| ARBITRATION — Stay of judicial proceedings — Arbitration agreement — Licence issued to players’ agent by national football association —Holder of licence agreeing to abide by rules of association containing arbitration clause — Disciplinary proceedings issued against agent — Agent bringing action for declarations — Whether action to be stayed on ground that dispute submitted to arbitration — Arbitration Act1996, s 9(4), 69 — Human Rights Act 1998, Sch 1, Pt I, art 6
Stretford v Football Association and another [2007] EWCA Civ 238
CA (Sir Anthony Clarke MR, Waller and Sedley): 21 March 2007
An arbitration agreement contained in the rules of a national football association did not infringe the right to a fair trial guaranteed by art 6 of the Human Rights Convention and therefore an action brought by one party, challenging the validity of disciplinary proceedings and the arbitration agreement, was properly stayed on the ground that the dispute had been submitted to arbitration.
The Court of Appeal so held, dismissing the appeal of the claimant, Paul Stretford, against the order of Sir Andrew Morritt C on 17 March 2006 staying the claimant’s action against the defendants, the Football Association (“FA”) and Barry Bright, on the basis that the dispute had been submitted to arbitration.
SIR ANTHONY CLARKE MR, giving the judgment of the court, said that the claimant was issued with a players’ agent’s licence by the FA in 2002. The FA rules included an arbitration clause under which all those concerned with playing or administering football had to agree that their differences should be referred to arbitration. In 2005 the FA issued disciplinary proceedings against the claimant, who began proceedings seeking declarations, inter alia, that the disciplinary proceedings did not comply with art 6 of the Human Rights Convention. Sir Andrew Morritt C granted a stay of the proceedings under s 9(4) of the Arbitration Act 1996. By art 6 the claimant was entitled to a fair and public hearing by an independent tribunal established by law, which had to pronounce its judgment publicly. The 1996 Act applied to the arbitration. S 69 provided that the parties could by agreement exclude an appeal to the court. Otherwise, save to the extent that the parties could agree that an appeal could be brought, s 69 required permission to appeal. The provisions of the 1996 Act were important for art 6 because they provided for a fair hearing by an impartial tribunal. The only provisions of art 6 which could arguably be said not formally to be met by the Act were the requirements that the hearing be in public, that the members of the tribunal be independent, that the tribunal be established by law and that the judgment be pronounced publicly. The Strasbourg cases supported the general proposition that, where parties had voluntarily or freely entered into an arbitration agreement they were to be treated as having waived their rights under art 6. The inclusion of the arbitration clause was not required by law or compulsory. An arbitration clause had become standard in the rules of sporting organisations like the FA. The FA rules regulated the relationship between the parties, which was a private law relationship governed by contract. To strike down clauses of that kind because they were incompatible with art 6 on the basis that they were required by law or compulsory would have a far-reaching and undesirable effect on the use of arbitration in the context of sport generally. The provisions of the 1996 Act amply satisfied the principles in the Strasbourg cases. In particular the mandatory provisions required the arbitrators to be impartial and to act fairly and impartially between the parties. They allowed for the removal of an arbitrator if there were justifiable doubts as to his impartiality or if there were a refusal or failure properly to conduct the proceedings. The court had power to set aside the awards on the grounds of lack of substantive jurisdiction or serious irregularity. S 69 permitted greater access to the court by way of appeal than was permitted in many countries. The arbitration clause or any arbitration held under it did not infringe art 6. The clause was incorporated into the contract. In agreeing to the clause both parties waived their right to a hearing before the courts (except in accordance with the Act). They also waived their rights to a public hearing. No question of constraint arose. Nor was there any relevant public interest consideration to stand in the way of arbitration. On the contrary, the public interest encouraged arbitration in cases of that kind. The stay should be maintained.
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