Court of Appeal
Published April 13, 2007
Stretford v Football Association Ltd and Another
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Waller and Lord Justice Sedley
Judgment March 21, 2007

An arbitration agreement in the rules of a national football association did not contravene the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights.

It followed that an action brought by a player’s agent licensed by that association, challenging the validity of the arbitration agreement and of disciplinary proceedings brought by the association, was properly stayed on the basis that the dispute had been referred to arbitration.

The Court of Appeal so held, dismissing the appeal of the claimant, Paul Stretford, against the decision of Sir Andrew Morritt, Chancellor ([2006] EWHC 479 (Ch)) to stay Mr Stretford’s action against the defendant, the Football Association Ltd and Mr Barry Bright, chairman of the disciplinary committee of the FA, on the ground that the dispute had been submitted to arbitration.

Mr Victor Joffe, QC and Mr David Casement for Mr Stretford; Mr David Pannick, QC and Mr Adam Lewis for the FA and Mr Bright.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that Mr Stretford was issued with a players’ agent’s licence by the FA in 2002.

The FA rules included an arbitration clause by which all those concerned with administering or playing football had to agree that their disputes should be referred to arbitration.

The FA issued disciplinary proceedings against Mr Stretford in 2005 in relation to his representation of a footballer, Mr Wayne Rooney.

Mr Stretford began proceedings for declarations, inter alia, that the disciplinary proceedings did not comply with article 6 of the Human Rights Convention, and that one of the FA rules was in unlawful restraint of trade and another was contrary to public policy and void. The Chancellor granted a stay of the proceedings under section 9(4) of the Arbitration Act 1996.

Mr Stretford was entitled by article 6 to a fair and public hearing by an independent tribunal established by law, which had to deliver its judgment publicly.

The 1996 Act would apply to the arbitration. By section 69 the parties could exclude an appeal by agreement. Otherwise section 69 required permission to appeal, save to the extent that the parties could agree that an appeal could be brought.

In the context of article 6, the provisions of the 1996 Act were important by providing for a fair hearing by an impartial tribunal.

The only provisions of article 6 which arguably could not formally to be met by that Act were the requirements for a hearing in public, that tribunal members be independent, that the tribunal be established by law and that the judgment be pronounced publicly.

Cases in the European Court of Human Rights at Strasbourg supported the general proposition that, where parties had freely or voluntarily entered into an arbitration agreement they were to be treated as having waived their rights under article 6. The inclusion of the arbitration clause was not compulsory or required by law.

An arbitration clause had become standard in the rules of sporting organisations like the FA. The rules regulated the relationship between the parties, which was a private law relationship governed by contract.

To strike down such clauses on the ground that they were incompatible with article 6 because they were required by law or compulsory would have a far-reaching and undesirable effect on the use of arbitration in the context of sport generally.

English law protected parties from the risk of being compelled to enter into an arbitration agreement by what the Strasbourg jurisprudence called constraint. The provisions of the 1996 Act amply satisfied the principles in the Strasbourg cases.

In particular, the mandatory provisions required the arbitrators to be impartial and to act fairly and impartially between the parties, allowing for an arbitrator’s removal if there were justifiable doubts as to his impartiality or if he refused or failed properly to conduct the proceedings.

The court was empowered to set aside the awards on the grounds of serious irregularity or lack of substantive jurisdiction. Section 69 permitted greater access to the court on appeal than many countries permitted.

The arbitration clause or any arbitration held under it did not breach article 6. The clause was incorporated into the contract. In agreeing to the clause both parties waived their right to a court hearing in public, except as provided for by the Act.

No question of constraint arose. Nor was there any relevant public interest consideration to stand in the way of arbitration. On the contrary, the public interest encouraged arbitration in cases of that kind.

The court rejected the challenge to the granting of a mandatory stay. There was no basis for holding that the arbitration would be null or void or inoperative.

Solicitors: Halliwells LLP; Charles Russell LLP.

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