West Ham bid overshadows legacy
There is a lot more at stake in the Championship play-off final tomorrow than simply West Ham's league status. A matter of national significance rests on whether they can secure a swift return to the Premier League 12 months after they were relegated.
After so many false starts and mistakes, the Olympic Stadium saga has entered yet another phase of uncertainty.
Earlier this week the London Legacy Development Corporation (the new name for the Olympic Park Legacy Company) announced it was extending the tender process for the stadium by a further eight weeks to allow those parties who expressed an initial interest the chance to submit a bid.
If you didn't know anything about this tortuous story you might have thought this was a response to a dramatic, late intervention from a big player offering a viable, long term alternative to West Ham - the first and only real credible long term tenant for the stadium.
West Ham owners David Gold and David Sullivan and vice chairman Karren Brady pose outside the Olympic Stadium. Photo: PA
Unfortunately for the LLDC nothing could have been further from the truth. The eight-week delay has potentially left the process exposed to legal challenge from the combative Leyton Orient chairman Barry Hearn.
The first big mistake was West Ham's failure to obtain permission from the Football League for their move to the Olympic Stadium. It was a clear requirement of the LLDC's Invitation to Tender (ITT).
And although I have spoken to some sources who argue the legacy corporation should have made the requirement more flexible, it seems extraordinary that West Ham either overlooked or simply chose to ignore a clear requirement of the tender process.
I am told that the reason West Ham didn't go to the League for permission was because they already felt they had sufficient support for the move from Upton Park in the form of the backing of the Premier League.
But until tomorrow's game at Wembley is decided that is completely irrelevant. And one imagines a good lawyer wouldn't find it too difficult to make a case that the permission is required from the league in which the club was playing at the time the application went in, not at the time of the decision. The deadline for bids was back in March.
In any case West Ham were relying on a permission granted by the Premier League for the original bidding process back in 2011, which ran into the long grass following a legal challenge from Tottenham.
On the question of the Football League's support at that time, it is understood West Ham received a letter from the competition's head of legal affairs Nick Craig which appeared to back up the Premier League's position.
The letter, dated 18 July 2011, says:
"The Football League board has been advised that the Premier League's decision would be highly relevant to its own deliberations and that a different decision would only be justified if there had been a material change of circumstances since the Premier League board decision."
West Ham might say there has been no "material change of circumstances". But the decision to terminate the deal with West Ham last autumn and take the stadium back into public ownership seems like a pretty significant change of circumstances to me. Surely it would have been sensible for West Ham to go back to the Football League and seek approval for its move.
It has been suggested that one of the reasons they didn't go back to them is that they knew Hearn would have used his support on the League's board to refuse permission and that may well be the case.
More likely it was the League's requirement to have certainty over their fixtures which prevented them from giving their blessing. This is problematic because the legacy tender this time around was focused on getting a number of tenants to share a publicly owned stadium rather than one anchor tenant effectively taking charge of the venue.
Another problem which was overlooked in the legacy corporation's announcement this week was its requirement to clarify technical improvements to the stadium.
Although it is the legacy corporation's responsibility to adapt the stadium from its 80,000 seater Olympics mode to its legacy configuration after the Games, it is up to the bidders to submit clear proposals as to how they want the stadium fitted out.
It is understood that there are serious questions about West Ham's technical proposals and exactly how they would like to see the athletics stadium adapted for football.
The London Mayor Boris Johnson said yesterday that he was confident that a football club (ie West Ham) would still end up as the main tenant at the stadium after the Games. He might be right but other senior figures are not ruling out the possibility of yet another rethink or a return to the 25,000 seater athletics "base case" which the venue was originally designed for in legacy mode.
The departure of former OPLC chairman Baroness Margaret Ford and her replacement by the Mayor's close political ally Daniel Moylan and six new board members could lead to a completely fresh approach to the long running problem.
All of which leads me back to where we started this and tomorrow's play-off final between West Ham and Blackpool.
Clearly this is not only a matter of obtaining permission from whichever League West Ham are playing in.
No, this is an issue of cold, hard cash. Promotion to the Premier League would make West Ham's business case much more convincing.
Remember this is a club with £91million of debts according to their 2011 accounts. Servicing interest payments on that lot plus an annual lease payment to the legacy corporation becomes much harder if you are still in the Football League.
Promotion to the Premier League would guarantee more than £30m a season making the annual rent much more comfortable. Time the move right and West Ham would also be able to reduce their debts by £20m through the sale of Upton Park.
Such a situation might just stop the legacy corporation from casting around for alternatives. They need to get on with it and get it right because this saga is in danger of completely overshadowing London's vision for an Olympic legacy.