Legality of strike call is still a major issue

Football in turmoil: Sport's governing bodies prepare strategy for court battle with players' union to prevent a walk-out
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The Football authorities and the Professional Footballers' Association are edging closer to a High Court showdown in their dispute over television money, but dragging the matter through the courts is the last resort for both parties.

If the Premier League, negotiating on behalf of itself, the Football League and the FA, tries to gain an injunction against the strike and fails, it will be game, set and match to the PFA. Richard Scudamore, the League's chief executive, has admitted that a strike is "unthinkable", and knows that the fabric of the game (and the all-important television contracts) would be in tatters if a strike went ahead. The game's authorities would therefore be left with no choice but to give in to the full demands of the PFA. The onus would also be on the authorities to make a deal that appeases the PFA in the long term to avoid a repetition of the current saga.

If the League wins an injunction, however, the PFA will have the wind knocked out of its sails. A senior legal source close to the union told the Independent yesterday that the PFA would not go ahead with a strike if an injunction was granted. To do so would mean the strike would be "unprotected" by the law. Any repercussions for individual players (docked wages or even sackings) would be hits that the players would have to take without legal protection.

Some club chairmen, including Leeds' Peter Ridsdale, have already said they would stop paying the players. The PFA will not expose its members to those kind of threats. Instead it might appeal a negative decision or take it to the European courts. Or accept the £50m over three years that is on offer knowing it has been effectively neutered. The stakes for both sides could not be higher.

The key question, then, is who would win a legal battle? In court, the League would argue that a strike is unlawful because the matter it is not a trade dispute between employers (clubs) and employees (players), which it must be to proceed with the protection of the law. It will say that there is nothing written in players' individual contracts that says the PFA is entitled to television money on their behalf. The League will also argue that there is no legal basis for the PFA to demand a cut of television money, per se.

The PFA will argue that the clubs, collectively, are indistinguishable from the League. The players are therefore employees of the League. It will add that, since 1955, players have waived their claim to individual rights' fees for performing in front of cameras on the tacit understanding that the authorities make payments to the union instead. A fixed percentage (the PFA is chasing five per cent) is not a matter that has any legal relevance. The union will argue that the principle, and more importantly, the precedent, of the authorities funding the union, demonstrates its case. "The significant aspect is whether the money [from the authorities] is part and parcel of the [tacit] benefits to players," John Hewison, of George Davies solicitors, who act for the PFA, said.

Legal experts contacted by the Independent yesterday were split on the case. The consensus was that the crux is whether the PFA would be able to prove the matter is a trade dispute to the letter of law, which has fixed criteria to define such disputes. Specifically, this centres on whether an individual player's terms and conditions include, tacitly, payments to the union. Quite how the League will argue against demonstrable historical collectivism when it has made such virtue of collective strength in recent years – not least when it won its case against the Office of Fair Trading a couple of years ago to sell TV rights collectively – remains to be seen. The consensus among lawyers is that any case will ultimately rest on the opinion of one judge and the judge's decision will be too close to call with confidence.

"There is little sporting precedent," Nick Smith, an independent barrister who specialises in employment law and sport, said. "This is ground-breaking stuff. The biggest merit of the PFA's case is the sheer and utter inconvenience it could bring. The League will not want to get into prolonged legal agreements."

If and when an injunction is sought, a hearing date will be set, probably within a few days. An interim injunction may be granted before a day-long court battle where both sides will put their case. A decision would be expected before next weekend.

Adam Crozier, the FA's chief executive, said yesterday the Premier League's latest offer was "fair and equitable" and gave a stark warning if settlement was not reached. "If a strike action does go ahead, I don't want anyone to underestimate the damage that will do to the game of football."