Corruption in football – player transfers, agents and the “privatisation of regulation”

Corruption and football are two words that are unfortunately found all too often associated with another, particularly in respect to the business side of football. Leaving aside, if we can, the incredible activity of the world governing body in football, FIFA, whose top officials faced multiple counts of racketeering, wire fraud conspiracy, money laundering, and obstruction of justice in US Court proceedings,  there has been considerable comment, on a perennial basis, about the corruption involved in relation to the transfer of football players and associated agents’ activity.

This post considers the reality and sources of corruption in football before discussing solutions to the problem. I conclude that the various shortcomings and retreats of the regulator mean that the burden falls increasingly on private participants[1] in football themselves to remedy the prejudice they suffer as a result of corruption or “cheating”, and I try to set out a brief guide to the framework to achieve that remedy for participants and their lawyers.[2]

  “Football for Sale”

In September 2016 the Daily Telegraph ran a series of front page stories about alleged corruption in English football. The “investigation” under the name “Football for Sale” started with revelations that England’s then manager, Sam Allardyce, had negotiated a “£400,000 deal and offered advice to businessmen on how to ‘get around’ FA rules on player transfers”.[3] The paper promised further scandalous exposés about the extent of corruption in English football, but it turned out to be a damp squib. QPR’s then manager, Jimmy Floyd Hasselbaink was enticed into asking requesting a fee of £55,000 to speak to football agents and Leeds United’ Chairman, Massimo Cellino, explained to his entrappers that whilst they could not purchase a share in football players, if they invested in the Club they could have a return on profit from player sales. Apart, perhaps, for the unfortunate Assistant Head Coach of Barnsley, Tommy Wright, set up by the Telegraph with a £5,000 “bung” to agree to place players in the team, none of this revealed any breaches of the FA Rules, let alone the criminal law. Wright lost his job, as did Allardyce, the latter more as a result of The FA’s embarrassment then any rule breaches. To date, nobody has been charged with breaking any rule.

10 years before the Telegraph’s much trumpeted scoop the BBC put on a similar sting.  BBC’s Panorama broadcast a programme under the salacious title “Undercover: Football's Dirty Secrets”. It featured allegations about rule breaking and “bungs” about (amongst others) the then Bolton Wanderers manager, Sam Allardyce, and then Portsmouth manager Harry Redknapp. A centrepiece of the programmes was a secret film recording of football agent Charles Collymore caught on camera saying “There's managers out there who take bungs all day long. I would say to you comfortably there's six to eight managers we could definitely approach and they'd be up for this no problem.”

 I represented (and cleared) Mr Collymore in disciplinary proceedings brought against him and others by The FA arising out of the programme. We watched the entire unedited secret film recordings. It was obvious that Mr Collymore had gone out of his way on several occasions to make clear the way he conducted his agency business was by identifying and putting in the hours with young talented players, not by corrupt schemes. But those secretly filming him over a series of dinners and meetings did not give up. They kept pressing him, saying that their investors wanted a short cut and asking why they could not just pay a manager to place players instead. Finally, after many hours, they got the sound bite they wanted for the programme. 

Mr Collymore later said he had become suspicious of those filming him and he was trying to “smoke them out”. The FA, no doubt embarrassed by the tabloid headlines of corruption and bungs in football that followed promptly decided to fail to investigate any of the serious allegations made in the programme about high profile premier league managers, passing that buck to others, but instead decided to throw the book at a few of the smaller players mentioned including Mr Collymore, charging them with breaches relating to a relatively low level transfer of a player from Luton Town to Bristol City. This turned out to be a typical response of The FA.

The Telegraph’s sting 10 years later represented much more of the same. More secret film recordings apparently trying to set up football managers and others (with some of the same characters involved), more embarrassment for The FA, but an underlying sense that nothing much was actually been exposed and also nothing much has changed.

The Telegraph’s story was much more hot air and hype than substance. Yet the interest in the story, just like the BBC’s programme ten years before, reflects a growing disquiet about perceived corruption in football amongst the public, the press, and also politicians. If you asked many people working in the football industry about the story they would express surprise, not at what the media uncovered but rather the fact so little of what is known does go on was actually exposed. The more serious allegations of corruption, some of which have been made in public, remain largely uninvestigated.

The reality of corruption in football

What, then, is the reality and extent of corruption in football? In the widest sense of the word, corruption is prolific. I use the term “corruption” here to include everything from the obvious bribe to persuade a club to engage a player or a player to sign with an agent, to deliberate and concealed breaches of the rules so that a club, player or agent may achieve some financial or sporting other advantage, such as occurred in respect to the Tevez affair discussed below. Corruption in this sense is not necessarily criminal activity (though it may be), it might not even create civil liability (but it usually, and increasingly will), it may involve a dishonest breach of the regulators rules in order to obtain some advantage (which can often be referred to as simple “cheating” and might be lawful conduct at civil law) or, as a result for example of de-regulation, may not even breach the relevant regulations.

Corruption in football has, and in many cases continues, to operate on many levels, but it mostly centres on the lucrative and highly specialised transfer market of football players. Previously allegations of corruption in football focussed on “old school” English football managers receiving cash payments for signing players from particular agents. Whilst that no doubt continues at some levels it is much less widespread today than it was years ago. Football clubs, particularly at the top level, have moved away from allowing managers to conduct their most important and risky financial business. The advent of the modern football Chief Executive or Director of Football, sometimes decried by English fans, in large part reflects the fact that football clubs understand the need to act more as professional businesses than they did in the past, and that owners who plough millions of pounds into the clubs expect some kind of checks and balances on spending.

 But this does not mean football is now “clean”. Far from it, if anything there has been an increase in arrangements in breach of the rules, including the payment of bribes, in the transfer market. As even greater amounts of money pour into football the competition between the top clubs for the best players increases. What in most other businesses might appear to be unorthodox payments to or from agents, or to families of players, often undeclared and in breach of the FA Rules, are not uncommon, even at the highest level. There is a widespread perception that sometimes the only way to secure the signing of a player is to engage in the same type of conduct that everybody else seems to be engaged in, otherwise the club or agent will miss out on a player to their competitors.

The failure and retreat of regulation

The regulators have proved incapable of tacking the problem. Its scale is too large. The FA does not have the resources, even if it had the will (which is questionable) to investigate and charge every suspicious transfer or payment. Instead it concentrates on a tiny fraction of suspicious transfers, not necessarily the most serious alleged rule breaches, or those involving the highest amount of money, but those it thinks are the easiest to prove, or those that sit well with a particular policy objective in vogue at the time, or involve a charge against an unpopular individual in the eyes of The FA.

In addition, the FA’s disciplinary processes have come under increasing scrutiny in the last few years. Many participants have little confidence that they shall receive a fair hearing, or that the FA’s Regulatory Commissions or Appeal Boards, and the way they are selected, are genuinely independent of The FA. A widespread perception exists that once The FA decides to charge a party the result is almost a fait accompli. As such, it is often The FA’s discretion to investigate and charge those allegations it is interested in pursuing, a process that is naturally even less transparent or independent than the subsequent disciplinary process, that is determinative. These flaws in the regulatory process lead to a general lack of confidence in its integrity and effectiveness.

The problem has been made worse by FIFA. In particular, the decision to scrap the licensing of football agents and replace it with a far lighter touch regulation of “Intermediaries” from 2015 has led to an increase in precisely the type of corrupt payments (often to young players’ families), “tapping up” and “poaching” that many of us predicted it would. In March 2015, I published a paper on the topic suggesting the de-regulation would cause:

an increase in disputes between Intermediaries themselves, between clubs and players on the one hand and Intermediaries on the other, and an increase in disciplinary/regulatory disputes between the FA and Intermediaries (and others).[4]

And so it has. Even after The FA’s Agents license was first abolished in 2015, the number of Intermediaries registered with The FA started at just over 770. In only two years that has increased to over 1,700 individual registered Intermediaries and over 160 registered Intermediary companies.[5] Yet the number of football players, clubs and transfers will have remained more or less the same in those two years. There are many more Intermediaries chasing the same deals today as there were two years ago, most of the new Intermediaries have not received any training and never been subject to a licensing regime, and many of them shall not start out with their own clients.

In addition, when The FA replaced its Football Agents Regulations with the Regulations on Intermediaries, it decided to scrap the prohibitions on agents “tapping up” (approaching players under contract to a club in an attempt to induce them to leave the club and join another). This activity was prohibited by the old FA Agents Regulations which contained a presumption that an agent of a player who had unlawfully terminated his playing contract had induced a breach of contract.

Further, unlike the previous Agents Regulations, the FA Intermediaries Regulations do not prohibit an Intermediary approaching a player already under a Representation Contract with another Intermediary. In the past, attempts by agents to poach the clients of other agents could sometimes be swiftly rebuffed by making it clear to the poaching agent that he could not do so without breaching the Agents Regulations (and thus risk suspension of his license by the FA) whilst the player already had a valid Representation Contract. This opportunity to protect their clients by engaging the regulator has been lost to Intermediaries.

The consequence of this de-regulation has been what I describe as the “privatisation of regulation” – it is left to the parties to enforce their rights against each other with little recourse to regulation. The “poaching” scenario is the best illustration of this. With many more Intermediaries as there were previously Agents, and most of the new Intermediaries presumably having few or no clients, the inevitable increase in attempts to poach players from existing Intermediaries is aggravated by the fact that there is no longer the deterrent of action by the regulator against the poaching Intermediary. The Intermediary who has his client poached only has one recourse, to privately sue the new Intermediary for inducement to breach contract. There has thus been a predictable escalation in the number of FA Rule K arbitrations between Intermediaries and Intermediaries and players in the last couple of years. The FA as regulator stays out of this, leaving it to the parties to appoint their arbitrators and lawyers and sue for damages.  Anecdotally, and according to other lawyers working in the industry I speak with, we have seen this tendency repeated internationally, with an increase in private contractual disputes between players, clubs and Intermediaries being brought in arbitration before FIFA and/or the CAS. Despite the arbitration clause in FA registered Intermediary Representation Contracts, there has been a greater tendency to involve the courts too. FIFA, on the other hand, does not mandate arbitration for Intermediary disputes at all any more (it did so under the old FIFA Agents Regulations), so there is also increased uncertainty as to the right forum for resolution of disputes arising from certain international transfers.

FIFA’s decision to end the licensing of Agents gave The FA, and other national federations, little choice but to follow suit. So why did the FIFA retreat from this important area of regulation?  Two reasons are apparent from those who pushed the change through FIFA.[6] First, FIFA concluded that its regulation was not effective enough, because only a minority of international transfers were conducted by licensed football agents (FIFA claimed around 25-30%). As regulation was not working, they concluded they would scrap the regulation itself. Second, some within FIFA took the view that payments to agents meant money leaving football, and de-regulation couple with a cap on fees would be a good way to break the power of the more successful agents and reduce the amount of money paid in agents’ fees.

Both these reasons were profoundly misguided. The idea that because a system of professional regulation is not yet effective enough, or that many parties are avoiding the regulation and acting outside it, should lead to a de-regulation, a levelling down to reflect the practices of those intent on rule breaking, is a recipe for exactly the type of problem that has since emerged. One can imagine the outcry if a financial or medical regulator decided to de-regulate requirements on lenders or doctors because many of them were breaching the regulations placed on them.

In any event, FIFA’s statistics, that only 25-30% of international transfers were conducted by licensed agents under the old regulations, were most likely misleading. In recent statistics provided by the head of FIFA TMS,[7] “21% of all transfers in 2016 had at least 1 intermediary involved” (i.e. similar to the situation with licensed agents) but for “transfers with fees this number is as high as 51%”. Not surprisingly, it is those transfers where money is at stake where Intermediaries are most likely to be involved, and it was the same with licensed agents. It also follows that where more money is at stake, it is more likely agents or Intermediaries shall be engaged. FIFA’s TMS’ figures show that England tops the league for spending on Agents/Intermediaries since January 2013, with a total of $381.2 USD million spent on fees. England also had probably the most effective regulation of agents under the old FA Agents Regulations. The rest of the league table reflects the fact that it is the big leagues that spend the most on Intermediaries (Italy came second, Germany third, followed by Portugal, then Spain and France). So whilst only 25% of international transfers may have been conducted by licensed football agents previously, the figure where substantial transfer fees are involved (i.e. transfers in or out of the major European leagues) must have been and remains much higher, much more like 80% and above. And it is precisely in relation to these high value transfers, where substantial agents’ fees can also be earned and where there is likely to be increased competition between clubs, that the risk of corruption is great.

The second FIFA justification, reducing the sums of money “going out” of football was equally confused for other reasons not the subject of this paper but, in any event, FIFA’s attempt to cap remuneration of Intermediaries at 3% has not succeeded. Those of us involved in the challenge to potential domestic regulations suggesting a commission cap were able to compromise that challenge precisely because national federations, in Europe at least, have avoided putting it into any real effect. The commissions earned by Intermediaries in the big deals remain at the same level (as a proportion of, for example, the player’s salary) as they were under the licensed agents scheme (i.e usually around 5%, rarely, but sometimes, more than 10%. It is even more rare for them to be less than 5%).

In addition to de-regulating Agency Activity FIFA decided, also from 2015, to bring in a worldwide prohibition on Third Party Investment (‘TPI’) in football players. Previously, and quite properly, Third Party Influence was banned, but many parts of the world allowed third parties to invest in the future transfer value of a player thus allowing poorer clubs to borrow money and arguably players from poorer countries or backgrounds to be promoted on a bigger stage. Opponents of Third Party Investment compared the scheme to human trafficking, perhaps forgetting that if a Third Party doesn’t have an interest in a player then only the club, his employer, does – and the club as employer has even greater control over the transfers and future moves of the player.

But whatever the arguments about TPI (and there are strong ones on both sides), FIFA chose to simply prohibit TPI outright rather than setting up a transparent system of regulation of it. Some of us suggested at the time that the inevitable consequence of these twin moves (de-regulating agents and banning TPI) would be to drive practices underground and outside a regulatory framework. This is indeed what appears to have happened. Some investors still see the opportunities of investment in the potentially lucrative risk of a player’s future transfer value, and certain players, agents or clubs still have a need for investment of this kind. Because FIFA has retreated from regulating the activity, it is now conducted in an even more concealed fashion that it was previously. It is perhaps no surprise that the Telegraph’s sting was largely based on pretend scheme to “get around” the ban on TPI.

 The privatisation of regulation

My main argument in this paper is that the various factors discussed above, in particular the ever increasing sums of money pouring into football and revolving around football transfers on the one hand and the failure and retreat of regulation on the other, has led to what I describe as the “privatisation” of regulation. The tendency is for the parties themselves to enforce the Rules as against each other, to seek compensation from each other, rather than redress from the regulator, for the loss caused to them by various forms of corruption, fraud or cheating.

The bellwether case for this dynamic was the Tevez case(s), and barristers from Blackstone chambers can be proud to have been in the forefront of this important development.[8] West Ham United acquired the Argentinian player, Carlos Tevez’s registration in circumstances where a third party maintained an interest and influence over the player in breach of the Premier League’s rules, and West Ham was fined for its breach by the Premier League.[9] Sheffield United then brought arbitral proceedings against the Premier League arguing that West Ham ought to have been subject to a points’ deduction by the regulator  for its rule breach – had it been so West Ham would have been relegated instead of Sheffield United. The Arbitral panel failed to overturn the decision not to impose a points’ sanction instead of a fine for this breach.[10]

Sheffield United then changed tack and brought a direct private claim (in FA Rule K arbitration) for breach of contract against West Ham. After establishing that the Premier League rules constituted a contract not only between each club and the regulator but between each club with each other, and that West Ham’s breach of the relevant rule caused Sheffield Untied loss, in that it would not have been relegated had West Ham not benefitted (in points) from its breach, Sheffield United succeeded in securing many millions of pounds in compensation from West Ham for breach of the contractual obligation that it owed Sheffield United to comply with the rules.[11]

The case remains the high-water mark for participants wishing to secure compensation for   losses they have suffered as a result of rule breaches by others, but it is also significant because it reflected, or perhaps heralded in, the new more common creative response to rule breaches, cheating and corruption generally by participants no longer confident that they can achieve a remedy via the normal regulatory means.  Football is big business, why should clubs, players and agents rely on the unpredictable discretion of an under-resourced regulator that lacks the appetite to effectively regulate the sport?

Nearly ten years later private remedies for corruption and breach are far more common than complaints to the regulator. Disputes concerning the transfer of players and payments to agents, especially, are far more frequently determined now by claims for damages (and sometimes other relief such as injunctive relief) between participants, whether in the courts, FIFA and CAS, or FA Rule K arbitration.  This is the key development for lawyers acting in this field.

Because these disputes are largely determined in arbitration, and arbitrations are generally confidential (though many of the decisions in disputes of this kind before the FIFA Dispute Resolution Chamber or the CAS are published), there are less precedents that one can rely on or refer to than one might like, but there are nevertheless a number of cases and sources of law that should help practitioners and clients involved in disputes of this kind. In this next part of this paper I set out some of the key cases in English law that lawyers practising in cases of this nature should be familiar with.

Key cases and principles for resolving corruption disputes in football

Arbitration clauses

Given the increased importance of private arbitration in football disputes, it is important for practitioners to have a good understanding of commercial arbitration generally, and how it works in football in particular. The starting point is usually to determine whether or not an arbitration clause exists, and if it does who the right arbitrator is. This is increasingly straightforward:

First, if the parties have an express contract between each other, such as a Representation Contract between an agent and a club, an employment contract between a play and a club, or a transfer agreement between clubs, the contact shall often contain an express arbitration clause (and indeed there are often regulatory requirements for one). The most likely forums for the resolution of disputes will be FIFA (from which there is usually always an appeal to the CAS) and/or CAS alone for contracts made with international parties (such as foreign players, clubs or agents), the Premier League, Football League, or Football Conference for the resolution of certain specified disputes, such as most contractual disputes between players and employing clubs, and FA Rule K arbitration, which covers nearly all other disputes between participants.

Second, in the absence of an individually negotiated contract between the parties incorporating an arbitration clause between them, the relevant rules shall often constitute a contract by which the parties have agreed to arbitrate. Most significantly, FA Rule K provides that “any dispute or difference between any two or more Participants … shall be referred to and finally resolved by arbitration under these Rules.” FA Rule K means that there is, as a starting presumption, mandatory arbitration for football disputes in England. Despite clear authority on the point, including from the Court of Appeal,[12] some participants have continued to attempt to litigate in courts despite the breadth of FA Rule K, usually with negative effects – such as their claims being stayed for arbitration and having to pay the other side’s costs, often on an indemnity basis.

FA Rule K.1(a) makes an exception where there are other applicable arbitration clauses – most usually these will be those between the parties that mandate the Premier League, Football League or FIFA shall have the applicable arbitration clause. It is often important to determine which arbitration clause takes precedent.

Whilst FA Rule K arbitrations are valid and Arbitration Act compliant they have certain important limitations. The most significant is that The FA have contracted out of section 69 of the Arbitration Act 1996[13] whereby a party can appeal to the court on a question of law arising out of the arbitration award. Thus, if an FA Rule K Arbitral Tribunal makes an error of law there is ostensibly nothing a party can do about it. In addition, FA Rule K excludes sections 44 and 45 of the 1996 Act, whereby a party can apply to court for an order in support of the arbitration or for the determination of a preliminary issue. There seems little justification for these exclusions which pose legal and practical difficulties for the parties. It is noted that maters subject to arbitration under FIFA generally include an appeal to the CAS, being the world’s highest sporting arbitral body, but even after a final determination of the CAS a football player has been able to have the decision of CAS overturned in the Federal Supreme Court of Switzerland.[14] Whilst a party can still apply to court to set aside an arbitral award of an FA Rule K tribunal, or for that matter a Premier League arbitral tribunal pursuant to section 68 of the 1996 Act (serious irregularity) the recent decision of the High Court in Pulis v Crystal Palace FC [15], another case concerning deceit and football managers, demonstrates that section 68 will only be of assistance in “extreme cases”.

 In England & Wales Cricket Board v Kaneria [2013] EWHC 10474 (Comm) the court established that the ECB’s disciplinary appeal procedures were an arbitration for the purposes of the 1996 Act, despite them being disciplinary in nature. This was followed in Bruce Baker v The British Boxing Board of Control [2015] EWHC 2469 (Ch) with respect to the Boxing Board’s appeal procedures. The FA, on the other hand, has expressly determined that its internal disciplinary procedures “are disciplinary, rather than arbitral, bodies”.[16] This is perhaps not surprising given the lack of independence in the FA’s procedures, but it does mean a party can challenge any decision of an FA Regulatory Commission or Appeal Board under normal principles of law (such as pursuant to the Bradley jurisdiction [17]), in an FA Rule K arbitration, making the FA a defendant – and such challenges are these days not uncommon.

It is also important to remember that the right (and obligation) to arbitrate applies to participants with disputes against the football regulator also (whether the FA, Premier League or Football League). Increasingly participants are challenging the decisions of regulators that have a detrimental impact on them – for example the challenge by QPR and others to the legality of the Football League’s financial fair play rules which is subject to confidential ongoing arbitration. In Hull City v The FA,[18] an FA Rule K arbitral tribunal quashed the decision of the FA Council refusing its application to change the club’s playing name from Hull City to Hull Tigers, accepting the club’s case that the decision was tainted by bias and could not stand.  Where an unlawful decision of a regulator causes a party financial loss then that party should contemplate using arbitration to claim damages against the regulator.

Causes of action and defences

Any English law cause of action that can be brought in the civil courts can naturally be brought by way of arbitration. Whilst the majority of claims in football arbitration remain claims for breach of contract, we are increasingly seeing more complex claims including allegations of fraud, conspiracy, and inducement by third prates to breach contract.

Normal principles of English law shall apply to the determination of these claims. Some participants and practitioners are confused by the label “FA” Rule K Arbitration into thinking that the tribunal is a football tribunal applying football rules (such as the FA Rules and Regulations). It is not. It’s approach to a claim is (or should properly be) the same as the approach an English court should take. For example, the argument (often run, rarely with any success), that a contract is not binding because it does not comply with an FA Regulation is unlikely to succeed as a defence to a claim for breach of contract. It usually matters not that a contract may be invalid for the purposes of FA Regulations, and thus could not be enforced via the regulator, if it nevertheless amounts to a valid lawful agreement under English law.

The recent Court of Appeal decision in Anthony Mcgill v. The Sports and Entertainment Media Group (‘SEM’) and Others [19] is a rare and useful indication of the way the law approaches agreements that do not comply with the regulations. Rare, because it was not subject to arbitration but determined in the court, and useful because the basic facts are common in disputes relating to player transfers and agents. McGill claimed he had reached an oral contract to act as agent for the player in a transfer to Bolton Wanderers FC, but that SEM and Bolton induced a breach of the contract. SEM had entered into an agency agreement with Bolton to find the player and received commission from Bolton. McGill brought various claims (including inducement to breach contract and conspiracy) against both SEM and Bolton. The defendants argued, amongst other things, that McGill had not reached a valid contract with the player as there was only an oral contract that he would act as agent – there was no executed written Representation Contract (that would have to be lodged with The FA) that would have entitled McGill to act as agent in the deal and receive fees. At first instance, the Judge accepted that there had been an oral contract but dismissed the claim, holding that McGill had not demonstrated that the player would have entered into a written contract with him had it not been for the defendants’ unlawful conduct. The Court of Appeal held that whilst the Judge had been entitled to find on the balance of probabilities that the player would not have entered into a written contract with McGill, that was not the end of the matter. McGill was entitled to an award of damages on the basis of loss of the opportunity to earn a fee under a written agency agreement when the player’s transfer to Bolton was completed. The correct approach was not (only) whether the player would or would not have signed a contract, but what percentage chance was there that he would have. As the Judge had been entitled to find the player would not have signed, the percentage could not be more than 50%, but the case was remitted to the Judge to determine what percentage chance there was that the player would have signed with McGill, and for that to then inform the damages to McGill.

Another important Court of Appeal football case that remains relevant to many disputes where corruption is alleged in relation to player transfers and agents is Imageview Management Ltd v Jack.[20] A football agent owes fiduciary duties to his client and the non-disclosure of a conflict of interest between the agent’s own interest and those of his player client was a breach the agent’s duty of good faith to his client. In the circumstances of the case, the agent forfeited his right to the commission he was otherwise contractually entitled to, and the fee he earned in breach of the duty was a secret profit, recoverable by the player, subject to the possibility of subject to an equitable allowance. Imageview is not only relevant to allegations of secret profits (though they are not unusual in football), but to any breach of fiduciary duty – the principle being that if a fiduciary (such as a football agent) acts dishonestly he will forfeit his right to fees by the principal (subject to that being inequitable).[21]

 Conclusion

Corruption in football remains a considerable issue. The “battleground” has shifted from the conventional perspective of regulator on the one hand and the wrongdoer on the other, to one where participants seek their own remedies (or defences) against other participants. It is in applying these issues general principles of contractual and commercial law, along with a good understanding of the regulatory framework, arbitration and industry practice, that sports lawyers can be of most valuable assistance to their football clients.

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[1] I use the normal common sense meaning for the term “participant” in this paper, i.e. a participant in regulated football. It accords generally with the defined term “Participant” under The FA rules, which is one of the main means by which The FA exercises regulatory and disciplinary jurisdiction over participants and by which participants agree to arbitrate disputes as between each other. The definition of Participant in Rule A.2 of The FA Rules is as follows: 

“Participant” means an Affiliated Association, Competition, Club, Club Official, Intermediary, Player, Official, Manager, Match Official, Management Committee Member, member or employee of a Club and all such persons who are from time to time participating in any activity sanctioned either directly or indirectly by The Association.

[2] Other colleagues from Blackstone chambers are speaking about and providing papers about various different remedies in corruption cases for the same seminar. It might be helpful to read their papers along with this one.

[3] “Exclusive investigation: England manager Sam Allardyce for sale”, Daily Telegraph, 27 September 2016 (http://www.telegraph.co.uk/news/2016/09/26/exclusive-investigation-england-manager-sam-allardyce-for-sale).

[4] The new FA Football Intermediaries Regulations and the disputes likely to arise, Nick De Marco, 26 March 2015, paragraph 38. Available to download here: https://www.blackstonechambers.com/news/analysis-the_new_fa_football/

[5] See: http://www.thefa.com/football-rules-governance/policies/intermediaries/fa-registered-intermediaries-list

[6] See, for example, the comments attributed to Marco Villiger, then FIFA's head of legal affairs, discussing the proposals to scrap the licensing scheme in 2011, as reported by Reuters at the time: “FIFA plans caps, more transparency for agent fees” (21 September 2011: http://uk.reuters.com/article/uk-soccer-fifa-agents-idUKTRE78K69G20110921).

[7] These figures were provided by Kimberly Morris, Head of FIFA TMS Integrity and Compliance department, in her PowerPoint presentation for the 2016 Player Contracts Conference in London during a panel discussion I joined about the FIFA’s Intermediaries Regulations.

[8] Ian Mill QC and Adam Lewis (now QC) acted for Sheffield United; Michael Beloff QC and Nick De Marco for Fulham. David (now Lord) Pannick QC sat on the Premier League arbitral Panel; Robert Englehart QC on the FA Rule K arbitral panel.

[9] FAPL v West Ham United, FAPL Disciplinary Commission, decision dated 27 April 2007

[10] Sheffield United v Premier League, Premier League Rule S Arbitration, Sir Philip Otton, David Pannick QC and Nicholas Randall (now QC); and see West Ham’s failure to overturn the decision of the arbitrators in the Commercial Court: Sheffield United v Premier League, 13 July 2007 Smith J Comm Ct.

[11] Sheffield United v West Ham FA Rule K arbitration, Lord Griffiths, Sir Anthony Colman, Robert Englehart QC, 18 April 2008 and 18 September 2008; and see [2008] EWHC 2855 (Comm), [2009] 1 Lloyd's Rep. 167, [2008] 2 CLC 741, (2008) Sport and the Law Journal vol 16 iss 2 SLJR 4, 10 November 2008 Teare J (West Ham restrained from challenging the FA Rule K arbitral award in a purported appeal to CAS, and limited to challenge in the Commercial Court to the extent permitted by the Arbitration Act 1996). Fulham separately contended that it had also suffered damage but failed to establish that the findings in Sheffield’s arbitration were admissible in its arbitration: Fulham Football Club v West Ham United Football Club FA Rule Arbitration 2011 International Sports Law Review 1, SLR1-7.

[12] See, Stretford v The Football Association Ltd. & Anor [2007] EWCA Civ 238, and see Fulham Football Club (1987) Ltd v. Richards [2011] EWCA Civ 866.  According to the learned editors of Lewis & Taylor Sport: Law & Practice, 3^rd ed, 2014, para E2.31: it is now “very difficult for a participant in a sport governed by rules set down by a sports governing body which include an arbitration agreement to succeed in an argument that he or she was not contractually bound by the arbitration agreement.”

[13] See Rule K.1(e)

[14] Francelino da Silva Matuzalem v. Fédération Internationale de Football Association FIFA, Federal Supreme Court of Switzerland, 1st Civil Law Chamber, 4A_558/20111, 27 March 2012. A sporting sanction against the player, Matuzalem, imposed by FIFA and upheld by CAS, banning him from playing football because he had not paid substantial damages for unjustified termination of contract to his previous employer was overturned on public policy grounds, the sanction being a serious violation of personal rights. It remains to be seen whether a decision of an FA Rule K Arbitral panel of similar effect, which might be an unlawful restraint of trade in English law or breach a person’s fundamental human rights, can be open to challenge in the English or European courts despite the contracting out of section 69 of the 1996 Act.

[15] [2016] EWHC 2999 (Comm)

[16] See Regulation 1.1 of The FA General provisions relating to Inquiries, Commissions of Inquiry, Regulatory Commissions of the Association, other Disciplinary Commissions, Appeal Boards and Safeguarding Review Panel Hearings (1 August 2014)

[17] Bradley v The Jockey Club [2004] EWHC 2164 (QB)

[18] Hull City v FA  FA, Rule K Arbitral Tribunal (Rt Hon Sir Stanley Burnton (Chairman), Tim Kerr QC, Nicholas Stewart QC), 23 February 2015.

[19] [2016] EWCA Civ 1063; [2017] 1 W.L.R. 989

[20] [2009] EWCA Civ 63; [2009] 2 All E.R. 666; [2009] 1 All E.R. (Comm) 921; [2009] Bus. L.R. 1034; [2009] 1 Lloyd's Rep. 436; [2009] 1 B.C.L.C. 724

[21] For a recent restatement of this principle see, Jeremy Hosking v Marathon Asset Management LLP [2016] EWHC 2418 (Ch); [2017] 2 W.L.R. 746