Grahame Anderson on Rule K Arbitrations: Littleton’s step-by-step guide

Grahame Anderson, Barrister and Arbitrator.

Step 1: the Case Conference

This is the first in our new series of step-by-step guides to conducting FA Rule K Arbitrations. It looks at pre-action steps, jurisdiction challenges and interim relief.

Grahame Anderson is a sports lawyer with particular expertise in Rule K Arbitrations, acting as counsel and sitting as an arbitrator. Grahame writes regularly on Rule K arbitration and regularly gives talk on the subject. For any queries, please contact Philip Salisbury, Littleton’s Sports clerk.

Procedurally speaking, a Rule K Arbitration is less onerous than full-blown civil litigation, but it has particularities it is worth being familiar with from an early stage. This will allow the savvy sports litigator to avoid common pitfalls and to steal a march on the opposition.

Pre-action
Aside from the usual injunction that a Claimant should get their ducks in a row (what are you asking and what is the legal and factual basis to ask it?) there are no formal obligations vis-à-vis pre-action conduct in a Rule K arbitration.

Experience serves to show, however, that a Letter Before Action will be beneficial either (1) in avoiding litigation altogether or at least in narrowing its scope, or (2) in insulating the Claimant at the costs stage. There is also the added benefit of requiring some thought to go in to exactly how the case is framed.

Rule K1 provides a more or less complete system for dealing with footballing disputes, down to a set of directions which will apply in default of agreement or decision either way. My experience as a litigator and arbitrator serves to show that many parties are unaware of that simple fact and are, therefore, wont to ignore their own obligations. This is something to look out for once the arbitrator is in place.

Challenging jurisdiction
As a matter of the FA Rules, disputes that fall within the scope of Rule K1 are required to be dealt with by FA arbitration, on pain – presumably – of a misconduct charge. More importantly, however, there will be an (invariably written) arbitration agreement for the purposes of s. 6 of the Arbitration Act 1996. That much is not particularly interesting.

It is worth noting that (a) Rule K5(ii) gives the Tribunal the power to determine any questions as to its own jurisdiction; and (b) Rule K14(a) provides that any arbitration under the Rules shall be governed by English law.

In my football arbitration practice, I am seeing more Respondents seeking to dispute the jurisdiction of the Rule K arbitrator to deal with the claims brought against them on the basis that they are not (or the Claimant is not) a “Participant”. Until recently, there was something of a tension in the case law:

• Davies v. Nottingham Forest Football Club Limited [2017] EWHC 2095 per HHJ Bird (sitting as a Deputy of the High Court): in that case there was no express incorporation of Rule K arbitration in the player contract. The case is also noteworthy for the Judge’s ruling that the parties were nevertheless party to an arbitration agreement by virtue of both being bound by the FA Rules. Importantly, in reaching that conclusion he notes that ‘Anyone who participates in the game of football (certainly at the professional level) is fully aware of the importance and the standing of the rules’ (paragraph 16.c).
• Bony v. Kacou & Ors. [2017] EWHC 2146 (Ch.) at para. 33-35 per HHJ Pelling QC (sitting as a Deputy of the High Court): the Court’s ruling was that participation in a sport or in activities connected with that sport does not of itself mean that those participating have as between each other the rights and obligations provided for in the rules of that sport’s governing body. Whether there is an implied contract between such participants to the effect that they have as against each other those rights and obligations is to be determined by a fact sensitive analysis undertaken by reference to the general principles of contractual formation.

To the extent that there was a tension, it appears to have been resolved by the judgment of HHJ Eyre QC in Mercato Sports (UK) Limited and anor v Everton Football Club Limited [2018] EWHC 1567 (Ch) (see in particular, paragraph 42). Judge Eyre QC took the view that there was no tension between Davies and Bony: the question of acquiescence to the rules will be one of fact and degree. In short, the closer the activities in question to the actual playing of football, the more likely it will be found that the parties have acquiesced in the jurisdiction of the Rule K system. That is simple where the dispute concerns a playing contract; less so where the question is one of sponsorship or image rights, etc.

In summary, my experience is that a challenge to jurisdiction could well be useful tactical device if delay is required, but arbitrators are increasingly wising up to it, and do not hesitate too long before asserting jurisdiction in the footballing sphere.

Interim relief
The Rules (including the standard directions referred to above) contemplate a rather leisurely timetable for an arbitration. That will not do where a party requires an urgent decision (because of, say, looming fixtures).

Litigators should therefore be aware of Rule K8, which provides for the appointment of an interim chairman with power to hold the ring until a full arbitration can be convened. This mechanism was first used in West Ham United v The FA (2014), Nicholas Stewart QC.

• The case concerned a red card given to Andy Carroll, entailing a three-match ban. An appeal to the FA Regulatory Commission failed; West Ham argued that the Regulatory Commission had applied the wrong test (“obvious error” rather than merely “wrongful”) and brought Rule K proceedings. Waiting for a final decision would have made the question redundant: the three matches Carroll would miss if the ban were upheld would be long past by the time a full arbitration could be convened.
• In deciding whether or not to grant interim relief (a stay on the ban), the Interim Chairman applied a test that will be very familiar to lawyers involved in injunctive work: whether there was a serious issue to be tried, whether damages were an adequate remedy and what the balance of convenience required.

Where there is real urgency, Rule K8 is an important weapon in the sport litigator’s arsenal.