Abstract

This paper argues that mutual organisations are effective in removing stakeholder conflict. This has been demonstrated in particular in the financial services industry in the form of mutual assurance firms and building societies. We argue that this form of organisation would suit the culture, ethos and objectives of football clubs and should be encouraged. Short of mutualisation, clubs such as Barnsley Football Club in Britain and the Green Bay Packers in the States are at least examples of widespread local and fan ownership. The paper discusses how this might be institutionalised through the progressive transfer of shares to Trust status.

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1. Introduction

In the UK, Barnsley Football Club is a small but financially sound company, and recently enjoyed a season in the Premiership (1997-98) before relegation. Profits have been generated in many years and more importantly significant losses have been avoided. The club has strong links with the local community and the shareholding is widely spread, mostly amongst local people, with no controlling interest held by the directors. Support is received from the local authority and central government, including from funds dedicated to the regeneration of industrial towns. The club is planning developments that will yield positive externalities to the local environment, such as for a centre of excellence.

In the US, the Green Bay Packers have maintained local fan and community ownership whilst becoming one of the most successful teams in American Football history. The three time winners of the Superbowl (and runner up in 1998) represent a small Wisconsin city of a mere 100,000 inhabitants, in competition with the country's population giants. This has endeared them to the nation's football fans, many of whom are intrigued by the David vs. Goliath concept and the Packers' unique status as a publicly-owned not-for-profit corporation. First established in 1919, the not-for-profit organisation has uniquely evolved through time to become a formidable force in American football. In 1935 a fan fell from the stands, sued and won a $5,000 verdict and the insurance company went out of business. The Packers went into receivership and was just about to declare bankruptcy when Green Bay businessmen came to the rescue, raised $15,000 in new capital and reorganised the club. In 1949 a further $125,000 was raised in a giant stock sale all over the state. The team's 4,634 shares are fixed in value at $25 and are subject to strict transfer rules.² They can be left to relatives but cannot be sold to outsiders without first offering them to the team. Any one person can hold a maximum of 200 shares. If the team is sold, the proceeds must go toward a local war memorial. As Gates (1998) has argued:

These are just two examples where there is some degree, at least, of local and fan ownership and control of football clubs. Other examples are described in detail in other papers for this conference, namely Barcelona Football Club's fan ownership structure (L'Elefant Blau, 1999) and Northampton Town Football Club's Trust set-up (Lomax, 1999). The aim of this paper is to consider possible mechanisms for getting from where we are now - with over-commercialisation threatening the future of the game - to where we want to be, with clubs being run in the interests of the supporters. Section 2 describes the current problems in terms of conflicting 'stakeholding' interests. Section 3 then discusses a form of company structure that has been used in the past - and continues to be used - to overcome such problems, namely 'mutualisation'. Section 4 considers an alternative option, of holding shares in Trust. Section 5 then considers how either of these options might be financed.

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2. Some are more equal than others

The term 'stakeholder' refers to individuals or companies with a legitimate stake in an organisation, where the term 'stake' is used in a broad sense. UK company law does acknowledge that the limited liability company does not simply represent the interests of the shareholders alone. However, at present this wider remit extends only to creditors and employees. In reality the firm represents an arena in which there is a potential clash of many interests. Stakeholders include investors, creditors, employees, consumers and the general public, each having their own interests.⁴ Under the law as it stands, the directors of a company primarily owe their duties to the company as an abstract entity. Since this abstract entity potentially covers all of the interests mentioned above, the directors of a company have to weigh them up in practice and resolve any conflicts between them.

The law is presently unsatisfactory, however, in that if directors act in the interests of the consumer and/or the wider public interests on the one hand at the expense of, for example, shareholders, they may be held to have committed a breach of duty. Indeed this is true even if the directors concerned had merely yielded to government or other legitimate external agency pressure. Thus at present, some stakeholders are certainly more equal than others.

Until the Companies Act of 1980, directors would have been in breach of duty by considering employees' interests at the expense of investors. Social responsibility and employee participation are only now, really, part of respectable parlance in modern industrial relations (or 'Human Resource Management'). The enfranchisement of other stakeholder groups in the name of social responsibility has not been widely accepted as yet. The slow development of the law is echoed in the findings of the Hampel Committee on Corporate Governance:

The logical implication of this is that if the interests of football supporters, a loyal and some might argue, the central stakeholder group, are considered by a board of directors to be in conflict with investors, the directors would be liable for breach of fiduciary duty were they to act in the interests of fans. That this is the current reality is of course demonstrated with sickening regularity, most dramatically in the recent past with the taped conversations of the Newcastle United Directors deriding the fans, and gloating over the ease with which the club was able to exploit them. We would argue that directors are - or at least should be - de facto in a fiduciary role with respect to supporters of a club, and that this should be recognised in law.

2.1 Stakeholders must be made stakeowners

Whilst we would, therefore, advocate a change to the law in this respect we have written this paper in the context of the current legal context. Thus, in order to enfranchise supporters as stakeholders one must first make them joint owners as well. In the next sections we will argue that stakeownership is particularly important given firstly the unequal balance of power and secondly the scope for conflict between stakeholders.

Football clubs were originally organised to service a local supporter base. In this sense there has been spatial competition for support and these clubs can be viewed as being local monopolists especially given the few imperfect substitutes available for leisure consumption. Increasingly cash rich, time poor consumers have been offered other leisure options but few directly rival the characteristics of the consumption bundle that football offers in terms of branding. The role of brand is to create institutional stability in terms of loyalty amongst supporters. This gives particular power to the clubs vis à vis the supporters once a particular fan base of support has been won.

Supporters also have to deal with the coordination problem involved in marshalling a large body of actors. Most fundamental, though, is the absence in British company law of any legal legitimacy for fans in matters of key strategic interest. Recent cases in point include the debate over re-locating the Arsenal to a bigger stadium and the high profile takeover bid for Manchester United by BSkyB.⁵

The table below represents the key 'maximands' for different stakeholders. Clearly agents that have a financial interest in the firm wish to maximise financial returns. Fans do not especially care about the size of net profits at a club but rather that the club that they support can carry on business as a going concern and can thereby maximise club success. Indeed, success is likely to be maximised by increasing spending on players (transfer fees and wages, and youth development) beyond the point of profit maximisation. There is a parallel here with the conflict discussed in the economics and management literature, between the interests of the owners of a firm, in maximising profits and the interests of the managers in maximising other variables such as sales growth.

Fans are stuck with any compromise over objectives reached firstly due to their legal position and secondly due to the unique 'brand loyalty'. This means that consumers are tied to a relationship or have 'sunk costs' that other stakeholders have not⁶.

Given this misalignment of objectives there exists a natural tension between different stakeholders in the organisation. Given the relative power of club owners vis à vis supporters it could be argued that there would be negative welfare consequences from allowing this conflict to continue unchecked. It is our contention that this misalignment of objectives could be lessened if the conflict between capital and consumers could be channelled more constructively. One way to overcome such a conflict of interest would be for clubs to be owned not by shareholders but by the 'customers', ie fans. This idea has a long history in theory and practice, including the development of 'mutuals', to which we now turn.

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3. The 'Mutual Form' defined

Within the 'nexus of contracts' paradigm set out in the property rights literature, any firm is simply a set of contracts among the various factors of production or agents within the organisation.⁷ There are many ways in which these contracts can be structured and the mutual form is just one amongst many possible corporate forms. The mutual form has immediate resonance in football given the economic definition of a club:

Although each different type of firm performs the same economic role in the system, there are several differences between them:

• In ownership structure: who owns the firm;
• The nature of ownership stakes (e.g. as between, for instance, tradeable shares or liquid deposits);
• Who takes the residual risk;
• How principal agent relationships are handled when, inevitably in large firms, there is a split between owners and managers;
• To whom managers are accountable;
• How ownership may change (e.g. mergers, takeovers etc).

Typically a mutual form is one where the customers own the business through their participation in the business. As such voting rights and ownership stakes are assigned to members as per shareholders but no financial ownership instrument can be traded with third parties. Ownership can only come through active participation in the business or enterprise. Thus a mutually owned football club would be one owned by active supporters. Shares would not exist; a notional ownership would be conferred on all actively participating stakeholders in the business.⁸

Ownership may only change in a notional sense when participants leave the business and new participants join. Ownership may only change substantively when a vote is carried for demutualisation.⁹ In this case shares are allocated to members and subsequently sold on.

3.1 Mutuality as a source of economic efficiency

The removal of the tension between stakeholders has yielded financial efficiency gains in mutual forms of organisation in the financial services sector. Miles (1991) argued that the absence of a tension between shareholders and customers at building society mutuals resulted in the spread between borrowing and lending rates being 0.42% lower than at traditional banks. Indeed, even the Hampel Committee conceded that directors can meet their legal duties to shareholders, and can pursue the objective of long term shareholder value successfully, only by developing and sustaining effective stakeholder relationships in an organisation.

3.2 Agency Problems

In addition to the problem of tension between stakeholders, the mutual form of organisation can be more efficient in dealing with agency problems in joint stock firms. Mutuals typically have unique residual claims allocation - as Fama and Jensen (1983) have argued:

Thus mutual 'members' can vote with their feet and take their capital elsewhere. The directors no longer have access to these assets. In a joint stock corporation, however, when investors sell their shares and take their capital elsewhere, the assets are typically still under the control of the managers concerned.

Loyalty amongst fans for football clubs means that fans are unlikely to vote with their feet. Supporters as owners are therefore unlikely to exercise 'Exit' discipline on managers as characterised by Hirschmann (1970). There are significant sunk costs in club support which is translated into loyalty. Whilst the mutual model would thus appear redundant we would argue that instead of Exit, mutual ownership would provide equally rigorous discipline on management through the power of 'Voice'. Of all the stakeholders in the UK economy, we would expect football supporters to be excellent proponents of Voice discipline at general and extraordinary meetings, given the opportunity.

3.3 Mutuality as a source of Social Welfare

In addition to providing sources of efficiency gains mutual forms of ownership have particular advantage when social relationships in markets are important as opposed to arms length 'spot' transactions. Kay (1991) argues that:

The relative dominance of mutual forms of ownership in the mortgage market could thus be explained in terms of this ability to sustain long term relationships with consumers. This form of ownership would also be suited to football clubs given the long-term nature of the relationship between club and supporter. This would act as a check against what is referred to in the economics literature as 'hold-up' by the owners of a club against the supporters, where there are sunk costs in relationship specific capital, leaving the supporters vulnerable.

However, Llewellyn (1997) has argued that the prevalence of mutual forms of ownership within the financial services sector is due to the fact that consumers stand at both ends of the value process. They demand cash from building societies in the form of loans, but also provide cash in the form of savings. Thus, there is no particular need for a third party supplier of capital i.e. shareholders, to step in to supply funds.

In the football industry there is a rather different value process, relative to that involved in financial services provision. The consumers (fans) do stand at both ends of the value process in one sense, since by creating the atmosphere at grounds they contribute to the collective production of what is being 'consumed' both by those at the ground and those watching on television (either simultaneously or at some other time) and on radio. Indeed, one of the problems with the over-commercialisation of the game is that the fans who do most to create this atmosphere are precisely those being squeezed out, being replaced with a different set of fans - for whom the term customer or consumer might be more appropriate - who do not so contribute. Many fans do also contribute capital, at least in the sense of being creditors, both through buying their Season Tickets in advance, and also in some cases by paying to be 'members' of the club. However, in the case of football clubs there has been a need for additional capital. It may be that if clubs had been organised as mutuals then ways would have been found to have raised the necessary revenues with that corporate structure. But as it is, there has historically been third party suppliers of capital to fund club development - be it a local businessman, local authority, government grants or, increasingly, the stockmarket. From that starting point, mutualisation would require the acquisition of all shares in the football club, the cancellation of these shares and the re-writing of the club constitution to reflect mutuality. In the modern joint stock company this would entail potentially redrafting memoranda of association and the articles of association, but more importantly, would require finding the resources to buy up the existing share capital. The central issue in this mutualisation process is thus the acquisition of shares. The questions to be asked are: Who will fund the acquisition? Who will bear the residual rights of ownership? Over what time period will the acquisition occur?

Given the share capitalisation of clubs - ranging from a few hundred thousand pounds worth of shares to as much as £600-700 million - the financial undertaking involved in a complete buyout of shares could prove prohibitive in the case of the larger clubs. However, even in those cases where no way can be found fory buying out the existing shareholders to allow mutualisation of the club, there is a practical alternative route to increasing the voice of fans in the running of clubs, and to at least reduce, albeit not eliminate, the conflict of interest between shareholders and fans, namely through the transformation of at least a part of the share capital into shares held in trust. This has been done, for example, in the case of Northampton Town FC, as described by the supporter-Director Brian Lomax (1999).

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4. Trusts

The essence of a trust is that the owner of specific property is subject to personal obligations governing how is should be used and applied.¹⁰ Three generic types of trusts can exist and the nature of their existence stems from the way in which obligations governing the trust are created:

1. Express intention to impose trust obligations - 'Express Trust'
   Applied where an owner places assets in to trust for the benefit of beneficiaries.

2. Implied intention to impose trust obligations - 'Implied Trust'
   Applied to property in relation to voluntary transactions (not under contract). There is presumption that in the transaction the purchaser is not making a gift of money to the vendor and so the goods are held in an implied trust.

3. Imposed trust obligations - 'Constructive Trust'
   Where the unconscionable behaviour of the owner of property demands that the law imposes a constructive trust, where the owner is required to hold the property for the benefit of others.

Given the past behaviour of most club Directors it might be argued there would be a case for the third category of trust to be imposed on them. Realistically, though, we are looking at the first. Such a Supporter Trust would act as a coordinating mechanism to overcome the coordination problem highlighted above. With a supporter trust it is envisaged that voting rights associated with shares can be expressly allocated by proxy to the board of trustees but the financial return from the shares owned could still be earnt by the owners whilst the shares were held in the express trust. The board of trustees would then act on the behalf of the supporter collective.

4.1 Common ownership

A trust is an ideal vehicle for supporter ownership because it provides for the sharing of ownership of property. It is a truly mutual instrument. Co-ownership can be effected by means of either joint-tenancy or tenancy-in-common. Under joint-tenancy, all supporters would be jointly entitled to the whole of the co-owned property, so that they do not have specific shares. In the event of the death of one joint tenant, his or her interest passes automatically to the other remaining joint tenants under the principle of survivorship.

Under tenancy-in-common, co-owners enjoy undivided shares in the co-owned property, which may be equal or unequal, and survivorship has no application. However all the co-owners enjoy the right to use and enjoy the property, and no co-owner can regard part of it as representing his 'share' alone. We would suggest that tenancy-in-common could exist amongst all supporters (and employees) whilst the owners of the trust property could still retain dividend earning rights. This framework could be established clearly in the objects of the trust which could also define trustee roles and responsibilities.

As trusts can separate ownership and control and can sustain joint ownership they are an ideal vehicle for collective investment. The fiduciary duty of management trustees is no less than that of directors and in both cases the law provides that breach of obligations can lead to prosecution and compensation. The trustees job would be made that much easier by virtue of the fact that they only had to maximise the welfare of the supporters (and employees).

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5. Financing

We have suggested two alternative ownership structures for football clubs. Mutualisation would allow clubs to be run by supporters, with no conflict of interest with shareholders, since there would be no shareholders in the standard sense. However, to achieve full mutualisation would require some mechanism for buying out or otherwise replacing the existing shareholders. A more modest aim would be to buy out or otherwise transform just a part of the existing share capital, creating a trust. This latter option is more modest since it would require less finance (or less radical legislation). The question remains, though, where the money would come from?

There are two possible options, applicable to either case - of attempting full mutualisation or else attempting to create a trust holding some proportion of the club's shares. The money would have to be either borrowed or else provided publicly. (In addition to these source, some money might be raised from fans.)

The borrowing option would require a long term loan to be taken out which would be used to buy up some or all of the company's share capital. There are two obvious problems. Firstly, would such loans be forthcoming? And secondly, interest would then need to be paid on the loan (unless there was a public policy initiative, allowing these loans to be made by Government, or else requiring the football authorities to make such loans, perhaps funded by a percentage of television revenues). On the first question, some clubs might be able to increase their long-term borrowing to some degree. The Figure (attached) reports turnover and profits of all league clubs, with Division One, Two and Three clubs all, in aggregate, making small losses. However, the Premiership clubs in aggregate did make profits. There is also a tendency for football clubs to compete away any profits they do make, buying players and paying the resulting wages in order to do better as regards results and, therefore, financially. Thus, if clubs were all faced with a similar additional burden, say of paying interest on a loan to fund a trust holding, then this would tend to reduce transfer fees and wages, and the subsequent profit levels might not necessarily fall by as much as would have been expected.

On the second problem, of paying interest, it should also be remembered that dividends would have previously been paid on the shares which had now been bought back. It might be that dividends would still be paid to the trust, but then this should be recognised as an additional benefit to the club and the game. If not dividends were paid then this money would be saved, offsetting the cost of the interest payments.

The other mechanism for creating a Trust holding of shares would be for existing shareholders to transfer their holdings to such a Trust. This might sound implausible but was after all the mechanism by which the Guardian and associated newspapers came to be owned by a Trust. That example, though, did rely on a high degree of altruism and is not actually the basis for what we propose here (although it is worth bearing in mind that many shareholders of football clubs are also fans of that club and would be likely to be more receptive to any such schemes than would the typical shareholder). One mechanism which might be pursued in the current context would involve no altruism whatsoever. Shareholders would simply be given the choice of holding their shares within the Trust umbrella, or not, with the guarantee that the financial implications would be the same in each case. What this would require, crucially, is that all shares - whether held within the Trust or not - would be eligible to receive the same dividend payment, and also that the shares would be equally tradable, meaning that it would be possible to sell your shares at any time, receiving the same whether your shares were held in the Trust or not. In this case, though, what would be the point of having the Trust at all?

Firstly, it would be a mechanism for the shareholders who opted to have their shares within the Trust to have a collective voice, including - the aim would be - to have at least one Director on the Board representing them.

Secondly, although a potential acquirer of the company would still be able to offer for the shares held in Trust, any such potential acquirer whose aim was to achieve 100% ownership would likely be put off if some sizeable proportion of the shares were held by fans in a shareholders' Trust. And any attempt to get the Board of Directors of a club to agree to as sell-out would be less likely if the fans were represented on that Board.

Thirdly, the ultimate aim of the Trust would be to achieve 100% ownership of the club. And even a sizeable holding would give it the ability to ensure the club did not act against the interests of its supporters. Indeed, with such a holding it would be possible through the company's Board and AGMs to change the nature of the company more fundamentally, including for example by introducing limits on dividend payments, a maximum allowable size for any one individual shareholding, and so on. It is true that such act might depress the share price - but this would actually assist the aim of moving fully towards Trust status (and hence possibly mutualisation).

Fourthly, although it was said above that the shares held in Trust would be eligible for dividends, the shareholders within the Trust would be given the option - which they would be urged to accept - of taking their annual dividend payment not in the form of cash but in the form of additional shares. The financial benefit to the individual shareholder would be the same - the additional shares could always be sold for cash. The additional shares would come from the Trust using the dividend earnings to buy up non-Trust shares on the open market (or privately). Thus over time, a growing proportion of the company's shares would come to be held in the Trust.

Fifthly, although it would be possible to sell one's shares in exactly the same way whether they were held within the Trust or not, shareholders whose shares were within the Trust would be urged when selling, to sell their shares to the Trust. These would then be used for the above-described purpose, of being distributed to existing shareholders in lieu of cash-dividend payments. The aim of this would be to prevent the size of the Trust holding from declining.

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6. Conclusion

Mutual organisations have proved effective in the financial services industry in the form of mutual assurance firms and building societies. We argue that this form of organisation would suit the culture, ethos and objectives of football clubs and should be encouraged. If this proves impossible due to lack of finance and absence of political will (on which, see the paper by Lee, 1999), an alternative would be supporter trusts.

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References

Buckely, P. and Michie, J. (eds)(1996), Firms, Organizations and Contracts: A Reader in Industrial Organization, Oxford: Oxford University Press

Cornes, R. and Sandler, T. (1996), The Theory of Externalities, Public Goods and Club Goods. Cambridge University Press

Deakin, S. and Michie, J. (eds)(1997), Contracts, Co-operation, and Competition: Studies in Economics, Management, and Law, Oxford: Oxford University Press

Fama, E. and Jensen, M. (1983), 'Separation of Ownership and Control', Journal of Law and Economics, 28, 2, pp. 301-26

Gates, J. (1998), The Ownership Solution, London: The Penguin Press.

Hampel Committee Report (1998), Committee on Corporate Governance: Final Report, London: HMSO.

Hirschmann, A.O. (1970), Exit, Voice and Loyalty: Responses to Declines in Firms, Organisations and States, Harvard University Press

Kay, John (1991) [reference to be added]

L'Elefant Blau (1999), 'The Battle for Barcelona', paper presented to The Corporate Governance of Professional Football conference, February 3rd, Birkbeck College

Lee, Simon (1999), 'Bringing the Game into Disrepute? The BSkyB Bid for Manchester United PLC', paper presented to The Corporate Governance of Professional Football conference, February 3rd, Birkbeck College

Lomax, Brian (1999), 'Supporter involvement in Northampton Town FC', paper presented to The Corporate Governance of Professional Football conference, February 3rd, Birkbeck College

Miles, D.K. (1991), Economic Issues in the Reform of Building Societies Legislation, Birkbeck College London, Mimeo

Pearce, R. and Stevens, J. (1998) The Law of Trusts and Equitable Obligations, Butterworths

1. Jonathan Michie is Professor of Management at Birkbeck College, University of London. Shay Ramalingam is an economist with Arthur Andersen Business Consulting. The views represented here are the independent views of the authors and do not represent the views of Arthur Andersen or any other third party. We would like to thank Simon Deakin, Dan McGolphin and Paul Keen for their comments on this paper. All remaining errors are our own.
2. In today's prices the $25 shares would have cost around $115.
3. For an excellent discussion of the abuse of fan loyalty by club owners in the States, see Michael Moore's book, Downsize This - Random Threats From an Unarmed American, London: Boxtree, 1997.
4. What in the economic literature are referred to as their 'maximands' - the things they each want to maximise (profits, utility or whatever).
5. On which see the separate paper by Lee (1999).
6. In the case of supporters, sunk costs can take the form of time and money spent developing a relationship of support with a club, finding out about the team, paying regular membership, attending matches, researching the club history, and so on. More fundamentally, though, what economists refer to as 'sunk costs' in this case relate to the fact that the fan cannot easily drop or switch their loyalty.
7. On the theory of the firm, see Buckley and Michie (1996) and Deakin and Michie (1997).
8. Thus it would be quite possible to include players and other employees with an aligned goal of success maximising.
9. As seen in the recent building society conversions e.g. Northern Rock, the Halifax and the Woolwich.
10. For an analysis of the law of trusts and equitable obligations see Pearce & Stevens (1998)