Challenging disciplinary decisions
By Jonathan Ellis, Charles Russell LLP
English courts have traditionally been reluctant to interfere with the decisions of sporting regulators. Sports governing bodies are recognised as being experts in their fields, and as being far better placed to regulate their sports than the courts.
However, with sporting success and financial rewards so closely linked, the disciplinary decisions of sports governing bodies are subject to ever greater levels of scrutiny. A decision to ban a participant from a sport, or to throw a club out of a competition, can have far reaching commercial (as well as sporting) consequences. It is therefore unsurprising that participants are increasingly willing to challenge the disciplinary decisions reached by sports governing bodies. The extent to which these decisions are open to challenge is considered below.
Public or private law?
It is well-established in English law that sports governing bodies are not public bodies whose decisions are subject to judicial review.
The leading authority in this area is the landmark decision of the Court of Appeal in R v Jockey Club ex parte Aga Khan, in which it was held that the Jockey Club’s powers were derived from its contractual relationship with those agreeing to be bound by the Rules of Racing. The Court of Appeal held that such powers gave rise to private rights, enforceable by private action, but that the Jockey Club’s decision was not amenable to judicial review.
This authority was later tested by Willie Mullins, the trainer of a horse which had been disqualified from the 2002 Hennessey Gold Cup. Mr Mullins sought to contend that the Aga Khan was wrongly decided or was distinguishable in light of the passing in the meantime of the Human Rights Act. Burnton J held that the first argument was not open to Mr Mullins before him or the Court of Appeal. He also rejected the suggested factual distinction between Mr Mullins’s case and the Aga Khan, commenting that:
“… if I assume that I am free to reconsider the amenability of the Appeal Board to judicial review, I should reach the same decision, for the reasons given so clearly by all three members of the Court of Appeal. Review of the disciplinary decisions of the Jockey Club and its organs is a matter for private law, not public law.
The Mullins decision serves to underline the fact that the relationship between a sports regulator and its participants is a private one, in which participants are afforded protection under private law. It is the nature and scope of this jurisdiction which is addressed below.
The supervisory jurisdiction
Whilst it is established that the decisions of sports governing bodies are not amenable to judicial review, it is equally well established that the supervisory jurisdiction exercised by courts and arbitral tribunals under private law is akin to the public law judicial review test.
The overriding principle, as described by Richards J in Bradley v The Jockey Club, is that “the function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits.” The courts will afford sports governing bodies a wide margin of appreciation in how they carry out their disciplinary functions. As stated in the case of Flaherty v National Greyhound Racing:
"[sports governing bodies] have unrivalled and practical knowledge of the particular sport that they are required to regulate. They cannot be expected to act in every detail as if they are a court of law. Provided they act lawfully and within the ambit of their powers, the courts should allow them to get on with the job that they are required to do.”
Grounds for challenge
The primary grounds for challenging the decisions of sports governing bodies are on the basis that the body has exercised its regulatory functions in a way that:
• is outside of its powers, or is unlawful;
• is procedurally unfair or contrary to natural justice; or,
• is unreasonable, in the sense that it is irrational, perverse, arbitrary or capricious.
Acting in accordance with its rules and the general law
A regulatory body must act in accordance with its own rules in bringing and prosecuting disciplinary charges. Rules and regulations must also be drafted to ensure that they are not inconsistent with the general law.
For example, in the case of The Football Association Premier League v Ashley Cole, Chelsea Football Club and Jose Mourinho, Ashley Cole sought to argue that the “tapping-up” rule, preventing players approaching clubs and clubs approaching players, was an unlawful restraint of trade and therefore unenforceable. The Disciplinary Commission dismissed the challenge, holding that the rule was fair and reasonable between the contracting parties, that it was in the public interest and that it was the minimum necessary to protect the interests of the covenanting parties.
Procedural unfairness
Sports governing bodies are required to ensure that participants who are charged with misconduct receive a fair hearing. Most bodies have detailed rules which set out the procedure for conducting disciplinary proceedings. In particular the rules will ordinarily provide for: (i) how long the accused has to answer the charge; (ii) whether or not the accused is entitled to call witnesses; (iii) whether or not the accused has the right to legal representation; and, (iv) the manner in which decisions will be reached and published, including any requirement that written reasons be given. In the absence of express rules, the courts will imply an obligation of procedural fairness into the contract between the sports governing body and the accused.
In the case of Enderby Town Football Club v The FA, Enderby Town sought an injunction to stop The FA disciplinary hearing taking place without the club having the right to legal representation. Lord Denning dismissed the challenge, holding that: “in many cases it may be a good thing for the proceedings of a domestic tribunal to be conducted informally without legal representation.” He did, however, also emphasise that such a rule should be discretionary, rather than mandatory, and that that discretion must be correctly exercised.
Unreasonable, irrational, arbitrary or capricious behaviour
As stated above, the courts will not seek to substitute their views for the views of disciplinary bodies, but will instead apply an analysis akin to the Wednesbury unreasonableness test in public law. In order to bring a successful challenge, a participant must therefore establish that the decision complained of is one which no reasonable sports governing body could have made.
In the arbitration between Sheffield United v FA Premier League, the club sought to challenge the disciplinary decision to fine West Ham £5.5 million, for breaching the Premier League’s Rules in relation to the registration of Carlos Tevez and Javier Mascherano, as opposed to deducting points from West Ham. Whilst the arbitral tribunal had sympathy for Sheffield United’s grievances, commenting that it would have probably deducted points had it been taking the original disciplinary decision, it ultimately dismissed the claim on the basis that the decision fell within the range of decisions open to the Disciplinary Commission.
Conclusion
The commercialisation of sport has led to unprecedented levels of money riding on the outcomes of the games played. With both pride and profit at stake, it is no surprise that participants are increasingly willing to test the decisions reached by disciplinary bodies through the courts and by way of arbitration.
The case law demonstrates the limited circumstances in which the courts are prepared to interfere in the private relationship between the regulator of a sport and its participants. The courts have consistently demonstrated that they are respectful of the depth of expertise inherent within sporting bodies and they will be slow to strike down their decisions unless they are manifestly wrong.
Article obtained from www.charlesrussell.co.uk, the website of Charles Russell LLP. Article reproduced with their kind permission. More information
Jon Ellis, Solicitor
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