Swansea footballer's dispute with former agents can proceed to litigation, court rules

The agents had claimed that the dispute must be referred to arbitration, as provided for by the Football Association (FA) rules. However, High Court judge Mark Pelling QC found that the relationship between the parties was not governed by the FA rules, therefore the arbitration clause did not apply.

The judge also dismissed a separate argument that as professional football is a "highly regulated sport", he should be required to imply a contract between the parties based on the rules applicable to that sport. He said that while this option was open to the court, whether it would do so "depends on all the relevant facts and circumstances".

Sports law expert Julian Diaz-Rainey said that both the judge's decision, and the decision of the district judge which came before it, were "absolutely right".

"The Football Association Rules contain an arbitration clause, which is often a very useful way of resolving football-related disputes - but the facts of the case didn't support the agents' view that the FA rules applied," he said.

Section 5 of the 1996 Arbitration Act requires arbitration agreements to be made in writing. This can be extended to cover non-written agreements that incorporate written terms which include a written arbitration clause, for example in the case of an oral ship salvage agreement which incorporates by reference the terms of the Lloyds Open Form.

The judge said that he accepted that this could "in principle" extend to an implied agreement between parties. However, for this to be the case, the party claiming that the implied agreement included an arbitration clause must be able to establish that "the implied agreement was by reference to terms which are in writing and which included the arbitration clause relied on", he said.

"The onus rests on [the agents] to establish the existence of an implied agreement between each of them on the one hand and [Bony] on the other that incorporates by reference at least section K of the FA rules," said Judge Pelling. "They have failed to do so."

"[The agents'] case depends upon the court implying a contract between [Bony] and each of [them] that incorporates by reference at least section K of the FA rules. The authorities relied on by [the agents] do not support the proposition that such an agreement should be applied as a matter of law. It follows that an agreement can be implied only if the implication of a contract can be justified applying general principles," he said.

Bony has claimed that Gilbert Kacou and Dalibor Lacina, along with their companies, received over £8 million in secret commission payments from Swansea between July 2013 and February 2015, while negotiating the terms of his contract with the club. He has also made a separate, free-standing allegation that he was induced to enter into an image rights agreement by Kacou.

Kacou is, like Bony, an Ivory Coast national, who is registered as a football agent by the country's football association. He is not, and has never been, registered with the FA, making him an 'unauthorised agent' under the FA rules. Lacina is a Czech national who was registered as an overseas agent with the FA from September 2009 until no later than 1 April 2015, making him an 'authorised agent' under the FA rules between those dates. His company has never been an authorised agent.

The judge held that there was no need to imply contracts between Bony and his agents, as valid agreements already existed in each case. Bony's relationship with Kacou was governed by a written agreement, which did not contain an arbitration clause, between 1 December 2012 and 30 November 2014. Kacou continued to act for Bony after 30 November 2014 under an oral agreement. The contracts between Bony and Lacina were all oral.

"The relationship between [Bony] and each of [the agents] was subject to and governed by express agreements," the judge said. "None of those agreements contained arbitration provisions other than the Lacina 2013 agreement, which contained a dispute resolution provision which was obviously intended to provide a comprehensive dispute resolution mechanism."

"Given the existence of those agreements, there is no basis on which it was necessary to imply the agreement contended for and the conduct of [Bony] and [the agents] from first to last was referable to those agreements," he said.

The judge reached the same conclusions with regards to the relationship between Bony and each of Kacou and Lacina's companies.

"[Bony] did not at any stage enter into a contract with either because neither provided services of any sort to [him]," he said. "The only role of each in the context of this present dispute was allegedly to receive the alleged secret commissions that [Bony] seeks to recover."