West Ham v FA - Interim Relief in urgent football cases and the test for Red Card appeals

The Football Association (“FA”) have just published the full written reasons in the West Ham United v FA Rule K Interim Arbitration (Nicholas Stewart QC sitting as a sole arbitrator) concerning Andy Carroll’s red card: http://www.thefa.com/~/media/files/pdf/rule-k8---west-ham-united-v-the-fa---reasons-and-decision.ashx.

The decision should be of interest to sports lawyers and those involved in football for two main reasons: it is the first case to test the FA’s power to grant interim relief and it considers the correct test to be applied in wrongful dismissal claims against red cards.

Carroll had been sent off for violent conduct in West Ham’s home game against Swansea City. The Club appealed the red card to an FA Regulatory Commission on 4 February. Under the FA rules it was for the Club to show there had been a “wrongful dismissal” of the Player. The Regulatory Commission rejected the complaint by a 2-1 majority.

Usually, that would have been the end of the matter. There is no appeal against the decision of the Regulatory Commission. But West Ham argued that the Commission had applied the wrong test and there was procedural unfairness as a result of the Club and Player not being given an oral hearing. West Ham’s case was that these breaches amounted to a breach of the FA’s own rules by its Regulatory Commission, and that therefore the Club could bring a “Rule K” arbitration against the FA.

This brings us to the first important point about the case. The decision of the Regulatory Commission meant that Carroll would be banned from playing the next 3 matches, all within about 2 weeks of the decision. As there was no chance of holding a full arbitration on the matter so quickly, the 3-match ban would have taken place before the matter could be resolved. West Ham required urgent interim relief, staying the 3-match ban until after a full hearing of their claim.

Previously such a procedure was not open to Football Clubs. Rule K ousted those sections of the Arbitration Act that allowed a party to an arbitration to obtain interim relief from the Court in support of that arbitration. But the relatively new FA Rule K.8 provides that an Interim Tribunal (consisting of a Chairman sitting alone) can grant interim relief in an arbitration. West Ham’s application was the first time this procedure has been used.

The rules themselves contemplate a process that does not appear as urgent as those used to applying for interim relief may be familiar with: two days to appoint an arbitrator and a further two days before a hearing and decision takes place. But the Chairman has the power to vary these timescales and with co-operation between the parties and the efforts of Sports Resolutions (who appoint the sole Arbitrator under Rule K.8) it was possible to convene a hearing of the application within 24 hours of it being made and the day before the first game Carroll’s ban would have started.

Although each case will turn on its facts, unsurprisingly the Interim Tribunal approached the question of interim relief in the same way one would expect the Court to – determining whether there was a serious issue to be tried, whether damages were an adequate remedy and what the balance of convenience required. Whilst it was accepted that damages could not compensate West Ham from being deprived of a key player over 3 games, and that the prejudice to them would be great, West Ham’s application was unsuccessful because the Interim Tribunal found there was no serious issue to be tried.

In short, even if the Regulatory Commission had misdirected themselves as to the correct test (they said the Club had to show there was an “obvious error” with the referee’s decision, whereas the Rules said it was simply a question of whether the dismissal was “wrongful”) their full reasons disclosed that they in fact asked themselves whether they agreed with the referee’s decision, and as such whether it was wrongful. The Interim Tribunal also found that there was no right to an oral hearing in cases of this type (though did not go as far to accept the FA’s submission that there could never be such a right), not least because of the relative importance of the matter and in particular because an oral hearing would not have changed the result.

Whether the correct test in determining a Wrongful Dismissal case under the FA Rules is the simple test of whether the dismissal is “wrongful” as the Club had argued and as the relevant regulation 5 expressly provides, or is whether the dismissal is an “obvious error” by the referee as the FA argued and as the FA’s guidelines sent to clubs sets out was not decided by the Interim Tribunal. However the Chairman noted in paragraph 34 of the decision that:

“I have drawn attention to some of the points relating to regulation 5 because it is important for the FA and all those potentially affected by that rule to appreciate that this case has shown that there are real questions about its correct interpretation. Unless the rule is amended by the proper procedures, those questions will not go away and cannot be resolved without a definitive decision by a tribunal (or court). Regulatory Commissions need to know what test they should apply.”

Football clubs and players should be alert in future Wrongful Dismissal cases that the Regulatory Commission applies the right test, and it is suggested that, at least until the Rules are amended, future Regulatory Commissions that apply the “obvious error” test may be subject to further challenge and, indeed, if that was the test they actually applied interim relief may be granted to stay match bans until the matter is resolved.

The FA ought to seriously consider amending its rules or its guidelines so the doubts about what test should be applied are resolved and Regulatory Commissions, clubs and players, all know where they stand.

Clubs, players and other FA participants will also be interested to know that there is a route to challenge breaches of the Rules even where no appeal or process for doing so exists, and even when urgency requires a speedy hearing, for example before a particular football game takes place. Whilst the Rules themselves would come into disrepute if participants abused the interim relief procedure in FA Rule K.8, it is welcome that such a procedure exists and can take place quickly for the exceptional and urgent cases it was no doubt drafted to accommodate.

Nick De Marco (instructed by Henri Brandman & Co.) represented West Ham United FC and Adam Lewis QC (instructed by Charles Russell) represented the FA.