Wilfried Guemiand Bony v Kacou & Ors

An arbitration clause in sporting rules does not bind participants merely because they participate in the sport or fall within the rules’ definitions. Under sections 5(3) and 6(2) of the Arbitration Act 1996, an agreement made otherwise than in writing must incorporate, expressly or impliedly, written terms containing the arbitration clause. A contract between sporting participants may be implied, but only where justified by the ordinary principles governing implied contracts. That inquiry is fact-sensitive, and implication is unavailable where the parties would or might have acted in the same way without the contract. Existing express agreements, particularly a comprehensive dispute-resolution clause, may make implication unnecessary. The appeal was dismissed.

The claimant, a professional footballer, brought claims against former agents and related companies concerning alleged secret commissions and an image-rights agreement. The defendants appealed from the District Judge’s refusal to stay the proceedings under CPR Part 11, CPR rule 62.8 and section 9 of the Arbitration Act 1996, relying on section K of the Football Association Rules.

The central issue was whether an arbitration agreement had been incorporated into a contract between the claimant and any defendant.

1. Appeal dismissed. The defendants failed to establish any express or implied agreement with the claimant incorporating section K of the Football Association Rules. The District Judge was therefore right to refuse a stay under section 9 of the Arbitration Act 1996.
2. Section 5 requires the arbitration agreement to be in writing. Section 5(3) permits an agreement made otherwise than in writing to qualify where the parties agree by reference to written terms. Section 6(2) confirms that reference to a written arbitration clause or document containing one is sufficient only where the reference makes the clause part of the agreement.
3. A contract between sporting participants may be implied, but not automatically by reason of sporting status. The inquiry is fact-sensitive and implication requires necessity. It is fatal to implication if the parties would or might have acted as they did without the alleged contract.
4. Clarke v Dunraven (The Satanita) [1897] AC 59 was fact-sensitive and did not support an automatic contractual relationship. Its facts involved express entry into a race by reference to rules imposing reciprocal liability.
5. Here, express agreements governed the claimant’s relationships with the first and third defendants. The Lacina 2013 Agreement contained a dispute-resolution mechanism inconsistent with implied incorporation of section K. There was no contractual relationship with the second or fourth defendants.
6. It was unnecessary to determine whether the defendants were Participants at the relevant time or whether the FA Rules otherwise applied to them.

High Court (Chancery Division): Appeal from the District Judge’s order of 19 July 2017 refusing a stay under CPR Part 11, CPR rule 62.8 and section 9 of the Arbitration Act 1996. The appeal was dismissed.