1. Art and Diseño

Glentoran FC v The IFA - Arbitration Final Award
SR/0001360004
IN THE MATTER OF AN ARBITRATION UNDER ARTICLE 3 OF THE ARTICLES OF
ASSOCIATION OF THE IRISH FOOTBALL ASSOCIATION (IFA)
BETWEEN:
GLENTORAN FC
Applicant
and
THE IFA
Respondent
Final Hearing
Monday 5 January 2015
Arbitrator: Mr Paul Gilroy QC
Venue: Belfast
Representation:
Mr Stephen Henderson (Chairman, Glentoran FC) for the Applicant
Mr Stephen Shaw QC for the Respondent
_____________
FINAL AWARD
_____________
Relevant legislative, regulatory and procedural provisions
1.
Attached to this Award at Appendix One there are set out such of the provisions of the
following legislative, regulatory and procedural provisions as are relevant to this arbitration.
1.1.
FIFA Laws of the Game 2014/15 (the “FIFA Laws of the Game”).
1.2.
The Articles of Association of the IFA (updated on 17 June 2014) (the “IFA Articles”).
1.3.
The IFA Disciplinary Code for Season 2014/15 (the “IFA Disciplinary Code”).
1.4.
The FIFA Disciplinary Code (the “FIFA Disciplinary Code”).
1.5.
The IFA Football Regulations (updated on 17 June 2014) (the “IFA Football
Regulations”).
1.6.
The Arbitration Act 1996 (the “Arbitration Act”).
1.7.
The Arbitration Rules of Sport Resolutions (UK) (the “SR Rules”).
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Glentoran FC v The IFA - Arbitration Final Award
Preamble
2.
Glentoran FC (“the Applicant”) seeks to challenge, by way of arbitration, in accordance with
Article 3 of the Articles of the Irish Football Association (“the IFA”, or “the Respondent”), the
decision made on 1 December 2014 by an IFA Appeals Committee Board in relation to an
appeal by the Applicant against a decision by a Sub-Committee of the IFA Disciplinary
Committee.
3.
This arbitration essentially relates to the consequences of the sending off of the
player/manager of Glenavon FC, Mr Gary Hamilton, during a fixture between Glenavon FC
and Linfield FC on 1 November 2014. Those consequences had implications for the
Applicant in the light of Mr Hamilton being cleared to play in a subsequent fixture against
the Applicant. The Applicant maintains that Mr Hamilton should have been declared
ineligible to play in that fixture, and it is this issue which lies at the heart of this arbitration.
4.
At the time of the sending off, Mr Hamilton was not on the field of play (although he was
named as a substitute).
5.
Glenavon sought guidance from the IFA’s Disciplinary Committee regarding the
consequences of Mr Hamilton receiving the above-mentioned red card. Glenavon was
informed that a Sub-Committee of the IFA Disciplinary Committee had determined that Mr
Hamilton was able to play in a subsequent game against the Applicant, a match Glenavon
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won 4-2, with Mr Hamilton scoring 2 goals .
6.
The Applicant appealed against the above determination of the Disciplinary SubCommittee to an Appeals Committee Board. That Board determined that the Applicant had
no “locus standi”, or standing, to appeal against the determination of the Disciplinary SubCommittee. Such a finding was, of course, fatal to the appeal, but the Appeals Committee
Board went further and made determinations on other issues. It found that, as far as
sanction was concerned, Mr Hamilton should have been treated as a player and should not
have played in the above-mentioned fixture against the Applicant. Notwithstanding that
finding, the Appeals Committee Board declined to impose any sanction on Glenavon. In
relation to Mr Hamilton, it determined that in respect of his conduct during the match
against Linfield he would be suspended for two league matches.
7.
The Applicant contends that the Appeals Committee Board erred. It claims that under the
FIFA Disciplinary Code (which, the Applicant contended, must be read as being
incorporated into the IFA Disciplinary Code) the fixture between Glenavon and the
Applicant should have been forfeited by Glenavon as a 3-0 win to the Applicant, and
Glenavon should be fined.
8.
The determination of the Disciplinary Sub-Committee was made on 6 November 2014.
The Appeals Committee Board sat on 1 December 2014.
Background
9.
The factual background in respect of this matter is undisputed and can be stated as
follows.
9.1.
On 1 November 2014, Glenavon FC played Linfield FC at Mourneview Park, Lurgan,
Glenavon’s home ground, in a fixture in the Danske Bank Premiership. The Northern
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At the arbitration hearing, the Applicant’s representatives suggested that Mr Hamilton scored a hat trick in
the relevant fixture, but this is of no bearing in relation to the issues to be determined in these arbitration
proceedings.
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Glentoran FC v The IFA - Arbitration Final Award
Ireland Football League team sheet named Mr Hamilton (number 8) as a substitute
and also as a team official (Manager) of Glenavon.
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9.2.
In the 34 minute of the game, the referee had cause to dismiss Mr Hamilton from
the technical area, essentially for foul and abusive language towards the Assistant
Referee. The Referee informed Mr Hamilton that he was being dismissed by
showing him a red card in accordance with Law 12 of the FIFA Laws of the Game.
According to the Referee, following his dismissal, Mr Hamilton attempted to shake
the Referee’s hand and then patted him on the head in a manner which the Referee
viewed as sarcastic and derogatory.
9.3.
On 3 November 2014, the Secretary to the IFA Disciplinary Committee received an
e-mail from Glenavon, confirming that Mr Hamilton had been dismissed on the
issuing of a red card during the game against Linfield, but asserting that he should
be treated as an official for the purposes of suspension, and not as a player. As
noted subsequently by the Appeals Committee Board, the e-mail from Glenavon
made it clear that it was the Club’s intention to appeal against the decision to dismiss
Mr Hamilton as a player rather than as an official, despite the Referee’s clear use of
the red card indicating that he viewed Mr Hamilton as a player (ie Glenavon’s e-mail
was not, of itself, a notice of appeal).
9.4.
The Secretary to the Disciplinary Committee referred the matter to a sub-committee.
According to the Disciplinary Committee Chairman, a sub-committee operates in
order to deal expeditiously with particular disciplinary issues without recourse to the
full Disciplinary Committee.
9.5.
Having deliberated on the matter, the Sub-Committee concluded that when he was
sent off, the capacity in which Mr Hamilton was primarily acting was that of Club
Manager and he should therefore have been treated as an official and not a player.
This decision meant that Article 15 of the IFA Disciplinary Code was followed rather
than Article 11. In deciding that it had jurisdiction to deal with the matter, the
Disciplinary Committee relied upon Articles 1.4 and 1.6 of the IFA Disciplinary Code.
9.6.
One consequence of Mr Hamilton being treated as an official rather than a player (ie
the application of Article 15 of the IFA Disciplinary Code) was that he was available
to play in Glenavon’s next Danske Bank Premiership fixture against the Applicant.
9.7.
The Sub-Committee’s decision was communicated to Glenavon by e-mail on 6
November 2014. The e-mail made it clear that Mr Hamilton was available to play
against the Applicant and that any suspension would commence from 24 November
2014, in accordance with Article 15 of the IFA Disciplinary Code, subject to any
challenge being lodged.
9.8.
Later in the evening of 6 November 2014, the Disciplinary Committee received an email from Mr Henderson, the Applicant’s Chairman, indicating that he had become
aware of the decision to allow Mr Hamilton to play against the Applicant. Mr
Henderson took issue with the decision and requested an urgent response from the
Disciplinary Committee. The Appeals Committee found that despite the Applicant
informing the Board that the Applicant thought that it had the right to appeal at this
time, the e-mail did not indicate that the Applicant either intended to appeal or
thought that a right of appeal was available against the decision under the IFA
Articles.
9.9.
The Secretary responded to Mr Henderson on 7 November 2014, setting out some
of the reasoning behind the Sub-Committee’s decision. Mr Henderson then replied,
disagreeing with that reasoning. Again, the Applicant did not mention that it would
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Glentoran FC v The IFA - Arbitration Final Award
seek to exercise any right of appeal against the decision which had been made in
respect of Mr Hamilton. The Appeals Committee Board viewed this as significant in
the context of the Applicant’s submissions regarding the right to appeal.
9.10. As stated above, the fixture between the Applicant and Glenavon FC duly took place
on 8 November 2014, Glenavon winning 4-2, with Mr Hamilton featuring on the
scoresheet, as indicated. The Appeals Committee observed (at paragraph 12 of its
decision) that:
“It was at this point that, it seemed, (the Applicant) indicated that the matter would be
challenged by way of an appeal. What would have occurred in the event of a (victory by the
Applicant) is a matter for speculation only”.
9.11. On 10 November 2014, the IFA received a written appeal from the Applicant. The
grounds of appeal were as follows:
(i)
The IFA Disciplinary Committee was neither authorised to make the decision
regarding the red card nor to issue advice to Glenavon FC.
(ii)
The decision taken by the IFA Disciplinary Committee did not take into account
the requirements imposed on them by the IFA Disciplinary Code, the IFA
Articles, the IFA Standing Orders, FIFA Laws of the Game and the FIFA
Disciplinary Code.
(iii) Mr Hamilton was an ineligible player when he played against the Applicant.
(iv) The IFA Disciplinary Committee failed to take into account Article 18 of the FIFA
Disciplinary Code, along with Article 146 of same.
(v) Article 11.1 of the IFA Disciplinary Code is incompatible with Article 18 of the
FIFA Disciplinary Code and in such circumstances the FIFA Code takes
precedence.
(vi) It is the responsibility of each Club to ensure that they play only eligible players
and that Mr Hamilton was ineligible when he played against the Applicant.
9.12. The matter came before the Appeals Committee Board on 1 December 2014. The
Appeals Committee Board stated that as far as it was aware, there had never been a
valid appeal involving a third party (ie a party who or which was not a party to the
matter giving rise to the disciplinary issue), and it was considered prudent to hear all
of the issues in the case and to rule on them as well as to provide guidance in
relation to third party appeals. It was determined, therefore, that the hearing would
constitute a “rolled up” hearing, where all relevant issues would be considered.
9.13. The first issue considered by the Appeals Committee was whether the Applicant had
any standing to appeal under the Articles.
9.14. The Appeals Committee referred to Article 14.2 of the Articles which governs
appeals to the IFA Appeals Committee, and which, as indicated at Appendix One to
this Award, provides as follows:
2. Other than an appeal by a Member against its expulsion, a player, official, referee, Club,
Associate Member, Organisational Member or League has the right to appeal to the Appeals
Committee against any decision of a Club, committee, League or other such body within the
Association which is imposed upon him or it, provided that the appellant has exhausted
such appeals procedures as were available to the appellant consequent upon the decision in
question, unless satisfactory grounds are given for not having done so.
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Glentoran FC v The IFA - Arbitration Final Award
(Emphasis added).
9.15. It was common ground before the Appeals Committee Board that the crucial wording
to be interpreted within Article 14.2 of the Article was the phrase (deleting the
irrelevant words) “imposed upon it”. The construction urged by the Disciplinary
Committee was a narrow one, confining the rights of appeal to only those parties
who were privy to the original decision (ie Club A v League B or Player C v League
D), whereas the Applicant contended for a more generous interpretation which would
enable other parties who were or could be “affected by the decision to appeal” (eg
Club A v League B but Club C can appeal). The Disciplinary Committee argued that
the draftsman of the Articles must not have meant for third parties to the decision to
be able to appeal or this would have been made explicit in the Articles and further,
that to allow the more generous interpretation urged upon the Appeals Committee
Board by the Applicant would be to “open the floodgates” for a great many appeals
by a variety of clubs who could potentially be affected by the decision to either
suspend a player for a set amount of time or not to suspend. The Applicant argued
that a wide interpretation of the relevant term was required to ensure accountability
and fairness in decision making, citing this very case as a good example of how a
procedural mistake might go unnoticed if third parties were not able to appeal
against decisions, albeit involving other clubs.
9.16. It appears to have been material to the Appeals Committee’s conclusions, or at least
their deliberations, that at no stage prior to the fixture between the Applicant and
Glenavon did the Applicant seek to exercise the rights it subsequently sought to
assert under Article 14.2.
9.17. The Appeals Committee Board concluded that the correct construction of the phrase
“imposed upon it” was the narrow interpretation contended for by the Disciplinary
Committee, and that if the draftsman of the Articles had wished third parties to be
able to appeal, this would have been made explicit in the Articles. The Appeals
Committee Board found that the ramifications of allowing any party “affected by” a
decision to appeal would be considerable and wide ranging. The Appeals Committee
Board stated (at paragraph 19 of its decision):
“The example we were given concerned a scenario where a player was suspended for 7
matches when the maximum suspension was a ten match ban. In principle, if a wide
interpretation were used, the three clubs who he was then eligible to play against could appeal
against the decision. In the opinion of the Board, this cannot have been what drafters wanted
to occur when Article 14.2 was conceived”.
9.18. Accordingly, the Appeals Committee Board concluded as follows (as stated at
paragraph 21 of its decision):
“As a result of the Board’s decision, outlined above, Glentoran do not have any standing to
appeal against the Sub-Committee decision not to suspend Hamilton immediately (and for two
games) following his dismissal. The appeal is, accordingly, refused. Notwithstanding this
decision the Appeals Board reserves the right to exercise its discretion in future cases to
ensure that fairness is achieved in procedural matters”.
9.19. As stated above, (a) the above conclusion was clearly fatal to the Applicant’s appeal
to the Appeals Committee Board, but (b) the Board nevertheless made further
findings in relation to certain other issues in order to ensure:
“that there is greater fairness in the decision making process and that all clubs, players,
committees and associations are provided with guidance on how to properly administer local
football”.
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Glentoran FC v The IFA - Arbitration Final Award
(see paragraph 22 of its decision).
9.20. The additional issues addressed by the Appeals Committee Board, and its
conclusions in respect of each such issue were as follows:
Did the Sub-Committee have any power to make the relevant decision?
(a) The Board was satisfied that Glenavon did not appeal the referee’s decision but
rather the Sub-Committee clarified the situation following a request to do so. In
answering the question posed of it, the Disciplinary Committee did not possess a
power to deal with appeals concerning dismissal except in those cases involving
mistaken identity. As this was not such a case, it did not have a power to effectively
reverse the (correct) decision of the referee.
(b) The Applicant had been critical, firstly, of the decision of Glenavon to seek
assistance in a matter which the Applicant maintained was self explanatory and,
secondly, of the Disciplinary Committee for providing a response which Glenavon
relied upon. The Board, having examined the relevant Articles of the IFA Code,
unanimously found that the IFA Code did not provide sufficient clarity in the matter of
player/manager dismissals and that it was reasonable for Glenavon to seek clarity
and for the Sub-Committee to attempt to provide it.
(c) Referring to its power under Article 14(7)(f) of the IFA Articles to take any step
which in the exercise of its discretion the Board considered appropriate in order to
deal justly with the case in question, the Board determined that the words "and its
vicinity" should be read into Article 11.1 after the words "field of play", pending such
time as the Disciplinary Committee examines Article 11 regarding its clarity.
Was Hamilton a player or an official?
(d) The Appeals Committee Board referred to Article 2.1 of the IFA Disciplinary
Code, which states:
“Player: A person whose name appears on the match card for the relevant match.”
(e) Mr Hamilton’s name appeared on the match card as a substitute for the match
against Linfield. In accordance with Article 2.1 and the direction above he should
have been treated as a player for all purposes including suspension. Accordingly,
the referee was entirely correct to show a red card to Mr Hamilton which indicated
that he was sending him off as a player and not as an official. The Appeals Board
members were unanimously satisfied that the referee made the correct decision
regarding Mr Hamilton.
FIFA Disciplinary Code Article 18
(f) The Appeals Committee Board referred to (and recited) Article 18 of the FIFA
Disciplinary Code, which deals with “Expulsion” (see Appendix One). It recorded that
all parties to the appeal accepted that they had not known of its existence, or if, they
did, of its proper application, prior to the appeal. The Board stated that under Article
146 of the FIFA Disciplinary Code, the IFA is bound to incorporate Article 18 of the
FIFA Disciplinary Code into its Code.
(g) The Board cited Article 15.6 of the IFA Disciplinary Code, which deals with
suspensions for officials, and states:
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Glentoran FC v The IFA - Arbitration Final Award
"An official who is reported for the 1st occasion in the playing season for misconduct will be
sanctioned with a minimum 1 match touchline suspension and a £100 fine imposed on the
official's club..."
The Board observed (i) that this Article, contrary to Article 18 of the FIFA Disciplinary
Code, did not require an official who has been dismissed to be suspended
automatically for the next game, and (ii) that had Article 18 of the FIFA Disciplinary
Code been properly transposed, Mr Hamilton could not have played against the
Applicant, no matter what his designation. The Board observed that the Disciplinary
Committee had agreed to undertake to review the Code and to ensure that Article 18
is properly transposed in future, and that (i) in the meantime clubs should be aware
that any player or official who is expelled by a red card or otherwise will be
suspended for the next game, and (ii) if the official is also named on the team sheet
as a player (and this also means substitute) then he or she will be suspended as a
player for the next game and will receive any further suspension that the IFA
Disciplinary Code allows for.
Overall Conclusion
(h) The Applicant submitted to the Appeals Committee Board that, applying Article
18 of the FIFA Disciplinary Code, Mr Hamilton was ineligible when he played against
them, and that the only proper result, according to the IFA Disciplinary Code when
read in conjunction with the FIFA Disciplinary Code, was to award the Applicant a 30 win and to fine Glenavon accordingly.
The Board stated (at paragraph 37 of its decision):
“While there is some merit in the Glentoran submission, and it is entirely understandable that
Glentoran should suggest it, the Board is not convinced that the overriding objective of
fairness and natural justice would be satisfied with this result”.
(i) The Board referred to Article 1.4 of the IFA Disciplinary Code which states that the
overriding objective of all disciplinary proceedings is to maintain fair play, and protect
the health and welfare of players, and restated Article 14(7)(f) of the IFA Articles,
which permitted the Appeals Board to take any step to deal justly with a case.
(j) The Board stated (at paragraph 39 of its decision):
“The Board considers that, given the lack of clarity on the issue of player/manager
suspensions, it was reasonable for Glenavon to request clarification. It was also reasonable
for the Disciplinary Committee to provide a response. Once the response was received,
Glenavon, in good faith, relied upon it. For this reason it would not be fair or just to punish
Glenavon for relying upon advice given in good faith by the Disciplinary Committee”.
(k) In order to prevent further delay, and Glenavon having been given an opportunity
to make representations on the matter, the Board applied its powers under Article
14(7)(f) of the IFA Articles.
(l) Given its decision that Mr Hamilton was at the material time (in accordance with
Article 2.1 of the IFA Disciplinary Code) a player, he had to be dealt with under
Article 11. The Board referred to the fact that the minimum suspension under Article
11.2 and 11.4 is two matches, and accordingly suspended Mr Hamilton from Monday
15 December 2014 for the next two matches. In accordance with Article 12.8, Mr
Hamilton was prohibited during the period of suspension from entering the dressing
room area, the players’ tunnel, the technical area, the substitutes’ bench, and the
area immediately surrounding the field of play or the playing surface at any match
under the jurisdiction of the Association until the expiry of the suspension. The terms
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Glentoran FC v The IFA - Arbitration Final Award
of the suspension were stated to apply from one hour prior to the scheduled kick off
of a match until 5 minutes following the end of the match.
9.21. The Appeal Board summarised its findings (at paragraph 42 of its decision) as
follows:
“(i) Glentoran has no standing to appeal as a decision has not been imposed upon it in
accordance with Article 14.2 of the AoA.
(ii) The Sub-Committee did not deal with an appeal by Glenavon but provided clarification
following a request by Glenavon.
(iii) Hamilton should have been dealt with as player in accordance with Article 2.1 and Article
11 of the IFA Code.
(iv) The referee was correct to send Hamilton off using a red card as he was a player under
Article 2.1 f the IFA Code.
(v) The IFA Disciplinary Committee should transpose Article 18 of FIFA Code as a matter of
urgency.
(vi) Applying Article 18 of the FIFA Code Hamilton should have been suspended for the game
against Glentoran whether designated a player or official.
(vii) Hamilton will be suspended from 15 December 2014 for two matches. This is as a result
of the operation of Article 11.4 of the IFA Code.
(viii) Pursuant to Article 14(7) AoA Glentoran will have the appeal deposit returned”.
Notice of Arbitration
10.
By letter dated 11 December 2014 addressed to the IFA, the Applicant requested a referral
to arbitration in respect of the Appeal Board’s alleged
“failure…..to advise of the imposition of the mandatory sanction for fielding an ineligible player as
required by both the FIFA disciplinary code and the IFA disciplinary code, against Glenavon FC, for
th
fielding Mr Gary Hamilton on 8 November 2014 in the NIFL Premiership fixture against Glentoran
FC, whilst suspended”.
11.
The grounds upon which arbitration was sought were set out as follows (where emphasis is
given to the text below, this is as recorded in the Notice of Arbitration):
th
“In the Appeals Board written decision of the 9 December in the case of Glentoran vs IFA
Disciplinary Committee, they summarised Mr Hamilton’s eligibility for the match in question
thus;
[42] By way of a summary of the Appeal Board’s findings;
(iii) Hamilton should have been dealt with as player in accordance with Article 2.1 and Article 11
of the IFA Code.
(iv) The referee was correct to send Hamilton off using a red card as he was a player under
Article 2.1 of the IFA Code.
(vi) Applying Article 18 of the FIFA Code Hamilton should have been suspended for the
game against Glentoran whether designated a player or official.
th
Mr Hamilton was played while ineligible for the match on the 8 November 2014 as
acknowledged by both the disciplinary committee and the appeals board. However, having
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Glentoran FC v The IFA - Arbitration Final Award
followed the FIFA disciplinary code to this point, they then decided to ignore it when deciding
that “it would not be fair or just to punish Glenavon”
The FIFA disciplinary code is crystal clear on the appropriate sanction. Article 55 states;
55 Ineligibility
1. If a player takes part in an official match despite being ineligible, his team will be sanctioned
by forfeiting the match (cf. art. 31) and paying a minimum fine of CHF 6,000.
Glenavon FC should therefore by definition forfeit the match. Article 31 referred to in article 55
states;
31 Forfeit
1.A team sanctioned with a forfeit is considered to have lost the match by 3-0.
2.If the goal difference at the end of the match is greater than three, the result on the pitch is
upheld.
Glenavon FC should therefore by definition have forfeited the match 3-0 and such a score and
the requisite points be awarded to Glentoran FC. In addition, as per article 55, Glenavon FC
should be fined a minimum of CHF 6000.
Article 146 of the FIFA disciplinary code states;
3.The associations shall also incorporate the following provisions of this code to achieve the
objective of harmonising disciplinary measures but, in doing so, they are at liberty to choose the
means and wording of the provisions: art. 1-34, art. 39-57, art. 59-62, art. 65-72, art. 75-77, art.
85-90, art. 94-98, art. 99 par. 1, art. 100, art. 102 par. 1 and 2, art. 103-108, art. 110, art. 115,
art. 129-132, art. 136-137, art. 142 and art. 144.
The associations are obliged to ensure especially that the infringements mentioned in
these provisions and the appropriate sanctions are strictly incorporated and that the
general principles are adhered to.
The IFA disciplinary code 2014-15 states in Article 19;
Article 19: Ineligibility through suspension
19.1. Any player or official who participates in a match whilst being suspended or breaches the
terms of his suspension will be sanctioned with a minimum fine of £350 imposed on the club for
which he is participating. Additionally, the Club will forfeit the match by the score 3-0.
The Appeals Board did not advise the imposition of the appropriate sanction which according to
the FIFA disciplinary code must be STRICTLY INCORPORATED into practice by the IFA. This
is indeed incorporated within Article 19 of the IFA disciplinary code, although the level of the fine
is surprisingly not harmonised. The Appeals board have therefore arbitrarily ignored both the
FIFA and IFA disciplinary codes despite the fact that there is no room for so called natural
justice, discretion or interpretation.
Furthermore Article 146 of the FIFA disciplinary code states;
5. Any association that infringes this article shall be fined. In the event of more serious
infringements, further sanctions may be pronounced in accordance with this code, including
expulsion from current or future competitions (cf. art. 28).
In order to protect the interests of fair play and the reputation of the game of Association
Football, I look forward to receiving your decision on the referral of this matter to arbitration
expeditiously”.
12.
The matter was referred to Sport Resolutions (UK) for arbitration, and the parties agreed to
my nomination and appointment as a single arbitrator.
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Glentoran FC v The IFA - Arbitration Final Award
Conduct of the Arbitration
13.
Directions were given for the conduct of this arbitration by way of a hearing by telephone
conference on Friday 19 December 2014.
14.
During the course of the above telephone hearing, it was agreed between the parties that,
in terms of procedure, this arbitration would be conducted in accordance with the IFA
Articles when read in conjunction with the SR Rules, subject to the following provisos:
(a) The former will take precedence over the latter in the event of any conflict.
(b) Directions for the conduct of the matter should be given in accordance with the SR
Rules, albeit the parties wished ultimately to reserve their position on the applicability
of the SR Rules until the substantive hearing.
15.
During the 19 December 2014 hearing, the Applicant confirmed that the relief it sought was
as follows:
(a) Glenavon should forfeit the match of 8 November 2014.
(b) In respect of that match, a score of 3-0 in favour of the Applicant should be substituted
with the requisite points awarded to the Applicant.
(c) Glenavon should be fined a minimum of 6,000 Swiss Francs.
16.
During the telephone hearing on 19 December 2014, I observed that the Applicant’s letter
of 11 December 2014, which was being treated as the “Notice of Appeal” for the purposes
of Rule 2.2 of the SR Rules, did not contain any challenge to the conclusion of the Appeals
Committee Board (recorded at paragraph 21 of its decision - see paragraph 8.17 above)
that the Applicant did not have any standing to appeal against the Disciplinary SubCommittee’s decision not to suspend Mr Hamilton immediately (and for two games)
following his dismissal. I observed that although the Appeals Committee Board had gone
on to make further determinations, its conclusion as to the Applicant’s standing had been of
itself fatal to the Applicant’s appeal to the Appeals Board. There was some discussion as to
the possibility of the Applicant seeking to amend the Notice of Arbitration. Mr Shaw QC, for
the Respondent, observed that any such application was likely to be resisted, on
jurisdictional and other grounds.
17.
On 23 December 2014, the Applicant filed with Sport Resolutions (UK) its Statement of
Appeal in accordance with the directions given on 19 December 2014. This document
essentially replicated the Applicant’s letter of 11 December 2014, subject to minor
amendments as to content, and, more importantly, the addition of the following introductory
passage (again, the emphasis given is as per the original):
“It is our belief that the Irish Football Association (IFA) will attempt to claim that Glentoran FC
have no right to seek satisfaction in this matter through arbitration due to the fact the IFA
Appeals board in their ruling on the Glentoran v IFA Disciplinary Committee stated;
[21] As a result of the Board’s decision, outlined above, Glentoran do not have any standing to
appeal against the Sub-Committee decision not to suspend Hamilton immediately (and for two
games) following his dismissal. The appeal is, accordingly, refused. Notwithstanding this
decision the Appeals Board reserves the right to exercise its discretion in future cases to ensure
that fairness is achieved in procedural matters.
We believe that a claim will be made that as we have not sought arbitration on the specific point
of our standing to appeal, within the specified timescale of four days of the Appeals Board
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Glentoran FC v The IFA - Arbitration Final Award
decision [as required within the IFA Articles of Association, Article 3 2(f)] our right to seek
arbitration in this matter should be refused.
However, we would draw attention to the provisions of this very article and our right therein, to
seek arbitration;
Irish Football Association - Articles of Association
Article 3
2(f) In the event that there shall arise a dispute or difference between two or more members of
the Association (which shall include for the purposes of this article the Association) including but
not limited to a dispute arising out of or in connection with (including any question regarding the
existence or validity of):
(i) These Articles
(ii) The rules and regulations of an affiliated association
(iii) The rules and regulations of a Competition which is organised by the Association or in which
only members of the Association can participate
(iv) The statutes and regulations of FIFA and UEFA
(v) The Laws of the Game
shall be referred to and finally resolved by arbitration under these Articles without the right to
any further appeal and to the exclusion of the jurisdiction of any court of law unless such is
contrary to the laws of Northern Ireland.
Notwithstanding the exclusion of the jurisdiction of any court of law and without prejudice to the
generality thereof, the parties to any arbitration agree that the provisions of sections 30, 32, 42,
43, 44, 45, 67, 68, 69, 70 and 79 of the Arbitration Act 1996 shall be excluded from and shall
not apply to any arbitration carried out under these Articles.
No arbitration can be commenced under these Articles unless the parties who wish to arbitrate
have exhausted all rights to appeal under these Articles. Such referrals must be in writing and
dispatched by special delivery to the Chief Executive within four days after the date on which
the decision is notified to the relevant parties under the Association’s own procedures and shall
be accompanied by a deposit of £300 which shall be refunded if the referral is successful. A
copy of the referral shall be sent simultaneously by special delivery to any other party to the
dispute. The party losing the hearing will pay the full costs of the hearing (including, when
appropriate, both parties’ legal costs).
The dispute arises from a failure of the IFA Appeals Board to levy the mandatory sanction
against a club (Glenavon FC) for the playing of an ineligible player as required by the IFA
Disciplinary code (covered in ii above) and the FIFA disciplinary code (covered in iv above) and
this matter is therefore allowable for referral and resolution by arbitration under the IFA Articles
of Association as all rights to appeal under the Articles have been exhausted.
The decision of the appeals board that Glentoran FC did not have any standing to appeal the
decision of the sub-committee of the IFA disciplinary committee has no relevance to our right to
seek arbitration as outlined above, other than to affirm that we have exhausted all avenues of
appeal open to us under these articles”.
18.
The Applicant’s letter of 21 December 2014 also contained the following passage by way of
supplement to the original Notice of Arbitration:
“We therefore respectfully request that arbitration should be commenced and it should be
agreed that the mandatory sanction for fielding an ineligible player as required by both the IFA
disciplinary code and the FIFA disciplinary code should be applied.
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Glentoran FC v The IFA - Arbitration Final Award
Accordingly, the IFA, the IFA disciplinary committee and in turn the Northern Ireland Football
League should be directed to strike from the record the result of the match between Glentoran
FC and Glenavon FC played on 8th November 2014 and to record a 3-0 victory in favour of
Glentoran FC with the subsequent award of points. The reverse decision being applied to
Glenavon FC, along with the appropriate fine outlined within the disciplinary codes being
levied”.
19.
On 2 January 2015, the Respondent served its Reply in accordance with Rule 2.5 of the
SR Rules.
20.
In its Reply, the Respondent adopted the following position:
“A] Third Party Appeals
i.
Where a disciplinary committee makes a decision as provided by Article 13 of the Articles
of Association of the IFA (the “Articles”), a right of Appeal to the Appeals Committee lies only at
the suit of a party upon which the decision has been “imposed”: see Article 14 (2) of the Articles.
ii.
Consequently, there is no right in a Third Party (such as the Applicant here) to bring an
Appeal to the Appeals Committee from a decision made by the Disciplinary Committee.
iii.
Accordingly, the Applicant is not entitled to bring an Appeal to the Appeals Committee nor
to the Arbitrator against the decision of the Disciplinary Committee or Appeals Committee in
respect of its decision of 6 November 2014 with regard to the incident that took place on 1
November 2014 in a match between Glenavon Football Club and Linfield Football Club (“the
incident”) and its entailments.
B] Scope Of Arbitration
1.
The Applicant is confined to the boundaries of the challenge it lodged in its Referral to
Arbitration dated 11 December 2014 (“the Referral”).
2.
The Referral failed to challenge the decision by the Appeals Committee that the Applicant
lacked the requisite standing to bring an Appeal against the decision of the Disciplinary
Committee: see paragraph 21 of the decision of the Appeals Committee dated 9 December
2014 (“the AC Decision”).
3.
The decision by the Appeals Committee that the Applicant lacks standing stands
unchallenged in the arbitration and is consequently binding upon the Applicant.
C] Disposal Of The Arbitration
4.
The proper disposal of this arbitration is that the Arbitrator should: -
a.
Affirm the AC Decision that the Applicant has no standing to appeal to the Appeals
Committee from the decision of the Disciplinary Committee as stated in paragraph 21 of the AC
Decision;
b.
Uphold the AC Decision to refuse the Appeal by the Applicant in recognition that it is a
Third Party challenge that lies outside the jurisdiction of the Disciplinary Committee, the Appeals
Committee and the arbitration; and
c.
Require the Applicant to pay the “full costs” of the hearing including the legal costs of the
Respondent as required by Article 3 (2) (F) of the Articles.
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The Arbitration Agreement Articles Of Association At Article 3 (2) (F)
5.
The material provisions about this arbitration as rehearsed in the Arbitration Agreement
between the parties is found at Article 3 (2) (F) of the Articles which provides (insofar as
material) that: “In the event there shall arise a dispute or difference between two or more members of the
Association (which shall include for the purposes of this Article of the Association)… [It] shall be
referred to and finally resolved by arbitration under these Articles without the right to any further
Appeal and to the exclusion of the jurisdiction of any Court of Law unless such is contrary to the
Laws of Northern Ireland.
Notwithstanding the exclusion of the jurisdiction of any Court of Law and without prejudice to the
generality thereof, the parties to any arbitration agree that the provisions of sections 30, 32, 42,
43, 44, 45, 66, 68, 69, 70 and 79 of the Arbitration Act 1996 shall be excluded from and shall
not apply to any arbitration carried out under these articles.
No arbitration can be commenced under these Articles unless the parties who wish to arbitrate
have exhausted all rights to Appeal under these Articles. Such referrals must be in writing and
dispatched by special delivery to the Chief Executive within four days after the date in which the
decision is notified to the relevant parties under the Associations own procedures and shall be
accompanied by a deposit of £300 which shall be refunded if the referral is successful. A copy
of the referral shall be sent simultaneously by special delivery to any other party to the dispute.
The party losing the hearing will pay the full costs of the hearing (including, when appropriate,
both parties legal costs).”
6.
(In relation to Article 3(2)(f) of the IFA Articles), we highlight the following: -
a.
It envisages a “dispute or difference” between the Applicant and the Respondent to be
referred to a final resolution by arbitration “under” the IFA Articles.
b.
The Arbitration Act 1996 (hereafter “the Act”) applies generally to any such arbitration
save for the provisions expressly excluded namely section 30, 32, 42-45, 67-70 and 79. For
ease of the parties and the Arbitrator, we attach a copy of the Act as an appendix.
c.
The right to resort to arbitration requires the Applicant to first exhaust all rights of appeal
under the Articles.
d.
A valid referral to arbitration must: -
i.
Be in writing; and
ii.
Be sent in a specified manner “within four days” after receiving notice of the decision
under challenge; and
iii.
Be accompanied by the specified deposit of £300.
7.
The Respondent recognises that the Referral by the Applicant dated 11 December 2014
correctly and properly complied with the formalities of Article 3 (2) (F) of the Articles and as
such constitutes a valid Referral. We make that concession since the Referral was (1) in writing,
(2) served correctly and on time within four days of the impugned AC Decision and (3)
accompanied by the requisite deposit of £300 (to be refunded if the Referral is successful).
The Decision Of The Appeals Committee
8.
At paragraphs 15-21 of its Decision, the Appeals Committee considered whether the
Applicant enjoyed the requisite standing to bring an Appeal against the decision of the
Disciplinary Committee. It decided that the Applicant lacked the necessary stand: see
paragraph 19 and 21 of the AC Decision. Accordingly, the Appeal was “refused” (see
paragraph 21) by reason of the Applicant’s lack of standing.
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Glentoran FC v The IFA - Arbitration Final Award
9.
The Applicant did not challenge the decision about its lack of standing when it submitted
its Referral dated 11 December. Instead, the Referral ventilated the concerns of the Applicant
about certain substantive issues concerning appropriate rules and the decision making process
that had been followed and the sanctions imposed.
10. Whatever view might be taken about the substantive issues (discussed below) the critical
issue is one of jurisdiction. We say the Applicant failed to challenge the AC Decision regarding
standing in its Referral. The Applicant cannot enlarge its claim subsequent to the Referral
regardless of any supposed or actual powers of the Arbitrator to allow amplification or
expansion of the Applicant’s case (as discussed below).
11. In its Statement of Appeal, the Applicant seeks to deal with its omission to challenge the
decision on standing. While recording (correctly) that the Applicant has exhausted its rights to
appeal before making the Referral to arbitration, it misses the point by suggesting that the
dispute is “allowable for referral” by arbitration. To be clear, the Respondent accepts that a
dispute or difference between the parties is ‘allowable’ for referral once Appeals within the rules
have been exhausted provided the procedure as to timing and payment of deposit have been
satisfied (as here). We say that it was open to the Applicant to challenge the Appeal’s
Committee on its Decision about standing. But, significantly, the Applicant did not do so in the
Referral. In short, although it was allowable at that stage to challenge the AC Decision on
standing, the Applicant failed to do so. Consequently, there is before the Arbitrator no
challenge to the AC Decision on standing.
12. Accordingly, the AC Decision on standing is not only relevant (contrary to the suggestion
otherwise in the Statement of Appeal) but lies outside this arbitration because it was not
included by the Applicant in the Referral (as it could and should have been had the Applicant
wished to pursue that point).
Can The Applicant Salvage its Position?
13. During the telephone conference on 19 December 2014, the Respondent made clear that
it would take the point of the Applicant’s failure to bring a challenge against the AC Decision that
Glentoran lacks the requisite standing.
14. Once that point had been made clear, a discussion ensued that noted that the Sports
Resolution Rules (“SR Rules”) contained provisions regarding extending time limits such as
Rule 2.3 and 12.6(b) as well as allowing amendments of a written case such as that found in
Rule 12.6(a).
15. Under SR Rules 12.5 and 15.2, it is envisaged that the Arbitrator is to have the general
powers set out in the Act and SR Rule 12.6 deals with specific powers of the Arbitrator.
However, all such powers and the jurisdiction of the Arbitrator are, of course, subject to the
contrary agreement of the parties: see SR Rule 15.2.
16. Under SR Rule 1.1, the parties are taken to have agreed to conduct the arbitration in
accordance with the SR Rules. Unsurprisingly, that provision is subject to contrary provisions
expressing the agreement of the parties otherwise such as that found in their Arbitration
Agreement. SR Rule 15.2 expressly recognises the prerogative of the parties to make a
contrary arrangement.
17. Consequently, the general and specific powers to be enjoyed by the Arbitrator as
contemplated by SR Rule 12.5 and 12.6 are subject to the prior contrary agreement of the
parties in the Arbitration Agreement contained within the Articles.
18. Under Article 3 (2) (F) of the Articles there are several express provisions of the Act that
are excluded expressly. Among the exclusions are sections 30 and 79 that address procedures
and time limits respectively.
19. With regards to time limits, it will be noted that Section 79 of the Act confers upon the
Court a power to enlarge time limits. But these parties have excluded that provision. We submit
that the parties have made plain their express contrary agreement to the enlargement of time
whether by the Courts (Section 79 of the Act) or the Arbitrator under the SR Rules. In short, the
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Glentoran FC v The IFA - Arbitration Final Award
time limits are strict and to be treated as of the essence. Of course, no difficulty arises here
because the time limits have been satisfied and there is no suggestion of delay.
20. More importantly (and critically for the interest of the Applicant here) when the parties
expressly excluded section 30 of the Act they agreed thereby that the Arbitrator is not permitted
to rule on what matters have been submitted to arbitration in accordance with the Arbitration
Agreement. There is, of course, no controversy that the Referral is silent in challenging the
decision on standing. The Statement of Appeal contends that this is not ‘relevant’. We say that
it is not only relevant but fatal to the challenge raised by the Applicant and that the matter ends
here.
Amending A Case In This Arbitration
21.
With regard to SR Rule 12 (6) (A) that says that the Tribunal shall have power “to allow
any party to amend its written case”, the Respondent notes that no request to amend the written
case of the Applicant has been made so far and the Statement of Appeal is silent on the topic.
22. If the Applicant should seek to make an Application to amend its written case at the
hearing scheduled for 5 January 2015, we wish to highlight the following: a.
We do not presume to prejudge an Application not yet made;
b.
Whatever powers might be enjoyed by the Arbitrator under the SR Rules, in light of the
terms and exclusions contained within the Arbitration Agreement, an amendment of a “written
case” does not permit the enlargement of the matter referred to arbitration.
c.
In our submission, the terms of SR Rule 12 (6) (A) envisage adjustment to a case properly
grounded in the arbitration Referral. It cannot, in our submission, be employed to enlarge or
adjust the matter that has been referred to arbitration especially where the arbitration
agreement contains (as here) strict requirements as to the initiatory notice (that were satisfied
and on which the Respondent is and was entitled to rely).
d.
Consequently, whatever might be legitimate by way of adjusting a ‘written case’, it would
not at any point be permissible for the Applicant to seek to enlarge the matters before this
Arbitrator to include an attack on the decision by the Appeals Committee that the Applicant
lacks the requisite standing to bring a challenge.
The Substantive Issues Raised By The Applicant
23. The heart of the concerns articulated by the Applicant in the Referral and Statement of
Appeal relate to what it calls aptly the ‘substantive’ matter that, in short, Glenavon played
Hamilton on 8 November 2014 against the Applicant when he was an ineligible player.
24. In taking the approach of a “rolled up” hearing, the Appeals Committee proceeded to
discuss the substantive issues in paragraph 22 and following of the AC Decision. Its sympathy
for the concerns raised by the Applicant is evident from paragraph 42 (iii) - (vi) of the AC
Decision. The discussion leading to those conclusions is, of course, part of the “guidance”
which the Appeals Committee wished to provide as it explained in paragraph 22 of the Decision.
25. The guidance proffered by the Appeals Committee is, doubtless, helpful as an expression
of its views on the matters in play and one expects that the Applicant would be keen to endorse
the opinion of the Appeals Committee on these issues. Moreover, it is to be expected that the
“guidance” will command respect and attention from those concerned in management and
discipline within the Association to the benefit of the game in general.
26. But the topic of the substantive issue and the opinions expressed by the Appeals
Committee are unnecessary and surplus to the Decision (what is sometimes termed “obiter
dicta”). The guidance does not form part of the AC Decision and lies outside the scope of the
arbitration.
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Glentoran FC v The IFA - Arbitration Final Award
27. Although the consideration of the substantive issues is truly academic in this arbitration
(given the lack of standing of the Applicant and the status of the guidance as obiter) in ease of
all concerned, the Respondent would wish to make clear that it stands over the reasoning and
observations of the Appeals Committee on the substantive issue.
28. The Respondent draws attention to the proper reliance by the Appeals Committee on the
breadth of the power found in Article 14 (7) (F) of the Articles to “take any step which, in the
exercise of its discretion, the Appeal Board considers appropriate in order to deal justly with the
case in question.”
29. A careful reading of the Appeal decision will show that this broad power was deployed in a
proper and proportionate manner: see for example paragraphs 20, 22, 40 and 42 (viii) of the AC
Decision.
Conclusion
30. This is an impermissible Third Party challenge to a decision by the Appeals Committee
(and the Disciplinary Committee).
31. As the Appeals Committee and Disciplinary Committee observed in their respective
written rulings and papers, there are important matters of substance to be addressed by the
Respondent and it is pleased of this opportunity to make clear that it acknowledges the
importance of those issues and will respond in due course to the “guidance” furnished by the
AC Decision.
32. However, such recognition of the “guidance” must not disguise the clear terms of the
Articles: Article 14 (2) is plain that an Appeal to the Disciplinary Committee (and thence to the
Appeals Committee and this arbitration) lies only in the mouth of a party upon whom a decision
has been “imposed”. The Applicant cannot place itself in that category and consequently is a
party without standing before the Disciplinary Committee and thereafter to the Appeals
Committee.
33. Moreover, whatever merit might lie in some of the points made by the Applicant on the
substantive issue, it cannot circumvent the Applicant’s failure to challenge the ruling of the
Appeals Committee that the Applicant is merely a Third Party who lacks standing to bring this
(or any challenge).
Disposal Of The Application to Arbitration
34.
In our submission the appropriate disposal by the Arbitrator is to:
a.
Affirm the decision of the Appeals Committee that the Applicant has no standing to appeal
to the Appeals Committee from a decision of the Disciplinary Committee as found in paragraph
21 of the AC Decision;
b.
Uphold the AC Decision to refuse the appeal and the request for relief in recognition that
the Applicant is merely a Third Party challenger who stands outside the jurisdiction to attack
decisions by the Disciplinary Committee and/or the Appeals Committee; and
c.
Require the Applicant to pay the “full costs” of this hearing including legal costs incurred
by the Respondent as required by Article 3 (2) (F) of the Articles”.
21.
The substantive hearing in respect of this matter took place In Belfast on Monday 5
January 2015.
Oral Submissions for the Applicant
22.
Essentially, Mr Henderson spoke to the Applicant’s Statement of Appeal dated 23
December 2014.
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Glentoran FC v The IFA - Arbitration Final Award
23.
Mr Henderson emphasised that it was incumbent upon the Respondent, as a mandatory
requirement, to recognise the FIFA Disciplinary Code. He submitted that in the
circumstances of this case it had been incumbent upon the IFA to impose mandatory
sanctions for the fielding of an ineligible player. He submitted that this was a legal rather
than sporting argument. It was his contention that the arbitration was legitimately brought
under Article 3.2(f) of the Articles of the IFA in that there was
“a dispute or difference between two or members of the Association…..including but not limited to a
dispute arising out of or in connection with…..the rules and regulations of the Competition which is
organised by the Association or in which only members of the Association can participate, and/or the
statutes and regulations of FIFA and UEFA”.
24.
In the circumstances, submitted Mr Henderson, the wording of Article 14 of the Articles of
the IFA presented, for the purposes of this Arbitration, no difficulty for the Applicant
because the purpose of the Arbitration was to seek enforcement of the mandatory
implementation by the IFA of the FIFA Disciplinary Code.
25.
Mr Henderson submitted that the denial of the right of third parties to claim justice in
matters of this nature would be very dangerous. Such circumstances would lead to the
possibility, for example, of Club A legitimately discovering corruption within Club B, Club B
gaining Champions League qualification, and Club A being left with no recourse to justice
under the Rules or Articles of the governing body. By whatever route the conclusion had
been reached, Mr Hamilton had been allowed to take the field of play against the Applicant
for the purposes of the fixture on 8 November 2014 at a time when, under the mandatory
application of the relevant rules, he was ineligible. The Appeals Committee Board had
concluded (as recorded at paragraph 39 of its decision):
“It would not be fair or just to punish Glenavon for relying upon advice given in good faith
by the Disciplinary Committee”.
26.
However, submitted Mr Henderson, considerations of “fairness” or “justice” could not
displace the automatic application of Article 146 of the FIFA Disciplinary Code with, as a
consequence, the automatic sanctions prescribed by Articles 31 and 55 of the FIFA
Disciplinary Code, with regard to “Forfeit” and “Ineligibility”.
27.
In the circumstances, submitted Mr Henderson there was no need for the Applicant to seek
permission to amend the Notice of Arbitration. The Applicant had a freestanding right under
Article 3.2(f) of the Articles of the IFA to place the subject matter of this dispute before an
arbitrator for determination.
28.
Mr Henderson sought to place reliance upon a previous case involving a player of the
Applicant who had been fielded by the Applicant when ineligible to play and as a result an
order of expulsion had been imposed on the Applicant. It was clarified with Mr Henderson
that this matter had not been raised prior to the hearing on 5 January 2015. Mr Shaw QC
for the Respondent indicated that he did not have instructions in respect of the relevant
matter and that if fuller instructions were to be obtained it was anticipated that he would
need time to take such instructions which may result in the hearing being adjourned. In the
circumstances, Mr Henderson indicated that he was content to proceed without reference
to or reliance upon what he had referred to as the “previous case”.
29.
In summary, the Applicant’s position was that Mr Hamilton should have been dealt with as
a player in accordance with Articles 2.1 and 11 of the IFA Code as opposed to Article 15 of
the IFA Code, the Appeals Board had correctly determined that issue, and the
consequence of that finding was that Mr Hamilton should have been suspended for the
game against the Applicant. Accordingly Glenavon should have forfeited the match 3-0 with
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Glentoran FC v The IFA - Arbitration Final Award
the requisite points being awarded to the Applicant and Glenavon being fined a minimum of
CHF 6,000.
Oral Submissions for the Respondent
30.
For the Respondent, Mr Shaw QC submitted that there were two questions raised by this
Arbitration, namely a substantive question and a question as to jurisdiction, namely
whether the Applicant had “locus” or standing to challenge the decision of the Appeals
Committee Board. Mr Shaw indicated that he did not propose to simply rehearse the
contents of the Respondent’s Reply document served on 2 January 2015. Mr Shaw
observed that he relied upon that document in its entirety but that he intended to
concentrate for the purposes of his oral submissions on the “standing” question.
31.
Mr Shaw submitted that in certain jurisdictions, it is permissible to have third party
challenges and in other jurisdictions it is not. He referred, by way of example, to the
procedure for third party planning appeals in the Republic of Ireland, which is to be
contrasted with the position in Northern Ireland where there is no such procedure.
32.
Mr Shaw contended that under Article 14.2 of the Articles of the IFA, a third party had no
right to appeal either to an Appeals Committee, or against a decision made by an Appeals
Committee. The effect of Article 14.2, submitted Mr Shaw, was that the Respondent had a
“technical knock-out” argument to the application for Arbitration.
33.
He posited the question as to what the “matter” was that was being referred to arbitration.
Answering that question, he suggested that the “matter” was essentially an appeal against
the decision of the Appeals Committee Board. The Notice of Arbitration focused on
substantive matters. It failed to address the jurisdictional issues. There was, essentially,
nowhere for the Applicant to go. There was no relief available to the Applicant by means of
arbitration.
34.
In accordance with its obligations under Article 14.7(F) of the Articles, the Appeals
Committee Board was able to “take any step which, in the exercise of its discretion, the
Appeal Board considers appropriate in order to deal justly with the case in question”.
35.
In summary, Mr Shaw submitted that this was an impermissible third party challenge to a
decision by the Appeals Committee (and ultimately the Disciplinary Committee), but whilst
there were important matters of substance to be addressed by the Respondent in relation
to the “guidance” furnished by the Appeals Committee in its decision, the recognition of
such “guidance” must not disguise the clear terms of the Articles, and in particular Article
14.2.
36.
An appeal to the Disciplinary Committee and thence to the Appeals Committee and this
Arbitration lay only in the mouth of a party upon whom a decision had been “imposed”.
The Applicant could not place itself in that category and consequently was a party without
standing before the Disciplinary Committee and thereafter to the Appeals Committee.
37.
Whatever was the merit in any of the points made by the Applicant on the substantive
issue, it could not circumvent its failure to challenge the ruling of the Appeals Committee
that the Applicant was merely a third party which lacked standing to bring this (or any)
challenge.
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Glentoran FC v The IFA - Arbitration Final Award
Conclusions
38.
With some hesitation, and with considerable sympathy for the Applicant’s position, I reject
the Applicant’s claim, for the following reasons.
39.
I am mindful of Articles 1.4 and 1.5 of the IFA Disciplinary Code, which provide that the
overriding objective of all disciplinary proceedings is to maintain and promote fair play,
ensure that acts of indiscipline are dealt with fairly and that the image and reputation of
association football and the IFA is not adversely affected, and that disciplinary hearings
(and therefore proceedings) shall be conducted in a fair and just manner and in
accordance with the fundamental principles of natural justice.
40.
Lying at the root of this dispute is the incorrect decision communicated by or on behalf of
the IFA Disciplinary Committee to Glenavon FC that Mr Hamilton was eligible to play in his
club’s fixture against the Applicant. If I uphold the Applicant’s claim in this arbitration, it
could be said that Glenavon would be rightly aggrieved, given that they fielded Mr Hamilton
as a player in the fixture against the Applicant in all good faith, having taken advice from
the IFA Disciplinary Committee, and having acted on that advice. Had they been advised
that Mr Hamilton was ineligible to play in the relevant fixture, they would have fielded
another player, and there is no way of knowing what the result would have been. The net
effect of the Applicant succeeding in this arbitration would be that Glenavon will suffer a
points deduction and a fine in circumstances whereby, had they been given the correct
advice by the IFA Disciplinary Committee, they may well have won or drawn the relevant
game in any event, and they would not be facing the jeopardy of financial sanction.
41.
Conversely, were I to dismiss the Applicant’s claim, it could be said that the Applicant
would be rightly aggrieved, given that by virtue of Article 146 of the FIFA Disciplinary Code,
it was incumbent upon the IFA to incorporate Articles 18, 31 and 55 of the FIFA
Disciplinary Code into its own Code, and to act upon those provisions. The Applicant takes
a strict and technical line, contending that considerations of “fairness” and “natural justice”
cannot override the strict mandatory requirements of the rules, but submits in the
alternative that if principles of “fairness” and “natural justice” are at play, it is the Applicant
which has suffered the greatest injustice, and it is that injustice which needs to be
corrected.
42.
If I were to view this matter as a second stage appeal, Article 14.2 of the Articles of the IFA,
coupled with the Applicant’s election not to challenge the conclusion of the Appeals
Committee Board that the Applicant lacked standing to appeal to that body would be fatal
to this arbitration.
43.
When I was originally appointed as Arbitrator in this matter, I considered that this arbitration
amounted to an appeal from the relevant decision of the Appeals Committee Board
(essentially a second stage appeal), and that view governed the approach I took when
conducting the directions hearing on 19 December 2014. Having considered all of the
papers and listened to oral argument, however, I have concluded that, notwithstanding the
nature of the Applicant’s claim, the Applicant has “standing” or “locus” to bring this
arbitration, and that it is open to the Applicant to present its claim as a freestanding
application for arbitration. It is my conclusion, therefore, that there was no requirement for
the Applicant to amend its Notice of Arbitration so as to challenge the determination of the
Appeals Committee Board that the Applicant did not have any standing to appeal against
the original decision not to suspend Mr Hamilton. My conclusion on this issue is not,
however, determinative of the matter I must ultimately resolve.
44.
Despite its characterisation as a freestanding arbitration, the independent observer, indeed
the independent football supporter, could view this matter as a third party appeal “by the
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Glentoran FC v The IFA - Arbitration Final Award
back door”. I am entitled to have regard to the effect of my decision in the event that I find
either for or against the Applicant. I am also entitled to conclude (and I do so conclude) that
merely because a dispute which is disciplinary in nature has been pursued by way of
arbitration does not mean that the Arbitrator can have no regard to the fact that the dispute
is disciplinary in nature.
45.
If the automatic sanction in respect of Mr Hamilton’s conduct had (or should have) been a
three match ban, and the opponents of Glenavon in that club’s two fixtures after their
match against the Applicant had faced Mr Hamilton on the field of play, and had each lost
to Glenavon, would those clubs be able to obtain an automatic order whereby their
respective matches were forfeited to them, with Glenavon facing mandatory financial
sanctions? What of the position concerning final league position at the end of the season?
If Glenavon managed to retain their Premiership status at the end of the current season by
one or two points, would that mean that a Club facing relegation could obtain an order
preserving their league status and condemning Glenavon to relegation purely because Mr
Hamilton had been cleared by the IFA to play in the relevant fixture against the Applicant ?
46.
Notwithstanding the IFA’s failure to incorporate the relevant provisions of the FIFA
Disciplinary Code into its own Code,
(a) I am bound to approach this matter on the basis that it concerns a dispute arising in the
context of disciplinary proceedings;
(b) I am entitled, pursuant to Article 3.2 of the Articles of the IFA, to have regard to the
provisions of Articles 1.4 and 1.5 of the IFA Disciplinary Code, and
(c) I am therefore entitled to balance the respective injustice which will result from my
decision whatever form that decision may take.
In adopting that approach, it is my conclusion that whereas the Applicant has the standing
to pursue this matter by way of arbitration, the balance of justice is such that the
Applicant’s claim fails.
Costs
47. Article 3 of the Articles of the IFA stipulates that the party which loses an arbitration shall pay
the full costs thereof. However, s.61 of the Arbitration Act 1996 is not expressly excluded
from my powers. I apply that statutory provision in ordering that there shall be no order as to
costs in respect of this matter.
Signed: ……………………………
Arbitrator
Date: 31 January 2015
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Glentoran FC v The IFA - Arbitration Final Award
APPENDIX ONE
(1)
The Laws of the Game for 2014/2015, issued by FIFA, provide, under Law 12, as follows:
Sending-off offences
A player, substitute or substituted player is sent off if he commits any of the following…offences.
 Using offensive, insulting or abusive language and/or gestures…
(2)
Insofar as is material, the Articles of Association of the IFA provide as follows:
ARTICLE 3
Duties of Members
1. All Members shall be subject to and shall comply with the Articles and to any regulations or
decisions promulgated by the Board or by any relevant committee of the Association, or by FIFA or
UEFA. Each Member shall use best endeavours to ensure that its officials, members, servants,
agents and employees, comply with the said Articles, regulations or decisions.
2. The Association is a member of FIFA and UEFA. The Association and its Members will at all times:
(a) Observe the principles of loyalty, integrity and sportsmanship as an expression of fair play.
(b) In all matters concerning the Association observe neutrality in politics and religion and avoid any
unlawful discrimination.
(c) Comply with the Laws of the Game.
(d) Respect the statutes, regulations and decisions of FIFA and UEFA.
(e) Recognise the jurisdiction of the Court of Arbitration for Sport (CAS) in Lausanne (Switzerland),
as specified in the relevant provisions of the FIFA and UEFA Statutes.
(f) In the event that there shall arise a dispute or difference between two or more members of the
Association (which shall include for the purposes of this article the Association) including but not
limited to a dispute arising out of or in connection with (including any question regarding the
existence or validity of):
(i) These Articles
(ii) The rules and regulations of an affiliated association
(iii) The rules and regulations of the Competition which is organised by the Association or in which
only members of the Association can participate
(iv) The statutes and regulations of FIFA and UEFA
(v) The Laws of the Game
shall be referred to and finally resolved by arbitration under these Articles without the right to any
further appeal and to the exclusion of the jurisdiction of any court of law unless such is contrary to the
laws of Northern Ireland.
Notwithstanding the exclusion of the jurisdiction of any court of law and without prejudice to the
generality thereof, the parties to any arbitration agree that the provisions of sections 30, 32, 42, 43,
44, 45, 67, 68, 69, 70 and 79 of the Arbitration Act 1996 shall be excluded from and shall not apply to
any arbitration carried out under these Articles.
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No arbitration can be commenced under these Articles unless the parties who wish to arbitrate have
exhausted all rights to appeal under these Articles. Such referrals must be in writing and dispatched
by special delivery to the Chief Executive within four days after the date on which the decision is
notified to the relevant parties under the Association’s own procedures and shall be accompanied by
a deposit of £300 which shall be refunded if the referral is successful. A copy of the referral shall be
sent simultaneously by special delivery to any other party to the dispute. The party losing the hearing
will pay the full costs of the hearing (including, when appropriate, both parties’ legal costs).
ARTICLE 14
Appeals Committee
2. Other than an appeal by a Member against its expulsion, a player, official, referee, Club, Associate
Member, Organisational Member or League has the right to appeal to the Appeals Committee
against any decision of a Club, committee, League or other such body within the Association which is
imposed upon him or it, provided that the appellant has exhausted such appeals procedures as were
available to the appellant consequent upon the decision in question, unless satisfactory grounds are
given for not having done so.
(3)
The IFA Disciplinary Code for Season 2014/15 contains the following material provisions:
Article 1: Adoption and Enforcement
1.1 The IFA Disciplinary Committee (the Committee) adopted this code on 16 July 2014.
1.2 This code comes into force on 1 August 2014 and applies to all disciplinary matters arising from
and concerning football under the jurisdiction of the IFA.
1.4 The overriding objective of all disciplinary proceedings conducted pursuant to this Code is to
maintain and promote fair play, protect the health and welfare of Players (and others involved in the
Game), ensure that acts of indiscipline (on and off the field of play) are dealt with expeditiously and
fairly and that the image and reputation of association football and the Irish Football Association is
not adversely affected.
1.5 Disciplinary hearings shall be conducted in a fair and just manner and in accordance with the
fundamental principles of natural justice. Procedural and technical considerations shall take second
place to the overriding objective of being just and fair to the parties. Proceedings, findings or
decisions of the Committee shall not be invalidated by reason of any procedural defect, irregularity,
omission or technicality unless such defect, irregularity, omission or technicality renders the findings
or decisions unsafe.
1.6 In the event that a particular incident takes place for which there is no provision in this Code
including (but not limited to) procedure, jurisdiction or sanction then the Committee may take such
action that it considers appropriate in the circumstances in accordance with general principles of
natural justice and fairness.
1.7 The Committee shall have the power to impose any of the following sanctions depending upon
the facts and circumstances of any particular case:1.7.1. Fine;
1.7.2. Suspension;
1.7.3. Interim suspension;
1.7.4. Transfer ban;
1.7.5. Playing a match without spectators;
1.7.6. Playing a match on neutral territory;
1.7.7. Ban on playing in a particular stadium;
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1.7.8. Annulment of the result of a match;
1.7.9. Exclusion from a competition;
1.7.10. Defeat by forfeit;
1.7.11. Deduction of points;
1.7.12. Demotion to a lower division.
1.9. Whilst the Committee shall at all times strive to act consistently, the Committee shall not have a
doctrine of binding precedent, that is to say it is not formally bound by prior decisions of the
Committee. Each case will be looked at and determined on its own facts.
Article 2: Definitions
2.1 Player: A person whose name appears on the match card for the relevant match.
2.2 Official: A person, with the exception of players (See Article 2.1 of this Code) who is connected to
a football club.
2.3 Match Official: The referee, assistant referees, 4th Official, Match Observer or any other person
appointed by the IFA, Divisional Association or League in connection with a match.
2.4 Match Official’s Report: A report made individually or collectively by match officials and agreed by
them supplied, where practicable, to the Committee and through the referee.
2.5 Disciplinary Officer: A person appointed by a club who shall be responsible for investigating and
taking appropriate action in relation to disciplinary matters and the conduct of its members. It is the
responsibility of the Club to ensure disciplinary matters are maintained in the event of the Club
Disciplinary Officer’s absence by ensuring another individual or individuals deal with any such
matters during that period of absence.
2.6 Disciplinary Committee: The committee convened pursuant to Article 13 of the Irish Football
Association Articles of Association to deal with all football related disciplinary matters.
2.7 Disciplinary Committee Secretary: The official appointed by the Irish Football Association to
service the Disciplinary Committee.
2.8 Appeals Committee: The committee appointed pursuant to Article 14 of the Irish Football
Association Articles of Association to deal with all appeals.
Article 11: Dismissals
11.1 A dismissal is the order given by the referee to someone to leave the field of play and its
surroundings, including the technical area and the substitute’s bench.
11.2 A player who is dismissed from the field of play for any offence will be automatically suspended
with immediate effect for 1 match even if he was dismissed in a match that is later abandoned.
11.4 A player who is dismissed from the field of play for using offensive, insulting or abusive
language and/or gestures will be suspended for an additional 1 match.
Article 15: Misconduct by Players & Officials (Outside Law 12 of the Laws of the Game)
15.1 Where a player, official or match official is found to be guilty of any of the following charges,
such player, official or match official (a match official may only be sanctioned by the Disciplinary
Committee) will be sanctioned in the following terms:
15.2 A player who is reported for misconduct will be sanctioned with a minimum 1 match standard
suspension and a £100 fine imposed on the player’s club.
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15.3 A player who is reported for the 2nd occasion in the playing season for misconduct will be
sanctioned with a minimum 3 match standard suspension and a £100 fine imposed on the player’s
club.
15.4 A player who is reported for a 3rd or subsequent occasion in the playing season will be
sanctioned with a minimum 6 match standard suspension and a £100 fine imposed on the player’s
club.
15.5 If part of the report relates to cautions or dismissals, that part will be dealt with in accordance
with Article 10 and 11 in the IFA Disciplinary Code.
15.6 An official who is reported for the 1st occasion in the playing season for misconduct will be
sanctioned with a minimum 1 match touchline suspension and a £100 fine imposed on the official’s
club or in the case of a match official a fine of £100 and may be suspended pursuant to Article 12.14.
15.7 An official who is reported for the 2nd occasion in the playing season for misconduct will be
sanctioned with a minimum 3 match touchline suspension and a £100 fine imposed on the official’s
club or in the case of a match official a fine of £200 and they may be suspended pursuant to Article
12.14.
15.8 An official who is reported for a 3rd or subsequent occasion in the playing season for
misconduct will be sanctioned with a minimum 6 match standard suspension and a £100 fine
imposed on the official’s club or in the case of a match official a fine of £500 and they may be
suspended pursuant to Article 12.14.
15.9. A player or official who is reported for unsporting conduct towards an opponent or any other
person other than a match official will be sanctioned with a minimum 1 match suspension and a £100
fine imposed on their club.
15.12 A player or official who is reported for unsporting conduct towards a match official will be
sanctioned with a minimum 4 match suspension and a £100 fine imposed on their club.
15.15 The sanctions described in Article 15.12…….may also apply in cases of misconduct against
officials of clubs, leagues, divisional associations or the IFA.
Article 19: Ineligibility through suspension
19.1 Any player or official who participates in a match whilst being suspended or breaches the terms
of his suspension will be sanctioned with a minimum fine of £350 imposed on the club for which he is
participating. Additionally, the Club will forfeit the match by the score 3-0.
Article 26: Disciplinary Challenge
26.1 In the case of purported mistaken identity where a player or official is cautioned or dismissed in
a match or reported as being cautioned or dismissed in a match, a player, official or club may submit
a Disciplinary Challenge on Form DCC2 annexed to this Code. The Disciplinary Challenge must be in
the prescribed form and despatched by e-mail to [email protected]. Where a Disciplinary
Challenge is submitted in these circumstances the Committee will deal with each Challenge as it
considers appropriate in the circumstances. In any event the club should make available to the
Committee evidence that mistaken identity has been established. At any hearing, the Committee will
require the attendance of both the player reported as having been cautioned or dismissed by a match
official and the player the club allege ought to have been cautioned or dismissed. The player whom it
is said ought to have been cautioned or dismissed should be on notice that the Committee may, if
proven that mistaken identity has occurred, take action in relation to that player at a hearing and
therefore be provided with all relevant documentation in the possession of the Club.
26.2 A player, official, match official or club may submit a Disciplinary Challenge on Form DCC1
annexed to this Code in the case of any charge having been issued by the Committee pursuant to
Article 14 of this Code. The Disciplinary Challenge must be in the prescribed form and despatched by
e-mail to [email protected] within 4 days after the date the Disciplinary Charge has been issued
by e-mail to the person or club concerned.
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26.3 A deposit of £100 must be lodged as directed in the e-mail of charge no later than 7 days after
the date the Disciplinary Charge has been issued where the charge or sanction is challenged. This
sum shall be returnable only where the challenge is either successful or not heard.
26.4 In lodging a challenge the player, official, match official or club must state fully in writing the
grounds for the challenge and provide the Association with copies of all evidence, documents and
written submissions which the player, official and/or club intends to rely on along with the reply to the
charge within the timeframe required. Additional evidence may also be considered by the Committee
provided that such evidence is submitted as soon as is reasonably practicable.
26.5 On receipt of such challenge, and providing that it is in order, any sanction offered or issued will
be set aside pending the outcome of the case’s consideration by the Committee.
26.6 Challenges must meet the requirements of this Article to be considered by the Committee.
26.7 No challenges will be heard against cautions or dismissals except in the case of mistaken
identity as per Article 26.1.
26.8 When a player, official or match official faces a suspension and he participates or officiates in a
match without written notification from the Committee that the suspension has been set aside
pending the outcome of the case, a challenge having been lodged as directed in this Article, the
Committee will issue the appropriate charge against the player, official or match official concerned for
participating or officiating in a match whilst being ineligible.
26.9 If the challenge is unsuccessful, the player, match official, official and/or his club may be held
liable in all, or in part of, the expenses of the Disciplinary Challenge procedure. Should the
Committee consider any challenge to be of a frivolous nature or merely to release a player or official
from suspension to enable them to participate in a match they shall have the power to deal with the
player, match official, official and/or club as it deems appropriate.
26.10 In the case that a sanction has been issued a Disciplinary Challenge may be withdrawn by a
player, official, match official or club prior to any hearing providing the suspension timeframe
(detailed in Article 12.7 of this Code) has not passed. Should a player, official or club wish to
withdraw a challenge they must notify the Secretary of such withdrawal in writing. Upon receipt of
such notification, the challenge will be deemed to be abandoned and the sanction offer against which
the player, official, match official or club had challenged will be imposed subject to the overriding
objective. The player’s or official’s club may be held liable in all or part for the expenses of the
Disciplinary Challenge procedure.
26.11 All Disciplinary Challenges must be submitted with the relevant Disciplinary Authority which
issued the sanction or charge in question.
(4)
The FIFA Disciplinary Code contains the following relevant provisions:
18. Expulsion
1. An expulsion is the order given by the referee to someone to leave the field of play and its
surroundings, including the substitutes’ bench, during a match. The person who has been sent off
may be allowed into the stands unless he is serving a stadium ban.
2. Expulsion takes the form of a red card for players. The red card is regarded as direct if it sanctions
serious unsporting behaviour as defined by Law 12 of the Laws of the Game; it is regarded as
indirect if it is the result of an accumulation of two yellow cards.
3. An official who has been sent off may give instructions to the person replacing him on the
substitutes’ bench. He shall, however, ensure that he does not disturb the spectators or disrupt the
flow of play.
4. An expulsion automatically incurs suspension from the subsequent match, even if imposed in a
match that is later abandoned, annulled and/or forfeited. The Disciplinary Committee may extend the
duration of the
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31. Forfeit
1.A team sanctioned with a forfeit is considered to have lost the match by 3-0.
2.If the goal difference at the end of the match is greater than three, the result on the pitch is upheld.
55. Ineligibility
1. If a player takes part in an official match despite being ineligible, his team will be sanctioned by
forfeiting the match (cf. art. 31) and paying a minimum fine of CHF 6,000.
146. Associations’ disciplinary codes
1. The associations are obliged to adapt their own provisions to comply with this code for the purpose
of harmonising disciplinary measures.
2. The associations shall, without exception, incorporate the following mandatory provisions of this
code into their own regulations in accordance with their internal association structure: art. 33 par. 6,
art, 42 par. 2, art. 58, art. 63, art. 64, art. 99 par. 2 and art. 102 par. 3. Pursuant to art. 146 par. 3, the
associations do, however, have some freedom with regard to the fines stipulated in art. 58 and art.
64.
3. The associations shall also incorporate the following provisions of this code to achieve the
objective of harmonising disciplinary measures but, in doing so, they are at liberty to choose the
means and wording of the provisions: art. 1-34, art. 39-57, art. 59-62, art. 65-72, art. 75-77, art. 8590, art. 94-98, art. 99 par. 1, art. 100, art. 102 par. 1 and 2, art. 103-108, art. 110, art. 115, art. 129132, art. 136-137, art. 142 and art. 144. The associations are obliged to with this code, including
expulsion from current or future competitions (cf. art. 28). ensure especially that the infringements
mentioned in these provisions and the appropriate sanctions are strictly incorporated and that the
general principles are adhered to.
4. It is not mandatory for the associations to incorporate the articles not listed under par. 2 and par. 3
of this article but it is advisable insofar as they are necessary.
5. Any association that infringes this article shall be fined. In the event of more serious infringements,
further sanctions may be pronounced in accordance with this code, including expulsion from current
or future competitions (cf. art. 28).
(5)
The IFA Football Regulations specify as follows:
PLAYERS
30. It shall be the responsibility of clubs playing in any match to be played under the jurisdiction of the
Association to ensure that its players are eligible to play in such a match.
(6)
The provisions of the Arbitration Act 1996 specifically excluded from application to this
arbitration are in the following terms:
Jurisdiction of the arbitral tribunal
30 Competence of tribunal to rule on its own jurisdiction
(1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive
jurisdiction, that is, as to (a) whether there is a valid arbitration agreement,
(b) whether the tribunal is properly constituted, and
(c) what matters have been submitted to arbitration in accordance with the arbitration
agreement.
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(2) Any such ruling may be challenged by any available arbitral process of appeal or review or in
accordance with the provisions of this Part.
32 Determination of preliminary point of jurisdiction
(1) The court may, on the application of a party to arbitral proceedings (upon notice to the other
parties), determine any question as to the substantive jurisdiction of the tribunal.
A party may lose the right to object (see section 73).
(2) An application under this section shall not be considered unless (a) it is made with the agreement in writing of all the other parties to the proceedings, or
(b) it is made with the permission of the tribunal and the court is satisfied (i) that the determination of the question is likely to produce substantial savings in costs,
(ii) that the application was made without delay, and
(iii) that there is good reason why the matter should be decided by the court.
(3) An application under this section, unless made with the agreement of all the other parties to the
proceedings, shall state the grounds on which it is said that the matter should be decided by the
court.
(4) Unless otherwise agreed by the parties, the arbitral tribunal may continue the arbitral proceedings
and make an award while an application to the court under this section is pending.
(5) Unless the court gives leave, no appeal lies from a decision of the court whether the conditions
specified in subsection (2) are met.
(6) The decision of the court on the question of jurisdiction shall be treated as a judgment of the court
for the purposes of an appeal.
But no appeal lies without the leave of the court which shall not be given unless the court considers
that the question involves a point of law which is one of general importance or is one which for some
other special reason should be considered by the Court of Appeal.
Powers of court in relation to arbitral proceedings
42 Enforcement of peremptory orders of tribunal
(1) Unless otherwise agreed by the parties, the court may make an order requiring a party to comply
with a peremptory order made by the tribunal.
(2) An application for an order under this section may be made (a) by the tribunal (upon notice to the parties),
(b) by a party to the arbitral proceedings with the permission of the tribunal (and upon notice to
the other parties), or
(c) where the parties have agreed that the powers of the court under this section shall be
available.
(3) The court shall not act unless it is satisfied that the applicant has exhausted any available arbitral
process in respect of failure to comply with the tribunal’s order.
(4) No order shall be made under this section unless the court is satisfied that the person to whom
the tribunal’s order was directed has failed to comply with it within the time prescribed in the order or,
if no time was prescribed, within a reasonable time.
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(5) The leave of the court is required for any appeal from a decision of the court under this section.
43 Securing the attendance of witnesses
(1) A party to arbitral proceedings may use the same court procedures as are available in relation to
legal proceedings to secure the attendance before the tribunal of a witness in order to give oral
testimony or to produce documents or other material evidence.
(2) This may only be done with the permission of the tribunal or the agreement of the other parties.
(3) The court procedures may only be used if (a) the witness is in the United Kingdom, and
(b) the arbitral proceedings are being conducted in England and Wales or, as the case may be,
Northern Ireland.
(4) A person shall not be compelled by virtue of this section to produce any document or other
material evidence which he could not be compelled to produce in legal proceedings.
44 Court powers exercisable in support of arbitral proceedings
(1) Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral
proceedings the same power of making orders about the matters listed below as it has for the
purposes of and in relation to legal proceedings.
(2) Those matters are (a) the taking of the evidence of witnesses;
(b) the preservation of evidence;
(c) making orders relating to property which is the subject of the proceedings or as to which any
question arises in the proceedings (i) for the inspection, photographing, preservation, custody or detention of the property, or
(ii) ordering that samples be taken from, or any observation be made of or experiment
conducted upon, the property;
and for that purpose authorising any person to enter any premises in the possession or control
of a party to the arbitration;
(d) the sale of any goods the subject of the proceedings;
(e) the granting of an interim injunction or the appointment of a receiver.
(3) If the case is one of urgency, the court may, on the application of a party or proposed party to the
arbitral proceedings, make such orders as it thinks necessary for the purpose of preserving evidence
or assets.
(4) If the case is not one of urgency, the court shall act only on the application of a party to the
arbitral proceedings (upon notice to the other parties and to the tribunal) made with the permission of
the tribunal or the agreement in writing of the other parties.
(5) In any case the court shall act only if or to the extent that the arbitral tribunal, and any arbitral or
other institution or person vested by the parties with power in that regard, has no power or is unable
for the time being to act effectively.
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(6) If the court so orders, an order made by it under this section shall cease to have effect in whole or
in part on the order of the tribunal or of any such arbitral or other institution or person having power to
act in relation to the subject-matter of the order.
(7) The leave of the court is required for any appeal from a decision of the court under this section.
45 Determination of preliminary point of law
(1) Unless otherwise agreed by the parties, the court may on the application of a party to arbitral
proceedings (upon notice to the other parties) determine any question of law arising in the course of
the proceedings which the court is satisfied substantially affects the rights of one or more of the
parties.
An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to
exclude the court’s jurisdiction under this section.
(2) An application under this section shall not be considered unless (a) it is made with the agreement of all the other parties to the proceedings, or
(b) it is made with the permission of the tribunal and the court is satisfied (i) that the determination of the question is likely to produce substantial savings in costs, and
(ii) that the application was made without delay.
(3) The application shall identify the question of law to be determined and, unless made with the
agreement of all the other parties to the proceedings, shall state the grounds on which it is said that
the question should be decided by the court.
(4) Unless otherwise agreed by the parties, the arbitral tribunal may continue the arbitral proceedings
and make an award while an application to the court under this section is pending.
(5) Unless the court gives leave, no appeal lies from a decision of the court whether the conditions
specified in subsection (2) are met.
(6) The decision of the court on the question of law shall be treated as a judgment of the court for the
purposes of an appeal.
But no appeal lies without the leave of the court which shall not be given unless the court considers
that the question is one of general importance, or is one which for some other special reason should
be considered by the Court of Appeal.
Powers of the court in relation to award
67 Challenging the award: substantive jurisdiction
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to
the court (a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or
(b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole
or in part, because the tribunal did not have substantive jurisdiction.
A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions
in section 70(2) and (3).
(2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an
application to the court under this section is pending in relation to an award as to jurisdiction.
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(3) On an application under this section challenging an award of the arbitral tribunal as to its
substantive jurisdiction, the court may by order (a) confirm the award,
(b) vary the award, or
(c) set aside the award in whole or in part.
(4) The leave of the court is required for any appeal from a decision of the court under this section.
68 Challenging the award: serious irregularity
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to
the court challenging an award in the proceedings on the ground of serious irregularity affecting the
tribunal, the proceedings or the award.
A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions
in section 70(2) and (3).
(2) Serious irregularity means an irregularity of one or more of the following kinds which the court
considers has caused or will cause substantial injustice to the applicant—
(a) failure by the tribunal to comply with section 33 (general duty of tribunal);
(b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see
section 67);
(c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by
the parties;
(d) failure by the tribunal to deal with all the issues that were put to it;
(e) any arbitral or other institution or person vested by the parties with powers in relation to the
proceedings or the award exceeding its powers;
(f) uncertainty or ambiguity as to the effect of the award;
(g) the award being obtained by fraud or the award or the way in which it was procured being
contrary to public policy;
(h) failure to comply with the requirements as to the form of the award; or
(i) any irregularity in the conduct of the proceedings or in the award which is admitted by the
tribunal or by any arbitral or other institution or person vested by the parties with powers in
relation to the proceedings or the award.
(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the
court may (a) remit the award to the tribunal, in whole or in part, for reconsideration,
(b) set the award aside in whole or in part, or
(c) declare the award to be of no effect, in whole or in part.
The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole
or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the
tribunal for reconsideration.
(4) The leave of the court is required for any appeal from a decision of the court under this section.
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69 Appeal on point of law
(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the
other parties and to the tribunal) appeal to the court on a question of law arising out of an award
made in the proceedings.
An agreement to dispense with reasons for the tribunal’s award shall be considered an agreement to
exclude the court’s jurisdiction under this section.
(2) An appeal shall not be brought under this section except (a) with the agreement of all the other parties to the proceedings, or
(b) with the leave of the court.
The right to appeal is also subject to the restrictions in section 70(2) and (3).
(3) Leave to appeal shall be given only if the court is satisfied—
(a) that the determination of the question will substantially affect the rights of one or more of the
parties,
(b) that the question is one which the tribunal was asked to determine,
(c) that, on the basis of the findings of fact in the award (i) the decision of the tribunal on the question is obviously wrong, or
(ii) the question is one of general public importance and the decision of the tribunal is at least
open to serious doubt, and
(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and
proper in all the circumstances for the court to determine the question.
(4) An application for leave to appeal under this section shall identify the question of law to be
determined and state the grounds on which it is alleged that leave to appeal should be granted.
(5) The court shall determine an application for leave to appeal under this section without a hearing
unless it appears to the court that a hearing is required.
(6) The leave of the court is required for any appeal from a decision of the court under this section to
grant or refuse leave to appeal.
(7) On an appeal under this section the court may by order (a) confirm the award,
(b) vary the award,
(c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s
determination, or
(d) set aside the award in whole or in part.
The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied
that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.
(8) The decision of the court on an appeal under this section shall be treated as a judgment of the
court for the purposes of a further appeal.
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But no such appeal lies without the leave of the court which shall not be given unless the court
considers that the question is one of general importance or is one which for some other special
reason should be considered by the Court of Appeal.
70 Challenge or appeal: supplementary provisions
(1) The following provisions apply to an application or appeal under section 67, 68 or 69.
(2) An application or appeal may not be brought if the applicant or appellant has not first exhausted (a) any available arbitral process of appeal or review, and
(b) any available recourse under section 57 (correction of award or additional award).
(3) Any application or appeal must be brought within 28 days of the date of the award or, if there has
been any arbitral process of appeal or review, of the date when the applicant or appellant was
notified of the result of that process.
(4) If on an application or appeal it appears to the court that the award (a) does not contain the tribunal’s reasons, or
(b) does not set out the tribunal’s reasons in sufficient detail to enable the court properly to
consider the application or appeal,
the court may order the tribunal to state the reasons for its award in sufficient detail for that purpose.
(5) Where the court makes an order under subsection (4), it may make such further order as it thinks
fit with respect to any additional costs of the arbitration resulting from its order.
(6) The court may order the applicant or appellant to provide security for the costs of the application
or appeal, and may direct that the application or appeal be dismissed if the order is not complied
with.
The power to order security for costs shall not be exercised on the ground that the applicant or
appellant is (a) an individual ordinarily resident outside the United Kingdom, or
(b) a corporation or association incorporated or formed under the law of a country outside the
United Kingdom, or whose central management and control is exercised outside the United
Kingdom.
(7) The court may order that any money payable under the award shall be brought into court or
otherwise secured pending the determination of the application or appeal, and may direct that the
application or appeal be dismissed if the order is not complied with.
(8) The court may grant leave to appeal subject to conditions to the same or similar effect as an order
under subsection (6) or (7).
This does not affect the general discretion of the court to grant leave subject to conditions.
Supplementary
79 Power of court to extend time limits relating to arbitral proceedings
(1) Unless the parties otherwise agree, the court may by order extend any time limit agreed by them
in relation to any matter relating to the arbitral proceedings or specified in any provision of this Part
having effect in default of such agreement.
This section does not apply to a time limit to which section 12 applies (power of court to extend time
for beginning arbitral proceedings, &c.).
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(2) An application for an order may be made (a) by any party to the arbitral proceedings (upon notice to the other parties and to the tribunal), or
(b) by the arbitral tribunal (upon notice to the parties).
(3) The court shall not exercise its power to extend a time limit unless it is satisfied—
(a) that any available recourse to the tribunal, or to any arbitral or other institution or person
vested by the parties with power in that regard, has first been exhausted, and
(b) that a substantial injustice would otherwise be done.
(4) The court’s power under this section may be exercised whether or not the time has already
expired.
(5) An order under this section may be made on such terms as the court thinks fit.
(6) The leave of the court is required for any appeal from a decision of the court under this section.
(7)
The Arbitration Rules of Sport Resolutions (UK) contain the following relevant provisions:
ARBITRATION RULES OF SPORT RESOLUTIONS (UK) (A TRADING
NAME OF THE SPORTS DISPUTE RESOLUTION PANEL LIMITED)
2. Appeal Arbitration Procedure
2.1 A party (the "Appellant") may appeal from a disciplinary, doping, selection or other decision
of a sports federation, governing body, club, association or other body in so far as the
regulations of the relevant body or a specific arbitration agreement provide for the appeal to
be heard under the Rules of Sport Resolutions (UK) or by Sport Resolutions (UK) and,
unless the parties otherwise agree, insofar as the Appellant has exhausted all other
procedures available under any applicable regulations.
2.2 Notice of Appeal
The Appellant shall submit to Sport Resolutions (UK) and serve on the Respondent a notice
of appeal containing or accompanied by (collectively referred to as the "Notice of Appeal"):
(a) the names and addresses and the relevant contact details of all the parties and
notification if any are under the age of eighteen (with their date of birth (if known)) ;
(b) details, and where available a copy, of the decision appealed from;
(c) the Appellant's request for relief or remedy;
(d) if applicable an application to stay the execution of the decision appealed from together
with the reasons;
(e) a copy of the regulations or the specific written agreement of both parties providing for
appeal arbitration under the Rules of Sport Resolutions (UK) or by Sport Resolutions
(UK); and
(f) any non-refundable deposit as set by Sport Resolutions (UK) from time to time.
2.3 Time-limit
In the absence of a time-limit set in the regulations of the sports body concerned or of a
previous subsisting agreement, the time-limit for the receipt by Sport Resolutions (UK) and
for the service by the Appellant on the Respondent of the Notice of Appeal shall be twentyone (21) days from the date of the decision from which the appeal is made or to be made.
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2.4 Statement of Appeal
Within ten (10) days of the expiry of the time-limit as set out in 2.3 above, the Appellant shall
submit to Sport Resolutions (UK) and serve on the Respondent a Statement of Appeal
(failing which the appeal shall be deemed to be withdrawn) containing or accompanied by
(collectively referred to as the "Statement of Appeal"):
(a) a statement of the facts and any law giving rise to the appeal and upon which the
Appellant is relying;
(b) copies of all documents upon which the Appellant is relying;
(c) a statement of any procedural matters upon which the parties have already agreed or
proposals in relation to such procedure, including but not limited to apportioning costs,
the location of the arbitration, any variations from the existing Rules relating to any
timetable, decision-making powers, confidentiality, the number and qualification of the
arbitrator(s) or any other matters.
2.5 Reply
Within fourteen (14) days of receipt by the Respondent of the Statement of Appeal, the
Respondent shall submit to Sport Resolutions (UK) and serve on the Appellant a reply
containing or accompanied by (collectively referred to as the "Reply"):
(a) confirmation or denial of all or part of the Appellant's Statement of Appeal, setting out as
fully as possible the facts and any law in the claim which the Respondent admits or
denies, on what grounds and any other facts and law upon which the Respondent relies;
(b) copies of all documents on which the Respondent is relying unless the document has
been previously submitted by the Appellant;
(c) any proposals in relation to the appeal procedure.
2.6 Further written submissions
Unless the Tribunal permits or directs otherwise, the parties shall not submit further written
argument(s) after the time limited for the submission of the Statement of Appeal or the Reply
as the case may be.
2.7 If the Respondent fails to submit its Reply within the time-limit set, the Tribunal may
nevertheless proceed with the arbitration and deliver its award.
2.8 Communication of the decision
The written decision and its reasons shall be communicated by the Tribunal to the parties
and a copy sent to Sport Resolutions (UK) as soon as possible and ordinarily within two (2)
months after the receipt by Sport Resolutions (UK) of the Notice of Appeal, unless the
parties otherwise agree.
6.
Formation of the Tribunal
6.1 Any dispute submitted to Sport Resolutions (UK) shall be decided by a one or three member
tribunal ("the Tribunal") appointed by the Executive Director of Sport Resolutions (UK)
unless the parties have otherwise agreed in writing (within any timescale notified by the
Executive Director of Sport Resolutions (UK)) that they wish to make their respective
nomination(s) in accordance with Rule 6.2 or 6.3. The Executive Director of SDRP shall
decide whether to appoint a one or three member tribunal as he/she considers appropriate
in all the circumstances and in discussion with the parties unless the parties have agreed in
writing whether the Tribunal should consist of one or three members.
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6.2 Where the parties have agreed that the Tribunal is to consist of one arbitrator and that the
parties wish to agree a nomination, the Executive Director of Sport Resolutions (UK) shall
propose to the parties the name(s) of potential arbitrators. The parties shall seek to agree on
one, whom they shall nominate to be appointed by the Executive Director of Sport
Resolutions (UK). That one Arbitrator shall constitute a valid Tribunal. If the parties fail to
agree, the Executive Director of Sport Resolutions (UK) shall appoint the Arbitrator.
6.3 Where the parties agree that the Tribunal shall consist of three arbitrators and that the
parties wish to nominate an arbitrator each they shall notify the Executive Director of Sport
Resolutions (UK) accordingly. Each party shall be permitted to nominate one arbitrator. The
Executive Director of Sport Resolutions (UK) shall propose to the parties the names of
potential arbitrators from whom the parties shall seek to make their respective nominations
to the Executive Director of Sport Resolutions (UK) for him/her to appoint.
6.4 If either party fails to nominate an arbitrator in accordance with these Rules, the arbitrator for
that party shall be chosen by the Executive Director of Sport Resolutions (UK). If the parties
nominate the same individual, that nomination shall remain and the Executive Director of
Sport Resolutions (UK) shall choose the second arbitrator. The Arbitrators selected by (or on
behalf of) the parties shall seek to choose the third Arbitrator from the list of potential
Chairperson arbitrators as proposed by the Executive Director of Sport Resolutions (UK)
(which arbitrator will act as Chairperson of the Tribunal). In the absence of agreement or if
the parties so request the third Arbitrator shall be chosen by the Executive Director of Sport
Resolutions (UK) from Sport Resolutions (UK)'s list of Chairperson arbitrators.
6.5 Sport Resolutions (UK) shall notify the parties of the name(s) of the Arbitrator(s) who are to
constitute the Tribunal and in the case of a three member Tribunal, which Arbitrator has
been appointed Chairperson.
6.6 A party may challenge the appointment of an Arbitrator where there are justifiable doubts as
to the Arbitrator's impartiality or independence or where the party raises any material
objection(s). If a party intends to challenge any appointment that party shall, within seven
days of notification by the Executive Director of Sport Resolutions (UK) of the appointment,
submit in writing to the Chairman of Sport Resolutions (UK)'s Panel Appointments and
Review Board (the "PARB") (with a copy to the Tribunal and Sport Resolutions (UK)) the
reasons why that party is challenging the Arbitrator. Unless the challenged Arbitrator
withdraws or the other party agrees to the challenge, the Chairman of the PARB shall
decide on the challenge in accordance with Sport Resolutions (UK)'s procedures for the
appointment and removal of Arbitrators and that decision shall be final.
6.7 If any Arbitrator, after appointment to a Tribunal dies, gives written notice of the desire to
resign, is removed, refuses to act, or in the opinion of the Chairman of the PARB becomes
unable or unfit to act, the Executive Director of Sport Resolutions (UK) shall, in accordance
with Sport Resolutions (UK)'s procedures for the appointment and removal of Arbitrators
appoint another Arbitrator to the Tribunal in his/her place (to act as Chairperson if the
circumstances require) and shall so inform the parties and any remaining members of the
Tribunal. Alternatively, if the parties so agree, the remaining members of any three member
Tribunal may proceed in the Arbitrator's absence.
6.8 If in the opinion of the majority of the Tribunal, any Arbitrator has refused or failed to comply
with the Rules or any applicable law relating to the making of the decision and/or award,
having been given a reasonable opportunity to do so, the other Arbitrator(s) (if any) may
remove him/her and the remaining Arbitrator(s) shall proceed in his/her absence.
6.9 Any appointment or removal required to be made by the Executive Director of Sport
Resolutions (UK) or the Chairman of the PARB under these Rules shall be made in
accordance with Sport Resolutions (UK)'s procedures for the appointment and removal of
Arbitrators and after giving full consideration to the nature and circumstances of the matter,
the location of the parties and any other relevant factor(s). Every Arbitrator conducting an
arbitration under these Rules shall be independent, impartial, suitably qualified and capable
and shall not act as advocate for any party.
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6.10 In the case of any former member of the Tribunal, the Chairman of the PARB shall decide
on the amount of the former Arbitrator's fees and expenses (if any). The remaining
member(s) and any replacement member(s) of the Tribunal (or if the Tribunal is unable to
decide the Chairman of the PARB in accordance with Sport Resolutions (UK)'s procedures
for the appointment and removal of Arbitrators), shall decide upon the status of any prior
decisions or existing proceedings of the Tribunal.
7.
Jurisdiction of the Tribunal
7.1 The Tribunal may decide on its own jurisdiction, including whether the Tribunal is properly
constituted, what matters have been submitted and any objections with respect to the
existence or validity of an arbitration agreement. For that purpose, an arbitration clause
which forms part of a contract or part of the rules and/or procedures of a sports body in the
United Kingdom shall be treated as an agreement independent of the other terms of the
contract or rules and/or procedures. If the Tribunal decides that the contract is void or the
rules and/or procedures invalid or otherwise unenforceable this shall not prejudice the
validity of the arbitration clause.
8.
Conduct of the Proceedings
8.1 The Tribunal shall conduct the proceedings of the arbitration in such manner as it considers
fit and may follow any arbitral procedure agreed by the parties if it is in the Tribunal's opinion
reasonably practicable so to do. The Tribunal shall act in accordance with these Rules and
any other applicable regulations. With the consent of the parties, the Tribunal may proceed
in an expedited manner for which it shall issue appropriate directions. Any decision of the
Tribunal in relation to the conduct of the proceedings shall be consistent with its duties at all
times to act fairly and impartially, to allow the parties reasonable opportunity to put their
respective cases and to deal with that of their opponent and to avoid unnecessary delay or
expense, so as to provide a fair and efficient means for resolving the dispute.
9.
Hearings
9.1 The Tribunal shall subject to any agreement of the parties fix the date, time and place of any
hearings in the arbitration and shall give the parties as much notice as practicable either
directly or via Sport Resolutions (UK) of the date, time and place of any hearing.
9.2 Any party requesting an oral hearing has the right to be heard in front of the Tribunal. In the
absence of any such request, the Tribunal shall endeavour to reach a decision without a
hearing on the basis of the written evidence.
9.3 Any such hearings shall be in private unless the parties agree otherwise or unless the
Tribunal directs.
10. Witnesses
10.1 The parties must notify the Tribunal and other parties as soon as practicable and within any
time limits set by the Tribunal of the identity of any witnesses they wish to call and, if the
Tribunal requires it, each party shall disclose the subject matter and content of the evidence
on which each such witness will be relying and how that evidence relates to the points at
issue and the Tribunal shall have power to decide whether such witness shall be required to
attend or be called to give evidence at any hearing.
10.2 The Tribunal may question a witness at any stage and shall control the questioning of a
witness by the other parties.
12. Decisions and Powers of the Tribunal
12.1 The decision and/or award of the Tribunal shall be in writing and shall be dated and signed
by the Arbitrator(s), and shall state the reasons on which it is based.
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12.2 Where there are three arbitrators, the Tribunal shall decide on any issue by a majority and if
the Tribunal fails to reach a majority decision on any issue, the decision of the Chairperson
of the Tribunal shall be final.
12.3 The sole arbitrator or Chairperson of the Tribunal shall arrange for the decision and/or award
to be delivered to Sport Resolutions (UK) and Sport Resolutions (UK) shall transmit certified
copies to the parties.
12.4 All decisions and/or awards of the Tribunal shall be final and binding on the parties and on
any party claiming through or under them and the parties agree, by submitting to arbitration
under these Rules, to waive irrevocably their right to any form of appeal, review or recourse
to any state court or other judicial authority, subject to any applicable statutory or other
rights.
12.5 The Tribunal shall have the powers as set out in the Act, including the powers to make a
declaration on any matter to be determined in the proceedings, to order the payment of a
sum of money by way of damages or otherwise including the award of simple or compound
interest on the whole or part of any amount, to order a party to do or refrain from doing
anything, to order specific performance of a contract (except one relating to land), and to
order the rectification, setting aside or cancellation of a deed.
12.6 In addition, the Tribunal shall have the power:
(a) to allow any party to amend its written case and/or to submit further evidence;
(b) to extend or abbreviate any time-limit provided by these Rules or any arbitration
agreement;
(c) to conduct enquiries;
(d) to order any party to make any property under its control available for inspection by the
Tribunal;
(e) to order the production to the Tribunal and the other party/parties for inspection, copies
of any documents in a party's control which the Tribunal considers relevant;
(f) to decide which rules of evidence on admissibility, relevance and/or weight shall apply;
(g) to dismiss a claim or to proceed in the absence of one or more of the parties, in the
event of a failure to comply with any directions of the Tribunal;
(h) to consolidate proceedings subject to the consent in writing of all the parties concerned;
(i) to join any other party to the proceedings on the application of a party, subject to the
consent in writing of such third party; and
(j) to order on an interim basis, subject to final determination in a decision and/or award,
any relief or remedy which the Tribunal would have the power to grant in a final decision
and/or award including a provisional order for security for costs, any deposit, the
payment of any other money, to order a party to do or refrain from doing anything, and/or
in any appeal, staying execution of the decision below. The Tribunal may not make any
interim order or grant any provisional award unless and until the Notice of Appeal or the
Notice as the case may be have been properly submitted and served.
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