Streford v Football Association
| Jurisdiction | England & Wales |
| Judge | THE CHANCELLOR OF THE HIGH COURT,The Chancellor |
| Judgment Date | 17 March 2006 |
| Neutral Citation | [2006] EWHC 479 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC05C02506 |
| Date | 17 March 2006 |
[2006] EWHC 479 (Ch)
The Chancellor of the High Court
Case No: HC05C02506
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Victor Joffe QC and Mr David Casement (instructed by Halliwell's LLP) for the Claimant
Mr David Pannick QC and Mr Adam Lewis (instructed by Charles Russell LLP) for the Defendants
Hearing dates: 21 st and 22 nd February 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Chancellor :
Introduction
On 1st July 1994 the Fédération Internationale de Football Associations ("FIFA") promulgated regulations to govern the activities of players' agents both nationally and internationally. Such an agent had to obtain a licence from FIFA but the preliminary investigations were carried out by the relevant national association. Such investigations included an examination of his criminal record, if any, and an interview to ascertain, amongst other things, his knowledge of football regulation and relevant principles of law generally. If the national association was satisfied then it passed the application to FIFA which, subject to further conditions, issued a licence. The terms of the licence required the agent to observe the regulations of FIFA and the national associations at all times and neither players nor clubs might negotiate with each other through an unlicensed agent.
On 29th June 1995 the claimant, Mr Stretford, applied through the first defendant, the Football Association ("the FA"), for a players' agents licence. He claimed that his knowledge of FIFA, Football Association and Leagues rules and regulations was "good". He was duly interviewed by officials of the FA on 14th July 1995. On 27th July 1995 his application was forwarded by the FA to FIFA. In due course FIFA issued a licence to Mr Stretford. It proclaimed that he was "authorised by FIFA to act as a players' agent in compliance with the relevant regulations".
On 20th December 2000 FIFA promulgated a new version of its players' agent regulations to come into force on 1st March 2001. The changes required the national associations themselves to issue the licence after suitable investigations and examinations. The new regulations were similar to the old in that the applicant undertook to observe the regulations of the national associations, confederations and FIFA and clubs and players may only negotiate through an agent if such agent is licensed. A person who already held a licence under the old regulations was entitled to exchange it for a licence under the new without undertaking the written examination.
By a letter dated 9th March 2001 Mr Stretford brought to the attention of an official at the FA concerns he had with regard to the new regulations and asked for confirmation of what he had to do to obtain a players' agents licence under them. On 9th August 2001 FIFA issued a circular to all players' agents informing them what to do. On 30th August 2001 Mr Stretford duly applied to the FA and, having received temporary authority on 11th January 2002, was issued with a new licence by the FA on 9th April 2002. The face of the licence records that "the holder of this licence agrees to abide by the rules and regulations of FIFA, the Football Association, the FA Premier League and the Football League". On 23rd April 2002 Mr Stretford, as requested, acknowledged safe receipt of his new licence.
The FA was incorporated as a private company limited by shares in 1903. Its membership and affairs are governed by its memorandum and articles of association and by what are described as the Rules of the Association ("the Rules"). For many years these and other important documents, such as the FIFA Regulations relating to players agents, the laws of the game, and information, such as the representatives of affiliated organisations, have been published in an annual handbook. Since the 1989/90 season the Rules have included an arbitration clause whereby all those concerned with playing or administering association football have agreed that their differences should be submitted to arbitration. The Rules as to arbitration were revised for the season 1999/2000 to accommodate certain requirements of FIFA and reordered for the season 2000/01. Thus the arbitration clause to be found in the Rules as Rule K has existed in its present form since the 1999/2000 season.
In the period July 2002 to June 2003 a number of events occurred which led to the institution of disciplinary proceedings under Rule G by the FA against Mr Stretford on 17th June 2005. The details of the charges are not material. For present purposes it is sufficient to quote the FA's own description of them to be found on its website, namely:
"These charges relate to the circumstances surrounding [Mr Stretford's] acquisition of the right to represent Wayne Rooney in 2002/03, and the evidence he provided in respect of a case heard in Warrington Crown Court in October 2004."
Much correspondence between officials of the FA and solicitors instructed by Mr Stretford ensued. The latter contended, apart from issues of fact, that:
a) the disciplinary proceedings did not comply with Article 6 ECHR as applied by the Human Rights Act 1998,
b) the rule on which some of the charges were based, Annexe B to the Code of Professional Conduct, is in unlawful restraint of trade,
c) Rule E.3 or the charges made thereunder relating to Mr Stretford's evidence to the Warrington Crown Court are contrary to public policy and void.
In due course an informal meeting between representatives of Mr Stretford and of the FA, to which I shall refer in greater detail later, was held at the offices of the FA on 2nd September 2005 ("the Meeting"). Those present discussed whether the court proceedings which the representatives of Mr Stretford were threatening should precede or follow the disciplinary proceedings which the FA had started. They agreed that if Mr Stretford did institute court proceedings then the disciplinary proceedings should be deferred. On 9th September 2005 Mr Bright, the chairman of the FA Disciplinary Committee of the FA and the second defendant, appointed the lay members of the disciplinary commission in accordance with Rule G with the identity of a Queen's Counsel to sit on the Commission remaining to be fixed.
These proceedings were instituted by Mr Stretford by a part 8 claim issued on 16th September 2005. He seeks declarations under the three heads summarised in paragraph 7 above. The claim was supported by a lengthy witness statement made by Mr Stretford on the same day. Having acknowledged service on 29th September 2005 on 14th October 2005 the FA and Mr Bright applied for:
a) a stay of all further proceedings in the action pursuant to s.9 Arbitration Act 1996 on the ground that the dispute fell within the arbitration agreement constituted by Rule K, alternatively
b) a discretionary stay of the proceedings pending the hearing of the disciplinary proceedings on the ground that until their completion the claim was premature, alternatively
c) an order that the claim be struck out or ordered to continue as a claim made under part 7 on the ground that the part 8 procedure was inappropriate.
The application is supported by a witness statement of the solicitor for the FA, Mr Patrick Russell a partner in the firm of Charles Russell & Co.
The response of Mr Stretford contained in witness statements of his solicitor Mr Diaz-Rainey made on 24th October and 11th November 2005 is to the effect that:
a) Rule K was not incorporated into any agreement between Mr Stretford and the FA,
b) Rule K was, in any event, null and void or inoperable for the purposes of s.9(4) Arbitration Act because, inter alia it did not comply with Article 6 ECHR,
c) the events of the Meeting between the representatives of the parties precluded reliance on Rule K by the FA on grounds of contract, waiver or estoppel by representation or convention.
Thus the issues on this application which arise for my determination are, in chronological order:
a) was Rule K incorporated into the contract between Mr Stretford and the FA? If so,
b) do the events of the Meeting held on 2nd September 2005 preclude the FA from relying on Rule K? and if not,
c) is Rule K null and void or inoperable within the scope of s.9(4) Arbitration Act 1996,
d) if for any reason s.9(4) Arbitration Act does not require these proceedings to be stayed altogether should they be stayed as a matter of discretion to await the outcome of the disciplinary proceedings?
I will deal with them in that order.
Was Rule K incorporated into the contract between Mr Stretford and the FA?
The Rules cover a wide variety of activities. Thus Rule A deals with the constitution and administration of the FA, Rule B with sanctioning associations, competitions and matches, Rule C contains provisions relating to players, Rule D with Internationals, Rule E with conduct, Rule F with powers of inquiry, Rule G contains disciplinary provisions, H provides for Appeal Boards, I Financial Records, J the rules of the game and L with fair play in football. Rule K relates to arbitration. It is not disputed that Rule K is an "arbitration agreement" for the purposes of s.9(1) Arbitration Act. Similarly it is common ground that the disputes or differences which have arisen between Mr Stretford and the FA, as formulated in the proceedings brought by Mr Stretford against the FA, fall within its terms. Thus, if Rule K became a term of any contract between Mr Stretford and the FA, then, subject to the issues specified in...
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