Fulham FC v West Ham United
Reference:  ISLR, SLR-1
Court: FAPL Arbitration Panel
Judge: Philip Havers QC, David Phillips QC, Mark Warby QC
Date of judgment: 19 Apr 2010
Summary: Arbitration - FA Premier League - previous Award between different parties - admissibility - confidentiality -publication of determination
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Fulham brought a claim against West Ham for damages for breach of contract, alleging that Carlos Tevez ought not to have been registered with or playing for West Ham; that his presence on the team had gained West Ham points which they would otherwise not have gained; that West Ham had thereby ended the season above Fulham; and that Fulham had thus lost ‘merit money’ paid to Premier League terms according to their final position in the table. In earlier arbitration proceedings brought against West Ham by Sheffield United under the rules of the FA a Panel had held that Tevez’ registration was in breach of FAPL rules, and that he had been worth at least 3 more points to the club, leading to Sheffield being relegated instead of West Ham. Fulham now sought to rely on these findings against West Ham in the present proceedings. The Panel had to determine a preliminary issue as to whether the findings were admissible. Incidentally, it had to rule on whether its own proceedings under the FAPL rules were confidential, and whether its decision on that matter should be made public.
(1) Was the previous arbitration award and reasons admissible in support of Fulham’s claim?
(2) Were the FAPL arbitration proceedings confidential?
(3) Should the Panel’s determination on the issues be made public?
(1) Although the Panel had a discretion to admit evidence even if it would not be admissible in a court it would be contrary to principle to admit the previous award, and there was no justification for departing from the established principles in this case. Court of Appeal authority made clear that arbitration awards are not generally admissible in subsequent arbitrations. The mere fact that in this case the previous award had become public, possibly in breach of confidence,made no difference to the principle.
(2) FAPL Arbitrations are confidential proceedings. The rules do not say so in terms, but the general rule is that arbitrations are confidential and FAPL proceedings are no exception.
(3) It was appropriate to make this Determination public, because of the general importance of the issues raised.
The authorities appear to show that, however inconvenient it may sometimes be, previous decisions in arbitrations between parties who are not the same as those in the current case are not admissible. The rule appears to be even stronger, if that is possible, than the rule in Hollington v Hewthorn, which generally prohibits reliance on previous judicial decisions as proof of facts found, unless they are between the same parties or their privies.
The Panel also ruled that although, perhaps surprisingly, the FAPL rules do not say so in terms, arbitrations under those rules are, like arbitrations generally, confidential proceedings.