With the ever increasing use of ADR procedures in the context of disciplinary regimes, the compliance of these procedures with the right to a fair hearing, as protected by article 6 of the ECHR, is coming under increased scrutiny.
In March this year, the much publicised judgment of the Court of Appeal in Stretford v Football Association Limited (2007) looked at the use of compulsory arbitration in relation to disputes involving the discipline of licence holders by the body that licences them.
The history of the proceedings is lengthy and complex. However, the present case arose out of the Football Association's (FA) decision, in June 2005, to bring disciplinary proceedings against Mr Stretford, Wayne Rooney's then agent, charging him with breaching FIFA’s Players’ Agents Regulations and the FA’s own rules in connection with his dealings with Rooney. Mr Stretford sought to challenge those proceedings in court. However, the FA relied on "Rule K" the FA rules, which requires all those concerned with playing or administering football had to agree that their differences should be referred to arbitration. Mr Stretford, as a holder of a player's agent licence was taken to have agreed to abide by this rule. The court agreed and Stretford’s case was stayed.
There have, since the coming into force of the Human Rights Act 1998, been a number of cases that have looked at the enforcement of arbitration provisions' restriction on access to the courts in the context of Article 6(1) of the ECHR. In its decision, the Court of Appeal in England reviewed this case law and held that where parties voluntarily enter into an arbitration agreement they are to be treated as having waived certain of their Article 6 rights. Additional access to the High Court in respect of any irregularities or illegality on the part of the arbiter, as provided for under the Arbitration Act 1996 (which is not operative in Scotland), meant there was no basis for a finding that the applicant's Article 6 rights had been infringed. In reaching its conclusion, the Court highlighted that the FA rules regulated the relationship between the parties, which was a private law relationship governed by contract. To strike down the arbitration clause as incompatible with article 6, on the basis that compliance with the clause was required by law or compulsory, would, in the Court's view, have a far-reaching and undesirable effect on the use of arbitration in the context of sport generally.
While this judgment does not mean that the use of ADR will always be compliant with article 6 of the ECHR, it gives a clear indication of the circumstances when it will be. In particular, this case will give comfort to professional regulatory bodies whose disciplinary regimes rely on the use of ADR.