Transparency 1 - 0 Confidentiality? Manchester City v The Premier

by Ashley Cukier

The Court of Appeal this week handed down its decision in Manchester City Football Club

Ltd v The Football Association Premier League & Ors [2021] EWCA Civ 1110, the latest

judgment to consider the difﬁcult tension that exists between the generally conﬁdential

nature of sports arbitration and the desirability of transparency where matters of public

interest arise.

Background

In December 2018, the Premier League (the “PL”) commenced a disciplinary investigation into

Manchester City FC (“City”), following widely-publicised reports of conﬁdential documents

having been obtained from a hack of City’s email servers relating to alleged breaches

of UEFA’s ﬁnancial fair play (“FFP”) regulations. The PL contended that the media reports

suggested breaches of the PL Rules. During the course of its investigation, the PL requested

documents and information from City, under Rule W1 of the PL Rules (a wide power entitling

the PL Board to “inquire into any suspected or alleged breach of these Rules”). City objected

to the disclosure request.

In October 2019, the PL commenced an arbitration against City, pursuant to Section X of the

PL Rules, for a declaration and/or a determination that City was obliged to provide the PL with

the sought documents, and an order for speciﬁc performance of City’s contractual obligation

to deliver up the documents in question. City disputed the jurisdiction of the arbitrators

appointed, submitting to the tribunal that, on a proper construction of the PL Rules, the PL

had no power to institute a Section X arbitration in respect of its claim for the documents and

information. By an award dated 2 June 2020, the arbitral tribunal rejected City’s challenge

to its jurisdiction (and to City’s submission that the tribunal did not have the appearance of

impartiality), holding inter alia that it had substantive jurisdiction to hear the PL’s claim.

Shortly thereafter, City issued an application in the Commercial Court, challenging the

tribunal’s jurisdiction under s.67 Arbitration Act 1996 (“the s.67 Challenge”), and, alternatively,

contending that the tribunal was tainted with apparent bias (“the s.68 Challenge”) such that

Transparency 1 - 0 Conﬁdentiality?

Manchester City v The Premier League

in the Court of Appeal

the appointed members should be removed under s.24 of the 1996 Act. Meanwhile, against

this background, the Section X arbitration continued. In July 2020, the tribunal rejected City’s

arguments resisting disclosure, and – in November of last year – ordered City to provide certain

documents and information to the PL and to make certain enquiries of third parties. The

tribunal’s order was stayed pending the determination of City’s application in the Commercial

Court.

The Commercial Court (Moulder J) handed down judgment on 17 March 2021, dismissing

City’s application (“the Merits Judgment”). In respect of the s.67 Challenge, the judge

concluded that the language of Rule X2 of the PL Rules (permitting ‘all disputes’ to be

determined by arbitration) was not limited by Section W of the PL Rules. In respect of the s.68

Challenge, which was also dismissed, the judge – applying the decision of the Supreme Court

in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48 – held that City’s

challenge did not satisfy the test that a fair minded and informed observer would conclude

that there was a real possibility that the arbitrators were biased. Permission to appeal to the

Court of Appeal was refused.

The Publication Judgment

On handing down judgment, Moulder J indicated that she was minded to publish the Merits

Judgment (the substantive hearing of the application having been heard in private, pursuant

to CPR r.62.10). Both parties ﬁled written submissions opposing publication. On 24 March

2021, Moulder J handed down judgment on the issue of publication (“the Publication

Judgment”), rejecting the submissions opposing publication and determining that the Merits

Judgment should be published. In doing so, she summarised the key principles relevant

to the case before her, derived from the judgment of Mance LJ (as he then was) in City of

Moscow v Bankers Trust [2004] EWCA Civ 314, as follows:

i. “Whatever the starting point or actual position during a hearing [in other words

even if the hearing is in private under CPR 62.10], it is, although clearly relevant, not

determinative of the correct approach to publication of the resulting judgment” (per

Mance LJ, at [37]).

ii. “Further, even though the hearing may have been in private, the court should, when

preparing and giving judgment, bear in mind that any judgment should be given in

public, where this can be done without disclosing signiﬁcant conﬁdential information.

The public interest in ensuring appropriate standards of fairness in the conduct of

arbitrations militates in favour of a public judgment in respect of judgments given

on applications under s.68. The desirability of public scrutiny as a means by which

conﬁdence in the courts can be maintained and the administration of justice made

transparent applies here as in other areas of court activity under the principles of Scott

v. Scott and article 6. Arbitration is an important feature of international, commercial

and ﬁnancial life, and there is legitimate interest in its operation and practice…” (at [39]

emphasis added [by the judge]).

iii. “The factors militating in favour of publicity have to be weighed together with the

desirability of preserving the conﬁdentiality of the original arbitration and its subject-

matter” (at [40]).

iv. A party inviting the court to protect evidently conﬁdential information about a

dispute must not necessarily prove positive detriment, beyond the undermining of its

expectation that the subject-matter would be conﬁdential (at [46]).

Moulder J determined that publication of the Merits Judgment would not lead to the

disclosure of “signiﬁcant conﬁdential information”, noting (at [14]) that the only conﬁdential

information that would be disclosed was the existence of the dispute and the arbitration. In

circumstances where it was already public knowledge that the underlying investigation (into

alleged breaches of the PL Rules) was taking place, and where there was nothing about the

details of the underlying dispute in the Merits Judgment, the expectation of the parties of

conﬁdentiality in arbitration was a factor to be taken into account, but not determinative –

even where both parties were opposed to publication. As to whether publication would result

in real prejudice or signiﬁcant detriment to City, the Judge’s conclusion was that where such

investigation into an alleged breach of the PL Rules was already public knowledge, even

if it attracted media interest, it was difﬁcult to see any real prejudice from disclosure of the

existence of the dispute itself, particularly where the substantive details of the underlying

dispute are absent from the Merits Judgment.

Concluding her judgment, Moulder J stated that it was desirable for any judgment to be

made public in order to ensure public scrutiny and the transparent administration of justice,

provided this could be done “without disclosing signiﬁcant conﬁdential information”. In this

regard, the judge explained that the conﬁdential nature of arbitration had to be weighed

against the public interest in ensuring appropriate standards of fairness in the conduct of

arbitrations, and that – in this instance – the desirability of public scrutiny and the transparent

administration of justice outweighed any competing considerations against publication, so

that the Merits Judgment (and the Publication Judgment, by corollary) ought to be published.

The Appeal

Having been refused permission to appeal by Moulder J, City sought and obtained permission

to appeal from Males LJ in April 2021, on two grounds. First, that the Judge erred by ordering

publication of the Judgments; and Second, in the alternative, that the Judge erred by failing

to stay publication of the Judgments pending the conclusion of the PL’s investigation. The

PL offered conditional support for City’s position, stating that any order as to privacy should

be subject to an exception, that the PL should be entitled to rely upon the Merits Judgment

in other relevant proceedings between it and other member clubs, and to disclose it to such

other member clubs as a clear conﬁrmation by the Commercial Court that the PL is entitled

to bring speciﬁc performance proccedings against member clubs under Section X of the PL

Rules.

A Senior Court of Appeal (Sir Geoffrey Vos MR, Sir Julian Flaux C, Males LJ) dismissed the

appeal, adjudging that Moulder J had made “the correct evaluative assessment in ordering

that the Merits Judgment and the Publication Judgment should be published”. The Chancellor

(giving the lead judgment with which both the Master of the Rolls and Males LJ agreed)

explained the Court’s “series of inter-related reasons” for dismissing the appeal as follows:

– First, publication of the Judgments would not lead to disclosure of signiﬁcant

conﬁdential information. What was to be disclosed consisted of little more than the

existence of the dispute and the arbitration “in circumstances where it is already public

knowledge that the underlying investigation by the PL is taking place” and where the

Merits Judgment itself did not disclose “any details of the substance of the underlying

disclosure dispute”.

– Second, the Court declared itself “unimpressed” with City’s argument that publication

was not in the public interest because the club’s complaint was speciﬁc to City’s case.

As the Chancellor explained: “there is a legitimate public interest in how disputes

between the PL and member clubs are resolved”, citing, also, the recent judgment of

HHJ Pelling QC in Newcastle United FC v The FA [2021] EWHC 450 (Comm), where

the judge noted the public interest in an application under s.24 AA 1996 (dealing

with an allegation of apparent bias) because “there is a public interest in maintaining

appropriate standards of fairness in the conduct of arbitrations”.

– Third, the fact that both sides opposed publication was “of some weight”, but actually

required the Court to be careful “not simply to accept the parties’ wishes without

scrutiny”.

– Fourth, insofar as the Merits Judgment conﬁrmed the entitlement of the PL to

claim speciﬁc performance against member clubs, this was “of public interest and

signiﬁcance”, a point indeed underlined by the ‘condition’ that the PL had attached

to its support for the appeal (that it should be entitled to rely on the Merits Judgment

in other arbitration proceedings against other member clubs). Insofar as the parties

had an interest in conﬁdentiality, this was “far outweighed by the public interest

in the publication of an important judgment on the scope of Section X of the [PL]

Rules”. Whereas the PL’s desire to have “the best of both worlds” was commercially

understandable, such desire was an “eloquent demonstration as to why publication of

the Merits Judgment is in the public interest”.

– Finally, City’s contention that publication would cause it prejudice or detriment was

to be treated with “considerable scepticism”. The suggestion that press interest or

speculation might disrupt the investigation or arbitration – both of which were

being conducted by “experienced professionals” – was “entirely fanciful”. The similar

suggestion that speculation and press comment might damage the club’s relations

with commercial partners was deemed “unconvincing”, given that any commercial

partner would conduct its own due diligence, which would reveal the existence of the

investigation and the dispute.

Adding a short additional judgment of his own, Males LJ underscored the particular public

interest in judgments where the court exercises its jurisdiction to set aside or remit awards for

substantial irregularity under s.68 of the 1996 Act:

65. More generally, it seems to me that public scrutiny of the way in which the court

exercises its jurisdiction to set aside or remit awards for substantial irregularity under

section 68 of the 1996 Act is itself in the public interest. In City of Moscow Mance LJ

addressed a concern that publication of judgments would upset the conﬁdence of the

business community in English arbitration. He was sceptical about the extent to which,

if at all, this would be so. I share his scepticism, for two reasons. First, the business

community will see that, just as in this case, Commercial Court judges can be trusted to

ensure that genuinely conﬁdential information is not published. Second, publication

of such judgments will conﬁrm the pro-arbitration stance consistently taken by the

English courts and thus will enhance the conﬁdence of the business community in

English arbitration. It will demonstrate that the section 68 gateway is a very narrow one,

not only in theory but in practice, and that it is only in cases of real injustice that arbitral

awards can be successfully challenged in the English courts.

Males LJ concluded his judgment with the following pointed observation – in relation to the

delays in the investigation itself – as a further support for publication:

66. Finally, the Club has been anxious to emphasise before us that “the arbitral

proceedings relate to an ongoing and conﬁdential investigatory and disciplinary

process which is still in its early stages”, and that it may be that no charges will ever

be brought against it. While that may be true, it seems to me that this is, if anything, a

factor which tells in favour of publication. This is an investigation which commenced in

December 2018. It is surprising, and a matter of legitimate public concern, that so little

progress has been made after two and a half years -- during which, it may be noted, the

Club has twice been crowned as Premier League champions.

Analysis

Whilst the Court of Appeal’s judgment must to a large extent be conﬁned to the particular

facts of the case – and the rather unusual way in which the issues therein reached the Court of

Appeal – it nevertheless contains important guidance for sports law practitioners as to when

the courts will be prepared to intervene to remove the cloak of conﬁdentiality from sports

arbitrations.

First, where the matters in issue are already – to a greater or lesser extent – public knowledge, and

where publication of signiﬁcant conﬁdential information can be avoided, the conﬁdentiality of

the arbitral proceedings themselves is not to be presumed. This is particularly the case where

the matters in issue relate directly to the manner in which disputes involving sporting bodies

(such as the PL) are resolved. Indeed, conceptually, it is difﬁcult to see why such principle

should only be conﬁned to the largest and best-known sporting bodies such as the PL, and

might not – also – apply in respect of smaller, or lesser-known, bodies whose decisions and

decision-making processes might be of public interest (and indeed could conceivably ‘affect’

more participants than the rareﬁed populace of PL clubs).

Second, and more generally, the Court of Appeal’s judgment underlines the particular public

interest that is likely to be found in relation to s.68 challenges. Given the proliferation of such

challenges in sports arbitration, this judgment constitutes a warning to parties in sporting

disputes and sports law practitioners alike: challenges for bias or apparent bias under s.68

open the door to publication in a way which might never have been envisaged – or intended

– by the parties at the commencement of the arbitral proceedings.

Contact

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Email: [email protected]

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Littleton Chambers

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The judgment of the Court of Appeal constitutes the latest in a series of recent decisions in a

sporting context where publication has been ordered, despite the ostensible conﬁdentiality

of proceedings.

In Premier Rugby Limited v Saracens Limited [SR/201/2019], the decision of the tribunal,

chaired by Lord Dyson, was published despite regulation 16.1 of the Premiership Rugby Salary

Cap Regulations providing for conﬁdentiality (the parties eventually agreeing to publication

of the decision in light of the pronounced media interest in the case). More recently still, in

Barnsley Football Club Limited v Hull City Tigers Limited, the arbitral tribunal assented to

Hull’s request that the award (in relation to a transfer agreement) be made public, despite

there being no obligation to publish under the relevant EFL Rules, and notwithstanding a

series of objections by Barnsley to publication.

Whereas the Court of Appeal’s decision in Manchester City v The Premier League cannot

properly be deemed to signify a ‘trend’ in sports arbitration in favour of publication, the ever-

growing public interest in off-the-ﬁeld developments and decision-making within sport is,

perhaps, an indicator of a direction of travel, towards publication where appropriate. What is

undoubtedly clear – as reiterated by the Court of Appeal – is that parties in sporting arbitrations

presume conﬁdentiality at their peril:– even where both parties might wish to preserve it.

Ashley Cukier is a commercial barrister whose practice encompasses a

wide range of commercial and civil fraud litigation, company, insolvency

and sports law matters. He is ranked by Legal 500 as one of the ‘Top 10

Under Eight Years’ Call’ for Commercial Litigation, where he is described

as a “Rising Star”; and he was this year named by Chambers & Partners as

one of two ‘Up & Coming’ juniors in Sports Law, where he is described as

“technically outstanding […] very calm and assured and extremely good

with clients”.