Stretford v Football Association Ltd & Anor

An arbitration clause contained in the rules of a sporting association may be incorporated into a licence-holder’s contract through a continuing course of dealing, contractual documents, or acceptance by conduct. A conventional arbitration agreement is not necessarily particularly onerous or unusual merely because proceedings are private and court review is restricted.

Arbitration may constitute a valid waiver of Article 6 rights where the waiver is voluntary, informed and unequivocal and does not conflict with an important public interest. The statutory stay under section 9(4) of the Arbitration Act 1996 is mandatory unless the arbitration agreement is null and void or inoperative.

Mr Stretford, a licensed players’ agent, brought proceedings against the Football Association and Mr Bright concerning pending disciplinary proceedings. He sought declarations that the disciplinary process infringed Article 6 of the Convention, that provisions of the FA’s professional conduct rules unlawfully restrained trade, and that charges concerning evidence given in criminal proceedings were contrary to public policy.

The defendants applied under section 9 of the Arbitration Act 1996 for a stay, relying on Rule K of the FA Rules. The issues were whether Rule K formed part of the contract, whether discussions at a meeting prevented reliance on it, and whether it was invalid or inoperative because of Convention rights.

1. Application granted. The proceedings were stayed under section 9(4) of the Arbitration Act 1996. The issue of a discretionary or more limited stay therefore did not arise.
2. Rule K was incorporated into the contract between Mr Stretford and the FA. The obligation to observe the FA Rules continued from the original FIFA licensing arrangements and was transferred to the FA licence in 2002. Alternatively, the licence and acknowledgement of receipt supplied contractual acceptance, and continued business as a licensed agent amounted to acceptance by conduct.
3. Rule K was not particularly onerous or unusual. Privacy and confidentiality are conventional features of arbitration. The waiver of court recourse was subject to the safeguards in sections 68 and 69 of the Arbitration Act 1996, and Rule K applied equally to the relevant participants. No special notice was required; in any event, the Rules were available to Mr Stretford and he could and should have informed himself of them.
4. The September 2005 meeting created an agreement, representation or convention that disciplinary proceedings would be stayed while court proceedings remained on foot, but it did not require the court proceedings to be determined on their merits or prevent a stay under Rule K and section 9. The FA was therefore not precluded from relying on the arbitration agreement.
5. The arbitration agreement amounted to a valid waiver of Article 6 rights. It was voluntary, informed and unequivocal and did not offend an important public interest. The commercial inducement to obtain or retain a licence did not amount to impermissible constraint. The matters concerned were not of such public importance that they could not be arbitrated.
6. Any possible defect in Rule K6(b), concerning publication of an award, would not invalidate the arbitration agreement as a whole. The appropriate remedy would depend on the nature and stage of any breach. The FA’s undertaking concerning charges based on evidence given in the criminal proceedings was incorporated into the order.