“The last twenty years have seen huge growth in sports arbitration. Rather than allowing disputes to be settled in ordinary domestic courts, most Sports Governing Bodies (SGBs) now provide for all disputes under their regulations to be settled exclusively by way of arbitration. Indeed, many provide for a final appeal to the Court of Arbitration for Sport (CAS).
Arbitration is a non-judicial process for the settlement of disputes whereby an independent third party – an arbitrator – makes a decision that is binding. In English law, this procedure is governed by the Arbitration Act 1996 (AA 1996). Usually, parties will pre-emptively include an arbitration clause in their contract or, once a dispute arises, enter an agreement to arbitrate (as opposed to litigating in the ordinary domestic courts). Yet in sport, this ‘agreement’ is forced: the regulations of SGBs are rarely negotiated in any meaningful sense, so athletes (and all other participants) must either accept them or choose a different career.”
The recent decision of the Brussels Court of Appeal in RFC Seraing and Doyen Sports Company v FIFA and Others [2018] has re-opened the debate about the use of “forced arbitration” clauses in sport, which has been dissected by this author for Keep Calm Talk Law (KCTL), here:
The decision in RFC Seraing [2018] found that the “forced arbitration” clause in FIFA’s Statutes (Art.59) was invalid for being too general. Belgian law requires, in line with international conventions, that arbitration agreements must be formed on the basis of a “specific legal relationship”. The all-encompassing nature of FIFA’s clause was held not to satisfy such a requirement.
With this in mind, this article will take a look at the use of arbitration clauses by the RFU and World Rugby and will consider whether they might be susceptible to challenge on similar grounds.
The RFU
The RFU’s arbitration clause can be found in RFU Regulation 19, at 15.3:
“The procedures in Regulation 19 relating to RFU Disciplinary Panel hearings and appeals before an Appeal Panel shall be governed by the Arbitration Act 1996 (“the Act”) and amount to a binding arbitration agreement for the purposes of section 6 of that Act. Subject to the provisions of sections 67 to 71 of the Act, the decision of the Appeal Panel shall be final and binding on the parties and there shall be no right of appeal. The parties are deemed to have agreed that there shall be no right of appeal on a point of law under section 69 of the Act. The seat of arbitration shall be England and the governing law of the RFU Regulations and the proceedings under RFU Regulation 19 shall be English Law.”
This clause differs from the clause in the RFC Seraing [2018] case in that this merely classifies internal procedures as arbitral, rather than providing for external arbitration to resolve disputes, as FIFA’s Statutes do. The RFU have included this to give finality to decisions of their disciplinary and appeal panels, and to restrict possible legal challenges.
Unlike the FIFA clause, which was struck down in RFC Seraing [2018] for its lack of specificity, covering “any dispute or difference”, the RFU’s clause specifically applies to disciplinary procedures. As such, it is unlikely to be challenged in the same way. Of course, English law is also different to Belgian law, and the requirement of specificity is not explicitly laid down in the AA 1996, but the clause here seems nonetheless compliant with established arbitration procedures.
However, this is far from satisfactory, as explained in the KCTL article above. The artificial nature of the ‘agreement’ under which SGBs’ regulations are premised means that players cannot be said to have genuinely consented to arbitration – a fundamental feature of the procedure, as set out in the AA 1996. This is particularly concerning given that the RFU’s clauses states:
“The parties are deemed to have agreed that there shall be no right of appeal on a point of law under section 69 of the Act”
This potentially limits the rights of players, under the rule of law and the European Convention of Human Rights, extensively. To do so under such an artificial construct of ‘agreement’ is deeply unsatisfactory. Nonetheless, such a clause has previously been held acceptable by the Court of Appeal in Stretford v The Football Association [2007].
As argued in the KCTL article, this author advocates introducing a right of refusal to arbitrate, for players. This would allow for a much more intellectually honest position, which would fully respect fundamental rights. The RFU should consider doing so.
Lastly, the only other reference to arbitration in the RFU Regulations is found in Regulation 20 (Anti-Doping). This Regulation merely implements World Rugby’s anti-doping rules (Regulation 21), which itself implements the WADA Code. These rules provide for an appeal against decisions in doping disputes to be settled by CAS. This type of specific arbitration clause, regarding the specialist area of doping disputes, is presumably not the type of clause that would fall foul of a ruling like that in RFC Seraing [2018].
World Rugby
Unlike its football equivalent, World Rugby does not provide for disputes under its regulations to be settled by arbitration. Indeed, aside from in doping disputes (under World Rugby Regulation 21), there is no provision for appeals to be made to CAS – contrary to what has been suggested previously in the media. When Spain were left out of the 2019 Rugby World Cup after the player eligibility scandal, many called for an appeal to CAS. However, in rugby, there is no such thing.
Moreover, there is no mention of World Rugby’s judicial or disciplinary proceedings being classed as arbitral proceedings, like in the RFU’s Regulations. Instead, World Rugby Bye-Law 15(b) states:
“These Bye-Laws and any Regulations Relating to the Game, General Regulations or Laws of the Game made pursuant thereto shall in all respects be governed by and construed in accordance with English Law, and any dispute arising there under shall be subject to the exclusive jurisdiction of the English Courts.”
In contrast to arbitration clauses – which explicitly oust the jurisdiction of the ordinary courts – this Bye-Law suggests that any dispute will be resolved by litigation.
Implied Arbitration?
However, it is worth noting the decision of the English High Court in ECB v Kaneria [2014] in which the English Cricket Board’s disciplinary appeals procedure was construed as amounting to an arbitration, despite the absence of a specific agreement to that effect. Though this seems to fly in the face of the very essence of arbitration, there are authorities supporting the proposition (Walkinshaw v Diniz [2000] 2 All ER (Comm) 237).
The current ECB Disciplinary Regulations now make perfectly clear what should and should not be classed as arbitral. The appeals procedure:
“is intended to be and shall be construed as being an arbitral process for the purposes of the Arbitration Act 1996”
But the original disciplinary panel proceedings:
“are not intended to be, nor should they be construed as being, arbitral for the purposes of the Arbitration Act 1996”
World Rugby’s Regulations are not so clear, such that there may be room for construing their procedures as arbitral. The significance of that would mean that decisions would be less easily challenged. This author submits that World Rugby should follow the ECB and the RFU and make clear how they wish their judicial procedures to be classified, for the avoidance of doubt.
A ‘CAS Clause’?
This author has previously argued (here and here) that World Rugby Regulation 18 should provide for a final appeal to CAS, given the restrictive nature of the existing appeals procedure. The reasoning need not be rehearsed here.
If World Rugby were to add a clause granting an appeal to CAS, it is submitted that it would need to be more specific than that of FIFA, to avoid legal challenge. A clause allowing for ‘disciplinary sanctions’ to be appealed to CAS may give sufficient specificity, in the same way that the appeal clause in the doping regulations is likely to. Of course, the reality is that the RFC Seraing [2018] decision has created an element of uncertainty, and we will have to await further decisions to determine what its true impact will be.