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PFA SCOTLAND EXPLAINS TUPE POSITION

Fraser Wishart
13th June 2012

PFA Scotland as the trade union for Professional Footballers in Scotland is the only body involved in the Rangers FC insolvency whose paramount concern is the safeguarding of the rights and interests of the Players.

We are delighted therefore to note that both Mr Charles Green and Duff and Phelps agree with the union’s position that that the Transfer of Undertaking (Protection of Employment) Regulations 2006 (“TUPE”) applies to the Players’ contracts of employment in the event of a transfer from The Rangers FC PLC to a newco.

The purpose of TUPE is to protect employees’ terms and conditions of employment in exactly this type of situation.

Should the Players wish to transfer across to the newco, TUPE ensures that they do so on their existing contractual terms.  Equally TUPE affords every employee the statutory right to object to the transfer; employers cannot select which parts of TUPE they wish to apply.

If a Player wishes to object to being transferred his contract of employment would immediately come to an end leaving him with no contract, no dismissal and no right to compensation from either oldco or newco.  Both the Club and the Player are then free from their contractual obligations.

With regard to the question of registration, we are unclear on what legal basis the football authorities would be entitled to withhold the transfer of registration of any Player in this situation. The European Court of Justice ruling in the case of Bosman is authority for the view that professional footballers are workers like anyone else and are entitled to exercise their right to Freedom of Movement when out of contract.

PFA Scotland’s role is to ensure that whatever the decision of each individual Player, they are furnished with expert advice and guidance. Our members have the benefit of specialist employment law advice from the union’s Solicitors Bridge Litigation and our appointed Counsel, Brian Napier QC. Our legal team considers that there are a number of legal remedies open to a player in the event of their Registration being withheld including the right to petition the Court of Session for a fast track Judicial Review Hearing.

It may well be the case that all of the Players wish to transfer across to the newco and if that is the case then PFA Scotland will ensure that their rights are protected. The players however are becoming increasingly unhappy at having to operate in an information vacuum whilst their futures are portrayed by others as being a fait accompli with no proper communication and consultation taking place.

The players are being asked to decide upon their future with so many uncertainties involved . Unanswered questions such as which division the new club will actually play in, whether there be any sporting sanctions against the club, whether the club be eligible to play in the Scottish Cup and whether  there will be a registration embargo. One or more of these factors may have an influence on a Professional Footballer’s career – particularly since it a career that is relatively short lived.

TUPE also places a legal obligation on both the existing company and the newco to formally consult with the union/its members over a proposed transfer. Accordingly, PFA Scotland now looks  forward to hearing from Mr Green and being furnished with information regarding the proposed transfer together with details of his plans for the future of the club.