Stretford v The Football Association Ltd. & Anor

A contractual arbitration clause in private sporting rules may waive Article 6 rights to a public hearing and a tribunal established by law where arbitration was voluntarily agreed and was not compelled by law. The waiver must be unequivocal, free from duress, undue influence or mistake, and consistent with important public interests. The Arbitration Act 1996 supplies safeguards of impartiality, procedural fairness and court supervision. Such an agreement is not null, void or inoperative merely because it limits access to the ordinary courts. An agreement to pause disciplinary proceedings while contemplated court proceedings progress does not waive the right to seek a statutory stay unless that waiver is express or clearly implied.

Mr Stretford, a players’ agent, challenged disciplinary proceedings brought by The Football Association. He alleged incompatibility with Article 6, unlawful restraint of trade and a public-policy objection to charges based on evidence given at Warrington Crown Court.

The Chancellor of the High Court stayed the proceedings under section 9(4) of the Arbitration Act 1996, holding that Rule K was incorporated into the contract, that the September 2005 meeting did not prevent reliance on Rule K, and that the arbitration agreement was not null, void or inoperative. The appeal concerned the alleged waiver and the compatibility of the arbitration process with Article 6.

1. Appeal dismissed. The mandatory stay ordered by the Chancellor was maintained.
2. Rule K was incorporated into the contractual relationship. The issues concerning Article 6 compliance, restraint of trade and public policy were disputes within Rule K1(a). Rules K1(b) and K1(c) did not exclude them at this stage. The disciplinary proceedings had not yet produced a decision to which the exclusion of appeals applied.
3. The September 2005 meeting produced no express agreement, representation or common assumption that The Football Association would refrain from relying on Rule K or applying for a stay under section 9(4). An agreement to pause disciplinary proceedings while court proceedings were considered did not imply that the court proceedings would be determined on their merits or that procedural applications could not be made.
4. Section 9(4) required a stay unless the arbitration agreement was null and void, inoperative or incapable of performance. The mandatory provisions of the Arbitration Act 1996 required an impartial and fair process, permitted removal of arbitrators, and provided court control for jurisdictional defects and serious irregularity. Section 69 provided an appeal route in some cases, although that route was excluded by Rule K5(c).
5. The Strasbourg authorities, including Deweer v Belgium (1980) 2 EHRR 439 and Di Placito v Slater [2003] EWCA Civ 1863, supported the principle that Article 6 rights may be waived by a voluntary and unequivocal arbitration agreement. The waiver must not result from legal compulsion, constraint or an important public-interest objection. Rule K was a private contractual provision and was not compulsory in the Convention sense merely because it formed part of the requirements for a sporting licence.
6. The parties had waived the rights to have the dispute heard by the ordinary courts and in public. The statutory safeguards and the agreed publication of the award meant that the arbitration could not properly be regarded as infringing Article 6. Questions concerning the application of Article 6, waiver and any alleged breach were for the arbitrators. The Court of Appeal therefore expressed no view on the public-policy issue concerning evidence given at the criminal trial.

• Court of Appeal (Civil Division): dismissed the appeal and maintained the mandatory stay.
• High Court of Justice, Chancery Division: on 17 March 2006, ordered a stay under section 9(4) of the Arbitration Act 1996: [2006] EWHC 479 (Ch).