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Appeal excluded by football association rules
Practical Law UK Legal Update Case Report 3-509-5416 (Approx. 3 pages)
Appeal excluded by football association rules
by PLC Arbitration
| Published on 25 Oct 2011 • England, Wales |
In Watson (on behalf of Dollingstown Football Club), Re Application (for leave to appeal) [2011] NIQB 66, the High Court of Justice in Northern Ireland held that the right of appeal under section 69 of the Arbitration Act 1996 had been excluded by the Irish Football Association (IFA) Articles of Association.
In a decision handed down on 19 August 2011, but only recently published, Coghlin LJ dismissed an application for permission to appeal from the award of the Independent Arbitration Panel (IPA). The parties had referred a dispute (relating to the eligibility of a football player) to the IPA pursuant to Article 2 of the IFA Articles of Association, which provides:
"The Association ... will ...(c) refer any dispute arising from or related to the application of these Articles only to the Independent Arbitration Panel, which will settle the dispute to the exclusion of any ordinary court ..." (Emphasis added.)
The question that arose was whether Article 2 excluded the right of appeal under section 69 of the Arbitration Act 1996 (AA), or whether it simply imposed an obligation to arbitrate rather than litigate disputes. Having considered the authorities, Coghlin LJ held that the right of appeal had been excluded, and further indicated that, in any event, he would have refused permission to appeal as a matter of discretion because proceedings in court were not consistent with the parties' intention of providing for a speedy dispute resolution procedure.
In reaching that decision, Coghlin LJ made some interesting observations about the use of arbitration in sport, and the relevance of public law concepts to courts considering applications for leave to appeal.
Coghlin LJ noted that:
- In construing Article 2, it was important to have in mind both the general ethos and aims of the AA, and also the use of arbitration in sport as a means of achieving expert, speedy and flexible dispute resolution. In Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, Scott Baker LJ had observed that "sporting bodies should be given as free a hand as possible, consistent with the fundamental requirements of fairness, to run their own disciplinary processes without the interference of the court". In Coghlin LJ's view, those remarks "should extend generally to the conduct of business by voluntarily agreed sporting arbitration tribunals" (paragraph 21).
- It was common ground that clear words were needed to exclude the right of appeal. Here, the wording, against the general background of the use of arbitration in sport, was sufficiently clear to effectively exclude section 69, even though the AA was not referred to expressly (by contrast with the equivalent provision in the English FA Rules).
- The court should be extremely cautious about importing public law concepts into arbitral proceedings. While it was not necessary to reach a final conclusion, Coghlin LJ was not persuaded by a submission (based on Edwards v Bairstow [1956] AC 14) that the IPA's findings of fact were irrational and perverse, thereby raising an issue of law. The general rule (that the court was bound by the tribunal's factual findings, and would not permit issues of fact to be "dressed up" as issues of law for the purposes of an appeal) would apply. He noted, though, that "situations with a significantly wider public implication might call for a different approach" (paragraph 32).