The Scottish FA has received a notice of referral to arbitration in respect of the dispute between Heart of Midlothian and Partick Thistle, and the respondents named as the Scottish Professional Football League, Dundee United, Cove Rangers, Raith Rovers and Stranraer.
Arbitration under Article 99 of the Articles of Association provides for resolution by an independent arbitral tribunal and via the provisions of the Arbitration (Scotland) Act 2010, together with the Scottish Arbitration Rules.
Following receipt of the referral to arbitration, parties will now select from a tribunal candidate list and the two arbitrators appointed will then jointly appoint a third, who will be a solicitor or advocate or member of the judiciary (Sheriff Court or Court of Session) of not less than 10 years’ standing.
As soon as practicable after it has been convened, the tribunal will commence a meeting with the parties.
As this process is entirely independent, the Scottish FA will make no further comment.
RESOLUTION OF DISPUTES BETWEEN MEMBERS – Article 99 ARBITRATION
- 99.1 This Article 99 comprises an agreement by parties who are subject to the jurisdiction of the Scottish FA, to submit disputes of certain natures, as specified in more detail below,
to arbitration. It is important for parties to understand that the resolution of any dispute under this Article 99 comprises resolution by arbitration. Accordingly the provisions of
the Arbitration (Scotland) Act 2010 (“the 2010 Act”), together with the Scottish Arbitration Rules which form Schedule 1 to the 2010 Act (with the exception of default rules which are disapplied by this Article 99) must be considered together with this Article 99, together with any amendments to the said Act and/or any other statutory or other provisions which may be relevant to the conduct of an arbitration in Scotland.
- 99.2 It is also important for parties to recognise that arbitrations under this Article 99
provide for resolution by an independent arbitral tribunal. The role of the Scottish FA
and officers thereof, arises (in disputes which do not involve the Scottish FA) in respect
of the appointment of tribunals. In respect of any jurisdictional matter, which cannot be agreed between the parties, such matters shall be determined by the arbitral tribunal,
who shall have available the powers provided to them in this Article 99 and in the 2010
Act or otherwise by the law of Scotland. The Scottish FA may, in its appointment role, point out to parties an obvious jurisdictional issue, or an obvious conflict issue (for instance in
a party’s nomination of an arbitrator in terms of this Article) or otherwise. Insofar as a party does not agree with the Scottish FA in such circumstances, then the appointment of
the tribunal shall proceed and the tribunal shall resolve the matter. Where the Scottish FA has raised such a matter with a party, and the party declines to take a step suggested by the Scottish FA, an arbitral tribunal may take such into consideration in any award of costs.
- 99.3 In respect of all arbitrations conducted under this Article 99, the law governing
the arbitration shall be the law of Scotland and the seat of the arbitration shall be Scotland.
- 99.4 Where a player, official, referee, club, league or association has the right to refer a dispute to any recognised football body, then such dispute shall be so referred to such recognised football body and any appeal shall proceed in accordance with the provisions of Paragraph 14 of the Judicial Panel Protocol. Similarly appeals against Determinations of a Disciplinary Tribunal, disciplinary committee or a Club Licensing determination shall proceed in accordance with the relevant provisions of Paragraph 14 of the Judicial Panel Protocol. Where such a right of appeal exists to the Judicial Panel or tribunals appointed therefrom, then such matters shall not be referred to arbitration under this Article 99.
- 99.5 An “associated person” shall have the definition ascribed to it in Article 1.1.
- 99.6 A “Scottish FA Dispute” in this Article 99 shall be any dispute or difference (with
the exception of a matter which falls within the supervisory jurisdiction of the Court
of Session, and with the exception of any matter for which the Judicial Panel or tribunals appointed therefrom have jurisdiction under these Articles) with the Scottish FA.
- 99.7 A “Football Dispute” in this Article 99 shall be a dispute between or among members and/or any associated person(s) arising out of or relating to Association Football
(with the exception of a matter which falls within the supervisory jurisdiction of the Court of Session, and with the exception of any matter for which the Judicial Panel or tribunals appointed therefrom have jurisdiction under these Articles).
- 99.8 Other definitions shall have the meaning ascribed to them elsewhere in the Articles.
Scottish FA Dispute Arbitrations
- 99.9 The fact of membership of the Scottish FA and/or the submission to the jurisdiction of the Articles and/or association with such member by an associated person shall constitute an agreement by a member; and/or an associated person and/or the Scottish FA that such member and/or associated person and/or the Scottish FA shall settle a Scottish FA Dispute by arbitration conducted in accordance with Articles 99.9 to 99.12.
- 99.10 Failing agreement, in respect of a Scottish FA Dispute, the arbitrator shall be selected and appointed by the Chairman or Vice Chairman of the Chartered Institute of Arbitrators (Scottish Branch) or by the President or Vice President of the Law Society of Scotland or by the Executive Director or the Chairman of Sports Resolutions (UK) (a trading name of Sports Dispute Resolution Panel Limited, company no. 03351039, registered at 1 Salisbury Square, London, EC4Y 8AE) (“Sport Resolutions”). Where appointment is by Sport Resolutions, Sports Resolution’s Arbitration Rules, as amended by Sports Resolutions from time to time (https://www.sportresolutions.co.uk/uploads/related-documents/D_3_-_ Arbitrations_Rules.pdf), shall apply, save that (1) all such arbitrations shall follow the Full Arbitration Procedure; and (2) their provisions regarding the seat, applicable law, and statutory regime shall be deleted, so that the law governing the arbitration shall be the law of Scotland and the seat of the arbitration shall be Scotland, and the Arbitration (Scotland) Act 2010 (as amended), shall apply.
- 99.11 With reference to Schedule 1 of the Arbitration (Scotland) Act 2010, Rules 11, 22, 26, 41, 43 and 46 of the Scottish Arbitration Rules shall not apply.
- 99.12 A member, an associated person and/or the Scottish FA shall not take a Scottish FA Dispute to a court of law except with the prior approval of the Board. For the avoidance of doubt, this Article 99.12 does not prevent a member, associated person and/or the Scottish FA from raising proceedings for time bar purposes, subject to such proceedings being sisted at the earliest opportunity for resolution in accordance with this Article 99.
Football Dispute Arbitrations
- 99.13 The fact of membership of the Scottish FA and/or the submission to the jurisdiction
of the Articles and/or association with such member by an associated person shall constitute an agreement by (i) a member; and/or (ii) an associated person that such member and/or associated person shall settle a Football Dispute by arbitration conducted in accordance with Articles 99.13 to 99.29.
- 99.14 A Football Dispute shall not be referred under these provisions where (i) the Scottish FA (including the Judicial Panel and any Committee or sub-committee) has power to determine a dispute or other issue in accordance with a different provision of these Articles or the Judicial Panel Protocol; or (ii) the member or associated person has not taken every possible step to have the Dispute resolved in accordance with these Articles or rules of the Scottish FA and appeals processes contained therein.
- 99.15 A member or an associated person may not take a Football Dispute to a court of law except with the prior approval of the Board. For the avoidance of doubt, this Article 99.15 does not prevent a member or associated person from raising proceedings for time bar purposes, subject to such proceedings being sisted at the earliest opportunity for resolution in accordance with this Article 99.
- 99.16 The submission of a Football Dispute to arbitration by a member or associated person
(“the Referring Party”) shall be lodged in writing by delivery to the Secretary and, at the same time, to the other party or parties to the Football Dispute of a notice to refer to arbitration (a “Notice to Refer”), which notice shall include (i) the nature and a brief description of the dispute and of the parties involved; (ii) details of where and when
the dispute has arisen; (iii) the nature of the redress which is sought; and (iv) the names and addresses of the parties to the contract (including, where appropriate, the addresses which the parties have specified for the giving of notices). The last date on which the Notice to Refer is served on the other parties and the Secretary shall be deemed to be the date on which the arbitral proceedings are commenced.
- 99.17 Where a Football Dispute has been referred to arbitration, each such member or any associated person involved in the Football Dispute shall submit to the jurisdiction of the Tribunal and shall adhere to the provisions in this Article 99.
- 99.18 The Scottish FA shall maintain a list of qualified candidates(“the Tribunal Candidate List”) to sit as arbitrators in tribunals to determine Football Disputes referred in accordance with this Article 99. The Secretary is authorised by the Board to appoint members of
the Tribunal Candidate List for the purposes of this Article 99.
- 99.19 Any arbitration referred to arbitration in accordance with this Article 99 shall be conducted pursuant to the following provisions:-
(a) upon receipt of a Notice to Refer by the Secretary, the Secretary, or his nominee, shall send notice (“the Secretary’s Notice”) to the Referring Party and to any other party or parties with an interest in the Dispute (“the Respondents” and, together with
the Referring Party, “the Parties”) which notice shall include (i) a copy of the Notice to Refer; (ii) a list of the component members of the Tribunal Candidate List; (iii) a copy of the provisions of this Article 99; and (iv) an invitation to the Parties to nominate or agree to the appointment of arbitrators in accordance with this Article 99.19;
124 (b) the arbitral tribunal (“the Tribunal”) may consist of three arbitrators. If so, each Party shall nominate an individual from the Tribunal Candidate List as its arbitrator, and the two arbitrators so appointed shall appoint a third arbitrator who shall be or has been a solicitor or advocate or member of the judiciary (Sheriff Court or Court of Session) of not less than 10 years’ standing (including cumulatively in a combination of the said functions) and who shall act as chairman of the Tribunal (“the Tribunal Chairman”). The Tribunal Chairman shall generally be a suitable person appointed from the Tribunal Candidate List, but may, where appropriate, be a solicitor or advocate, or member of the judiciary (Sheriff Court or Court of Session) of not less than 10 years’ standing (including cumulatively in a combination of the said functions) who is not included in the Tribunal Candidate List;
- (c) if either Party fails to nominate an arbitrator within 14 days of receiving the Secretary’s Notice, such arbitrator(s) shall be appointed from the Tribunal Candidate List by the Secretary, or his nominee. In such circumstances, the Secretary or his nominee
shall have the power in his sole discretion to appoint a single arbitrator or a panel of three arbitrators;
- (d) if the two arbitrators nominated by the Parties fail to agree upon the appointment of a third arbitrator within 14 days of the appointment of the second arbitrator, the third arbitrator shall be appointed by the President or Vice President of The Law Society of Scotland at the written request of either Party or the Secretary. The Party so requesting shall initially bear the nomination fee, but the Tribunal shall in its sole discretion have the power to order that the nomination fee is paid or repaid by any Party;
- (e) the Parties may agree to appoint jointly a single arbitrator from the Tribunal Candidate List. If so, the Parties shall nominate such single arbitrator within 14 days of receiving the Secretary’s Notice; failing which the single arbitrator shall be appointed by the Secretary. Such a single arbitrator shall generally be a suitable person appointed from the Tribunal Candidate List, but may, where appropriate, be a person who is not included in the Tribunal Candidate List;
- (f) if any arbitrator appointed by a Party, the Secretary, or the President or Vice President of The Law Society of Scotland shall die, refuse to act or become incapacitated from acting prior to the making of an award, a further arbitrator shall be appointed to replace him in the same manner as such original arbitrator was appointed. The provisions of Article 99.19(c) shall apply to a replacement appointment by a Party with notice of the death, refusal or incapacity of the original arbitrator being substituted for the Secretary’s Notice; and
- (g) with reference to Schedule 1 of the Arbitration (Scotland) Act 2010, the default rules of the Scottish Arbitration Rules shall be modified or disapplied, so as to comply with the express rules of this Article 99. Rules 11, 22, 41, 43 and 46 of the Scottish Arbitration Rules shall not apply.
99.20 As soon as practicable after it has been convened the Tribunal may convene a meeting with the Parties or their representatives.
99.21 The Tribunal may adopt such procedures as it considers appropriate for the resolution of the Football Dispute to ensure its just, expeditious, economic, and final determination and may proceed by way of oral hearing or by written submission and by such manner of evidence as it considers appropriate. Any award or procedural decision of the Tribunal shall if necessary be made by a majority and, in the event that no majority may be formed, the Tribunal Chairman shall make his determination as if he were a sole arbitrator.
99.22 The Tribunal may make part awards on different issues at different times.
99.23 If, before the award is made, the Parties agree on a settlement of the Football Dispute, the Tribunal shall either issue an order for termination of the reference to arbitration or, if requested by both Parties and accepted by the Tribunal, record the settlement in the form of an award on joint consent, and in such case the award shall be treated as an Arbitral award. The Tribunal shall then be discharged and the reference to arbitration concluded subject to payment by the Parties of any outstanding fees and expenses of the Tribunal.
99.24 The Tribunal shall have the power to assess and grant an award and/or damages, and interest thereon, and make such other order as it deems appropriate in its reasonable discretion.
99.25 The Tribunal shall have the power to make such order against one or more of the Parties as it considers appropriate as to the costs of the arbitration, which shall include the fees and expenses of the arbitrators and of any hearings (including any administrative costs) and the Parties’ expenses and outlays of the Scottish FA (which shall follow the direction of the Tribunal Chairman and shall be as agreed by the Parties and the Scottish FA
or, failing such agreement, as determined by means of taxation, on the application of the Parties or the Scottish FA to the auditor of the sheriff court at Glasgow and the Parties and the Scottish FA agree that the Tribunal shall have the power to order a Party to pay the costs of the taxation) in the arbitration. For the avoidance of doubt, the whole costs, expenses and outlays of the arbitration, including the Tribunal’s fees and outlays and any reasonable fees and outlays incurred by the Scottish FA, shall be borne by the Parties.
99.26 In the event of default by either Party in respect of any procedural order of the Tribunal, the Tribunal shall have the powers provided in the Scottish Arbitration Rules.
99.27 None of the Tribunal, the Tribunal’s clerk (if any), the Secretary, nor the Scottish FA shall be liable to any Party for any act or omission in connection with any arbitration in respect of a Football Dispute conducted under this Article 99, unless the act or omission is in bad faith, and any employee or agent of the Scottish FA is similarly protected from any such liability.
99.28 Any Scottish FA Dispute or Football Dispute decided under the procedure referred to in this Article 99 shall be final and binding on the Parties.
99.29 For the avoidance of doubt, the parties to any arbitration established pursuant to this Article 99 agree to renounce their respective rights of appeal, save in respect of the mandatory provisions of the Arbitration (Scotland) Act 2010 in respect of challenging awards, or as otherwise expressly provided in this Article 99.