Previous instalments of this series on FA Rule K Arbitrations have covered pre-action matters, including jurisdictional challenges and interim relief, and strategic approaches to commencing the proceedings and responding to a Notice of Arbitration. The (hypothetical) litigation is now well under way and, accordingly, our attention turns to the procedure after the arbitral tribunal has been fully constituted.
Rule K 4 sets out a suite of standard directions that apply in default of any agreement to vary the case management timetable. Time for complying with these directions begins once the chairman (in the case of a three-person panel) or the sole arbitrator has been appointed – at which point the tribunal is said to be “fully constituted”.
The self-explanatory standard timetable is set out at rule K 4(b):
Subject to Rule K 4(c) below, the following Standard Directions shall apply to the conduct of an arbitration under these Rules:
(i) within 21 days, the Claimant(s) shall serve its (their) Points of Claim;
(ii) within 42 days, the Respondent(s) shall serve its (their) Points of Defence;
(iii) within 70 days, the parties shall exchange statements of the witnesses they will rely upon;
(iv) within 98 days, the parties shall exchange and serve on the Tribunal their written submissions; and
(v) within 119 days, the hearing shall take place.
If a party wishes to propose some other timetable or a variation to the standard directions, it should normally do so in the Notice of Arbitration or the Response: rule K 2.
By rule K 4(c), however, the parties are “free to agree” a variation or, “in the event that the parties cannot reach an agreement as to directions”, either party may apply to the tribunal at any time in the proceedings. Note that this wording appears to make it mandatory to try to obtain the opposing party’s agreement to any desired variation before applying to the tribunal; a party who fails to approach the other side thus risks the application being rejected by the tribunal pending inter-party discussions – and costly correspondence may have been wasted.
The eagle-eyed litigator will have noticed the conspicuous absence from rule K 4(b) of any standard direction for disclosure. This is perhaps the most common variation (as, indeed, rule K 4(c) acknowledges by giving disclosure as an example of the type of variation that might be sought).
If the number of documents is likely to be significant, it is prudent to seek a direction for disclosure well before the 70-day deadline for the exchange of witness statements so that witnesses can, if appropriate, comment on the documentary exhibits. Otherwise, seek to extend the standard time for serving the witness evidence. Where documents are likely to be crucial (such as player contracts, which will show remuneration related to quantum) they can be requested in the Notice of Arbitration to be appended to a subsequent Response.
When applying for a variation, always bear in mind that the tribunal is bound by rule K 4(d) to ensure that directions facilitate “a fair resolution of the dispute without unnecessary delay or expense”. You may need to persuade the tribunal that your proposal furthers this objective.
Other common variations to the standard directions are reflected in rule K 5, which sets out the tribunal’s general powers:·
Rule K 6 emphasises the requirement to comply with any directions “without delay”. The sanctions for non-compliance, which are set out in rule K 4(g), can be severe:
The final sweep-up provision here – the power to make “such other order” as the tribunal sees fit – is wide enough to include the possibility of making an adverse costs order in case of non-compliance. This is reinforced by the broad power to order costs in the proceedings for which rule K 12(a) provides:
An order for costs will often be a more appropriate sanction than the draconian powers to debar participation or to proceed to a final ruling, especially where the non-compliance does not jeopardise a listed hearing.
The author, Joseph Bryan, is a barrister and member of the Littleton Sports Law Group. He acts in a range of contentious and non-contentious sports law cases. For more information, please contact the Littleton Sports Law Group clerk, Philip Salisbury.