“End of the line, nobody gets off!” The French supreme administrative court suspends the relegation of Amiens and Toulouse to Ligue 2

Following intense legal sparring, Amiens Sporting Club (Amiens) and Toulouse Football Club (Toulouse) have some respite – for now. On 9 June, the judge of summary proceedings of the French supreme administrative court (Conseil d’Etat) ordered the suspension of the decision taken by the board of directors of the French professional football league (LFP) to relegate these two clubs to Ligue 2. The judge also urged the LFP and the French Football Federation (FFF) to review the format of Ligue 1 for next season before the end of June.

However, with the LFP and FFF mobilising quickly to find a solution, Amiens and Toulouse’s success may well be short-lived – and unlikely to be anything more than a purely principled one.

Blowing the final whistle on the 2019-2020 season

The LFP board of directors took the decision at the end of April to end the 2019-20 season and to record the Ligue 1 standings using a formula based on the number of points won and the number of games played by the teams. This decision has not been overturned by the judge of summary proceedings, who considered that there was no serious doubt as to its legality.

Olympique Lyonnais (Lyon), who, alongside Amiens and Toulouse, also challenged the LFP’s decision, suffered a further setback: barring an unlikely turnaround in proceedings on the merits, its seventh place in the league appears to be up for grabs.

Lyon’s arguments relating to the infringement of competition law and the fairness and integrity of sporting competitions were swept aside. Further, its argument as to the alleged bias of the LFP's board of directors and the desire to specifically penalise Lyon was dismissed by the judge. The judge of summary proceedings, who, it will be recalled, is the judge of obviousness and only issues interim measures, was not convinced by the evidence adduced in the debate. The judge did acknowledge, however, that the LFP board of directors could have taken a decision other than to conclude the season. This was, however, a small consolation prize for Lyon.

On the other hand, a rare on-target strike from Amiens and Toulouse, occupying the 19th and 20th positions in the league, respectively, was able to raise serious doubts in the judge’s mind as to the legality of the decision relegating the clubs to Ligue 2.

A potential error of law: Back to the Future?

The LFP board of directors decided to relegate Amiens and Toulouse on the basis of an agreement between the FFF and the LFP, whereby the former entrusts the latter with the management of professional football in France (the Agreement).

According to article 3.1 of the Agreement, the Ligue 1 championship consists of "a single group of at least eighteen clubs and no more than twenty clubs". The combined effect of the promotion of the two most successful clubs in Ligue 2 and the non-relegation of the two least successful clubs in Ligue 1 would have increased the number of clubs in Ligue 1 to 22 for the 2020-21 season, in breach of the limit set by the Agreement.

However, the judge of summary proceedings noted that the Agreement (on the basis of which the relegation decision was taken) is set to expire on 30 June. Therefore, it does not apply to the organisation of the 2020-21 Ligue 1 season, which is due to begin on 23 August.

It is one thing to decide that Amiens and Toulouse will be ranked 19th and 20th for the 2019-20 season. It is another to determine their relegation on the basis of that ranking. As stated by the judge "the decision to proceed with a ranking of the Ligue 1 and Ligue 2 championships does not necessarily, by itself, result in the relegation to Ligue 2 of the last two from Ligue 1, nor, moreover, in the accession to Ligue 1 of the first two from Ligue 2".

With serious doubts as to its legality, the decision to relegate Amiens and Toulouse to Ligue 2 is, according to the judge"likely to cause serious and immediate damage to the interests of the clubs concerned, which must manage their membership and recruitment policy for next season".

Indeed, the differences in incomes between Ligue 1 and Ligue 2 clubs are such (reportedly eight times lower over the 2018-19 season) that drastic cost-saving measures must be implemented by relegated clubs, who are at the risk of facing major financial difficulties. The judge further opined that this infringement is not likely to be counterbalanced (and therefore justified) by the public interest or by the interests of other clubs in Ligue 1.

The judge therefore suspended the execution of the LFP’s relegation decision. It also ordered the LFP to re-examine, in conjunction with the relevant bodies of the FFF, "the question of the format of Ligue 1 for the 2020-2021 season, in the light of all the information available at the date of that re-examination and relating to the conditions in which that season is likely to take place, and to draw the consequences for the principle of relegations".

Ligue 1 or Ligue 2: a race to the end of June

Amiens and Toulouse have temporarily remained in Ligue 1, but cannot yet definitively rule out relegation.

The serious doubts of the judge of summary proceedings are based solely on the non-applicability of the Agreement. The error therefore appears to be addressable. Before the 30 June cut-off, the LFP could decide again to relegate Amiens and Toulouse, this time based on a new FFF/LFP agreement, which is applicable to the 2020-21 season. In this vein, on 20 May, the LFP validated a new FFF/LFP agreement (the New Agreement) for the period 2020-2024, which would include the numerus clausus with respect to a 20-club maximum. Though the New Agreement is yet to be validated by the FFF's executive committee and federal assembly, there is nothing at this stage to suggest that the FFF will suddenly change its stance.

Under these circumstances, Amiens and Toulouse could find themselves in Ligue 2 within the next few weeks. However, it is not clear that the New Agreement alone satisfies the requirement that the LFP conduct a detailed review of the Ligue 1 format for the 2020-21 season. Indeed, in imposing the review, the judge insisted on an analysis of the "conditions" under which the next season is likely to unfold. It is unlikely that such analysis can be limited to the sole review of the applicable convention. Instead, it should probably take into account all the practical difficulties of organising the 2020-21 season (including calendar, preservation of players' health, etc.).

Obstacles to relegation?

The FFF may refuse to maintain the limit of 20 clubs in Ligue 1 in the New Agreement. However, this is an unlikely scenario, the federation having validated without a moment’s hesitation the relegation of Amiens and Toulouse in May.

The FFF has reiterated its commitment to the principle of promotions and relegations, as well as its lack of interest in a 22-club championship, by reversing the LFP’s decision to increase the number of clubs in Ligue 2 to 22 (instead of the current 20) for next season. The executive committee of the FFF considered that this particular decision “went beyond the scope of the delegated management of professional football to the LFP by the FFF” and was contrary to the best interests of football. The LFP could be forgiven for thinking its decision would be uncontroversial, given that Article 3.2 of the Agreement provides that Ligue 2 shall consist of “a single group of at least 16 clubs and no more than 22 clubs”.

If the FFF has set itself up against a 22-team Ligue 2, it is unlikely to reverse its stance on the numerus clausus of Ligue 1, which is a necessary precondition for Amiens and Toulouse to compete at the top level next season.

Alternatively, Amiens and Toulouse could consider an appeal against a new decision of the LFP. However, based on the wording of the 9 June order, a new referral to the Conseil d'Etat in summary proceedings on this subject seems doomed to failure if the decision to relegate is based on texts applicable to the 2020-21 season. That is of course unless the judge considers, as noted above, that the LFP has not fully complied with the injunction to consider the format of the 2020-21 season. In any event, a decision on the merits of the Conseil d’Etat would take months to be rendered and would therefore be anachronistic, with the next season pencilled in to begin in August.

The fate of Amiens and Toulouse therefore looks likely to be decided in the coming weeks, pending a new decision by the LFP. Though the future of these two clubs in Ligue 1 hangs by a thread, the game is not quite over yet. And in football, while the final whistle is yet to be blown, anything can happen.