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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Stretford v Football Association Ltd & Anor [2006] EWHC 479 (Ch) (17 March 2006) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2006/479.html Cite as: [2006] EWHC 479 (Ch), [2006] ArbLR 57 |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
PAUL STRETFORD |
Claimant |
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- and - |
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(1) THE FOOTBALL ASSOCIATION LIMITED (2) BARRY BRIGHT |
Defendants |
____________________
Mr David Pannick QC and Mr Adam Lewis (instructed by Charles Russell LLP) for the Defendants
Hearing dates: 21st and 22nd February 2006
____________________
Crown Copyright ©
The Chancellor :
"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."
a) the disciplinary proceedings did not comply with Article 6 ECHR as applied by theHuman 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.
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.
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.
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.
"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.
"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 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.
"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.
"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."
"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."
"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."
"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.
"...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.
"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..."
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."
"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."