Bony strikes success
Details
Premier League footballer, Wilfred Bony, has won the latest round of his legal battle with two former agents in the High Court (Wilfried Guemiand Bony -v- Gilbert Francis Kacou and others [2017] EWHC 2146 (Ch)).
Background
Mr Bony has issued legal proceedings against his former agents to recover secret commissions totalling more than £8 million which they, and their corporate vehicles, allegedly received during contract negotiations with Swansea City FC between July 2013 and February 2015. The agents have been accused of breaching their contractual and fiduciary duties to Mr Bony, together with fraudulent or negligent misrepresentation.
Mr Bony joined Swansea City Football Club (the fifth defendant) in July 2013 before moving to Manchester City in January 2015. He subsequently moved on loan to Stoke last season, before re-joining the Swans at the beginning of the 2017-2018 Premier League season.
The first and third defendants in the action are Mr Bony’s former agents. Only the third defendant was an authorised agent for the purposes of the Football Association (FA) rules, and only until April 2015. The second defendant is a corporate entity incorporated in the Ivory Coast and controlled by the first defendant. The fourth defendant is a corporate entity incorporated in the Czech Republic and controlled by the third defendant.
Appeal
The defendants (together with their companies) challenged jurisdiction on various bases and applied to stay proceedings on the ground that the dispute should be determined by arbitration under FA rules.
The defendants argued that the parties were ‘participants’ for the purposes the FA rules and that FIFA requires all disputes between ‘members of the football family’ to be determined by arbitration. They argued that the court should imply a contract between participants in a sport based on the rules of that sport, whether or not the participants were actually aware of them.
Decision
The High Court refused the defendant’s appeal to stay court proceedings in favour of arbitration.
A stay of proceedings pursuant to section 9 of the Arbitration Act 1996 (AA 1996) has to be by reference to an arbitration agreement. The judge accepted that whilst an implied agreement between parties is capable of being an agreement for the purposes of section 5 (3) of the AA 1996, an implied agreement has to incorporate a written arbitration agreement. Whilst there were express agreements, both written and oral, between Mr Bony and the first and second defendants, the district judge ruled that none of them incorporated the FA rules arbitration provision, and, as such, no arbitration agreement could be seen to exist for the purposes of the AA 1996. In certain circumstances, while the court can imply a contract between participants in an organised sport based on the specific rules governing that sport, given the existence of express agreements between Mr Bony and the first and third defendants in the case, there was no need to imply a contract. In summary, it was determined that there was no binding arbitration agreement between the parties.
The appeal was rejected. Mr Bony was awarded his costs of the appeal and the hearing.
Comment
It remains to be seen whether Mr Bony will ultimately be successful in this action. However, the decision reinforces that courts will not imply contractual terms between sporting participants (based on particular rules governing their sport), where there is no necessity to do so. In its decision, the court will be heavily guided by the relevant facts and circumstances of the particular case.
