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EFL Response
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BlackpoolSupportersTrust Offline
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EFL Response
EFL response to questions asked by BST on behalf of all fans:

We publish here the email sent to Shaun Harvey, CEO of the EFL, on 21st March by the Chair of BST and his subsequent reply to Tim Fielding, received today.
BST will be issuing a considered response in due course.

Dear Shaun,

Many thanks for your time last evening. We appreciated the opportunity to discuss the various matters relating to our club and football governance in general.

Specifically as regards your understanding that the ODT provides that convictions that pre-date it's introduction are not to be taken into account, we note that you have agreed to consider the representations made last night and clarify your stance.

We would be grateful if your response could specifically address the following ;

1/ The ODT definition of ' Conviction ' and ' Registered Offender '
2/ Section 1 sub- paragraph h - which seemingly disqualifies anyone who has served a custodial sentence of 12 months or more anywhere in the world ( which must by definition include the UK ).
3/ The retrospective aspects which upon our reading of the rules is clearly limited to insolvency offences ( Section 1 sub-paragraph n ( ii ).

It is clear from this meeting that as an organisation your purpose does not include governance and this underlines our belief that there is a need for external licensing/regulation or for the FA to step up to the responsibility. There is a void here which needs to be filled. I hope we can work together for the good of football as a whole.

Regards

Christine

Christine Seddon
Chair
Blackpool Supporters' Trust

Mr. T Fielding
BST
LETTER BY EMAIL ONLY
20th April 2018
Dear Tim
The EFL’s Owners’ and Directors’ Test
Strictly Private & Confidential – Not for Publication
Following the discussion at the meeting held on 20th March 2018, as promised I now provide further detail on the EFL’s application of its Owners’ and Directors’ Test (Test), having retrieved the relevant files from archive. As I hope you will appreciate, we will not comment on any individual circumstances, but hope the following general guidance will help address the points you raised in respect of our application or our own rules.
This letter seeks to go into the detail surrounding this issue but that level of detail is intended to assist the Committee, and not wider publication. We would be happy for the BST to prepare a summary position for its member’s wider publication, but would ask that we have the opportunity to comment on any such statement for the purpose of accuracy.
The first iteration of the Test was known as the ‘Fit and Proper Persons Test’. It was introduced by EFL Clubs in June 2004 as a measure aimed at helping improve corporate governance within football clubs. The Test was in response to wider concerns around the corporate governance of the game and financial failings at Clubs. Much had been written about that in the preceding seasons, culminating in a number of recommendations from the Independent Football Commission in its 2003 Annual Report, all focused around enforcement of ‘proper corporate and financial governance’.
As a consequence, when first implemented the test focused on offences of dishonesty, fraud and serious breaches of the Companies Act. It did not disqualify those with unspent convictions for offences resulting in a sentence of imprisonment of at least 12 months, or registered sex offenders. Any individual who had previously been jailed for 12 months or more, or who was required to sign the sex offenders register was not disqualified.
Following the first season of operation of the Fit and Proper Persons Test, the EFL undertook a review. During that process discussions included consideration of additional disqualifying conditions, to also include convictions for offences resulting in a sentence of imprisonment of at least 12 months, and individuals who were classed as registered sex offenders.
Further detailed legal advice was obtained from specialist Counsel, which analysed the legal basis for the adoption of the Test in the first place, and sought to assess the relationship between the rights of individuals caught by the Test and the ability of the EFL to impose disqualifications. It would not be appropriate for us to disclose copies or comprehensive details of legal advice the EFL obtained at the relevant times, but the advice informed the EFL’s approach in three key areas.
The backdrop to the legal assessment is that the Regulations of the EFL form a contract between the EFL, the member clubs and individuals who are the subject to the Regulations. Consideration has to be given to principles of both common law restraint of trade and to the rights of individuals (in particular, the context of the OAD Test, the rights under Article 1 of the First Protocol of the Human Rights Act). By imposing a restraint, the EFL was exposing itself to claims that the restraint or restriction was not reasonable and justified.
Firstly, the test was noted as not retrospective, but would apply to existing Directors with effect from their entry into force i.e. for conduct occurring after implementation. As such, using the same phrasing as legal texts on this subject, the Test did not take away or impair any vested right acquired under existing laws, or create a new obligation, or impose a new duty, or attach a new disability in respect to transactions or considerations already past. It is that approach which has guided the EFL in the application of the Test since then. You have pointed out that the wording around Insolvency Events is more explicit than in other areas of the Test. That is not a surprise; the financial landscape of EFL Clubs, and the perceived link between corporate failure and poor governance, was at the forefront of the minds of many Club directors whose Clubs had already suffered insolvency events following the collapse of ITV Digital. The DTi as it was then, did not find any of the Directors guilty of any offences relating to the insolvency of their Club.
Secondly, Counsel was sceptical that a sufficient link could be established between the objective of improving corporate and financial governance of the game and a wider range of offences. General law did not (and still doesn’t) preclude individuals from holding the position of director of a limited company when convicted or imprisoned save in respect of certain regulated industries. Given the objective of improving corporate and financial governance, there would be risk of challenge if extending the Test further. It was noted that in the context of sex offenders in particular, there were already in place wide ranging powers of exclusion from the game in appropriate circumstances.
Thirdly, any Test needed to include a review process which would enable any individual caught by the test to argue that whilst technically caught, it would be inappropriate for them to be actually banned under the Test. The original test had no such appeal mechanism, so this was introduced.
It is of course correct that the EFL went on to extend the disqualifying conditions to also include convictions for offences resulting in a sentence of imprisonment of at least 12 months, and individuals who were noted as registered sex offenders, notwithstanding the advice it received at the time. In doing so the EFL adopted (and after specific consideration of the point) an approach consistent with the advice in that the implementation would not be retrospective, but would apply to existing Directors with effect from their entry into force i.e. for conduct occurring after implementation. Notes of the relevant Committee meeting at which the point was considered have confirmed this. The EFL elected to take this approach on balance, despite the legal risk that had been identified. The view taken at the time was that that the League should take a proactive stance on this issue, notwithstanding the legal advice, and that if it was successfully challenged it would be the Courts, and not the League, that was sanctioning persons likely to be perceived by the game’s wider stakeholders as being unfit persons to be in control of football clubs.
The position you now seek to advance on behalf of supporters is that the EFL should seek to apply the Test in circumstances where any individual validly held interests in Clubs for many years prior to the date of the adoption of any Test, and continued to do so under the first iteration of the Test, when the Test itself was not expressed to be retrospective in effect. The EFL position was, and is, that there is insufficient basis to adopt that approach. Even if the EFL did seek to impose a disqualification in those circumstances, it would be open to anyone the EFL sought to disqualify to argue under the appeal mechanism that it would be disproportionate to impose the disqualification.
Before concluding, I want to deal briefly with what has been said about the position of the Premier League in contrast to that of the EFL. The Premier League amended its Rules in June 2010 to include Registered Sex Offenders. It is a matter for the Premier League as to the application of its Rules and of course up until that point it had no prior relationship with Blackpool or its ownership which placed it in a different position to the EFL. The EFL position could not change from that adopted previously on the Club’s relegation back into the EFL or we would have been back in the position of forcing an individual to dispose of this interest in a Club by way of retrospective action, which we were advised was fraught with legal difficulties at the outset in 2004
I hope this response provides the background with regard to how and why the EFL interprets its own rules in the way that it does, even if it doesn’t reveal the answer that you would have liked to hear.
Yours sincerely,
Shaun Harvey Chief Executive Officer
Email: sharvey@efl.com
20-04-2018 15:35
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whitstabletangerine Offline
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RE: EFL Response
I suppose one word could describe that reply.
20-04-2018 15:45
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GynnSquarePhoenix Online
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RE: EFL Response
I was thinking of two Tony.
20-04-2018 15:48
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munkle Offline
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Post: #4
RE: EFL Response
Utter bollocks as expected however the line at the top...

“Strictly Private & Confidential – Not for Publication”

...is of concern. If I was them, after you’ve posted on fan sites, I’d now argue that dialogue is closed. I know BST get shit for doing things out of fans’ sight but this is a clear statement not to share.
20-04-2018 16:02
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TwelveAngryMen Offline
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Post: #5
RE: EFL Response
Dialogue on independent regulation with the EFL was never going far

It's the old ' Turkey's Voting for Xmas '

The letter was sent to me even though BST had posed the questions

What is BST mean't to do ? Withold from their members ?

The EFL can't dictate that
20-04-2018 16:07
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Magic147 Offline
Not a penny more

Posts: 17,537
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Post: #6
RE: EFL Response
What a load of shit.

This lot are as bad as the Oystons.

Scumbags.
20-04-2018 16:10
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GynnSquarePhoenix Online
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RE: EFL Response
(20-04-2018 15:45)whitstabletangerine Wrote:  I suppose one word could describe that reply.

(20-04-2018 16:02)munkle Wrote:  Utter bollocks as expected however the line at the top...

“Strictly Private & Confidential – Not for Publication”

...is of concern. If I was them, after you’ve posted on fan sites, I’d now argue that dialogue is closed. I know BST get shit for doing things out of fans’ sight but this is a clear statement not to share.

Just tell 'em we nicked from the Gazette and changed a few words around.

The Gazette
20-04-2018 16:22
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munkle Offline
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RE: EFL Response
(20-04-2018 16:07)TwelveAngryMen Wrote:  Dialogue on independent regulation with the EFL was never going far

It's the old ' Turkey's Voting for Xmas '

The letter was sent to me even though BST had posed the questions

What is BST mean't to do ? Withold from their members ?

The EFL can't dictate that

True and be under no illusion, I’m on BST’s side but it’s a reason for them to now stop dialogue.
20-04-2018 17:03
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Bally Online
1 = 20

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RE: EFL Response
It's obvious the EFL protect club owners. There is no way they will give in to any fan power that doesn't benefit an owner. Footballs very own tory party
20-04-2018 20:05
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McPoolmob Offline
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RE: EFL Response
(20-04-2018 20:05)Bally Wrote:  It's obvious the EFL protect club owners. There is no way they will give in to any fan power that doesn't benefit an owner. Footballs very own tory party

This^
Or if you're not in my rich gang then fuck off.
20-04-2018 23:01
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JamesGuy304 Offline
Heart of a bison.

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Post: #11
RE: EFL Response
Is ‘horse shit’ (horseshit) one word or two?
21-04-2018 02:28
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Lancashirehotpot Offline
LOVING LIFE!!

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Post: #12
RE: EFL Response
(21-04-2018 02:28)JamesGuy304 Wrote:  Is ‘horse shit’ (horseshit) one word or two?
Definitely two, James.
As is total crap, utter bollocks, f'ing shit.
EFLluence, however, will suffice.
(This post was last modified: 21-04-2018 02:41 by Lancashirehotpot.)
21-04-2018 02:39
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Rimm-BFC Offline
ne santīma vairāk

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RE: EFL Response
EFLuence

Great word Potty, I like that and it perfectly sums them up!!
(This post was last modified: 22-04-2018 05:45 by Rimm-BFC.)
22-04-2018 05:44
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McPoolmob Offline
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RE: EFL Response
(21-04-2018 02:39)Lancashirehotpot Wrote:  Definitely two, James.
As is total crap, utter bollocks, f'ing shit.
EFLluence, however, will suffice.

Effluent, Effluence.
Well they do it to me all the time. Lol.
22-04-2018 08:10
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McPoolmob Offline
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RE: EFL Response
Wednesday 25th April 2018


Blackpool Supporters’ Trust
Response to the EFL
Dear Member, attached is the BST response to the letter sent by the EFL regarding the EFL's Owners' and Directors' Test.
Further information relating to BST's football governance campaign will be shared over the coming weeks.
BST Committee



Dear Shaun,

I am writing to you in response to the emails sent to Tim Fielding and myself in answer to the questions posed by BST at the meeting with Blackpool Supporters and yourselves on 20th March.
For BST, the main issue arising is that we have had months of delay and prevarication since I wrote to Ian Lenagan last December. Whilst we appreciated the opportunity the meeting in March provided, still we have no substantive answers to the main issues of concern we have raised.
Our observations on your response are set out below:

1."The first iteration of the Test was known as the 'Fit and Proper Persons Test'. It was introduced by EFL Clubs in June 2004 as a measure aimed at helping improve corporate governance within football clubs. The Test was in response to wider concerns around the corporate governance of the game and financial failings at Clubs. Much had been written about that in the preceding seasons, culminating in a number of recommendations from the Independent Football Commission in its 2003 Annual Report, all focused around enforcement of 'proper corporate and financial governance'.
As a consequence, when first implemented the test focused on offences of dishonesty, fraud and serious breaches of the Companies Act. It did not disqualify those with unspent convictions for offences resulting in a sentence of imprisonment of at least 12 months, or registered sex offenders. Any individual who had previously been jailed for 12 months or more, or who was required to sign the sex offenders register was not disqualified."

OBSERVATION
Thank you for the clarification. Of course, in the case of insolvency offences only, your rules provide that these aren’t to be retrospectively applied in any event.

2."Following the first season of operation of the Fit and Proper Persons Test, the EFL undertook a review. During that process discussions included consideration of additional disqualifying conditions, to also include convictions for offences resulting in a sentence of imprisonment of at least 12 months, and individuals who were classed as registered sex offenders.
Further detailed legal advice was obtained from specialist Counsel, which analysed the legal basis for the adoption of the Test in the first place, and sought to assess the relationship between the rights of individuals caught by the Test and the ability of the EFL to impose disqualifications. It would not be appropriate for us to disclose copies or comprehensive details of legal advice the EFL obtained at the relevant times, but the advice informed the EFL's approach in three key areas.

The backdrop to the legal assessment is that the Regulations of the EFL form a contract between the EFL, the member clubs and individuals who are the subject to the Regulations. Consideration has to be given to principles of both common law restraint of trade and to the rights of individuals (in particular, the context of the OAD Test, the rights under Article 1 of the First Protocol of the Human Rights Act). By imposing a restraint, the EFL was exposing itself to claims that the restraint or restriction was not reasonable and justified."

OBSERVATION
Whilst accepting that this advice may have been given, as we read it you have actually confirmed that the advice you received was not followed. It’s our understanding that the EFL, as a private company, need not be concerned with human rights issues as you weren’t carrying out a public function.

3. "Firstly, the test was noted as not retrospective, but would apply to existing Directors with effect from their entry into force i.e. for conduct occurring after implementation. As such, using the same phrasing as legal texts on this subject, the Test did not take away or impair any vested right acquired under existing laws, or create a new obligation, or impose a new duty, or attach a new disability in respect to transactions or considerations already past. It is that approach which has guided the EFL in the application of the Test since then. You have pointed out that the wording around Insolvency Events is more explicit than in other areas of the Test. That is not a surprise; the financial landscape of EFL Clubs, and the perceived link between corporate failure and poor governance, was at the forefront of the minds of many Club directors whose Clubs had already suffered insolvency events following the collapse of ITV Digital. The DTi as it was then, did not find any of the Directors guilty of any offences relating to the insolvency of their Club.

Secondly, Counsel was sceptical that a sufficient link could be established between the objective of improving corporate and financial governance of the game and a wider range of offences. General law did not (and still doesn't) preclude individuals from holding the position of director of a limited company when convicted or imprisoned save in respect of certain regulated industries. Given the objective of improving corporate and financial governance, there would be risk of challenge if extending the Test further. It was noted that in the context of sex offenders in particular, there were already in place wide ranging powers of exclusion from the game in appropriate circumstances."

OBSERVATION
At grassroots level the FA bar such individuals having contact with children (rightly so) Criminal record checks as they were called back then were brought in around the same time. Blackpool have both male and female youth teams. Why would that not concern the EFL?
It is difficult to reconcile your position on this issue with that of the FA who design and implement the rules that govern the game insofar as it applies to any club at any level of the game. Their rules are applied strictly.
What you are saying here completely contradicts what you did at the point of amendment. The definition of “conviction” explicitly makes its application retrospective in scope. Why did you not tackle that issue head on as you did with insolvency offences? Surely you had not forgotten that in Owen Oyston you had an existing owner who fell foul of the rules you were seeking to implement?

4."Thirdly, any Test needed to include a review process which would enable any individual caught by the test to argue that whilst technically caught, it would be inappropriate for them to be actually banned under the Test. The original test had no such appeal mechanism, so this was introduced.
It is of course correct that the EFL went on to extend the disqualifying conditions to also include convictions for offences resulting in a sentence of imprisonment of at least 12 months, and individuals who were noted as registered sex offenders, notwithstanding the advice it received at the time. In doing so the EFL adopted (and after specific consideration of the point) an approach consistent with the advice in that the implementation would not be retrospective but would apply to existing Directors with effect from their entry into force i.e. for conduct occurring after implementation. Notes of the relevant Committee meeting at which the point was considered have confirmed this. The EFL elected to take this approach on balance, despite the legal risk that had been identified. The view taken at the time was that that the League should take a proactive stance on this issue, notwithstanding the legal advice, and that if it was successfully challenged it would be the Courts, and not the League, that was sanctioning persons likely to be perceived by the game's wider stakeholders as being unfit persons to be in control of football clubs.
The position you now seek to advance on behalf of supporters is that the EFL should seek to apply the Test in circumstances where any individual validly held interests in Clubs for many years prior to the date of the adoption of any Test, and continued to do so under the first iteration of the Test, when the Test itself was not expressed to be retrospective in effect. The EFL position was, and is, that there is insufficient basis to adopt that approach."

OBSERVATION
If this is the EFL’s position then the amendment to the rules as drafted flies in the face of what you say you decided to do. You only need to compare and contrast the treatment of unspent convictions / Registered Offenders with that of insolvency offences where the issue on retrospective application is clearly dealt with.

5. "Even if the EFL did seek to impose a disqualification in those circumstances, it would be open to anyone the EFL sought to disqualify to argue under the appeal mechanism that it would be disproportionate to impose the disqualification."

OBSERVATION
We fully accept that. However, it is difficult to see how an owner who fell foul of your rules would engender any sympathy with the Courts if the EFL’s aim was to implement rules that amongst other things protected children/vulnerable adults. We are sure that the teaching and care professions have had no such issues with past offenders.

6. "Before concluding, I want to deal briefly with what has been said about the position of the Premier League in contrast to that of the EFL. The Premier League amended its Rules in June 2010 to include
Registered Sex Offenders. It is a matter for the Premier League as to the application of its Rules and of course up until that point it had no prior relationship with Blackpool or its ownership which placed it in a different position to the EFL. The EFL position could not change from that adopted previously on the Club's relegation back into the EFL or we would have been back in the position of forcing an individual to dispose of this interest in a Club by way of retrospective action, which we were advised was fraught with legal difficulties at the outset."

OBSERVATION
The rules do not just apply at point of entry; rather, they require all “relevant persons” to self-certify their continued eligibility each pre-season. This reply belies what appears to be a fundamental misunderstanding of what your own rules say and how they should be applied.

Arising from this are the very serious implications for the Championship between 2011 and 2015. The action of the EPL to ban Owen Oyston, even though they failed to follow this action through, meant that on Blackpool’s return to the Championship following relegation from the PL in 2011, the integrity of the competition was seriously compromised. In effect, for each of those seasons there were 24 teams which could be relegated but only 23 which could realistically be promoted. How is the integrity of the EFL served by having one of its clubs owned by someone who has absolutely no interest in investing in his football club to achieve the highest possible finish as promotion would result in him having to divest himself of ownership? As the November court ruling has shown, you only have to look at the accounts and the pattern of spending from 2010 onwards to see that Owen Oyston has utilised the football club money for himself and not for the good of the club. How could the FA, EPL and yourselves not have realised how compromised the Championship became because of this situation?

This gross failure by all the football authorities is unacceptable and must be investigated so that lessons are learned and wrongs righted as far as is practicable.


Throughout all of our communications with you, we have raised the following points:

-The EFL appear to have a reluctance to apply the spirit of the ODT to Owen Oyston, even in light of Judge Marcus Smith’s forensic ruling.

-There has been no reluctance to apply the ODT to Valeri Belokon, even on the most doubtful of provenance

-The EFL have a fundamentally different approach on ODT from that used by the EPL.

-There is a particular resistance to engaging with fans, even those bringing offers of practical help (such as the BST case review model)

-There is a constant pattern of responding to issues at a glacial pace, even when clubs are clearly in crisis.

-There is a culture of secrecy and a defensive attitude towards any kind of criticism. All in all, this makes the EFL a very difficult organisation to deal with and leads to a widespread perception that the EFL is not stepping up to a proper exercise of its powers when it comes to off- the- field matters of club management.

-The FA always refers the supporters of EFL clubs to the EFL and yet in your more candid moments, you admit that the EFL is primarily a competition organiser and does not want to take on the mantle of enforcing good governance.

Even if your decision not to apply the ODT to Owen is a correct interpretation of your own rules (an assertion which we take issues with for the reasons detailed above) this means there is a chronic failure to do the right thing by Blackpool Football Club and its supporters. Is this not sufficient reason for you to reassess your regulations and to openly acknowledge that change is required urgently? The continued presence of Owen Oyston at the helm of Blackpool FC serves only to inflict yet more damage on a football club already at peril. Surely, it is incumbent on the EFL to step in and act NOW, even if this means changing your own rules. In all honesty, can you truly believe that the current arrangements for football governance are fit for purpose? Who will speak for us if you cannot?

If the EFL do not currently have the authority required to take meaningful action then have the courage to stand up and say so. Too many clubs are being failed whilst the football authorities play pass the parcel with the regulation book.

The football supporter movement is gaining strength by the day. It is becoming clear to our politicians that there is serious unrest amongst football fans and they are hopefully waking up to the realisation that something must be done about it. As an organisation that represents the football clubs but not the supporters who make those clubs a reality, we had hoped that you would be willing to help lead the way towards bridging the gap between the needs of one and the requirements of the other. Instead, we consider you to have shown a desperate lack of understanding of the real issues and a reluctance to face up to them. We would have preferred to work with you but if that is not going to happen, we will campaign without you. Change WILL come eventually.

Regards

Christine Seddon
Chair
Blackpool Supporters' Trust.
25-04-2018 16:15
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