Hearts and Partick Thistle football clubs have had the legal battle to prevent their relegation referred to arbitration by a Court of Session judge.
Lord Clark agreed with the Scottish Professional Football League, and the clubs seeking to have their promotion confirmed (Dundee United, Raith Rovers and Cove Rangers), that the dispute was a "football dispute" in terms of article 99.7 of the articles of association of the Scottish Football Association, by which the parties were contractually bound, and which therefore had to be settled by arbitration in terms of articles 99.13 to 99.19.
The judge held that although the respondents sought dismissal of the petition, the appropriate course was to sist it: complex legal issues had been raised which made it inappropriate to deal with dismissal at that stage. These included a restriction (though not a complete prohibition) in the SFA's articles as to taking court proceedings without the consent of the SFA's board, and a provision authorising severe penalties for a breach of that restriction, given that the petition was brought on the grounds of unfairly prejudicial conduct by the SFA in relation to the resolution which gave rise to the petitioners' relegation.
These were matters that would require a full legal debate, Lord Clark ruled, adding: "I conclude that the nature and relative complexity of these issues makes it inappropriate that I deal with the question of dismissing the petition at this early stage. I therefore refuse the motion on behalf of Dundee United, Raith Rovers and Cove Rangers to have this petition dismissed."
However he rejected an argument for the petitioners that the court was not bound to send the case to arbitration because the respondents had taken steps to answer the court process, in terms of s 10(1) of the Arbitration (Scotland) Act 2010. He followed English case law that if any responses were subject to the clear qualification that a sist for arbitration was requested, then no step had been taken which should bar the request for arbitration; and also followed an English decision that allegations of unfair prejudice could suitably be determined by arbitration. Nor did the fact that there were only 28 days until the start of the new season make the arbitration agreement incapable of being performed.
In any event, if the court had a discretion in the matter, it was appropriate to sist for arbitration, despite the public interest in the case: Scottish courts had been clear that an agreement to go to arbitration should be upheld.
He granted the petitioners an order for recovery of documents in order to help speed the process: "the approach I take to the recovery of documents in a dispute of this nature, significance and urgency is to require the parties to put their cards on the table".