So far in this series, the Guide has covered pre-action matters (Step 1), commencing the arbitration (Step 2), the response (Step 3) and directions (Step 4).
This stage of the Guide deals with the Hearing and covers such topics as procedures, the award and compensation.
Listing of the Substantive Hearing
As noted in directions (Step 4), under rule K4(b)(v) the Hearing shall take place within 119 days of the date upon which the Chairman of the Tribunal (or the sole arbitrator) has been appointed.
Notwithstanding the mandatory terms of rule K4(b), there is scope for agreed variation to the Standard Directions and in the absence of such consent either party may at any time apply in writing to the Tribunal for the Directions to be varied, or for any other directions to be given (see rule K4(c)(i) and (ii)).
It is not unusual for Rule K Hearings to take place outside the timetable provided for under the Standard Directions, particularly in the heavier or more complex cases.
When seeking to push back the Hearing, however, the parties are likely to be reminded by the Chairman of the need for expedition and the general requirement to abide by the Standard Directions.
Basis of determination
There is much greater scope in Rule K proceedings than ordinary civil litigation for the utilisation of a range of measures for the purposes of determining the dispute. In this regard, rule K(4)(f) is key. It provides:
| (f) | The parties shall be entitled to agree all (other) procedural and evidential matters, failing which such matters shall be determine by the Tribunal. The matters may include (but are not limited to) |
| (i) | whether to apply strict rules of evidence or any other rules as to admissibility, relevance or weight of any material tendered by a party on any matter of fact in the expert opinion and to determine the true manner and form in which material should be exchanged between the parties and presented to the Tribunal; and | |
| (ii) | whether there should be a Hearing or Hearings before the Tribunal or whether the dispute should be determined on the basis of witness submissions and documents alone. |
Parties should consider at an early stage what their position is with regard to the issue of whether the strict rules of evidence should apply. This may be extremely important in a case where there is likely to be substantial hearsay evidence.
Prudence dictates that a very early decision will be required as to whether or not an application should be made to rely upon expert evidence. As a specialist sports arbitrator, a Chairman may need some persuading that any form of expert evidence will be required, but an example could be the valuation of a player. This is particularly so given the modern preference for sequential exchange of expert opinion and meetings on the experts, all of which have to be factored into a fairly tight timetable. The later a party leaves it before making the application for permission, the less likely it is that the application will find favour.
If the parties are unable to agree in relation to a range of issues, it may be sensible to invite the Chairman to conduct a directions hearing (in person, or by telephone) at an early stage.
A determination of the substantive dispute on the papers is unusual and clearly not suited to a case where there are any credibility issues. Determination on the papers is likely to be reserved to cases which turn purely on matters of construction, either of contracts, rules or legislation. Even in those cases, however, where one party maintains that an oral hearing is required, it is unlikely that a Chairman would conclude that a determination on the papers would be suitable.
Parties to Rule K proceedings need to consider certain practical steps which might not arise in relation to normal civil proceedings. For example, for oral hearings it will be necessary to locate, agree upon and pay for a venue. Even for shorter hearings, the parties may wish to consider arranging for the hearing to be transcribed. This reduces the burden on all parties including the Chairman in terms of note taking and can be of particular assistance for the purposes of the making of closing submissions.
The Chairman/Tribunal has/have wide-ranging general powers (see rule K5).
Award
The Tribunal has the power to make a provisional award (rule K9) for example in relation to an interim payment on account of the claim or the costs of the arbitration or any part thereof. Such an award may be suitable for a case where a Respondent admits liability for a set amount, albeit not the amount claimed.
The Tribunal’s substantive powers in terms of the overall award are set out under rule K10. Subject to sections 66 and 68 of the Arbitration Act 1996[1], “the Award shall be final and binding on the parties from the date that it is made” (see rule K 10(b)).
As is the case with general litigation the principal remedy under a rule K Arbitration award is financial.
Successful challenges to Rule K award are the exception rather than the rule. An interesting and recent case on compensation is Fleetwood Town FC v AFC Fylde, where the High Court upheld a challenge to a Rule K award on the grounds of serious irregularity under s.68(2)(a)). In that case, the single arbitrator held that Fleetwood Town succeeded under common law but Fylde’s contention that Article 17 of the FIFA Regulations on the Status and Transfer of Players prevailed, with the consequence that the Claimant succeeded and it was directed that the single arbitrator would determine compensation pursuant to Article 17.2 of the RSTP. The award was overturned by the High Court. Leave to appeal against the High Court’s determination was refused and the matter is presently set to go back before a single arbitrator for re-determination of the issue of the applicability or otherwise of Article 17. It is believed to be the case that never before has a Rule K Arbitrator been invited to assess compensation under the RSTP.
Most substantive initial awards in rule K disputes on liability and quantum deal solely with the liability issues. The expectation is that the parties will endeavour to agree quantum, costs
[1] The right to pursue an appeal on a matter of law under s.69 of the Arbitration Act 1996 is expressly excluded. See Step 6 of this Guide to be published in due course.
and any ancillary matters, failing which the outstanding issues are referred back to the single arbitrator or the Tribunal for determination.
The author, Paul Gilroy KC is a Barrister and member of the Littleton Sports Law Group. He has substantial experience of sports arbitrations, particularly in football, in particular in Rule K matters and proceedings before the Premier League Managers Arbitration Tribunal. For more information, please contact the Littleton Sports Law Group clerk, Philip Salisbury.
