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Challenging the Call: Sporting Governing Bodies and Judicial Review

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About The Author

Ben Cisneros (Regular Writer)

Ben is a third-year law student at Selwyn College, Cambridge, currently spending this year studying law at the Universidad Autónoma de Madrid as part of the Erasmus scheme. He has a keen interest in Sports law, and is a future trainee of boutique firm, Morgan Sports Law. Outside of academia, Ben is a keen singer and actor with a unflinching love of Wasps and England rugby.

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Sports are a microcosm of society.

Billie Jean King

The world of sport has evolved immeasurably over the past century. This is now the age of the professional athlete, and sport is one of the fastest developing industries in the global economy.  In order to manage and coordinate them in this fast-changing world, each sport has its own governing body – increasingly corporate entities – with the power to make rules and regulations, and decisions as to the ramifications when these are breached.

At present, the decisions of sporting governing bodies in England and Wales are not amenable to judicial review. Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body, typically examining the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

This exclusion is primarily because many feel that sports matters are private matters that are better dealt with by contract law, as held in R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993], while others point to the rise of arbitration providing another sufficient alternative.

However, since the decision in R v Panel on Takeovers and Mergers, ex parte Datafin [1986], the scope of judicial review has expanded to include a wide range of self-regulatory bodies, arguably making the sports sector the odd one out. This article contends that the full extent of judicial review should be introduced to the sports sector, particularly given the huge growth of the sports industry over the past decade and the lack of external scrutiny.

There have been various cases over the years which arguably demanded such scrutiny. The case of Marius Tincu, a Romanian rugby player for Perpignan in France, is a perfect example. He received an 18-week ban for eye-gouging, despite there being no conclusive evidence of his fingers making contact with the eyes of his alleged victim. His club was indignant, and took legal action after threatening to pull out of the European Cup. Had this occurred within England and Wales, this would have been a case ripe for judicial review.

Determining the Boundaries of Judicial Review

Traditionally, the availability of judicial review was determined by the “source of power” test. Judicial review was therefore only available where the decision in question related to the exercise of a power derived from statute or, as confirmed in Council of Civil Service Unions v Minister for the Civil Service [1984], the Royal Prerogative. As such, it was held in Law v National Greyhound Racing Club [1983] that a decision by a sport’s governing body was not amenable to judicial review as the source of its powers was from an implied contract entered into by its members.

However, in the landmark case of R v Panel on Takeovers and Mergers, ex parte Datafin [1986], the potential reach of judicial review was extended. Lloyd LJ said:

I do not agree that the source of the power is the sole test whether a body is subject to judicial review… If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review…

But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may… be sufficient to bring the body within the reach of judicial review…

This decision gave rise to the so-called “public functions” test, which can now also be found in the Civil Procedure Rules. As Sir John Donaldson MR put it in the same case, what is required is a ‘public element, which can take many different forms’.

The criteria are therefore very broad, providing little guidance as to exactly when judicial review will apply; the limits can therefore only be inferred from a catalogue of borderline cases.

In Datafin itself, the Panel on Takeovers and Mergers did not enjoy any statutory, prerogative or common law powers and also did not have any contractual relationships with the bodies it regulated. However, the Court of Appeal found that, because it was an essential part of the regulation of London’s financial services market, it was exercising a “public function” and was thus judicially reviewable.

In the years since, a range of self-regulatory organisations have been held to be subject to judicial review. In R v Advertising Standards Authority Ltd, ex parte Vernons Organisation Ltd [1992] 1 WLR 1289,  the ASA was held to be subject to judicial review, as was the Bar Council in R v General Council of the Bar, ex parte Percival [1991] 1 QB 212. These bodies operate under their own set of rules and have self-appointed authority to make decisions affecting the rights of individuals. As a result, they have been deemed – in the words of Dyson LJ in Hampshire County Council v Beer [2003] – to have sufficient “public flavour”.

What about the Sports Industry?

The decision in Law v National Greyhound Racing Club [1983] demonstrated the biggest obstacle to a successful application for judicial review by a sport’s governing body: their supposed basis in contract. Despite the subsequent liberation of judicial review which followed the judgment in Datafin, this continues to be the view taken by the courts of England and Wales.

In R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993], the Court of Appeal made it very clear that judicial review could not lie against the Jockey Club where there was a contractual relationship between the ‘athlete’ and the governing body. Hoffman LJ said:

[T]he mere fact of power, even over a substantial area of economic activity, is not enough… Private power may affect the public interest and the livelihoods of many individuals. But that does not subject it to the rules of public law. If control is needed, it must be found in the law of contract.

A very similar approach was taken by the court in R v Football Association ex p Football League (1991). Even in Jones v Welsh Rugby Football Union [1997] EWCA Civ 3066, where the court applied the rules of natural justice that have been typically associated with public law following Ridge v Baldwin [1963], the judge insisted that this was not judicial review, and followed the implied contractual terms approach from Aga Khan.

A ‘Supervisory Jurisdiction’

Nonetheless, some progress has been made in developing limited legal scrutiny of governing bodies: Bradley v Jockey Club [2004] EWHC 2164 established a private law ‘supervisory jurisdiction’ over the governing body which, in the subsequent case of Mullins v McFarlane and the Jockey Club [2006], was held to extend to all matters of ‘importance’. This followed the judgment of Lord Denning in Nagle v Feilden [1966] 2 QB 633, in which he stated that organisations holding ‘predominant power’ over a particular area would come under the courts’ jurisdiction as a matter of public policy. It could be fairly assumed that this will apply to all sports governing bodies.  

However, this notion of a private law ‘supervisory jurisdiction’ seems for all intents and purposes to be judicial review under a different name. Indeed, as Richards J in Bradley stated:

I would consider it surprising and unsatisfactory if a private law claim in relation to the decision of a domestic body required the court to adopt a materially different approach from a judicial review claim in relation to the decision of a public body.

It seems puzzling therefore, that the courts insist that judicial review should not be granted; Rose J in R v Football Association, ex parte Football League (1991) remained resolutely against this extension, when he said:

[F]or my part, to apply to the governing body of football… principles honed for the control of the abuse of power by government and its creatures, would involve… a quantum leap.

Denying judicial review in this way and for this reason is to be overly concerned with the source of the power, when modern administrative law has placed function as paramount. In a system which separates private and public law, the two spheres should be kept distinct in the interests of clarity and consistency. So the courts’ application of the principles of judicial review under the flag of private law lacks legitimacy and risks remedial incoherence: for example, judicial review offers quashing orders which are unavailable in private law.

The Case for Judicial Review

The continued insistence that sporting bodies are not considered amenable to judicial review but are instead subject to a flawed ‘supervisory jurisdiction’ is, for a number of reasons, problematic.

Sporting Bodies Carrying Out Public Functions

In contrast to the traditional characterisation applied by the courts, it is arguable that sports governing bodies do carry out “public functions”. The growth of sport over recent decades has been huge and, with the rise of professionalism, there has been significant regulatory development. There now exist bodies which have the power to ban athletes from taking part in competitive sport – at professional and amateur level – for periods of time ranging from one match to life. Certain ‘offences’ might also attract financial sanctions, relegation or points deductions. The impact these decisions can have, not just upon potential income, but on personal reputations can be life-changing; just ask Justin Gatlin.

Match-fixing, betting, doping (including recreational drug use), dangerous conduct, and ‘inappropriate’ remarks or gestures are just some of the behaviours which sports governing bodies regularly sanction. There is a long list, then, of what athletes are prohibited or restricted from doing and, as Simon Boyes has noted, the right of freedom of expression is often restricted in the sporting arena. There are, of course, good reasons for athletes to be limited in this way, but the point is that governing bodies are regularly making decisions which affect fundamental rights, reflecting a clear "public function”.

Extending judicial review to sporting bodies would also be consistent with the post-Datafin line of case-law. If an athlete receives a lifetime ban, the consequences in terms of their livelihood and reputation would be just the same as if a barrister was disbarred. Why is one reviewable and the other not? Furthermore, as Boyes observes:

[S]port plays a significant role as a policy instrument in pursuit of, for example, public health goals, and – at an elite level – as a means by which to project political ideology and promote national standing.

To this end, the sports sector is of great public importance and it seems obvious that there is public 'flavour'.

The Potential Role for the State

It is possible to argue that if it were not for self-regulatory governing bodies, the fact that it is likely that the state would itself regulate sports, demonstrates their public character. This argument was run in both R v Football Association, ex parte Football League (1991) and Aga Khan.

In the latter case, Sir Thomas Bingham MR accepted the argument in part, noting that: ‘if the Jockey Club did not regulate this activity the government would probably be driven to create a public body to do so’. However, he refused to accept that judicial review should be applied because ’while the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental.’

Yet this argument should now be considered flawed, because the test elucidated by Dyson LJ in Hampshire County Council v Beer [2003] is not whether the powers are 'governmental'; 'public flavour' is deemed sufficient. This somewhat undermines the strength of the Aga Khan decision.

This argument was also rejected by Rose J, who suggested in R v Football Association, ex parte Football League (1991) that in the event of a lacuna, it would be more likely that a TV company would step in. However, examined through a contemporaneous lens, this again seems a weak suggestion – for one thing, much has changed in the 24 years since that decision was taken and sport is now of greater public concern. Furthermore, whilst the commercial side of sport has undeniably become more powerful, it would be hard to imagine a TV company taking up – or being allowed to take up – the role of regulator.

Consistency with Other Jurisdictions

The approaches of many other jurisdictions across the world in which judicial review of decisions by sporting governing bodies is allowed place English and Welsh athletes at a potential disadvantage.

In Scotland – where the law does not distinguish between private and public matters – the courts granted judicial review in St Johnston FC v Scottish Football Association [1965] SLT 171, while courts in New Zealand and Australia have also taken this route. Claims in administrative courts are also permitted under French law, which classes disciplinary proceedings as administrative acts.

International sport demands consistency. With athletes from different jurisdictions competing against one another so regularly nowadays, it is essential that the playing field, so to speak, is as even as possible. It is not right that New Zealand’s rugby players, for example, could seek review of disciplinary proceedings against them whilst English players must accept whatever the RFU decides.

The Inadequacies of the ‘Contract’ Jurisdiction

It is increasingly clear that the current approach under contract law is inadequate. This is particularly so in cases where no contract exists between athlete and governing body – especially common in amateur sport – because contract law offers no protection.

This was highlighted by the case of Modahl v British Athletics Federation (No.20 [2001], in which the dissenting judgment of Jonathan Parker LJ demonstrates how the finding of an ‘implied contract’ can be difficult. A similar argument was advanced by Lord Denning MR in Enderby Town FC v FA [1971] Ch 591, who described such implied contracts as ‘a fiction… created by lawyers to give the courts jurisdiction’. This makes sense: after all, the actual contract in this scenario is often between a player and a club, which agrees to be bound by the rules of the governing body.

Thus, there seems no reason why this vacuum could not be filled by administrative law; given the existence of a system of judicial review which could so easily be extended, there seems no real need to resort to unhelpful legal fictions.

Furthermore, these legal fictions risk creating doctrinal incoherence: if these are truly contract law cases, the intensity of review that the courts employ is rather intrusive, and risks offending the notion ‘freedom of contract’. Applying the rules of natural justice or the substantive review concept of Wednesbury reasonableness goes beyond ‘normal’ contract law. Ultimately, if courts feel they need to intervene in this way, they must admit they are doing so to protect fundamental rights or uphold the rule of law, both of which have been argued to be chief aims of administrative law.

The Monopoly Argument

Colin Campbell has argued that judicial review should be available where an organisation has monopoly power over a sector. Indeed, he argues that monopoly power could be used as the rational basis for judicial review generally.

This would provide a sound rationale for judicial review to be applied to sporting governing bodies like the FA or RFU, most of which have monopolies. In such cases, if an individual is being deprived of the standards of good administration, they have nowhere else to go if they want to continue playing the sport.

As Campbell argues, it is an aspect of the rule of law that individuals should have access to good administration and, under a substantive conception of the rule of law, it should not matter whether this administration comes from the government or not. Therefore, if the individual is being deprived of such standards, they should be able to challenge it. After all, administrative law has developed specifically to ensure good administration, all through the utilisation of the process of judicial review. Thus, this should be the primary mechanism through which individuals – athletes – can challenge governing body decisions which do not adhere to such standards.

The Growth of Arbitration

The past 20 years have seen arbitration grow as a method of dispute resolution generally; this is particularly so in the sports world. The Court of Arbitration for Sport (CAS) provides an external appeal for those athletes unsatisfied with the decision reached by their governing body. On account of this, it might be argued that resorting to judicial review is unnecessary.

However, this overlooks the fact that cases only go to arbitration if this is contracted for by the parties – i.e. if it says so in the sport’s regulations. This explains why, at present, CAS only hears doping disputes and international FIFA disputes; in others sports like Rugby Union, the governing bodies do not stipulate that there will be a CAS appeal for disciplinary proceedings other than for  doping. Thus, this narrow scope means the potential for arbitration to provide relief to athletes is limited. It is worth noting too, that an arbitration panel will only consider the merits of a case before it, and will not account for the case’s procedural fairness.

Conclusion

In all, there is a strong case that sports governing bodies should be subject to judicial review. To extend judicial review in this way would not only follow the trend of administrative law after Datafin, but be consistent with other jurisdictions. The nature of modern sport certainly gives it 'public flavour', while the powers that governing bodies exercise equally give them a degree of 'public function'.

Furthermore, the inadequacy of contract law and the inappropriateness of a private law ‘supervisory jurisdiction’ highlight the importance of judicial review in ensuring that the rights of athletes are protected, and the rule of law upheld. Sport is a central part of modern life, and is now a massive industry. With increasing amounts at stake for athletes, their teams, and even sponsors, it is more essential than ever that those in charge are held to account.

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Tagged: Administrative Law, Judicial Review, Regulators, Sport Law

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