Wilfried Guemiand Bony (Claimant and Respondent) v Gilbert Francis Kacou and Others (Appellants and Defendants)
|England & Wales
|HH Judge Pelling
|04 September 2017
| EWHC 2146 (Ch)
|Case No: C31MA092
|04 September 2017
 EWHC 2146 (Ch)
IN THE HIGH COURT OF JUSTICE
MANCHESTER DISTRICT REGISTRY
Civil Justice Centre
1 Bridge street West
Manchester M60 9DJ
His Honour Judge Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: C31MA092
Mr Paul Chaisty QC (instructed by Squire Patton Boggs LLP) for the Appellants
Mr David Casement QC and Ms Kelly Pennifer (instructed by JMW Solicitors LLP) for the Respondents
Hearing dates: 24 July 2017
HH Judge Pelling QC:
This is an appeal by the first to fourth defendants ("the defendants") from an Order of District Judge Obodai made on 19 July 2017 by which she dismissed an application by the defendants for orders sought pursuant to CPR Part 11 and r.62.8 and s.9 of the Arbitration Act 1996 staying these proceedings on the basis that the disputes the subject of these proceedings should be determined by arbitration under Section K, Paragraph 1 of the Rules of the Football Association Limited ("Rule K Arbitration", "FA Rules" and "FA" respectively). The application before the District Judge was put on a rather wider basis than I have so far described —see the summary at paragraph 11 of the District Judge's judgment —but it is only her refusal to stay these proceedings pending a reference of the dispute to a Rule K Arbitration that is challenged in this appeal.
The claimant is a professional footballer, and a national of the Republic of the Cote d'Ivoire ("RCI"), who has been resident in the UK since 9 July 2013, when he transferred from a Dutch Football Club to the fifth defendant ("Swansea"). On 14 January 2015, he was transferred by Swansea to Manchester City Football Club ("City") and is currently registered with Stoke City Football Club ("Stoke") on loan from City. He is and was from the date he was transferred to Swansea registered as a player with the FA and a " Player" as defined by the FA Rules. Swansea, City and Stoke are each a " Club" as defined by the FA Rules.
The first and third defendants are the claimant's former agents. The first defendant is an RCI national. He is registered as a football agent by the RCI Football Association but he is not (and never has been) registered with the FA. He is and was at all times material to these proceedings an " Unauthorised Agent" as defined by the FA Rules. I explain why this is so in more detail later in this judgment. The second defendant is a corporate vehicle incorporated in accordance with the laws of the RCI controlled by the first defendant. It is not and never has been an " Authorised Agent".
The third defendant is a Czech national. He is registered as a FIFA agent and was registered as an overseas agent with the FA between September 2009 and no later than 1 April 2015 and was for that reason an " Authorised Agent" as defined by the FA Rules down to that date. The fourth defendant is a corporate vehicle incorporated in accordance with the laws of the Czech Republic controlled by the third defendant. It is not and never has been an " Authorised Agent".
Although the legal basis of the claims made in these proceedings are put in a number of different ways, the factual allegation is that while ostensibly acting on behalf of the claimant in negotiations concerning his contract of employment with Swansea, the first to fourth defendants received secret commissions totalling in excess of £8m from the fifth defendant under four written agreements between various combinations of the first to fourth defendants and the fifth defendant made between July 2013 and February 2015. There is a free-standing allegation of fraudulent or negligent misrepresentation made against the first defendant by which it is alleged that the claimant was induced to enter into an Image Rights Agreement with the second defendant.
The circumstances in which the claimant came to discover what is alleged is set out in paragraph 52 of the Particulars of Claim. This information does not appear to be in dispute at any rate for the purposes of the present appeal. It suggests that the claimant did not know of what is now alleged until sometime between 20 March and 20 April 2016. The fraudulent misrepresentation claim could not have arisen earlier than February 2016, because it was only in that month that the representations were made which it is alleged induced the claimant to enter into the Image Rights agreement. No claims relating to the subject matter of these proceedings were made prior to the period referred to in paragraph 52 of the Particulars of Claim. In these circumstances, it is difficult to see how a difference or dispute could be said to have existed between the parties prior to March 2016 at the earliest.
There were various express agreements between the claimant and the first and third defendants that governed their relationship. There were no agreements (or indeed, any relationship of any sort) between the claimant and either the second or fourth defendants.
The relationship between the claimant and first defendant was governed between 1 December 2012 and 30 November 2014 by a written agreement referred to in the evidence and submissions in these proceedings as the " 4 th Kacou Agency Agreement". The only point relevant for present purposes is that it did not contain an arbitration clause. After 30 November 2014, the first defendant continued to act as the claimant's agent with the knowledge and consent of the claimant. There was no written agreement entered into.
The contracts between the claimant and the third defendant material to the relationship between the claimant and Swansea were oral other than an agreement in writing known in these proceedings as the Lacina 2013 Agreement, which was in force between 9 February 2013 and 8 February 2015 and contained an express dispute resolution provision to the following effect:
"… The settlement of disputes between the Player's Agent and the Client, club or another player's agent of whom all are registered with the same national association (national disputes) is the responsibility of the respective national association. As regards FACR, the respective arbitration committee will be in charge.
"… Any other complaint which is not subject to the preceding Paragraph hereof shall have to be transferred to the FIFA Players' Status Committee."
I return to this provision in more detail below.
Issues Before and Submissions made to the District Judge
Defendant's Written Submissions to the District Judge
The submission made on behalf of the defendants to the District Judge by leading counsel then instructed (not Mr Chaisty QC, who appears before me on behalf of the defendants and appellants) at paragraph 5 of his skeleton submissions was that:
"… there must … be a binding arbitration agreement between the parties under Rule K … arising from (a) the claimant's status as a "Player"; (b) the Defendants' status as "Agents" or (in later versions of the Rules) "Intermediaries" or their acting as such; and (c) the status of both Swansea …and …City as "Clubs".
Having developed his submission that each of the claimant, defendant, Swansea and City fell within the detailed definitions set out in the FA Rules of Player, Agent and Club respectively, counsel then submitted to the District Judge that professional football is a highly regulated sport, that the Federation Internationale de Football Associations ("FIFA") requires all disputes between " … members of the football family …" to be resolved through arbitration and that Section K of the FA Rules reflected that requirement by being drafted in the broadest terms before submitting that the proceedings commenced by the claimant were misconceived on that account, that the court could not escape that conclusion and in consequence these proceedings should be stayed. There was no express mention within the defendants' skeleton of anything concerning incorporation by implication of the FA Rules or at any rate Section K of the FA Rules into any of the contracts between the claimant and any of the defendants.
Claimant's Written Submissions to the District Judge
Mr Casement's submission to the District Judge as set out in his skeleton argument at paragraph 7.4 onwards was that there were no grounds on which any of the claims could be stayed to arbitration because there was no arbitration agreement as between the claimant and defendants.
Oral Submissions to the District Judge
Mr Casement submits and it does not appear to be in dispute that at the hearing before the District Judge, leading counsel then instructed on behalf of the defendants advanced his application concerning a stay to enable the dispute to be referred to arbitration by reference to the arguments set out in the skeleton summarised above. In answer, Mr Casement submitted orally to the District Judge that however wide the terms of Rule K were, it had to be incorporated into a legally binding contract between the parties for there to be an arbitration agreement within the meaning of the Arbitration Act 1996 ("AA96"). In reply, counsel then instructed on behalf of the defendants referred to an authority he did not produce which he referred to as the " Stretford case" (as to which see further below) as providing support for his case based on status and referred back to the submissions made earlier concerning the status of the claimant as a Player and the third defendant as an Authorised Agent.
The District Judge's Judgment
At paragraph 15 of her judgment, the District Judge concluded that " … as a matter of basic law of contract,...
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