Dundee United and Raith Rovers have been left in promotion limbo after a hearing to decide whether Hearts and Partick Thistle’s case against relegation should proceed was adjourned.
Presiding judge, Lord Clark, is considering motions to terminate or suspend the case so it can go to arbitration.
The lawyer representing promoted clubs United, Rovers and Cove Rangers – Garry Borland QC – called for the case to be thrown out of the Court of Session while the SPFL’s representative, Gerry Moynihan QC, argued it should be “sisted”.
They want Lord Clark to refer the case to an arbitration panel set up by the SFA.
However, the petitioners (Hearts and Thistle) have argued that arbitration could lead to costly delays in settling the case, which began via video link on Wednesday – exactly a month before the Scottish Premiership season is scheduled to start.
The Jam Tarts and the Jags launched a legal bid to scrap promotion and relegation this season after several attempts at league reconstruction failed to halt them slipping down a division, along with Stranraer, following a vote by clubs on April 15 to curtail the season in the wake of the coronavirus pandemic.
United and Rovers’ lawyer, Mr Borland QC, argued clubs are “contractually obliged” to comply with SPFL rules and SFA articles, and that the row is a “football dispute”, which is required by said articles to be settled by arbitration.
He added that rules state: “Members may not take a football dispute to a court of law except with prior approval of the Scottish Football Association board”.
Borland argued it is feasible for arbitration to take place in time for the new season kick-off and blamed Hearts and Thistle for timing problems, given they waited two months to launch legal action.
He dismissed claims from the two clubs that they have the right to pursue the matter in the courts, and also that the case is not technically a “football dispute”, as defined in SFA article 99.
“It is obvious that the present dispute arises out of and relates to association football,” Mr Borland QC said. “The contention of the petitioners to the contrary is fanciful.
“What they are attempting to do is stop relegation and promotion, which has been decided. Promotion and relegation are fundamental parts of football. They are the meat and drink of football.”
SPFL QC Gerry Moynihan argued arbitration could cut through the “legal noise” and get to the heart of the matter swiftly.
He pointed out it is a disciplinary matter under SFA rules to raise court proceedings, with potential punishments including termination of membership or: “To use a Glasgow expression, you’re out the game.” He claimed it could even be a disciplinary issue for the promoted clubs and the SPFL to continue with the case.
That claim was described as “fanciful” by David Thomson QC, for Hearts and Thistle, given the SFA articles only refer to those who “take” action.
In his introductory comments, Thomson claimed attempts in the SFA articles to prevent parties going to court are unlawful and, besides, that both clubs had done everything to avoid that by pursuing reconstruction.
He claimed the process of setting up an arbitration panel by identifying, nominating and checking the availability of panellists will inevitably lead to a delay, given there are two 14-day periods associated with the procedure.
“The court can deal with this,” he added. “The alternative is to go down a route which has not commenced yet.”
He claimed it was “surprising” to hear his opponents argue that the case was best left to football authorities, given any arbitration panel would be made up of retired sheriffs for example.
The hearing will continue at 2pm on Thursday.
