Table of Contents
Background:
‘Separation of Powers’ and legislative independence have been two most prominent statecraft practices of the United Kingdom. Similar to the law-making freedom enjoyed by the British Parliament, the national courts of Britain had also granted liberty to the private organisations in the management of their affairs linked to sports.
Historically, the British courts have had this tendency to grant autonomy to the private sports organisations, staying away from the letters’ internal affairs.
” – Lord Denning in the Enderby Town F.C. vs F.A had opined the statement to reflect the importance of granting autonomy to the private sports bodies, as there may be incompetent lawyers in courts, who won’t understand the technicalities of sports. While, a layman, who is linked to the profession would resolve a dispute effectively.
Justice can often be done in domestic tribunals better by a good layman than by a bad lawyer
Determination of jurisdiction over the resolution of professional sport:
No single authority can suo-motu gain jurisdiction over sporting disputes and it depends upon the precise nature of the dispute in question.
A regulatory or disciplinary offence by a participant will usually fall to be determined by a disciplinary committee (or similar body) pursuant to the relevant NGB’s rules.
If an athlete wants to resolve a dispute falling within the scope of an arbitration agreement through court proceedings, then the respondent or defendant may seek a stay of the proceedings pursuant to section 9 of the Arbitration Act 1996.
A “yes” to non-interference:
The British court’s policy of non-interference towards sports management companies and thus, granting them autonomy has been justified on various grounds –
?Firstly, sportspeople were essentially amateurs and thus no economic interest was threatened by their mistreatment in disciplinary matters or by an exclusion from participation.
In Currie v Barton, the refusal to review a selection decision by a county tennis association was based primarily on the grounds that the player was not losing any money, even though he was a professional coach, by not being selected for an amateur tournament.
? Secondly, technocrats, who were well-versed with the sport and its informal conventions, were taken to be the most qualified to make judgments on such matters rather than the courts.
In Wilander v Tobin the Court of Appeal had opined in favour of sporting autonomy: ‘the history of these proceedings discloses that the plaintiffs have taken point after point with a view to defeating domestic disciplinary proceedings which in relation to sporting activities should be as untechnical as possible. While the Courts must be vigilant to protect the genuine rights of sportsmen in the position of the plaintiffs, they must be equally vigilant in preventing the Courts’ procedures being used unjustifiably to render perfectly sensible and fair procedures inoperable.’
? Thirdly, it was argued that, sports – if viewed as a private association with shared goals – then a contract law is the more appropriate legal form and not public law. Because, public law consists of standards of accountability in the governance and administration of the occasion.
In Bradley v the Jockey Club, Mr Justice Richards has opined that- ‘The importance of the court limiting itself to a supervisory role of the kind I have described is reinforced in the present case by the fact that the Appeal Board includes members who are knowledgeable about the racing industry and are better placed than the court to decide on the importance of the rules in question and the precise weight to be attached to breaches of those rules.’
This was essential to make insider knowledge the crucial factor in allowing sporting immunity, irrespective of any serious examination of the integrity of the internal disciplinary procedures being used.
R v Barnes [2005]:
This criminal case is famous for the ‘re-privatisation’ of sporting governance in the U.K. In this case, a football player – whose tackle had caused a serious injury to this fellow opponent – was convicted in the prosecution.
The Court of Appeal had overturned a conviction for assault and stated that- such cases shall be dealt by the criminal courts only in the rarest of cases, rather than being handled by the internal disciplinary tribunals of the sporting federations.
The Court of Appeal said, ‘In determining what the approach of the courts should be, the starting point is the fact that most organised sports have their own disciplinary procedures for enforcing their particular rules and standards of conduct. As a result, in the majority of situations there is not only no need for criminal proceedings, it is undesirable that there should be any criminal proceedings.’
Chambers v British Olympic Association [2008]:
In this landmark case, the athlete was banned from competing in the 2008 Beijing Summer Olympics and the ban was imposed on the account of use of drugs. The plaintiff (Chambers) challenged the BOA’s decision and particularly, questioned their stipulation under bylaw 25, which states that –
.
Although the plaintiff’s appeal was rejected, what was more surprising about the case was the Court’s view of its own role & function with regard to such proceedings-
if a governing body recognized by WADA finds aperson guilty of doping offence, then the latter would not be allowed tocompete as a player of the British Team and would cease to get benefitted from any BOA accreditation for any upcoming Olympic Games
“Though the court must not shrink from exercising a supervisory power which it has if it affects the claimant’s right to work … the BOA, if acting honestly and not capriciously and within its powers, is and must be a body better fitted to judge what was needed than me, or any court.”
Conclusion:
This move back towards re-privatisation could be summed up by the aphorism that ‘sport knows sport best’. And historically, civil cases were used to be mostly solved through arbitration and advocates and judges were mostly trained for criminal cases.
If there are separate courts (lower level) for criminal and civil offences; if there can be a separate international body – the Financial Action Task Force (FATF) – to deal with financial crimes, then the British model of having separate bodies for mitigation of sport-related litigations is absolutely acceptable.
However, it is equally important to score the right decisions and do justice to the ‘non-interventional’ approach of the British Courts.
