monday 11 May 2020 to discuss Project Restart – the rescue plan for the 2019 / 2020 season. Contingent on government approval, the Premier League’s proposal targets a return to socially distanced training in mid-May and competitive fixtures behind closed doors from mid-June.

Following the publication of the government guidance on COVID-19, ‘Our plan to rebuild: The UK Government’s COVID-19 recovery strategy‘, Project Restart could now be given the green light.

Step two of the government’s roadmap to lift restrictions, which is to take place no earlier than 1 June 2020, includes:

‘Permitting cultural and sporting events to take place behind closed-doors for broadcast, while avoiding the risk of large-scale social contact’.

Last week, however, the Premier League Doctors Group (PLDR) raised serious concerns over the plans to resume the season. In an email to the league’s chief medical advisor and chief of football, the medics listed multiple areas of concern, including:

  • approving guidelines that still carry risk of death;
  • liability, insurance and testing for players, staff and their families;
  • possible transmission via sweat and goalkeeper gloves;
  • suspicions that some clubs are already ignoring guidelines;
  • increased risk for black, Asian and minority ethnic (BAME) groups; and
  • ability of emergency services to attend training ground incidents.

Additionally, on Monday 11 May 2020, Alison McGovern, the shadow sports minister, wrote to sports minister, Nigel Huddleston, asking 20 questions about Project Restart. McGovern’s questions addressed:

  • whether government support and guidance is required and whether the same will be published;
  • liability for occupational health risk assessments;
  • the number of people required to be present for football matches;
  • what advice the government has given to those involved in the Project Restart process; and
  • how PPE and testing will be put into place.

Clearly, the government and the Premier League must be guided by science, but concerns about possible legal action will play into decision-making too.

For example, a decision by the government to support and give approval for Project Restart could be subject to challenge by judicial review – with the courts called on to scrutinise the decision making process itself and determine whether it was flawed for one of a number of reasons.

In order to bring an application for judicial review, a party must have sufficient interest in the proposed claim and must be able to prove one of four grounds: illegality, irrationality, procedural unfairness or legitimate expectation.

A party seeking judicial review on the grounds of irrationality might argue that the government failed to take account of the important medical matters raised in the PLDR email. However, they would also have to persuade the court that, absent this failure, the government would have reached a different conclusion. Further, judges frequently grant considerable latitude to decision makers operating in complex ‘real world’ situations. Ultimately the test is not whether the court would have made precisely the same decision as the one challenged, but rather whether that decision was within a range of reasonable decisions that might have been made.

An alternative irrationality challenge might see a claimant argue that the decision to approve Project Restart was:

‘so unreasonable that no reasonable authority could ever have come to it.’

Applying the so-called ‘Wednesbury test’ of unreasonableness. Establishing Wednesbury unreasonableness is notoriously difficult, particularly when a court is being asked to substitute its opinion for that of an expert. However, there has been a growing willingness in more recent years to moderate the test, and even in some instances to import the test of proportionality, for example when European Law rights, or Human rights, are engaged.

Further, the government and the Premier League face potential challenge down both flanks: from the league’s key stakeholders, of course; but also from individuals and groups, including, for example, small companies who advertise pitch-side who have already signalled their concerns about any decision to play at neural venues.

Therefore, the Premier League and the government should ensure that any decisions to implement Project Restart are led by the science, but take account too of those wishing to enforce their rights under the law. Ultimately, challenge from some quarter may be inevitable; and it may be that the best the decision makers can aim to do is follow a careful risk assessment and, having done so, identify and adopt the ‘least worst’ option. In these troubled times, that may be sufficient to see them get the ball over the line.

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