An analysis of how English football can reinforce the criteria of who is a “fit and proper person” to run or own a club

This article is aimed owners and directors of football clubs, football regulators, and their respective legal advisors. This article will also have general appeal to anyone who has an interest in football governance at a national and club level.

In this article the author compares and contrasts the ‘Owners and Directors Test’ in English football with the similar tests used by the British Horseracing Authority, the Financial Conduct Authority, and the National Health Service.

Introduction

As regularly as a new football season rolls around, so does public and media disquiet about governance of English football clubs and the appropriateness of their owners and directors. In recent years, controversy has raged around Massimo Cellino at Leeds,¹ Carson Yeung at Birmingham,² the Venkys at Blackburn³ and Thaksin Shinawatra at Manchester City.⁴

Much of the media focus centers on whether a relevant individual is ‘fit and proper’ to own or be a director of a football club. The ‘fit and proper’ phrase in fact reflects the language of the test previously adopted by the three major English football authorities, The Football Association (The FA), the Premier League (PL) and The Football League (FL).

The test is now known as the “Owners’ and Directors’ Test”, and each authority has their own slightly differing version (“OAD Tests”). The renaming was introduced to deal with the growing number of cases where owners or directors classified as fit and proper under the previous test were seen by the public and media as anything but that.⁵

Within the United Kingdom however, football authorities are not the only ones applying ‘fit and proper’ tests and it is arguable that lessons can be learnt from other similar tests (both inside and outside of the sports industry) including the Financial Conduct Authority (FCA) and the British Horseracing Authority (BHA) about the structure and application of a ‘fit and proper’ persons test. This article compares and analyses the sufficiency of UK football’s OAD Tests and then explores potential learning from these other tests.

The author notes that the OAD Tests are supplemented by responsibilities and duties (including fiduciary duties) contained in the Companies Act 2006; however, the analysis of these duties under the Companies Act is beyond the scope of this article.