![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Chancery Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Wilfried Guemiand Bony v Kacou & Ors [2017] EWHC 2146 (Ch) (04 September 2017) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2017/2146.html Cite as: [2017] EWHC 2146 (Ch) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
1 Bridge street West Manchester M60 9DJ |
||
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
____________________
WILFRIED GUEMIAND ![]() |
Claimant and Respondent |
|
- and - |
||
(1) GILBERT FRANCIS KACOU (2) GILBERT FRANCIS KACOU PROMOTION S.A.R.L (3) DALIBOR LACINA (4) INTERNATIONAL FOOTBALL MARKETING & MANAGEMENT S.R.O (5) SWANSEA CITY ASSOCIATION FOOTBALL CLUB LIMITED |
Appellants and Defendants |
____________________
Mr David Casement QC and Ms Kelly Pennifer (instructed by JMW Solicitors LLP) for the Respondents
Hearing dates: 24 July 2017
____________________
Crown Copyright ©
HH Judge Pelling QC:
Introduction
Background Facts
" 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
" 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
Oral Submissions to the District Judge
The District Judge's Judgment
"The submission made by [counsel then appearing for the defendants] which was that anyone involved in the sport must take on these Rules cannot be right. it would mean that anyone who is involved in the sport of football or anything to do with football (provided they are Participates as defined in the Rules) would be bound irrespective of whether there was a written provision in the agreement to that effect. Mr Casement QC gave the example of two football players involved with each other in a road traffic accident and one of them wanting to make a claim for personal injury as a result of that accident against the other a dispute between the parties. On [counsel then appearing for the defendants]' analysis, they would have to submit to arbitration under Rule K."
At paragraph 19 of her judgment the District Judge added that:
"Where there is a term it is essential that it is included. The court rejects the argument that all one has to do as a [P]articipant is to read Rule K and then as a [P]articipant he/she is somehow bound by it without it being included in a contract. As Mr Casement QC submitted, unless it is included it is worth absolutely nothing. The court agrees with him and disagrees therefore with [counsel then appearing for the defendants] who submitted that just by taking part in the game of football one is bound by the provisions of Rule K, subject to whether they are participants as defined in the Rules."
Where the Judge refers to a "term", she is clearly referring to an arbitration clause and her reference to "included" is equally clearly to incorporation.
"There are no arbitration clauses incorporated into any of the agreements between the claimant and the first defendant. It follows therefore, that the first defendant did not and could not in his witness statement suggest that any of the allegations made against him be referred to arbitration pursuant to Rule K no matter how wide the terms of Rule K are they must be incorporated into an agreement to be binding."
"1. The Contracting Parties undertake that all disputes arising here from shall be settled by agreement. Unless a dispute is to be settled by agreement any Contractual Party is entitled to refer to decision-making bodies stipulated in Paragraphs 2 and 3 of this Article hereof.
2. 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.
3. Any other complaint which is not subject to the preceding Paragraph hereof shall have to be transferred to the FIFA Players' Status Committee."
The Judge concluded that this clause was of no assistance because
" insofar as it relates to arbitration, refers to the parties being registered with the same national association; at the relevant time the Claimant was registered only with the English Football Association and the third Defendant was not. The reference to FACR is a reference to the Football Association of the Czech Republic."
Mr. Casement's submission to the District Judge had been that the clause was of no effect because at the time the current dispute arose March 2016 the claimant was registered with the FA but the third defendant was not. Thus, the reference to "relevant time" in the District Judge's judgment must be to the time when the dispute arose. In my judgment, the District Judge was right to accept that submission the clause applied to the settlement of disputes and thus can apply only at the point at which a dispute has arisen, and the clause is cast in the present tense so that the registration issue is concerned with registration at the date when the relevant dispute arose. There has been no appeal from this finding see the Grounds of Appeal passim. It is common ground that clause 3 of the Lacina 2013 Agreement is of no assistance because in fact the committee referred to does not have competence to resolve disputes between players and agents. There is no evidence that either party knew that to be so at any stage prior to the commencement of these proceedings and the inference to be drawn from the inclusion of paragraph 3 is that the parties intended that the dispute resolution provision within the Latina 2013 Agreement should provide a comprehensive dispute resolution mechanism.
The FA Rules and Rule K Arbitrations
" any dispute or difference between any two or more Participants (which shall include, for the purposes of this section of the Rules, The Association) including but not limited to a dispute arising out of or in connection with (including any question regarding the existence or validity of): the Rules and regulations of the Association which are in force from time to time; (i) the rules and regulations of an Affiliated Association or Competition which are in force from time to time; (ii) the statutes and regulations of FIFA and UEFA which are in force from time to time; (iii) the Laws of the Game, shall be referred to and finally resolved by arbitration under these Rules."
" an Authorised Agent Club Licensed Agent, Player and all such persons who are from time to time participating in any activity sanctioned either directly or indirectly by the Association."
There is no dispute that the claimant is a "Player" as defined or that Swansea is a "Club" as defined. An "Authorised Agent" is defined by reference to the definition of that term in the FA's Football Agents Regulations ("FARs"). "Agent" is defined in the FARs as meaning any person carrying out Agency Activity including Authorised Agents and an "Authorised Agent" means either a Licenced Agent or a Registered Agent. A "Licenced Agent" means an Agent holding a licence issued by the FA. None of the defendants fell into this category. A Registered Agent is a category that includes a Registered Overseas Agent and a "Registered Overseas Agent" is an individual holding a licence to act as an agent issued by a National Association affiliated to FIFA other than the FA, " and who has registered with the Association in accordance with these Regulations". The first defendant did not fall into this category at any stage because he was not registered as an overseas agent with the FA, the third defendant fell into this category between September 2009 and April 2015 and the second and fourth defendants never fell within this category. Finally, "Unauthorised Agent" is defined as meaning any person who acts as an Agent who is not an Authorised Agent. Reg. A1 of the FARs prohibits Players and Clubs from using the services of an "Unauthorised Agent" in relation to any Agency Activity. "Agency Activity" is defined as meaning acting in any way and at any time as an agent, representative or advisor in connection with a Player's contract of employment with a Club or registration of a Player with a Club or transfer of registration of a Player from one Club to another.
"Any dispute between an Authorised Agent, Player and/or Club in relation to any matter within the scope of these Regulations, including any Agency Activity shall be dealt with as between the parties under Rule K (Arbitration) of the Rules of the Association. "
This provision is of no application in the circumstances of this case because that clause is cast in the present tense and thus whether someone is an Authorised Agent must be tested at the date when the dispute or difference in question arises. At the date when the dispute the subject of these proceedings arose none of the defendants were Authorised Agents. I do not understand Mr. Chaisty to contend otherwise since he did not suggest that clause 7 was of any direct application.
The Parties' Appeal Submissions
Appellants' Submissions
Respondent's Submissions
Discussion
The New Argument Point
"If the point is a pure point of law, and especially where the point goes to the jurisdiction of the court, the appeal court may permit it to be taken for the first time on appeal. But where the point, if successful would require further findings of fact to be made it is very rare case indeed in which an appeal court would permit the point to be taken"
AA96, s.5 provides:
"5. Agreements to be in writing.
(1) The provisions of this Part apply only where the arbitration agreement is in writing, and any other agreement between the parties as to any matter is effective for the purposes of this Part only if in writing.
The expressions "agreement", "agree" and "agreed" shall be construed accordingly.
(2) There is an agreement in writing
(a)if the agreement is made in writing (whether or not it is signed by the parties),
(b)if the agreement is made by exchange of communications in writing, or
(c)if the agreement is evidenced in writing.
(3) Where parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing.
(4) An agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement.
(5) An exchange of written submissions in arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and not denied by the other party in his response constitutes as between those parties an agreement in writing to the effect alleged.
(6) References in this Part to anything being written or in writing include its being recorded by any means."
The Appellant's Central Submission
Conclusion