Full case report

Handsworth Football Club v Football Assocation

Reference 11/07/2012
Court FA arbitration tribunal

Judge Mark Warby QC

Date of Judgment 11 Jul 2012


Summary

Football – FA standard competition rules – C tops league – would be promoted – ground standards – C’s ground below standard for promotion – below standard for current level – relegation would follow for that reason – proposed temporary use of another ground – ground-sharing prohibited to allow promotion or avoid relegation -League orders C’s relegation – FA Appeal Board upholds League – arbitration challenge – dismissed


Facts

FA Rules require any club competing in an FA league to comply with ground grading criteria appropriate to the step in the League at which that Club plays. A club which does not meet the criteria is ineligible. In the 2010/2011 season Handsworth FC entered the Northern Counties East League at step 6. It was allowed to do so even though its ground did not then comply with the relevant grading requirement (G), on the footing that it would achieve that by 31 March 2011. The Club failed to meet the grade by that date, but was allowed to compete in the 2011/2012 season on the footing that by 31 March 2012 it would achieve Grade G and, if it wished to be promoted, Grade F. The Club won its division, but failed to achieve Grade G by the deadline. It could not achieve it by the start of the following season. It therefore made two proposals to use alternative grounds in the 2012/2013 season. The League decided the Club must be relegated. An FA Appeal Board upheld that decision. Handsworth then challenged the Appeal Board decision by means of an arbitration claim under the FA Rules.

The Rules provided that such an arbitration should proceed by way of a review and not an appeal.

Issue

(1) Should the arbitrator adopt the same non-interventionist approach to the review function as the High Court, in private law reviews of sporting bodies’ decisions?

(2) Was the Appeal Board’s decision wrong, in concluding that Handsworth’s proposals involved ground-sharing in order to gain promotion or avoid relegation?

(3) Did the Appeal Board fail to exercise or act irrationally in the exercise of a discretion to permit the ground-sharing proposals (if that is what they were)?

(4) Was there procedural unfairness, failure to address relevant matters, and/or a failure to follow precedent?

(5) Did the FA act so as to give Handsworth a legitimate expectation that its proposals would be accepted?

(6) Was the Board’s decision and/or the Rules unlawful as an unreasonable restraint of trade or contrary to EU competition law, inso far as they prohibited ground-sharing for the specified purposes?


Held

Dismissing the claim,

(1)    The approach to review should in principle be the same as that of the High Court. An arbitrator should show deference to the specialist expertise of the sporting regulators. However, such deference would not be appropriate where as here the decision under challenge was not one that required or involved the application of specialist knowledge.

(2)    The Appeal Board was clearly right to conclude that both the club’s proposals involved ground-sharing. Its conclusion that this was for the purpose of obtaining promotion or avoiding relegation or both was a rational and lawful one.

(3)    The Club was right to assert that the Appeal Board had not considered whether to dispense with the prohibition on ground-sharing. However, on their proper construction the FA Rules did not provide Board with power to grant such a dispensation.

(4)    The complaints of procedural unfairness, failures to address relevant matters and inconsistency of approach were ill-founded.

(5)    The FA had not given the club any legitimate expectation that it would be allowed to ground-share.

(6)    Since the club was not engaged in professional sport, it was doubtful that the restraint of trade doctrine was engaged. If it was the Board’s decision merely applied the Rules; if there was a legal vice it must lie in the Rules. These were part of a general regulatory system for which the FA offered reasonable general justification. The burden of proving a competition law challenge in this context lay on the challenger, and fairness to others affected had to be considered. The club had not shown that the rule was contrary to common law. The EU competition law point was raised very late, to the prejudice of the FA, without reasonable excuse. Permission to pursue it was refused.


Comment

A few days before this hearing, an arbitration panel of the RFU had upheld a competition law challenge to similar rules of the RFU in a case brought by London Welsh. Hence the late competition law amendment in this case.

Click here for the FA website and the arbitrator’s Award.