Full case report

Sheffield United Football Club Ltd v Football Association Premier League Ltd

Reference [2007] ISLR, SLR-77
Court FAPL Arbitration Panel

Judge Rt Hon Sir Philip Otton (Chair), David Pannick QC, Nicholas Randall

Date of Judgment 3 Jun 2007


Summary

Sport – football – player registration – breach of rules – Disciplinary Commission – fine imposed – no points deducted – third party club complaints – alleged illegality in decision – alleged failure of FAPL to investigate and take further disciplinary measures – relief sought required reconsideration and new charges – arbitration of those issues under FAPL rules – no relief granted


Facts

West Ham acted in breach of FAPL rules in respect of its registration of the players Carlos Tevez and Javier Mascherano.   A Disciplinary Commission was appointed by FAPL to deal with these matters. It decided to fine West Ham and not to deduct points. In the result West Ham remained in the Premier League and Sheffield United were relegated.

The breaches by West Ham included entering into contracts which gave third parties the ability materially to influence the club’s policies and performance and, through non-disclosure of such arrangements, breaches of the duty of utmost good faith owed by clubs to one another under FAPL rules.

After the Commission’s decision West Ham served notice of termination of the third party contracts and agreed to maintain the position that these were invalid, unenforceable and terminated. It undertook to not accept or recognise any third party influence and agreed to measures that would allow the FAPL to monitor the situation.

Sheffield invoked the arbitration provisions of the FAPL Rules to complain that the Commission’s decision was flawed and unlawful, and that the FAPL had failed, following the initial disciplinary decision, to conduct a proper investigation and to take other steps, including terminating the registrations and the commencement of further disciplinary proceedings against West Ham. An arbitration Panel constituted under FAPL rules had to determine whether any of those complaints and claims should be upheld.

Fulham FC had brought separate arbitration proceedings against FAPL based on similar allegations and seeking similar relief. An application to consolidate the two proceedings was refused by the FAPL Panel, but Fulham was permitted to take a limited part in the Sheffield arbitration proceedings.

The FAPL contended that Sheffield had no standing to pursue claims in respect of the Commission’s decision before the arbitration Panel. Alternatively, it was argued that both the Commission and the FAPL had acted lawfully.


Issue

(1) Did Sheffield have sufficient standing or interest to mount a challenge to the Disciplinary Commission’s decision?

(2) Was the Commission’s decision a lawful one, that is to say so unreasonable as to be irrational or perverse?

(3) Did FAPL, after the Commission’s decision, act so unreasonably in failing to conduct further enquiries and/or impose further sanctions on West Ham or remit the matter to the Commission, that its conduct was unlawful according to public law principles and/or in breach of FAPL’s own obligations under the FAPL Rules?


Held

Refusing the relief sought:-

(1) Sheffield had the necessary standing. It would have been permitted to mount judicial review proceedings at common law in a Court of law, and the Panel should and would adopt the same supervisory approach to the arbitration claim as a court would adopt if confronted with such a claim.

(2) Although Sheffield had arguments of some force, which attracted some sympathy, and if the Panel had been considering the matter afresh it probably would have reached a different conclusion from that of the Commission.  But the Panel’s role was supervisory only, and required it to determine whether the decision was irrational or perverse  or otherwise outside the marrgin of discretion open to the Commission. It was not possible to find that it was.

(3) It was not possible to condemn the FAPL’s conduct as perverse or capricious. Having received undertakings from West Ham that it would not accept or recognise third party influence over the players in question, it was open to the FAPL to conclude that in practice third parties were not able materially to influence the club’s policies or performance.


Comment

The decision, published by the Panel under the FAPL rules, contains two main points of general interest and importance to lawyers in this field. The first is the Panel’s acceptance of the same kind of supervisory reviewing function as a court would adopt in relation to a similar decision submitted for review under the approach outlined by Richards J and upheld by the Court of Appeal in Bradley v The Jockey Club. The second is the Panel’s willingness to allow a third party some voice in an arbitration. On ordinary principles, arbitrations are private and confidential and cannot be consolidated. The Panel refused to consolidate the two arbitration claims brought against the FAPL, although they covered the same or similar points. It did, however, allow Fulham to make some contribution. The precise basis on which this was permitted is not crystal clear from the Award, however.


Links

'Blades appeal turned down', The Guardian