Stretford v Football Association Ltd
| Jurisdiction | England & Wales |
| Judge | Waller,Sedley L JJ,Sir Anthony Clarke Mr |
| Judgment Date | 21 March 2007 |
| Neutral Citation | [2007] EWCA Civ 238 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2006/0713/CHANF |
| Date | 21 March 2007 |
[2007] EWCA Civ 238
The Master of the Rolls
Lord Justice Waller and
Lord Justice Sedley
Case No: A3/2006/0713/CHANF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
THE CHANCELLOR OF THE HIGH COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
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: 29, 30 and 31January 2007
Sir Anthony Clarke MR:
This is the judgment of the court.
Introduction
This is an appeal from an order made by the Chancellor, Sir Andrew Morritt, on 17 March 2006 by which he stayed this action under section 9(4) of the Arbitration Act 1996 ('the 1996 Act') on the ground that the dispute between the parties is one which has been submitted to arbitration under Rule K of the Football Association Rules. The Chancellor refused permission to appeal but Rix LJ subsequently granted permission to appeal on limited grounds. The appeal has involved much debate as to the relationship between article 6 of the European Convention on Human Rights ('the Convention') and the arbitral process, although the scope of the debate was significantly reduced in the course of the argument. The appellant ('Mr Stretford') says that Rule K is in conflict with his rights under article 6 of the Convention and that, in consequence, the arbitration agreement in Rule K is null and void or inoperative, from which it follows that the Chancellor should not have ordered a stay under section 9(4) of the Act.
This appeal was heard at the same time as the appeal in Sumukan Ltd v The Commonwealth Secretariat and the application in Shuttari v The Solicitors Indemnity Fund, in both of which cases judgment is being handed down today.
The underlying facts
We take these almost entirely from the Chancellor's judgment. Mr Stretford is a players' agent. He first applied for a players' agent's licence on 29 June 1995. At that time such an agent had to obtain a licence from the Fédération Internationale de Football Association ('FIFA'), although the preliminary investigations were carried out by the relevant national association, which in this case was the Football Association ('The FA'). The investigation involved an examination of the applicant's criminal record (if any) and an interview to ascertain among other things his knowledge of football regulation and relevant principles of law generally. The terms of any licence granted required the agent to observe the regulations of FIFA and the national associations at all times. A licence was and is crucial because neither players nor clubs can negotiate with each other through an unlicensed agent.
Mr Stretford claimed that his knowledge of the relevant rules and regulations, which included The FA Rules, was good. He was interviewed by The FA in July 1995 and in due course FIFA issued a licence to him, which stated that he was “authorised by FIFA to act as a players' agent in compliance with the relevant regulations”. On 20 December 2000 FIFA promulgated new regulations which came into force on 1 March 2001. They required the national associations themselves to issue licences after suitable investigations and examinations.
On 9 March 2001 Mr Stretford wrote to The FA setting out various concerns he had arising out of the new regulations and asked what he had to do to obtain a licence under them. On 9 August FIFA issued a circular to all agents informing them what to do and on 30 August 2001 he duly applied to The FA for a licence. He was granted temporary authority to act as an agent on 11 January 2002 and was issued with a new players' licence by The FA on 9 April 2002. He acknowledged safe receipt of his new licence on 23 April 2002. The licence expressly states on its face that “the holder of this licence agrees to abide by the rules and regulations of FIFA, The FA Premier League and the Football League”.
The FA has for many years issued an annual handbook. Since the 1989/90 season The FA Rules in the handbook have included an arbitration clause under which all those concerned with playing or administering football have agreed that their differences should be referred to arbitration. The Rules were revised for the 1999/2000 season and reordered for the 2000/2001 season. As the Chancellor held, Rule K, which is the relevant arbitration clause, has existed in its present form since the 1999/2000 season.
On 17 June 2005 The FA issued disciplinary proceedings against Mr Stretford under Rule G of The FA Rules, which is entitled “DISCIPLINARY POWERS”. The allegations relate to events or alleged events in the period July 2002 to June 2003. For present purposes it is sufficient to quote (as the Chancellor did) The FA's description of them:
“These charges relate to the circumstances surrounding [Mr Stretford's] acquisition of the right to represent Wayne Rooney in 2002/2003, and the evidence he provided in respect of a case heard in Warrington Crown Court in October 2004.”
As the Chancellor observed in paragraph 7 of his judgment, apart from issues of fact, Mr Stretford's solicitors advanced these contentions:
a) the disciplinary proceedings did not comply with article 6 of the Convention as applied in the Human Rights Act 1998;
b) the rule on which some of the charges was based, Annexe B to the Code of Professional Conduct, is in unlawful restraint of trade; and
c) Rule E3 or the charges made under it relating to Mr Stretford's evidence at the Warrington Crown Court is or are contrary to public policy and void.
On 2 September 2005 a meeting took place between representatives of Mr Stretford on the one hand and representatives of The FA on the other which gave rise to one of the issues between the parties before the Chancellor. We will return to this meeting below because the same issue arises in this appeal. On 9 September 2005 Mr Bright, who is the chairman of the Disciplinary Committee of The FA, appointed the lay members of a Disciplinary Commission in accordance with Rule G of The FA Rules. The chairman was to be a QC but no QC had yet been chosen.
On 16 September 2005 Mr Stretford commenced these proceedings against both The FA and Mr Bright under CPR Part 8 seeking declarations in the terms of the contentions stated in paragraph 8 above. On 14 October 2005 The FA and Mr Bright applied for a mandatory stay of all further proceedings in the action pursuant to section 9 of the 1996 Act. They also applied in the alternative for other relief to which it is not necessary to refer. No distinction was made between The FA and Mr Bright before the judge and no distinction has been drawn between them in this court. We shall therefore refer only to the position of The FA.
The issues before and the decision of the Chancellor
The questions argued before and determined by the Chancellor were these:
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 2 September 2005 preclude The FA from relying on Rule K; if not
c) is Rule K null and void or inoperable within the meaning of section 9(4) of the 1996 Act; and
d) if for any reason section 9(4) of the Act does not require the proceedings to be stayed, should they be stayed as a matter of discretion to await the outcome of the disciplinary proceedings?
The Chancellor answered the questions yes, no, no and not applicable respectively. Thus he held that Rule K was incorporated into the contract, that the events of the meeting of 2 September did not preclude The FA from relying upon Rule K and that Rule K was not null and void or inoperable within the meaning of section 9(4) of the Act. He accordingly granted a mandatory stay of the proceedings and held that it followed that the fourth question did not arise.
The appeal
As indicated earlier, the issues in this appeal became more refined during the course of the argument. We consider them under these headings in this order, the incorporation and meaning of rule K, the meeting and mandatory stay.
The incorporation and meaning of Rule K
Between paragraphs 12 and 27 of his judgment the Chancellor gave his reasons for concluding that, as a matter of English contract law, Rule K was incorporated into the contract between Mr Stretford and The FA. He held, in our view correctly, by reference to Chitty on Contract, 29 th edition at paragraph 12–015, that the terms of Rule K were not “particularly onerous or unusual” and that, in any event, the terms had been brought fairly and reasonably to Mr Stretford's attention. Indeed, Mr Stretford had himself written to The FA commenting on the new rules in March 2001. In short, the Chancellor held that at all relevant times Mr Stretford was in possession of documentary material which included Rule K and its earlier versions and that, if he did not know of its terms, he could and should have done.
The Chancellor summarised his conclusions in paragraph 26 as follows:
“Counsel for Mr Stretford did not dispute that all the other provisions of the Rules were binding on Mr Stretford. He sought to draw a distinction in respect of Rule K on the grounds I have already mentioned. I do not think that that is a distinction which can be validly drawn. Given that Rule K applies to all parties alike and in the way such clauses conventionally operate I do not consider that it required any particular or special...
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