This article was first written for and published by LawInSport. Click hereto view the original.
Alternative forms of dispute resolution continue to grow in popularity generally and sport is no different. One such example is that of the Independent Football Ombudsman (“IFO”).1
The IFO offers a form of non-binding arbitration for individuals with complaints against football clubs playing in the Premier League, The Football League and all those affiliated to The FA, and can be engaged after internal club and relevant governing body (i.e. The FA, Premier League, or The Football League) procedures have been exhausted. It also handles complaints made against the governing bodies themselves.
The current Ombudsman is Professor Derek Fraser and the deputy is Mr Alan Watson. They are supported in their work by an advisory panel made up of those with experience of relevant legal issues, corporate governance, media & communications, supporters’ issues and community issues. The IFO has been operating in its current guise, under terms of reference agreed between various stakeholders,2 since the 2008-09 football season.
The complaints brought before the IFO have covered a wide range of issues, such as ticketing problems, ejections from stadiums, and use of force by stewards. Many of these disputes are not of significant financial value. As a result, the IFO process is attractive because it offers a means of resolution of such disputes without recourse to civil litigation, which would be time consuming, expensive and place the parties, in particular fans, at risk of an adverse costs order. By contrast, the service offered by the IFO is free of charge. (The running costs of the IFO service are met by an annual grant from The FA, the Premier League and The Football League.3)
The IFO procedure is informal. That means formal hearings are dispensed with, with the IFO’s focus instead being on meeting with the complainant and club or league bodies, as appropriate in the circumstances.
A key feature of the IFO’s role is such that it can (in a way that a civil court cannot) use its adjudications to recommend that a written apology be offered to a fan or, while recognising a club had grounds to sanction a fan, recommend that a lesser sanction should be imposed.
The IFO publishes all of its adjudications on its website4 and, insofar as they detail the handling of complaints by clubs before the IFO got involved, they are an invaluable resource providing guidance on what to do (or, more often, what not to do) for anyone engaged in the early stage of resolution of disputes involving football fans.
For example, it is apparent from the IFO adjudications that a key concern is that supporters are treated with respect by the clubs who deal with their complaints – in many of the cases where the IFO has found against the supporter as regards the substance of a dispute, the IFO has also made findings criticising communications failures on the part of the club, in order to improve practices and processes.5
One notable limitation to the IFO process is that its adjudications are not fully and finally binding upon a football club, The FA, the Premier League or The Football League. The status of an IFO adjudication is as set out Paragraph 2(i) of the IFO’s terms of reference:6
“These adjudications shall be final and the football authorities expect that normally IFO recommendations will be implemented. If, in exceptional cases, there is a failure to agree, the football authorities will publish their reasons and their proposed alternative resolution of the issue.”
So it is apparent that the IFO adjudications do not have the status of conventional arbitration awards. Moreover, the IFO process also differs from conventional arbitration because its adjudications are made public. However, this does not mean that the IFO’s role can be characterised as akin to that of a mediator. This is because the IFO ultimately decides which side is in the right and which side is in the wrong; the adjudication issued will set out what, if anything, the respondent club or football authority should do in response to the complaint. In effect, IFO adjudications are in the nature of advisory opinions. The force of an IFO adjudication lies in its status as having been produced by an impartial ombudsman service which can draw upon experience of, and expertise in dealing with, football-related disputes and which is held in high esteem within the football world (including by fans’ groups).
Despite this, the issue of enforceability of IFO adjudications has been highlighted. For example, in its follow-up report on football governance of 2013, the House of Commons Culture, Media and Sport Committee concluded that the existing powers of the IFO are “unsatisfactory”.7 It recommended that the IFO be given the power to enforce its adjudications.
The committee’s report did not elaborate on how the IFO’s jurisdictional reach could be extended, for example, whether it should be put on a statutory basis or whether the current terms of reference underpinning the IFO’s position should simply be amended to provide that adjudications be binding. The latter would provide greater flexibility and ensure that the IFO retains the ‘buy-in’ of the clubs as a voluntary forum, but it remains to be seen whether the committee’s recommendation will be implemented. This might be achieved by making moves towards giving the IFO statutory powers, a step that might encourage the IFO stakeholders to agree to amend the terms of reference in order to avoid direct legislative intervention.
Developments are in the pipeline which will, in any event, impact upon the IFO. The provisions of the new EU Directive 2013/11/EU on consumer alternative dispute resolution (the “ADR Directive”)8 are required to be transposed in domestic UK law by 9 July 2015.9 The ADR Directive sets down a variety of qualitative standards to be met by ADR providers.
Upon its coming into force, the IFO will be obliged to either adhere to those standards, or instead be classified as a simple ‘complaint-handler’, exempt from the directive’s provisions, as per Article 2(2)(b). The key difference between an ‘ombudsman’ and a ‘complaint-handler’ within the meaning of the ADR Directive are the requirements of independence, impartiality and transparency, set down in Articles 7 and 8. While the directive only covers ADR concerning contractual obligations (a subset of the disputes that fall under the IFO’s remit) we could expect that, in the interests of consistency and procedural clarity, were the IFO to implement changes in order to comply with the directive, it would do so in such a way as to apply those changes across the full spectrum of disputes.
To take one example: the IFO website already does an admirable job in terms of information provision but the ADR directive would require it to go further. Importantly, it does not, at present, publish details of responses of clubs and leagues to its adjudications, so it is not, at present, possible to determine compliance levels. Article 7(1)(g) would require the IFO website to publish “the rate of compliance, if known, with the outcomes of the ADR procedures”. Of course, we could expect that this this obligation would prompt the IFO to collate relevant compliance data following the issuing of an adjudication.
The IFO has been a fixture in football governance and dispute resolution since 2008. It provides a welcome alternative to the adversarial civil litigation process which can all too often lead to the entrenchment of the positions of the parties that are litigating. Clubs need to retain the confidence of their fans and, usually, a fan would have no desire to cause harm to a club they support. The IFO provides a non-confrontational forum that satisfies both those interests whilst also resolving the dispute as conclusively as possible. The very real risk with having enforceable adjudications (reviewable for errors of law by the Courts, presumably) is that this would result in a formality being injected into the whole process with the consequence that the IFO process would lose many of its undoubted virtues.
Perhaps the necessity for enforceable adjudications should be revisited after the ADR Directive has been implemented. Then the matter can be reviewed as part of an assessment of whether the codified standards that the ADR Directive imposes has enhanced, as would appear likely, the roles that the IFO plays (together with the respect it commands) within the football community.