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 paragraph 11(b) and (c) above, the court is bound to stay all further proceedings in the action commenced by Mr Stretford.
- Mr Stretford claims that Rule K was not so incorporated. His counsel submits that it is for the FA to establish that it was incorporated so as to be binding between the parties to the action. (No one suggests that Mr Bright should be treated any differently.) Mr Stretford contends that the players' licence he obtained in 1995 constituted a contract between him and FIFA, not the FA. He contends that he was not sent copies of the Rules before his interview with the FA on 14th July 1995 and that the language of the application form was inadequate to import the Rules into that contract. The procedure adopted in 2001 when Mr Stretford applied for a players' agents licence from the FA was that appropriate to an existing FIFA licensee and did not include the provision to Mr Stretford of any copy of the Rules. It is submitted that the terms recorded on the face of the licence, to which I have referred in paragraph 4 above, are post contractual and had no effect on the obligations undertaken by Mr Stretford.
- Mr Stretford claims, in addition, that the terms of Rule K are unusual or onerous so that in accordance with well known principles the FA cannot rely on it unless it can establish that it brought the terms of Rule K to the specific notice of Mr Stretford before the contract was concluded between them. The respects in which it is contended that Rule K is onerous are that the arbitration proceedings will be heard in private, the award of the arbitrators will not be published unless all parties agree and recourse to the courts is excluded.
- I should record at this stage that in his witness statement made on 11th November 2005 Mr Diaz-Rainey, Mr Stretford's solicitor, stated in paragraph 31:
"I am informed by Mr Stretford that he was not aware of and had not read Rule K prior to the commencement of the disciplinary proceedings. I am informed by Mr Stretford that he did not know that he could not apply to a court for a review of the FA Rules."
In both the evidence in reply and in a letter dated 22nd December 2005 Mr Stretford was challenged to confirm that statement in a further witness statement to be made by him and to submit to cross-examination. He failed to do either and this notwithstanding that Mr Diaz-Rainey made a further witness statement in reply on 11th January 2006, in part, at least, on the basis of information supplied to him by his client. There has been no cross-examination of Mr Diaz-Rainey either.
- The statements attributed to Mr Stretford are surprising. As a players' agent it was his duty to keep himself informed of the Rules. Rule K applies as much to disputes between a player and his club as between a players' agent and the FA. Moreover there was nothing secret about Rule K. It was published as one of the Rules in the annual FA Handbook, in particular that for the Season 2001-2002, where it featured in the index under the heading of 'arbitration procedures'. Plainly Mr Stretford would need to have a copy of the annual handbook as part of the tools of his trade and he himself exhibited parts of the edition for the 2004-2005 season, including Rule K, as part of exhibit 'PS 1' to his witness statement made on 16th September 2005 in which he described it as an annual publication.
- Nevertheless there has been no cross-examination of either Mr Stretford or Mr Diaz-Rainey. Thus it is not open to me to find affirmatively that Mr Stretford at all relevant times knew of the existence and terms of Rule K. Nevertheless I am entitled to conclude, and do, that at all material times Mr Stretford was in possession of documentary material which included Rule K (or its earlier versions) and that, if he did not know of its terms, he could and should have done.
- At this stage I should also consider whether the terms of Rule K are 'particularly onerous or unusual', see Chitty on Contract 29th Ed. 12-015. These words are not terms of art but describe the sort of term which, because of its nature or content, requires the party who relies on it, the FA, to demonstrate that it was brought fairly and reasonably to the attention of Mr Stretford if that term is to be binding on him. Moreover the question must be considered at the time the contract into which it is said to have been incorporated was made, namely at the time the players' agents licence was issued by the FA to Mr Stretford in 2002.
- It is unnecessary to set out the terms of Rule K. It is a conventional arbitration agreement applicable between the persons or bodies described in the definition of 'Participant', namely:
"an affiliated association, competition, club, club official, player, official, match official and all such persons who are from time to time participating in any activity sanctioned either directly or indirectly by the [FA]"
For the purposes of Rule K the term 'Participant' includes the FA.
- The respects in which it is claimed to be onerous or unusual are those to which I have referred in paragraph 14 above. A private hearing and a confidential award are far from being either onerous or unusual in the context of an arbitration agreement. Indeed it is the element of privacy which makes the arbitral system so attractive to so many. Rule K5(b) provides that
"The parties shall be deemed to have waived irrevocably any right to appeal, review or recourse to a court of law."
S.69 Arbitration Act 1996 allows the parties to waive their rights of appeal on a question of law but s.68 preserves their rights, notwithstanding any agreement to the contrary, in respect of any serious irregularity.
- Rule K is equally applicable to all parties. Thus it is unlike an exemption clause in favour of one party. It is effective, pro tanto, to waive rights under Article 6 ECHR. Such a waiver has long been regarded as acceptable for the purposes of the ECHR in the case of a voluntary arbitration, cf Deweer v Belgium (1980) 2 EHRR 439, 460, para 49 and Bramelid v Sweden (1982) 29 DR 64. Further the terms of the Arbitration Act 1996 sis. 9, 68 and 69 clearly demonstrate the intention of parliament that such clauses should be given effect.
- With those considerations in mind I turn to consider the course of dealing between Mr Stretford, FIFA and the FA in relation to the issue of a players' agents licence to Mr Stretford. It is not disputed that the licence granted to Mr Stretford in 1995 was granted by FIFA and that it was FIFA, not the FA, which was the other party to the contract with Mr Stretford. Nor is it disputed that the article 13(a) of FIFA' players' agents regulations then in force required Mr Stretford to observe all the regulations of the FA. Thus from 1995 until the FIFA licence ceased to have effect in 2002 there is no doubt that Mr Stretford was bound, at least to FIFA, by the Rules of the FA, including, from 1999, Rule K.
- The new players' agents regulations approved by FIFA in December 2000 and notified to all concerned by FIFA in March 2001 imposed (article 14(a)) on all players' agents the obligation:
"to adhere without fail to the statutes and regulations of the national associations, confederations and FIFA"
Article 23.1 enabled a players' agent licensed by FIFA to exchange his licence with one issued by his national authority without the need to take a written examination.
- Mr Stretford was well aware of the new FIFA requirements because he commented on the new regulations extensively in a letter to an official of the FA dated 9th March 2001. He applied for the FA licence in a letter to the FA dated 30th August 2001. It was sent to him on 9th April 2002. The licence stated on its face under the name and a photograph of Mr Stretford that the holder agreed to abide by the rules and regulations of, amongst others, the FA. On 23rd April 2002 Mr Stretford acknowledged receipt of the new licence. He continued his business as a players' agent without interruption.
- In my judgment the obligation to observe the Rules, as a whole, became a term of the contract between Mr Stretford and the FA by any one or more of three distinct processes. First, the obligation to observe the Rules was a continuing obligation. It first arose in 1995 under Article 13 of the original players' agents regulations. It was continued by Article 14(a) of the revised version. The exchange, pursuant to Article 23, of the FIFA licence for the FA licence in 2002 altered the identity of the other party to the contract from FIFA to the FA but had no other effect on the obligations by which Mr Stretford was bound. This case is unlike those in which a contract is made for the first time without any prior course of dealing. Thus in the well known case of Olley v Marlborough Court Ltd [1949] 1 KB 532 the terms were not incorporated into the contract because the relevant party had had no notice of them before the time at which the contract was made. Second, if it is necessary to find some conventional offer and acceptance then the supply of the licence on 9th April 2002 bearing the statement to which I have referred followed by the acknowledgement of its receipt by Mr Stretford on 23rd April 2002 would suffice. Thirdly, the transaction of business as a licensed players' agent on the terms of Article 14(a) of the revised players' agents' regulations and the terms expressed on the face of the licence constitute the acceptance of those terms by conduct.
- 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 notice to be given by the FA to Mr Stretford. But even if it did I conclude that such notice was given. Mr Stretford knew that he was obliged to observe the Rules. The Rules were published by the FA at least once a year in its handbook and were available at all times through its website. At all times a copy of the Rules was in Mr Stretford's possession. It was, and since 1995 had been, his duty to inform himself of their contents. I am not prepared to go further and conclude that the FA had to make Mr Stretford sit down and read it in order to bring Rule K fairly and reasonably to his attention, see Chitty on Contracts 29th Ed. 12-015.
- For all these reasons I hold that the Rules, including Rule K, were incorporated into the contract between the FA and Mr Stretford. Accordingly I conclude that the issue summarised in paragraph 11(a) above should be answered in the affirmative.
The Meeting
- Following an investigation initiated in January 2005 the disciplinary proceedings were commenced by the FA against Mr Stretford on 17th June 2005. Mr Stretford's defence was served on 30th June and the FA's reply on 18th July. Thereafter there was correspondence between the FA and the solicitors for Mr Stretford. The letters from the FA on its headed writing paper were signed by Mr David Lampitt. He was described in the legend following his signature as "senior compliance officer". On or about 5th August 2005 it was agreed that there should be an informal meeting between the parties' representatives on Friday 2nd September 2005. Subsequent correspondence identified some of the issues to be discussed at that meeting. In his letter dated 10th August 2005 Mr Lampitt on behalf of the FA described the purpose of the meeting to be held on 2nd September as "to discuss matters relating to the composition of the Disciplinary Commission and the related requirements of Article 6". The solicitors for Mr Stretford did not dissent from this description.
- The Meeting took place at the offices of the FA in Soho Square. Its course was recorded in a note made by Mr Diaz-Rainey's assistant solicitor, Mr James Martin. His note is accepted as accurate for the purpose of this application. Those attending on behalf of Mr Stretford were his solicitor, Mr Diaz-Rainey, Mr Martin and leading and junior counsel for Mr Stretford. They are referred to in the note as 'JDR', 'JM', 'VJ' and 'DC'. The Meeting fell into two parts. The first part took place downstairs and was attended by Mr Lampitt and junior counsel instructed on behalf of the FA, Mr Jonathan Laidlaw. They are referred to respectively as 'DL' and 'JL'. They agreed that the meeting was informal. VJ indicated that Mr Stretford's team were not attending in any adversarial spirit. VJ then outlined the nature of the proceedings Mr Stretford would be advised to institute, namely an action for declarations that a disciplinary commission appointed by the FA under the Rules would not comply with Article 6 ECHR.
- There was then a general discussion the nature of which is apparent from the quotations which follow.
"JL asked that, apart from looking at the make-up of the Disciplinary Commission, we also look at trying to put in place some kind of timetable for moving the matter forward (which would be, of course, subject to any Court proceedings which we might issue).
VJ pointed out that another matter which would need discussion was our suggestions regarding the E3 charges. He said that we had already referred to public policy aspects, but he thought that the FA should also consider Section 51 of the Criminal Justice Act 1994. We thought that the FA would need to consider the charges it was making against PS in this regard, particularly in light of the section of the Criminal Justice Act. JL said that it was clear that there were inaccuracies in PS's evidence, and that this had been admitted, so he enquired as to what this was all about. VJ stressed that witnesses have to be free to give evidence without fear of sanction. He said that any such sanction would be contrary to public policy, but there would also possibly be difficulties under Section 51. JL said that surely we did not have to go to Court on these issues, but VJ said that he thought this was the simplest way of doing it, by bringing all the issues together before the Court. JL then asked what the situation would be if we fail at Court? He continued saying that we do not know what the Court is going to do and we each have confidence in our own views. He said that if we go to Court there is going to be months of delay. He then said that if we were to succeed at Court on PS's behalf then it is likely that there would be no proceedings against PS and it would bring an end to the whole matter. VJ persisted that, since one of our preliminary points was Rule E3, and we were before the Court on the Article 6 issue anyway. It would be sensible to deal with both issues together. He said that if we were to win on the E3 arguments at Court then we could take out the last couple of allegation and carry on with the rest.
JL said that if there was an application to Court we all would have to wait for the Court's decision before anything else could be done on the case. He went on to say that if we should go to Court and fail then this would be a lot of time wasted. He suggested that we could get on with agreeing a timetable for the proceedings, which would be subject to any judicial review challenge. He said that the FA accepted that it would have to wait for a decision from Court, should we choose to go to Court, but he could not see why we could not put a timetable in place now. VJ said that, subject to taking further instructions from JDR, he did not see a problem with setting a timetable now. JDR nodded his approval. VJ then pointed out, however, that it seemed inevitable at this stage that we would have to apply to Court and we would therefore have to factor that into our thinking. VJ suggested that we indicate to the FA within 14 days whether we will be making an application. JDR indicated that we should certainly be in a position to confirm within 14 days.
As regards the main hearing, it was suggested that we look for dates available around 2 weeks after we had sent our supplementary bundle. It was then confirmed that this was, of course, all subject to our deciding not to make an application to Court."
- Following further discussion all those meeting downstairs moved upstairs where they were joined by Mr Bright, Mr John Mason and Mr Alan Wilkes, respectively referred to in the notes as 'BB', 'AM' and 'AW'. Mr Bright opened the proceedings by observing that the discussions were not privileged. He referred to the preliminary issues to which the solicitors for Mr Stretford had drawn attention. Mr Laidlaw explained the position to Mr Bright. Mr Martin's note records:
"JL went on to say that the Defence is presently considering whether they will make an application for judicial review if they fail to persuade BB that there should be an Independent Commission appointed. That is why he had asked BB if he would make a decision. BB confirmed that he understood the situation.
JL went on to say that he was keen that, at the same time, there should be some sort of timetable put in place (which would be subject to the application for judicial review if permission was granted). He said that he wanted to make sure that a timetable was put in place now rather than trying to impose one later.
JL then went on to explain that it had been discussed and broadly agreed that the FA would serve a bundle within 5 weeks of the meeting. He went on to say that the Defendants had confirmed that they would want 6 weeks thereafter to prepare a bundle of their own. On the issue of the E3 charges, he felt that this could be dealt with at a day-long directions hearing and then a substantive hearing on the main issues could be held a couple of weeks later. JL them confirmed again that this was all on the premise that the judicial review application has failed."
- After further explanations from Mr Laidlaw to Mr Bright, leading counsel for Mr Stretford explained his client's position. He pointed out that they were attending in a spirit of co-operation. He explained that there were four preliminary points and described what they were. He then turned to the question of a time table for the disciplinary proceedings. In that context Mr Martin's note continues:
"VJ said that we also were anxious to move forward so we have been able to agree a timetable in principle (although this is based on the scenario where we do not go to Court). There was, of course, always a possibility that any application to Court would be struck out and any agreed timetable could be resumed.
VJ then said that, if we go to a hearing at Court, it is then likely that the matter would be listed before November. Any agreed timetable would therefore have to be shifted accordingly. VJ then confirmed that there were two circumstances in which we could apply to Court for a declaration. Firstly, we could go to Court before a Disciplinary Commission had been appointed. Second, we could go once a Disciplinary Commission has been appointed in accordance with the rules (as this would give us a concrete basis for going). VJ confirmed that we were happy to indicate, within 14 days, whether we were going to apply to Court or not."
- A number of questions were then asked by Mr Mason. As Mr Martin's note records:
"John Mason then asked for clarification of our procedure for seeking judicial review of the decision to appoint the Disciplinary Commission. VJ explained that the application to Court would not be for judicial review, but instead it would be a straight-forward application to Court for a declaration. We would say the Court had to determine this rather than a Disciplinary Commission."
The Meeting concluded with Mr Bright promising to decide within 7 days whether to appoint a disciplinary commission in accordance with Rule G and if so who. He said he would also lay down a timetable.
- Mr Bright appointed a disciplinary commission in accordance with Rule G on 9th September 2005 (subject to the identification of the Queen's Counsel to sit on it). These proceedings were commenced by Mr Stretford on 16th September 2005. On 29th September 2005 the FA acknowledged service and claimed that Rule K applied to the disputes and differences raised by Mr Stretford in the proceedings he had instituted. This was the first time Rule K or any question of arbitration had been mentioned by either side.
- In these circumstances Mr Stretford contends that a clear agreement was made at the Meeting that if Mr Stretford instituted proceedings the disciplinary proceedings would be stayed pending the court's substantive determination of the substantive issues raised in the proceedings. He submits that if for any reason there is no such agreement then there was a representation made by the FA or a convention to which all relevant parties adhered to the like effect. In oral argument counsel for Mr Stretford submitted that the premature determination of the court proceedings by reliance on Rule K was necessarily inconsistent with what had been agreed or represented at the meeting.
- This was disputed by counsel for the FA. He submitted that there was an express agreement that if Mr Stretford commenced court proceedings the disciplinary proceedings would be stayed for so long as the court proceedings were still effective. Nothing, he submitted, had been said or could be implied with regard to how the court proceedings should be processed or determined. In particular, as he pointed out, in the discussion at the meeting leading counsel for Mr Stretford accepted that his proceedings might be struck out. Further he contended that Mr Stretford had not established that he relied on any representation or convention or sustained any detriment in consequence. As he pointed out, if Mr Stretford did not know about Rule K, as he claimed, it is not easy to see how he relied on the alleged representation; on the other hand, if he did know of Rule K he must have decided to institute the proceedings without regard to its application and effect. Finally he contended that any such agreement or representation was outwith the authority of the various officers of the FA present at the Meeting.
- I can deal with this issue quite shortly. It is clear from the note of the meeting in the context of the correspondence leading up to it that the agreement, representation or convention, whatever term is used to describe the outcome, involved two elements. The first was the condition that Mr Stretford instituted court proceedings to determine the three points he had raised in the earlier correspondence, see paragraph 7 above. The second was that if that condition were satisfied then the disciplinary proceedings would be stayed until the court proceedings had been disposed of. There was no agreement, representation or assumption that they should be disposed of on their merits, the recognition that they might be struck out demonstrates the opposite, or in any particular manner. Still less was there any agreement, representation or assumption that the court proceedings would not be stayed by reliance on Rule K and s.9 Arbitration Act 1996, neither of which was even mentioned. No such an agreement could be implied on any of the bases on which terms may be implied into an express agreement. Accordingly, in my judgment, the evidence does not establish the facts needed for this contention and the questions of reliance, detriment and authority do not arise.
- For all these reasons I would resolve the second issue summarised in paragraph 11(b) above in the negative. It follows that not only was Rule K incorporated into the contract between the Football Association and Mr Stretford but also that there is nothing to preclude the FA from relying on it.
S.9(4) Arbitration Act 1996
- S.9(4) requires me to stay these proceedings on the application of the FA
"...unless satisfied that the arbitration agreement is null and void, inoperative..."
Mr Stretford submits that Rule K, being the arbitration agreement, is null and void and therefore inoperative for a number of reasons all of which find their origin in Article 6 ECHR.
- Article 6.1, so far as material, provides that:
"In the determination of his civil rights and obligations....., everyone is entitled to a fair and public hearing...by an independent tribunal established by law. Judgment shall be pronounced publicly..."
- Mr Stretford submits that Rule K is in conflict with Article 6 ECHR and with the principles of natural justice. According to my note of his argument he accepts that the FA is not a public authority for the purposes of Human Rights Act 1998. He points out, correctly, that this court is and is therefore bound to give effect to Mr Stretford's convention rights. None of this is disputed by counsel for the FA.
- The real issue is whether the arbitration agreement, in the form of Rule K, is a valid waiver of the rights conferred on Mr Stretford by Article 6. It is not disputed either that such a waiver must be voluntary, informed and unequivocal and must not run counter to some important public interest. For Mr Stretford it is contended that as he did not know of Rule K or its contents any waiver by him could not have been informed or unequivocal. It is submitted on his behalf that the waiver was not voluntary either because he had no option but to agree, if he wished to continue his business as a players' agent. In addition Mr Stretford contends that the issues raised in his proceedings involve matters of great public interest which should be decided by a court in public.
- Before dealing with these issues it is necessary to appreciate the respects in which it is submitted on behalf of Mr Stretford that the provisions of Rule K are not compliant with Article 6. First Rule K2(a)(iv) and K2(c)(iv) require each party to nominate an arbitrator. Rule K3(b) requires the parties to agree on the identity of the third arbitrator. In default of such agreement provision is made for the appointment of the third arbitrator by the President of the Chartered Institute of Arbitrators. It is contended that a tribunal so appointed is not 'independent' for the purposes of Article 6. Second, Rule K6(b) prohibits disclosure of the award to any third party without the agreement of the parties. It is submitted that judgment will not be public.
- I was referred to a number of authorities which exemplify the relevant principles. There was no significant difference between the parties as to what they are. It seems to me to be sufficient to quote in full the last two paragraphs of the judgment of Potter LJ in Placito v Slater [2003] EWCA Civ 1863. That case concerned an agreement to settle extant legal proceedings, rather than any arbitration clause. In paragraphs 50 and 51 Potter LJ said:
50. So far as Convention jurisprudence is concerned, there appears to be no decision directly in point. However, it is well established that, provided he has done so in an unequivocal manner, a litigant may be held to have waived various of his Article 6 rights. In Deweer v Belgium (1980) 2 EHRR 239, the applicant, who was a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid. Since the payment was made in circumstances of constraint and under protest, the European Court found a violation of Article 6(1). However, in the course of the judgment, the court stated:
"49. The 'right to a court', which is a constituent element of the right to a fair trial, is no more absolute in criminal than in civil matters …"
In the Contracting States' domestic legal systems, a waiver of this kind is frequently encountered both in civil matters, notably in the shape of arbitration clauses in contracts, and in criminal matters in the shape inter alia of fines paid by way of composition. The waiver, which has undeniable advantages for the individual concerned as well as for the administration of justice, does not in principle offend against the Convention; on this point the court shares the view of the Commission."
51. It has been held that in order to be effective, a waiver must be made without undue compulsion (Pfeifer and Plankl v Austria (1992) 14 EHRR 692 at para 37) and "must be made in an unequivocal manner and must not run counter to any important public interest", Hakansson v Sweden (1991) 13 EHRR 1 para 66). Subject to those qualifications "neither the letter nor the spirit of [Article 6(1)] prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public" (ibid para 66). It is also clear that arbitration proceedings agreed to by contract or in some other voluntary manner are regarded as generally compatible with Article 6(1) on the basis that the parties have expressly or tacitly renounced or waived their right of access to an ordinary court: see Suovanieni v Finland Application No. 31737/96, February 23, 1999. In my view there is no reason why the principle of waiver should not extend to circumstances where, without compulsion or constraint, a party voluntarily contracts with another party in the course of litigation that he will not proceed to trial upon a dispute between them unless he has issued proceedings by a particular date. Article 6 is principally concerned with questions of access. Where, in a case involving litigation of a private right, the claimant voluntarily limits his own right of access by agreement with the other party to the dispute, the considerations of justice arise simply as between the parties to the dispute; no additional public interest element falls to be considered. In my view no breach of Article 6(1) can be demonstrated in this case."
- In my judgment the contract between Mr Stretford and the FA in which Rule K is incorporated constituted a waiver by Mr Stretford of his rights under Article 6.1 in favour of the arbitral process for which Rule K provides. First, such contract was voluntary in every sense when it was made in 2002. True it is that Mr Stretford would be inhibited in carrying on his business of a players' agent if he had not concluded it. But such an inducement to contract does not vitiate the necessary consent and is quite unlike the 'Hobson's Choice' exemplified in Deweer v Belgium (1980) 2 EHRR 439 and other cases. Second, the agreement it embodied was informed because Mr Stretford had its terms in his possession. If he did not in fact know of the provisions of Rule K he could and should have done. It was his duty to acquaint himself with all the Rules. Third, the consent of Mr Stretford is unequivocal. There is no doubt what Rule K requires, how it is put into effect or its consequences for the resolution of any relevant differences between Mr Stretford and the FA.
- Fourth, to uphold and enforce the arbitration agreement is to implement the public policy behind the Arbitration Act 1996. I am unable to accept that such a policy is outweighed by all or any of the considerations on which counsel for Mr Stretford relied. First, he pointed out that the Court must apply Article 6 but the arbitrators need not. In my view this is a distinction without any effective difference on the facts of this case. Under Rule K3(d) the arbitrators must remain impartial and independent at all times. A similar obligation is imposed on them by s.33 Arbitration Act 1996. Any failure to comply with those provisions can be raised in the court proceedings authorised by s.68 Arbitration Act 1996. Second, it is true, as counsel for Mr Stretford pointed out, that the issues between Mr Stretford and the FA are legal rather than 'sports orientated'. But Rule K does not recognise any such distinction. It is to be assumed that Mr Stretford would nominate his arbitrator in the light of the nature of the dispute to be resolved. Third, counsel for Mr Stretford submitted that football regulation is of itself a matter of general public interest. No doubt it is of interest to the general public. It is not so important that differences arising in its performance cannot be resolved by arbitration.
- The fourth point on which counsel for Mr Stretford relied was that the charge relating to the evidence Mr Stretford gave to the Warrington Crown Court raised an issue of general public importance such as should be determined by the court. He relied on the recent judgment of Andrew Collins J in Meadow v GMC [2006] EWHC 146. The FA accepted that in view of that decision it could not properly proceed with the charges based on Rule E.3 otherwise than in accordance with the procedure suggested by Andrew Collins J (under which the Crown Court Judge may, if he thinks it appropriate, refer the matter to the FA), or unless Andrew Collins J's decision were overturned on appeal. They proffered undertakings to that effect which should be incorporated in my order in due course. In the light of those undertakings this point no longer arises.
- Counsel for Mr Stretford also submitted that even though the arbitration agreement, Rule K, is to be found in a binding contract Article 6 requires, in addition, that the waiver of the rights conferred by that article should be 'without constraint'. I am not satisfied that this is a requirement additional to all the ingredients of a valid contract, for example the absence of duress, undue influence, fraud, mistake or misrepresentation. I was not referred to any authority in which it was held that it is. Assuming, but without deciding, that it is, I consider that it is satisfied. The matter must be tested at the time the contract was made. The commercial inducement to getting a players' agents licence in both 1995 and 2001 is not constraint in any relevant sense. The obligation on both occasions was to observe the rules and regulations of the FA for the time being. Even though Rule K in its present form came into force in the season 1999-2000 an arbitration agreement had been in the rules since at least 1995.
- Finally I should refer to two further considerations. The fact that Mr Stretford waived his right to go to court in favour of arbitration does not necessarily waive his right to a public judgment. Rule K6(b) requires that:
"Except with the prior agreement of the parties to the arbitration, no disclosure shall be made to any third party of.......[the Tribunal's] award..."
But counsel for the FA made clear that if Mr Stretford so wished and subject to the rights of any third parties the FA would consent to a publication of the Award. He also pointed out that an infringement of Article 6.1 in one respect does not invalidate the arbitration in all respects. As Lord Bingham of Cornhill said in A-G's Reference (No 2 of 2001) [2004] 2 AC 72, 89 para 24
"The appropriate remedy will depend on the nature of the breach and all the circumstances, including in particular the stage of the proceedings at which the breach is established."
- It follows that even if I were satisfied, which I am not, that the provisions of Rule K6(b) do not comply with Article 6.1 that would be no reason for invalidating the whole arbitration. Prima facie all that would be required would be an undertaking from the FA in the form of what Counsel for the FA informed me was their position. But counsel for Mr Stretford maintained his claim to its full width and did not seek such an undertaking in the alternative.
- For all these, somewhat disparate, reasons I conclude the issue summarised in paragraph 11(c) above in the negative.
Conclusion
- In the light of all the foregoing the requirements of s.9(4) Arbitration Act 1996 are fulfilled and I am obliged to stay these proceedings. In those circumstances the question whether, in my discretion, I should grant a more limited stay does not arise. Nor am I concerned to express any view as to whether the issue or prosecution of a part 8 claim was or is appropriate. For all these reasons, on the undertaking of the FA indicated in paragraph 47 above, I will make the order sought by paragraph (1) of the application issued by the FA on 14th October 2005.
