STN v POR: Commercial Court remits footballer's counterclaim to arbitrator over unaddressed issue

The Commercial Court has remitted part of a footballer's counterclaim to an arbitrator for reconsideration, while rejecting three other serious irregularity challenges to an award in favour of his former agent.

In STN v POR [2026] EWHC 2585 (Comm), Butcher J considered an application under section 68 of the Arbitration Act 1996 to set aside a partial final award made under Rule K of the FA Rules. The agent had claimed about £110,000 in unpaid commission on a 2022 transfer, and the player counterclaimed for breach of contract and fiduciary duty. The arbitrator upheld the claim and dismissed the counterclaim.

The successful challenge concerned a limb of the counterclaim alleging that the agent had allowed a club to overpay on an earlier transfer, to the detriment of the player's wages. The award dealt in detail with an alleged secret profit, then dismissed the "second limb" in a single sentence. Reading the award in a fair, commercial and commonsense way, Butcher J concluded that the overpayment claim had not been addressed. It had no heading of its own, the preceding reasoning related to a different subject, and the evidence and argument were significantly different. Applying RAV Bahamas, the failure fell within section 68(2)(d). The judge found substantial injustice because the outcome might well have been different, notwithstanding the comparatively modest sums.

The judge also dealt with a threshold objection. The agent argued that the player should first have asked the arbitrator for a correction or additional award under section 57, as section 70(2)(b) requires. Butcher J held that Rule K10.2, which excludes any appeal, review or recourse to any body of any nature, amounted to an agreement under section 57(1) that displaced the section 57(3) powers. An application to the tribunal would itself have been "recourse". He added, obiter, that section 57 would otherwise have been available, either because the claim was presented but not dealt with or because the award was genuinely ambiguous. He endorsed Foxton J's caution in Czech Republic v Diag Human that section 57 should not become a ritual precursor to section 68.

The remaining grounds failed. On a mandate agreement with a Turkey-based agent, the player said the arbitrator relied on an unpleaded implied consent theory and on private knowledge. The judge found that the substance of the point had been pleaded and argued, and that the arbitrator was using his experience to evaluate the evidence, which is permissible, rather than supplying evidence for a party. Disagreement with the reasoning, or reliance on a contractual clause, was not a section 68 matter, particularly where the parties had excluded section 69 appeals. In any event, no substantial injustice was shown.

On a payment allegedly made by a former club on an earlier transfer, the player had produced documents shortly before the hearing. The arbitrator reasonably deferred ruling on a supplementary bundle and allowed cross-examination on the point, but the player made no application for disclosure or to amend his case. Because the payment was never pleaded, it was not an "issue" put to the arbitrator, and section 68(2)(d) was not engaged. Documents obtained after the award, which the court had permitted the player to rely on, did not assist. No allegation that the award was procured by fraud under section 68(2)(g) was made.

A complaint that the arbitrator failed to engage with a witness's evidence was described as hopeless, since an assessment of weight and relevance will rarely, if ever, found a section 68 challenge.

Mindful of section 68(3), Butcher J remitted the second limb to the same arbitrator, to consider whether it affects the overall conclusion, rather than setting the award aside. He doubted that section 68 alone allows remission to a differently constituted tribunal, which would require an application under section 24. None had been made.