Strand, London, WC2A 2LL
B e f o r e :
| Fulham Football Club (1987) Limited
|- and -
|Sir David Richards
The Football Association Premier League Limited
Mr Richard Snowden QC and Mr James Potts (instructed by BrabnersChaffe Street LLP) for the 1st Respondent
Mr Ian Mill QC and Mr Andrew Hunter (instructed by DLA Piper UK LLP) for the 2nd Respondent
Hearing dates: 22nd and 23rd November 2010
Crown Copyright ©
Mr Justice Vos:
The FAPL Rules
"2.1 to submit all disputes which arise between them ... whether arising out of [the FAPL Rules] or otherwise to final and binding arbitration in accordance with the provisions of the [AA 1996] and this Section of [the FAPL Rules]".
"3.2 disputes arising from the exercise of the Board's discretion ("Board Disputes");
3.3 other disputes arising from [the FAPL Rules] or otherwise".
The FA Rules
"1.(a) Subject to Rule K1(b), K1(c) and K1(d) below, any dispute or difference between any two or more Participants (which shall include, for the purposes of this section of the [FA Rules], [the FA]) including but not limited to a dispute arising out of or in connection with (including any question regarding the existence or validity of):
(i) the Rules and regulations of [the FA] which are in force from time to time;
(ii) the rules and regulations of [a] … Competition which are in force from time to time;
shall be referred to and finally resolved by arbitration under [the FA Rules].
(c) Rule K1(a) shall not apply to any dispute or difference which falls to be resolved pursuant to any rules from time to time in force of any … Competition.
(e) The parties agree that the powers of the court under pages 44, 45 and 69 of the [AA 1996] are excluded and shall not apply to any arbitration commenced under these Rules".
The Articles of Association of the FAPL
Other rules and charters
The Arbitration Act 1996
"(b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;
(c) in matters governed by this Part the court should not intervene except as provided in this Part".
"9(1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter.
(2) An application may be made notwithstanding that the matter is to be referred to arbitration only after the exhaustion of other dispute resolution procedures.
(3) An application may not be made by a person before taking the appropriate procedural step (if any) to acknowledge the legal proceedings against him or after he has taken any step in those proceedings to answer the substantive claim.
(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed".
"(1) The parties are free to agree on the powers exercisable by the arbitral tribunal as regards remedies.
(2) Unless otherwise agreed by the parties, the tribunal has the following powers. …
(5) The tribunal has the same powers as the court – (a) to order a party to do or refrain from doing anything".
The Companies Act 2006
"(1) A member of a company may apply to the court by petition for an order under this Part on the ground—
(a) that the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or
(b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial".
"(1) If the court is satisfied that a petition under this Part is well founded, it may make such order as it thinks fit for giving relief in respect of the matters complained of.
(2) Without prejudice to the generality of subsection (1), the court's order may -
(a) regulate the conduct of the company's affairs in the future;
(b) require the company –
(i) to refrain from doing or continuing an act complained of …
(e) provide for the purchase of the shares of any members of the company by other members of the company or by the company itself and, in the case of a purchase by the company itself, the reduction of the company's capital accordingly".
The two conflicting authorities
Should this court regard the decision in Exeter City as settled law?
The construction question
The other authorities
The competing positions