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Appendix 2 - Rules Governing Conduct of FDC Hearings (Regulation 80)

APPENDIX 2 - PROCEDURAL RULES

1 Introduction

1.1 These Procedural Rules shall apply in the absence of agreement between the parties and Applicable Tribunal, or further order of the Applicable Tribunal.

1.2 Applicable Tribunal’ means a Player Related Dispute Commission, Disciplinary Commission or League Arbitration Panel, as appropriate.

2 Control of Proceedings

2.1 The Applicable Tribunal shall have overall control of the conduct of the proceedings and/or hearing.

2.2 The chairperson of the Applicable Tribunal shall decide all procedural and evidential matters and for that purpose within 14 days of his appointment he shall either give directions for the conduct of the arbitration addressed in writing to each party or require their attendance at a preliminary meeting at which he will give directions.

3 Additional Provisions Regarding Appointment of Tribunal Members

3.1 Where a party to proceedings before an Applicable Tribunal fails to select a side member within 3 days of a written request to do so, the chairperson shall be at liberty to do so on their behalf so as to avoid any possible delay in the conduct of the proceedings before the Applicable Tribunal.

3.2 Members of any Applicable Tribunal shall be entitled to receive from The League a reasonable sum by way of fees and expenses, as determined by the Board from time to time.

3.3 Any member of an Applicable Tribunal (Tribunal Member) may be challenged if circumstances exist that give rise to justifiable doubts as to their impartiality or independence. A party who intends to challenge any Tribunal Member shall send to the other party or parties a notice of challenge setting out the reasons for its challenge within 7 days after notification of the appointment of the challenged Tribunal Member, or within 7 days from the date when the party making the challenge is informed of any facts and circumstances which may give rise to such a challenge (if such date is subsequent to the receipt of notification of appointment).  A copy of the notice shall be sent simultaneously to the Tribunal Member who is challenged and the other members of the Applicable Tribunal and the League. The notification shall be in writing and shall state the reasons for the challenge.

3.4 If any of the other parties does not accede to the challenge, or the challenged Tribunal Member does not withdraw, the decision on the challenge will be made by the Chair of the Applicable Tribunal (where they are not the subject of the challenge) and by an independent third party otherwise qualified to act as a Chair of the League Arbitration Panel, as nominated by the Football Association. If the Chair of the Applicable Tribunal is the subject of the challenge, then the matter will be decided solely by the Football Association nominee.  If the challenge is sustained, a replacement Tribunal Member shall be appointed pursuant to Rule 3.5 below.

3.5 If following their appointment a Tribunal Member refuses to act, withdraws, becomes incapable of acting, is removed by order or dies, the party nominating them (or, in the case of the chairperson, The League (or the Football Association if The League is a party)) shall appoint a replacement as soon as reasonably practical and in any event within 3 days.

4 The Tribunal’s General Powers

4.1 The chairperson of the Applicable Tribunal shall have power to:

(a) allow either party upon such terms (as to costs and otherwise) as it shall think fit to amend any statement of claim and defence;

(b) give directions in relation to the preservation, custody, detention, inspection or photographing of property owned by or in the possession of a party to the proceedings;

(c) give directions as to the preservation of evidence in the custody or control of a party;

(d) direct that a witness be examined on oath;

(e) require each party to give notice of the identity of witnesses it intends to call;

(f) require exchange of witness statements and any expert’s reports in any sequence which appears to the Applicable Tribunal to be just or efficient;

(g) appoint one or more experts to report to it on specific issues;

(h) require a party to give any such expert any relevant information or to produce or provide access to any relevant documents or property;

(i) extend or abbreviate any time limits provided by this Section of these Regulations or by its directions;

(j) require the parties to attend such procedural meetings as it deems necessary to identify or clarify the issues to be decided and the procedures to be adopted;

(k) give such other lawful directions as it shall deem necessary to ensure the just, expeditious, economical and final determination of the dispute.

(l) determine any application made pursuant to Regulation 96.1 (Standing);

5 Consolidation of Proceedings

5.1 An Applicable Tribunal shall have the express power to consolidate the proceedings with other substantially similar or related proceedings and/or order that concurrent hearings be held in relation to such proceedings.

6 Evidence

6.1 The Applicable Tribunal may direct the proceedings by deciding on what issues it requires evidence to be presented, the nature of the evidence that it requires and the way in which it receives that evidence. This can relate to documents and/or witness statements.

6.2 The Applicable Tribunal shall have the power to decide on the admissibility, relevance and weight of any evidence (including the testimony of any fact or expert witness) and shall not be bound by any judicial or evidential rules in relation to such matters. Facts may be established by any reliable means, including admissions.

6.3 Expert evidence shall be restricted to that which is reasonably required to resolve the complaint. Therefore, no expert evidence shall be admissible except with the permission of the Applicable Tribunal.  Permission may be given on such terms and conditions as the Applicable Tribunal may decide.

6.4 Where two or more parties wish to rely upon expert evidence on the same issue the Applicable Tribunal may order that there be the instruction of a single joint expert. In the absence of agreement on the identity or terms of instruction either party may apply to the Applicable Tribunal for an order setting out the choice and/or terms of appointment.

7 Interim Applications

7.1 The chairperson of the Applicable Tribunal shall have the authority to deal with any interim applications relating to the conduct of the proceedings or any preliminary points of law unless the chairperson determines that such applications must be heard before the full Applicable Tribunal in order to comply with the overriding objective (as defined in Rule 9).

8 Security for Costs

8.1 The Applicable Tribunal may order any party to lodge with The League a sum on account of costs.  In considering whether to make such an order the Applicable Tribunal shall follow the principles set out in Section II of Part 25 of the Civil Procedure Rules as if the same were set out herein mutatis mutandis, save that any party may make the application (and not just a Respondent). 

9 Overriding Objective

9.1 The overriding objective of any Applicable Tribunal is to deal with cases justly. This includes:

(a) dealing with cases in ways that are proportionate to the issue; and

(b) dealing with cases expeditiously and fairly; and

(c) acting fairly and impartially between the parties.

9.2 Any party involved in proceedings before Applicable Tribunal must assist in furthering the overriding objective and in particular shall do all things necessary for the proper and expeditious conduct of the arbitration and shall comply without delay with any direction of the chairperson of the Applicable Tribunal as to procedural or evidential matters.

10 Non Compliance by a Party

10.1 If a party fails to comply with any order made under these Regulations the Applicable Tribunal may make a peremptory order to the same effect providing such time for compliance with it as the Applicable Tribunal considers appropriate and setting out sanctions to be imposed if the defaulting party fails to comply with the peremptory order, including all or any of the following:

(a) debar that party from relying on the matters in respect of which it is in default;

(b) draw such adverse inferences from the act of non-compliance as the circumstances justify;

(c) proceed to a reasoned award on the basis of such materials as have been properly provided to it.

10.2 If the Applicable Tribunal is satisfied that there has been inordinate and inexcusable delay by either party in pursuing or defending any complaints and that delay:

(a) gives rise, or is likely to give rise, to substantial risk that it is not possible to have a fair resolution of the issues in that claim or counterclaim; or

(b) has caused, or is likely to cause, serious prejudice to the other party,

the Applicable Tribunal may, after hearing representations from all parties, make a reasoned award in favour of the non-defaulting party.

11 Communications

11.1 All communications sent in the course of the proceedings by an Applicable Tribunal shall be signed on their behalf by the chairperson.

11.2 Such communications addressed by the Applicable Tribunal to one party shall be copied to the other.

11.3 Any communication sent by either party to the Applicable Tribunal shall be addressed to the chairperson and shall be copied to the other party.

12 The Hearing

12.1 The chairperson shall fix the date, time and place of the arbitration hearing and shall give the parties reasonable notice thereof.

12.2 At or before the hearing the chairperson shall determine the order in which the parties shall present their cases.

12.3 Any witness who gives oral evidence may be questioned by the representative of each party and by each member of the Applicable Tribunal.

13 Provisional Awards

13.1 The Applicable Tribunal shall have power to make provisional awards during the proceedings including without limitation requiring a party to make an interim payment on account of the claim or the costs of the arbitration. Any such provisional award shall be taken into account when the final award is made.

14 Costs

14.1 In addition to exercising its other powers, the Applicable Tribunal may (and shall in all cases consider whether it is appropriate to) manage the costs to be incurred by any party in any proceedings.  In exercise of this power the Applicable Tribunal may at any time make a ‘costs management order’ and/or ‘costs capping order’.

14.2 The Applicable Tribunal has discretion as to:

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be paid.

14.3 When choosing to make an order for costs, the Applicable Tribunal may make such order in respect of:

(a) the costs of the investigation; and

(b) the costs of the parties; and

(c) the costs of the Applicable Tribunal,

as the Applicable Tribunal may think fit, including whether any deposit required to be paid should be refunded in whole or in part.

14.4 Subject to paragraph 14.5, there is no general rule about orders for costs.

14.5 In proceedings before the Player Related Dispute Commission (and, if applicable, League Appeals Committee) relating to proceedings between Academy Players (excluding Scholars) and Clubs in relation to Youth Development Rules:

(a) the general rule is that there should be no order as to costs of the parties, but the Player Related Dispute Commission (and, if applicable, League Appeals Committee) may make an order for costs where it considers it appropriate to do so; and

(b) any order will in any event be subject to a condition limiting the amount of costs (including disbursements) which the Club may recover to £25,000.

Guidance

Scholars are excluded from this provision only because specific provisions relating to costs orders for Scholars are already set out in Youth Development Rules 287 to 289.

14.6 In deciding what order (if any) to make about costs, the Applicable Tribunal will have regard to all the circumstances, including:

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;

(c) the provisions of any ‘costs management order’ and/or ‘costs capping order’; and

(d) any admissible offer to settle made by a party which is drawn to the Applicable Tribunal’s attention.

14.7 The conduct of the parties includes:

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; and

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue.

14.8 The chairperson of the Applicable Tribunal shall have power to tax, assess or determine the costs if requested to do so by either party.

14.9 Until they are paid in full, the parties shall be jointly and severally liable to meet the fees and expenses of the Applicable Tribunal, the total amount of which shall be specified in an award.

15 Representation

15.1 A party may be represented before the Applicable Tribunal by a solicitor or counsel provided that 14 days’ prior written notice to that effect identifying the solicitor or counsel instructed is given to the other party and to the chairperson.

15.2 A Club which is a party may be represented before Applicable Tribunal by one of its Officials. An Official shall not be prevented from representing his Club because he is or may be a witness in the proceedings.

15.3 However, in the event that a party’s representative shall be considered by the Applicable Tribunal to have unduly delayed or hindered those proceedings, the Applicable Tribunal may make an order debarring that representative from appearing on behalf of that party in those proceedings.

16 Waiver

16.1 A party which is aware of non-compliance with Section 10 of the Regulations and yet proceeds with the arbitration without promptly stating its objection to such non-compliance to the chairperson shall be deemed to have waived its right to object.

17 Time and Place of Hearing(s).

17.1 The Applicable Tribunal may hear the parties their representatives and/or witnesses at any time or place and may adjourn the hearing for any period on the application of any party as it thinks fit.

18 Recording of Hearings

18.1 The Applicable Tribunal may direct that any hearing in respect of a complaint shall be recorded so as to ensure that there is an accurate record of any such hearing in the event of a dispute regarding the conduct of that hearing.

19 Non Payment of Awards.

19.1 In default the person concerned shall pay interest at the rate of 5 per cent per annum over Barclays Bank base rate in force from time to time calculated on a daily basis on the outstanding sum from the due date to the actual date of payment.  The Applicable Tribunal may order that a party’s liability for costs be deducted from any other amounts which may be otherwise due to that party under the terms of any order of the Applicable Tribunal.

20 Publication and Confidentiality

20.1 Subject to Rule 20.2, any Applicable Tribunal shall be entitled to publish any judgment, decision or award.

20.2 Decisions of:

(a) a Disciplinary Commission; and/or

(b) the League Arbitration Panel in proceedings conducted pursuant to Regulations 95.2.1 to 95.2.3 inclusive and Regulation 95.2.5 (where The League is a party, but not otherwise),

shall, unless otherwise agreed between the parties, be published (subject to appropriate redaction to protect third party confidentiality).

20.3 In any event, copies of any judgment, decision or award of any Applicable Tribunal in proceedings to which The League is not a party must be provided to The League within 24 hours of the making of the order.  Where The League considers, acting reasonably, that the terms of the judgment, decision or award are of general importance to Member Clubs, The League may produce an anonymised version and/or summary of such judgment, decision or award for distribution to Member Clubs.

20.4 All evidence given and any other elements of the case record (for example pleadings, documents, correspondence, statements and submissions) shall, subject to Rule 20.1, be confidential.

20.5 Each Club, Official and Player shall be treated as having consented to any publication and/or disclosure of any judgment, decision or award pursuant to this Rule 20.