Full case report

Hart v Stewart

Reference 28/05/2008
Court Watford County Court

Judge DJ Sethi

Date of Judgment 28 May 2008


Summary

Sport – Football – FIFA Players’ Agent Regulations – FA Football Agents Regulations – Arbitration – Stay – CPR 13.3: Setting aside judgment in default


Facts

C, a football agent registered with the Football Association (‘the FA’), issued proceedings claiming monies allegedly due under an agency agreement. D was a footballer with Heart of Midlothian and a Scottish international who was subject to the rules of the Scottish Football Association (‘the SFA’). The proceedings had been served on D in Scotland out of the jurisdiction without leave under CPR 6.19. Proceedings were first posted to D by recorded delivery but were returned to C marked ‘undelivered’. Before they were returned and prior to service on D, C issued an application for default judgment. The proceedings were then served on C personally by a Sheriff’s Officer. Thereafter judgment in default of acknowledgment of service had been entered. D made an application to (i) set aside the default judgment and (ii) to stay the action under s.9 of the Arbitration Act 1996 on the grounds that the dispute was subject to an agreement to arbitrate.


Issue

(1) Whether the Court had jurisdiction: D contended the claim was bound to be arbitrated and under Art 22 of the FIFA Players’ Agents Regulations 2001 (in force at the material time) the FIFA Players’ Status Committee had exclusive jurisdiction;
(2) Whether judgment in default was inherently irregular due to (i) the application being premature and (ii) the evidential requirements of CPR 12 not being met for default judgment where service had been out of the jurisdiction;
(3) Whether the judgment in default should be set aside under 13.3 as the D had a real prospect of successfully defending the claim.


Held

Allowing the D’s application to set aside judgment and staying the claim under s.9 of the Arbitration Act 1996:
(1) C was bound by the rules of the FA (in particular Rule K (arbitration)) and FIFA. D was bound by the Articles of Association of the SFA. The arbitration clauses applied and the matter should be referred to arbitration.
(2) The judgment was irregularly obtained because the method in which it was obtained (premature application) and the evidence presented was defective.
(3) In any event, even if the Court was incorrect in concluding that the judgment was irregular, it would be set aside in the Court’s discretion as there was a real prospect of successfully defending the claim and the application had been made promptly.


Comment

Another example of an attempt to put a sporting dispute that should be referred to arbitration before the Courts.
Following Stretford v Football Association, it is clear that arbitration rules contained in the rules of sports governing bodies are enforceable, compatible with Article 6 of the ECHR and may be implied into individual contracts.


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