Sporting Justice: An Arbitrator's Perspective

Abstract

Drawing on my experience of a number of sports dispute resolution tribunals the UK and Ireland (such as Sports Resolutions UK; Just Sport Ireland; the Football Association of Ireland’s Disciplinary Panel and the Gaelic Athletic Association’s Dispute Resolution Authority) I intend to use this paper to review the legal arguments typically made sports-related arbitrations. These points of interest can be summarised as a series of three questions: the fairness question; the liability question; the penalty question. In answer to the fairness question, the aim is to give a brief outline on best practice establishing a sports disciplinary tribunal. The answer, I believe, is always twofold nature: first, and to paraphrase Lord Steyn R v Secretary of State For The Home Department, Ex Parte Daly [2001] UKHL 26 at [28] in law, context is everything – translated into the present matter, this means that sports disciplinary cases, the more serious the charges against the individual (in terms of reputational damage, economic impact and/or length of sanction); the more tightly wrapped the procedural safeguards surrounding any subsequent disciplinary hearing must be. A fair disciplinary system will be discussed the context of the principles laid down Article 8 of the World Anti-Doping Code which, effect, acts as sport’s Article 6 of the ECHR on a right to a fair trial. Following on from the above, the 60 or so sports arbitrations that I have heard, there are two further points of interest. First, the claim before the arbitral panel will often be framed an argument that, for various reasons of substantive and procedural irregularity, the sanction imposed on the appellant should be quashed (the liability). Second, and alternative, that the sanction imposed was wholly disproportionate (the penalty). The liability issue usually breaks down into two further questions. First, what is the nature of the legal duty upon a sports body exercising its disciplinary remit? Second, to what extent does a de novo hearing on appeal cure any apparent defects a hearing of first instance? The first issue often results an arbitral panel debating the contra preferentum approach to the interpretation of a contested rule i.e., the sports body’s rules question are so ambiguous that they should be interpreted a manner to the detriment of the rule maker and favour of the appellant. On the second matter, it now appears to be a general principle of sports law, administrative law and even human rights law that even if a violation of the principles of natural justice takes place at the first instance stage of a disciplinary process, they may be cured on de novo appeal. Authority for this approach can be found at the Court of Arbitration for Sport and particular CAS 2009/A/1920 FK Pobeda, Aleksandar Zabrcanec, Nikolce Zdraveski v UEFA at para 87. The question on proportionality asks what, aside from precedent found within the decisions of the sports body question, are the general legal principles against which a sanction by a sports disciplinary body can be benchmarked order to ascertain whether it is disproportionate length or even irrational nature? On the matter of (dis)proportionality of sanction, the debate is usually guided by the authority Bradley v the Jockey Club [2004] EWHC 2164 (QB) and affirmed at [2005] EWCA Civ 1056. The Bradley principles on proportionality of sports-specific sanctions, recently cited with approval at the Court of Arbitration for Sport, will be examined this presentation. Finally, an interesting application of many of the above principles (and others such as the appropriate standard of proof sports disciplinary procedures) can be made to recent match-fixing or corruption related hearings held by the British Horse Racing Authority, the integrity units of snooker and tennis, and at the Court of Arbitration for Sport.