Enterprise, Hard Work and Aspiration

Women’s sport presents a significant growth opportunity and is predicted to generate more than $1 billion in revenue in 2024 (see here). As we advise more and more stakeholders across women’s sport in this rapidly evolving industry, it feels that women’s sport in the UK is in a critical development phase going into the new year.

With that in mind, those working in women’s sport should be aware of the UK Government’s response (issued on 4 December 2023) (“Response”) (available here) to the independent review into women’s football chaired by Karen Carney (published on 17 July 2023) (“Review”) (available here). The key headlines are that the UK Government endorsed the ten strategic recommendations from the Review and will convene an implementation group responsible for the delivery of the recommendations, with plans to assemble in March and July 2024 to monitor progress.

Whilst the Response is focussed on women’s football, the UK Government states its clear intention to share best practice and accelerate progress across all women’s sport. For example, the UK Government plans to convene a roundtable of leaders from across women’s sports with a view to identifying common themes and challenges being faced by different women’s sports.

We believe that the Response provides some useful legal and practical considerations for women’s sport more generally and share our top 8 takeaways from the Response below. Please do not hesitate to contact Onside Law if you have any queries, or wish to discuss.

Key Takeaway 1: Governance

The football clubs in the WSL and Championship have voted to proceed with NewCo, an independent body to run the women’s professional game (see here).

At shareholder level, each club in the top two tiers of women’s football will be a shareholder in NewCo, with the voting shares held by the clubs in the WSL and the FA holding a ‘golden share’. This model follows other leagues in England, including the English Premier League (“EPL”) and Premiership Women’s Rugby.

At board level, the Response endorses the ‘one board’ principle allowing ‘clubs to be represented in equal share’ which is of note given that the clubs compete in two different leagues, with different priorities and interests. As the clubs and the FA finalise NewCo’s corporate governance, the make-up of NewCo’s board will be fundamental and for NewCo, as with any women’s sport organisation setting up or restructuring its decision-making bodies, consideration should be given to:

• Optimum size of the board with relevant skills, knowledge, experience and diversity
• The number of club representatives (for example, whether there should be an equal number of club representatives from the WSL and the Championship)
• The identity of club representatives (for example, whether they also hold positions (owner/director/executive) at a club or if they should be wholly independent) and how will they be elected by the clubs acting together?
• FA representation
• Involvement of independent non-executive directors / chair
• Term of office and retirement by rotation
• Governance framework underneath the main board e.g. working groups that specialise on specific matters, or represent a particular league

Securing a fit for purpose corporate governance structure that can be adaptable as the industry matures is essential and is a relevant topic for many women’s sport rightsholders today. We explored this area at our event “New Era for Women’s Sport: Lessons from the launch of professional women’s sport” in partnership with DAZN and supported by Women In Football last year, including hearing from senior decision-makers in women’s football, women’s cricket and women’s rugby (available to rewatch here: https://www.youtube.com/watch?v=4gFhqGDtZ5A).

Key Takeaway 2: Self-regulation

The UK Government endorses the recommendation that women’s football should be given the opportunity to self-regulate, rather than coming within the remit of the new independent football regulator. NewCo therefore will have freedom to establish such self-regulation (similar to the EPL to date) but areas that will be expected to be covered include:

• owners’ and directors’ tests;
• corporate governance;
• debt liquidity;
• costs controls; and
• sound financial planning.

The current regulatory framework of the WSL and Championship (notably the competition rules and club licence agreement) already deals with many of these matters, but we expect further revisions, for example, in relation to salary cap reform which is already underway. We expect that salary caps in women’s sport will continue to play a key role with a balance to be struck between regulating financial stability and sustainability whilst promoting investment and attracting the best talent.

The Response notes that the current WSL / Championship licence conditions are not rigorously enforced by the FA. NewCo, as with any women’s sport considering how to regulate its competition, will need to consider and incorporate into its structure how breaches will be investigated and prosecuted with best practice and lessons to be learnt from the EPL over the years. From our experience, there are a number of different options available, but processes typically involve some form of independence (i.e through independent experts, prosecutors, appeals body or even a separate regulatory arm of the sport) and this is likely critical in a model where investigations and proceedings are brought against a shareholder of the league. Examples of independent regulatory models include:

• the points deduction levied against Everton in the EPL was imposed by an independent tribunal, but the EPL was still subject to criticism around delays or inconsistencies with other investigations;
• the International Tennis Integrity Agency is often referred to as “gold standard” where the regulatory arm of the sport is separated from the commercial arm; and
• following recommendations from the ICEC Report, the Cricket Regulator was established in December 2023 and is now ring-fenced from the rest of the national governing body, the ECB.

Key Takeaway 3: Enhanced Standards

The Response agrees with the Report’s recommendation to implement higher participation standards across the game. NewCo will need to consider what standards are appropriate for participating clubs to drive forward professionalisation, as will other women’s sports in their respective sports. It is worth noting that the following are expressly referenced in the Response (with progress already made in these areas in women’s football):

• increased training hours for players and access to a higher class of facilities;
• an uplift in medical support requirements (including post-retirement);
• a requirement that stadiums meet the licensing requirements of the Sports Grounds Safety Authority as well as other safety standards to support fans; and
• the implementation of strategies to increase the fanbase, including dedicated women’s football marketing resources and ticketing policies.

There is an acknowledgement that these standards are high, and deliberately so, and may not be achievable for all clubs on the same timelines. The Response suggests that there may be scope for a phased approach, whether over time or on a club-by-club basis and other women’s sports may decide to adopt a similar approach. However, this will be a challenge for the ultimate regulator of the relevant sport, both in terms of determining how to enforce standards generally, but also in maintaining a fair competitive field if different clubs are subject to different standards.

Key Takeaway 4: Scheduling

Studies show that women’s sport requires consistent scheduling with an easy-to-follow format. In women’s football, the UK Government acknowledges the debate around “Article 48” – the blackout for broadcasters showing live football matches in England, between 14:45-17:15 on Saturdays. The blackout was principally introduced to protect attendance at men’s lower league football which traditionally kicks off at this time and is much less relevant in women’s lower league football. The Response states that revoking Article 48 for women’s football is one viable option that would significantly increase its broadcast and commercial revenue. Will this feature in the new broadcast deal for 24/25 onwards (the existing “landmark” women’s football deal with BBC and Sky will expire at the end of this season)?

This is an area which throws the governance of women’s clubs integrated with men’s clubs under the spotlight. It is reported that the EPL and other football stakeholders such as the English Football League and the Scottish Premier League may not be supportive of the lifting of Article 48 for women’s football. Ensuring that decisions are being made in the best interests of the women’s club needs to be carefully considered in the new era under NewCo, as well as in other women’s sport who have clubs that are associated with men’s clubs as interests may not always be entirely aligned. For example, independent governance/decision-making for women’s clubs could be protected through licensing criteria/standards.

More generally, the ability to control/influence sporting calendars and competition windows has always been an important element of any sport and will remain fundamental for women’s sport, particularly whilst the talent pools are, relatively speaking, small. This will require co-operation between stakeholders and governing bodies at club, national and international levels to develop calendars which exploit growth opportunities whilst protecting athletes.

Key Takeaway 5: Investment

The Government’s response makes multiple references to a ‘strategic partner’ both in terms of securing additional financial investment and investment in the talent pathway. Concentrating on the former, there’s no detail on the form this could take, so it could be geared at financial investment and/or collaborating with experts to better understand the women’s sport market and identifying opportunities to increase revenue within the current structure. It has long been said that women’s sport fans do not necessarily have the same priorities as fans of men’s sport, a point acknowledged in the Report, so it will not be as simple as transferring strategies that have worked there.

We work with an increasing number of women’s sport rightsholders as they seek and secure financial investment. Interest in investing into women’s sport is clearly rising, with female-led groups such as Mercury 13, Monarch Collective, Cognosante Ventures (Michele Kang) and Billie Jean King Enterprises playing active roles, in addition to private equity and men’s sport investment. For women’s sport rightsholders looking to raise capital it will be important to consider matters such as the investment opportunity, what other funding options are available, proposed corporate structure, league/other consents and approvals, decision-making and information rights, investor red flags, financial returns and exit plans.

The Department of Business and Trade launched the Women’s Sport Accelerator in 2023 to boost investment with participants selected from 20 top tier women’s sport leagues, teams and competitions across seven different sports (see here). We look forward to contributing to the programme by being selected as an expert mentor and to support the cohort more generally through delivering bespoke training and advice.

Key Takeaway 6: Player’s voice

Another core feature of the Response is the encouragement of fully engaging players in decision-making and considering their needs and rights at each stage. The Professional Footballers Association (“PFA”) currently supports a number of female football players without any specific funding assigned to it. The Response states that players from both leagues should be represented and have access to support and advice around contracts and working conditions, noting that a Professional Football Negotiating and Consultative Committee is being developed for the women’s game as the FA continues to work with the PFA in this area.

Women’s sport rightsholders should also be aware of the increasing use of collective bargaining agreements which are typically pressed for by the player association if key player terms cannot be agreed through consultation. Ultimately, the players can threaten boycott/strike action if they are not satisfied with working conditions which can cause disruption and reputational damage for the sport.

Women’s sport decision-makers should engage early with relevant player associations to put in place a workable player governance framework and agree key terms around pay, female player welfare matters (see further below), salary caps (where applicable), transition planning, exploitation of image and data rights and secondary working (as the case may be). A balance will need to be struck between recognising players’ needs and viewpoints and the overall best interests of the league so early and meaningful engagement is important.

Key Takeaway 7: Talent

Challenges in the player talent pathway were also highlighted, with clubs raising a lack of sufficient home-grown talent as a problem. Clubs have to have a minimum of eight home-grown players in their squads, which has led to increased demand for these players and consequential increases in transfer fees. However, the lack of depth of quality home-grown players has led to complaints that clubs ‘stockpile’ home-grown players in order to meet these minimum requirements without providing these players with game-time to develop. The Response reiterates commitments made by the UK Government to increasing investment into grassroots women and girls’ football to develop home-grown talent.

Clubs have indicated that the recruitment of overseas players could help raise standards but it is currently too difficult as the Governing Body Endorsement (GBE) in place for the women’s game is too high in comparison to the deemed ‘quality’ of the overseas leagues in which they play. GBE criteria are set by the FA in consultation with The Home Office and allows international players meeting certain criteria to be “endorsed” by the FA and apply for a visa to work in the UK.

The FA has recently established a Technical Consultation Group for GBE in the women’s game to assess the GBE requirements in conjunction with the Home Office. It is worth noting that the GBE in the women’s game is currently higher than the men’s game.  There are various legal arguments that could be run to challenge any decision not to make similar changes for the benefit of the women’s game, including discrimination on the grounds of sex and such arguments may be a useful tool by clubs if progress is not made.

Women’s sport organisations with the ambition to develop the most successful league/competition in the world will need to weigh up the availability of international talent with developing player pathways and promoting home-grown talent and put in place the necessary rules and requirements.

Key Takeaway 8: Female athlete welfare

The Response endorsed the Review’s recommendations in the WSL and Championship becoming fully professional environments, including improvements to training and medical support and mandating a world leading parental package. Many women’s sports want to be best in class with regard to matters their female athletes will face. We have seen an increase in the number of organisations who have made implementing appropriate policies a priority. Different sports have taken different approaches depending on their particular set-ups but examples include:

• Players maintaining individual rankings whilst taking maternity leave;
• Enhanced paid parental, surrogacy and adoption leave (including travel costs for infants to travel to games and the provision of support persons, as well as paid time off for medical or other appointments before the birth or placement of the child);
• Paid fertility leave (i.e. paid leave to seek fertility treatment such as IVF); and
• Some movement towards the inclusion of menstrual leave or adapting training around a player’s menstrual cycle.