This is the first episode in Clyde & Co’s latest international arbitration series covering the topic of Sports Arbitration. In this article, Associate Alexander Stewart an overview of sports arbitration in the UK.
Sports disputes are on the rise globally and in the UK. There have been a number of high-profile disputes in recent years such as, the sanctions for Everton FC and Nottingham Forest FC for breaches of the Premier League’s Profit and Sustainability Rules, and Felipe Massa’s claim against the FIA in an effective bid to overturn the 2008 F1 World Championship.
Arbitration is a well-established forum to resolve sports disputes in the UK and globally, with numerous sports’ regulations providing for disputes to be resolved by the Court of Arbitration for Sport (CAS). This article provides an overview of sports arbitration in the UK and some of the features of such arbitrations. We will cover CAS in a future article but may refer to it for comparison in this article.
Arbitration agreements in governing rules
In the UK, several sporting professions provide, within their governing rules, for disputes to be resolved by way of arbitration. It is arguably the norm. The types of arbitration agreement signed vary significantly between sports and can even vary within a particular sport, for example different types of disputes within a sport can be subject to different types of arbitration agreement. This can be demonstrated in two of the most popular sports in the UK, football and cricket.
The main football governing bodies in the UK all provide for arbitration within their governing rules, for example see Section X of the Premier League Handbook 2023/24, Section 9 of the English Football League Handbook 2023/24 and Rule K of the Football Association Handbook 2023/24. These are all ad hoc arbitrations; however, the arbitration agreements themselves provide for detailed procedural rules.
Cricket, on the other hand, uses different modes of arbitration to resolve different disputes. The England and Wales Cricket Board (ECB) rules provide for CAS arbitration to resolve appeals with respect to anti-doping violations, ad hoc arbitration to resolve disputes where a player believes their relationship with their employer has irretrievably broken down and Sport Resolutions arbitration to resolve anti-corruption disputes.
Sport Resolutions
Sport Resolutions is an independent dispute resolution service in the UK specialising in sports disputes. It provides both arbitration and mediation services, receiving around 300 cases per year. These cases derive from a wide variety of sports including football, rugby, cricket, tennis, athletics and cycling.
Notably, as with CAS, Sport Resolutions operates a closed list of arbitrators. Individuals can apply to join Sport Resolutions’ panel and, if selected, are listed as arbitrators for a 3 year term. This ensures all of Sport Resolutions’ arbitrators have experience and expertise in sports disputes. Beyond the general closed list, Sport Resolutions has specialist panels to resolve anti-doping and safeguarding disputes, and in 2022 formed the English Football League’s Club Financial Review Panel.
As with any arbitral institution, Sport Resolutions has its own set of institutional rules, with two different arbitration procedures provided for. There is the full arbitration procedure and an appeal arbitration procedure. The latter applies where a party is appealing from a decision by a sporting governing body and the applicable regulations (or a specific arbitration agreement) provide for an appeal to be heard by Sport Resolutions.
Sport Resolutions has helped resolve and/or been involved in numerous high profile sporting disputes in the UK in the past 20 years. Notable examples include the FA’s ban of John Terry for alleged racial abuse of Anton Ferdinand, the overturning of Christine Ohuruogu’s lifetime ban from the Olympics and Jonathan Tiernan-Locke’s anti-doping ban for biological passport irregularities.
The recent decisions on Sport Resolutions’ website highlight its growing role as a forum to resolve international sports disputes, with decisions in relation to charges brought by not only UK bodies, such as UK Anti-Doping, but international bodies, such as the International Ski and Snowboard Federation and World Athletics.
Disclosure
English court proceedings provide for wide-ranging disclosure obligations on parties. As a consequence, arbitrations seated in the UK and governed by English law can similarly provide wider document production obligations than may be seen in arbitrations in civil jurisdictions. This is arguably the case in sports arbitrations seated in the UK.
This differing level of disclosure has led to differing awards in respect of sports arbitrations seated in the UK compared to those seated elsewhere. This was highlighted in two recent arbitration awards regarding FIFA’s proposed agent regulations. The Professional Football Agents Association (PFAA) commenced arbitration against FIFA before CAS contesting the proposed regulations on various bases, notably that the regulations violate EU competition law. There was limited disclosure in this arbitration and the tribunal dismissed PFAA’s claim in July 2023.
Separately, various football agent firms commenced arbitration against the Football Association challenging the implementation of FIFA’s proposed rules in the UK. The agent firms contested the rules on the grounds that they violated UK competition law. Disclosure was ordered in this arbitration and the tribunal found in favour of the agent firms. The tribunal noted in the award that it had had the benefit of evidence regarding the genesis of FIFA’s rules and the CAS tribunal had not. This additional disclosure appeared to be critical to the tribunal in the UK reaching a different conclusion to the CAS tribunal.
Further, governing bodies have even used arbitration claims to obtain documents as part of their investigations. This was confirmed in Manchester City Football Club Ltd v The Football Association Premier League Ltd & Others [2021] EWCA Civ 1110. The Premier League has, since 2018, been investigating Manchester City in respect of various breaches of financial rules. In 2019, the Premier League commenced arbitration against Manchester City specifically to obtain disclosure of various documents to assist with its investigation. This evidences how disclosure of documents can form a central part of sports arbitration in the UK.
Confidentiality
On the face of it, sports arbitrations are confidential unless the parties agree otherwise, as with any commercial arbitration. However, the position can be more complex in practice. Firstly, governing bodies, in the interests of transparency, will often ensure that awards/decisions in arbitrations regarding regulatory matters are published. This is why the award in respect of the football agent firms’ claim against the Football Association is publicly available, as are various Sport Resolutions decisions regarding charges against athletes by governing bodies.
The Manchester City judgment noted above highlights how the UK courts can view the confidentiality of sports arbitrations differently to that of a typical commercial arbitration.The matter ended up before the UK courts as Manchester City contested the tribunal’s jurisdiction to hear the dispute. The High Court and subsequently Court of Appeal both decided that the High Court’s judgment, although relating to a confidential arbitration, should be published. This was despite both Manchester City and the Premier League contesting publication.
The Court of Appeal noted in its judgment that there is “legitimate public interest in how disputes between the PL and member clubs are resolved”. Although this sort of public policy argument could apply in any commercial arbitration, it is more likely to apply in sport given the wider public interest and significance of sport within the UK.1 Furthermore, the significant press attention given to high profile sports disputes means that information regarding sports arbitrations can often leak out into the public domain.
Conclusion
Sports arbitration is widespread in the UK across multiple different sports and with Sport Resolutions, there is already an established (and growing) specialist arbitral institution. The number of sports disputes in the UK is set to continue growing year on year as clubs, athletes and governing bodies are showing an increasing willingness to flex their litigious muscles. In turn, sports arbitration will continue to grow in importance and prevalence as well.
The series continues next week with an introduction to the Court of Arbitration for Sport (CAS).
1 It should be noted that the Manchester City judgment was not a one-off, as the High Court a few months before had confirmed a judgment should be published in respect of an arbitration claim between Newcastle United and the Premier League – Newcastle United Football Company Limited v The Football Association Premier League Limited & Others [2021] EWHC 450 (Comm).