Role of the English Courts in Holding Sports Governing Bodies to Account

Question One

It has long been said that sport in United Kingdom operates on an autonomous, Self-regulatory basis. with this in mind, critically asses the role of the English courts in holding sports governing bodies to account.

1. INTRODUCTION

It has been well established by the courts that National Sports Governing Bodies are in nature a ‘private’ organisation that possess the jurisdiction over the sport, given that there is a contractual agreement between the members and the governing body. Simply put the courts find the use of Judicial Review unnecessary as the contractual relationship is binding and disputes should be resolved in a private basis. It was held in the case of Flaherty v National Greyhound Racing[1] that “Sports Governing Bodies have unrivalled 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.”[2] Despite the statements held by the courts, it is an ongoing argument that Sports Governing Bodies play a much bigger role as much to depict their actions similar to a ‘public’ organisation[3] thus Judicial Review should be accessible when required. This essay will proceed to discuss the functions of the Sports Governing Bodies in English Law by analysing the Role of the State in Sports and the English Courts perception of the Sports Governing Bodies. Followed by how the courts challenge the Sport’s Governing Bodies when decisions are made in disproportion. Thus concluding this essay with a critical analysis of how the National Sports Governing Bodies are perceived in the UK.

2. FUNCTIONS OF SPORTS GOVERNING BODIES IN ENGLISH LAW

Sports and the Role of the State

The immense increase in the popularity of sports has drawn the attention of the states to show interest in the activities. Due to the demand in sporting events, Sports governing bodies are continuously searching for Countries to Host the events. The most controversial sporting event is known as the Olympic Games. Although it can be said most of the operations are governed and organised by the International Olympic Committee (IOC) in order for international events to take place, Sports Governing Bodies require the authorisation, Funding and Promotions from the state in order to pursue the event, Thus It can be argued that the states have a significant power towards sports in a promotional and funding aspect[4]. Although it can be said that the states are in possession of an important role, the involvement of the State in sporting activities is low due to the respect that sports bodies are autonomous independent bodies and self-regulating[5]. Thus the states remain to pass the responsibilities of sports to the governing bodies to regulate and maintain.[6] But as the agreements take place. the state expects the governing bodies to follow the rules that are put in place. Currently In the United Kingdom there are three state appointed departments which can simply be described as the parent of sports governing bodies. First being the Sports and Recreation Alliance; UK Sport and Sport England[7]. These departments are well known to work with the Sport’s Governing Bodies and remain as the main funding benefactors towards the sport[8]. Despite the power handed down to the Sports governing bodies, It can be said that the state has the power to intervene on decisions when there are irregularities. An example of this can be seen in 2016, The UK minister threatened to cut funding completely if the English Football Association did not implement a proper institutional reform under the terms.[9] Actions that followed with this threat placed by the Minister, displays the potential power of the state intervening. Following this threat, the 2016 Code of Sports Governance was published by the UK Sport and Sports England to clarify the requirements that the states expect.[10] From examining the findings It can be said that the involvement of the state intervention in sports began with the interest of the following mass disasters occurring from football in the late 90’s following a chain of stadium related disasters.[11] Although no actions were taken until the most disastrous 1989 Hillsborough[12] incident, due to the high volume of public interest and the impact that sports had on the society. This incident pursued the state to take an approach to develop a legislation for stadium sport safety[13].

Sports Governing Bodies in the Views of the English Courts

In the United Kingdom, Sport is regulated and operated by the Sports Governing Bodies as a ‘private’ organisation, although it can be argued that the way the Sports Governing Bodies operate is depicting more of a ‘Public’ nature, due to the impact of social influence and more importantly, Sports Governing Bodies have the power to ban participants from the sport that can have a significant impact on the potential financial earnings and reputations of the participants.[14] Despite the monopoly of power the sport’s Governing bodies have over the sport, they do not poses a specific right to govern a sport in which they do not have jurisdiction, due to the fact that “ Their powers are derived from the agreement of the members bound by the Governing Bodies Rules”[15] therefore In order for Sports Governing Bodies to operate efficiently they require the members who consent to the regulations. In England and Wales it is a continuous argument to say that disputes arising from sports governing bodies deserve to have the right to invoke the use of Judicial Review as an alternative method. Similar to any public organisation having the right to the benefits of Judicial Review under Part 54 of the Civil Procedures Rule.[16] This rule enables a person who has been given an unjust hearing from the public body to challenge the decision in the High Courts.[17] Although Judicial Review is not for the Courts to interfere with the ‘Public Bodies’ decision but merely to evaluate if the decision making process was indeed lawful.[18] It can be argued that Judicial Review is an effective method to remedying defective public law procedures. Thus would be ideal for disputes coming before a sport disciplinary tribunal due to the self-regulating nature of Sports Governing Bodies and to ensure the steps of the hearing is done in a fair manner. As can be seen in an example of Modahl vs British Athletic Federation Ltd[19] It can be argued that given the option to invoke Judicial Review the decision made by the Athletic Federation to ban Modahl after a positive drug testing could have had a better resolution as it was later established that the testing was conducted in an unaccredited laboratory. However with the multiple attempts to bring light to Judicial Review in Sporting disputes with Sports Governing Bodies, The courts have argued that “Sports Governing Bodies are reluctant to the Public nature and therefore labelled Private organisations who do not have access to Judicial Review.”[20] Despite the judgments of the courts, it can be argued that the functions of Judicial Review a process of[21]

I) Proceedings and Jurisdictions of Inferior Courts

II) Tribunals

III) Bodies or Persons Carrying out Quasi-Judicial Functions and

IV) Bodies or Persons who perform public acts and duties.

In this context, the functions of Judicial Review carry similarities with the functions of Sports Governing Bodies [22] namely the main points that Sports Governing Bodies operate as Tribunals carrying out quasi-Judicial Functions with the addition of performing Public acts and Duties.[23] which upholds the confusion to why Judicial Review is not granted in a dispute in Sports. It is argued in the case of R v Disciplinary Committee of the Jockey Club ex parte Aga Khan[24] which was held by the courts that “… in spite of its dominant position in a national sport, were not of a governmental nature but derived from the private contractual agreements between the club and those who agreed to be bound by the Rules.”[25] Further in the cases of Flaherty v National Greyhound Racing Club[26], Mcinnes v. Onslow-Fane[27] and Enderby Town Football Club v Football Association[28]. In which the courts held that Sports Governing Bodies operate as a Private Organisation on a contractual basis between the Sports Governing Bodies and the Claimant thus Judicial Review is not available. Despite the efforts to expose the Sports Governing Bodies, of their public nature in the courts.[29] By examining the previous chain of case law it can be said that English Courts are reluctant to intervene in sporting disputes due to the contractual nature between the Sports Governing Bodies and the Participants. With the possibility of Judicial Review non-existent in sporting disputes. In the following section I will proceed to discuss the possible outcomes of the courts intervening on the decisions made by the Sports Governing Bodies in a bias or disproportional manner.

3. COURTS CHALLENGING THE DECISIONS OF THE GOVERNING BODIES

In light of the evidence of the Sports Governing Bodies possessing a monopolistic power in the field of sports, It hard to evaluate the true existence of justice in sporting disputes truly exist. In all efforts to surface Judicial Review in sporting disputes and rejected by the courts, as seen in the case of R Mullins v Appeal Board of the Jockey Club.[30] Willie Mullins Race Horse ‘Be My Royal’ was subject to a urine test which had positive results for morphine. Despite the acknowledgment that the morphine may be of innocence due to cause of contaminated foodstuff. The Disciplinary committee of the Jockey club still proceeded to disqualify ‘be my Royal’ for the breach of rule 53. Mr Mullins disputed to the appeal board of the Jockey Club but the decision was upheld. Therefore further in the State Proceeding the courts held that the decisions made before Stanley Burnton J was principally a procedural one, thus holding the decisions of the court of appeal in R v Disciplinary Committee of the Jockey Club, ex p. Aga Khan.[31] Both cases sharing similarities requesting Judicial Review for unjust decisions and misuse of power by the Sports Governing Bodies. Despite the efforts, The Court of Appeal held that, “although the Jockey Club exercised dominant control over racing activities in Great Britain, its powers and duties were in no sense governmental but derived from the contractual relationship between the Jockey Club and those agreeing to be bound by the Rules of Racing. Accordingly, as those powers gave rise to private rights enforceable by private action in which effective relief by way of declaration, injunction and damages was available, the Jockey Club’s decision was not amenable to judicial review.”[32]  

Supervisory Jurisdiction

Despite the unavailability of Judicial Review. It can be said that developments have been made to evaluate the processes of the Sports Governing Bodies decisions[33]. The case of Bradley v Jockey Club[34] established a private law ‘supervisory jurisdiction’ over the governing body which, in the subsequent case of Mullins McFarlane and the Jockey Club[35], was held to extent to all matters of ‘importance’[36] followed by the judgment of Lord denning in Nagle v Feilden[37] in which Lord Denning stated that ‘organisations holding predominate power over a particular area would come under the court’s jurisdiction as a matter of public policy.’[38] Thus it can be said that the courts have accepted the use of supervisory jurisdiction in the courts. Simply put, invoking the Supervisory Jurisdiction will have the decision held by the Sports Governing Bodies reviewed under the courts supervision at common law. Despite the existence of Supervisory Jurisdiction it does not guarantee the availability of it. There are three main causes In order to challenge the decisions of the Sports Governing Bodies by invoking supervisory jurisdiction[39] Firstly, Where there is no contract between the parties, the claimant can invoke the supervisory jurisdiction of the court to review the lawfulness of the decision-making process. Secondly, where there is a contractual relationship the claimant can allege that the Sport’s Governing Body is in breach of contract by acting unlawfully. Thirdly, the claimant can claim that the decision set by the Sport’s Governing Body operated in restraint of trade. In consideration, the Sports Governing Bodies must have acted unfairly or beyond the jurisdiction granted to it by its own rules.[40] The case of Nagle v Fielden[41] draws attention to the decisions made by the jockey club operating a monopoly in the sport through a non-contractual basis. It was argued by Florence Nagle that “the jockey club constituted a breach of duty, as well as preventing females from earning a living in this area in restraint of trade and contrary to public policy.”[42] In the court of appeal Lord Denning felt that the right to work combined with capricious or arbitrary rejection constituted sufficient grounds for intervention by the courts.[43] Further with the case of Greig v Insole [44] involving 3 cricketers who brought claims against the TCCB and ICC seeking declaration that the rules of the International Cricket Council (ICC) was in restraint of trade. Which was held by the courts that “Neither the ICC nor the TCCB had shown that the bans were reasonable and the Claimants were entitled to declarations that the rules were ultra vires and void.”[45] It can be argued that in the case of Insole, that the sport’s governing bodies  surpassed the boundaries of their jurisdictions by implementing new rules for the benefit of their own.[46] within the claims of restraint of trade the case of Eastham v Newcastle United Football Club [47] brought a promising challenge to the courts. Focusing on the Ultra Vires of the Sports Governing Bodies in regulating the rule to Retain and Transfer players. Wilberforce J decided that “although the rules formulating the retain and transfer system may not have been against the FA and League, It cannot be within the powers of associations such as these to commit their members to action which is against the public policy.”[48]

4. CONCLUSION

From examining the findings and determining the judgments from the case law. It has been established that English courts are reluctant to provide judicial review for sporting dispute decisions made by the sport’s governing bodies due to the Private nature of the organisations. Despite the sport’s governing bodies operating as a ‘private’ organisation, the fact that governing bodies operate as independent self-regulating bodies presents the governing body with a monopoly towards the sport. furthermore, the decisions of the Sports Governing Bodies only limited to point of contractual irregularities draws no surprise to the fact that participants are willing to go to extensive lengths to have their voice heard. With the wide limitations of Supervisory Jurisdiction. It is fair to say that Organisations who are independent, self- regulating and  possess a monopoly of power should be subject to Judicial Review.

PRIMARY LEGISLATIONS

Case Resources

1. R v Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1993] 1 WLR 909.
2. R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC Admin 2197
3. Law v National Greyhound Racing Club [1983] 1 WLR 1302
4. Bradley v Jockey Club [2004] EWHC 2164
5. Mullins McFarlane and the Jockey Club [2006] EWHC 986 (QB)
6. J Nagle v Feilden [1966] 2 QB 633
7. Greig v Insole [1978] 1 WLR 302 
8. Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117
9. Mcinnes v. Onslow-Fane [1978] 3 All ER 211, [1978] 1 WLR 1520
10. Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591
11. Modahl v Brittish Athletic Federation Ltd [2001] EWCA Civ 1447, [2002] 1 WLR 1192 

SECONDARY LEGISLATIONS

Book Publication Resources

1. Edward Grayson, Sports and the Law (3rd edn, Tottel Publishing Ltd 1999) 604
2. Mark James, Sports Law (2nd edn, Palgrave Macmillan 2013) 27
3. Mark James, Sports Law (3rd edn, Palgrave Macmillan 2017) 49
4. David Griffith-jones, Law and the Business of Sport ( edn, Butterworths 1997) 33
5. Steve Greenfield and Guy Osborn, Law and Sport in Contemporary Society ( edn, Routledge 2000) 71
6. Simon Gardiner and others, Sports Law ( 3rd edn, Cavendish Publishing 2006) 179
7. Adam Lewis qc and Jonathan Taylor, Sports: Law and Practice ( 3rd edn, Blackstone Chambers 2013) 831
8. Billie King jean, ’Challenging The Call: Sporting Governing Bodies and Judicial Review ‘ [2017] Sports are a Microcosm of Society

Website Resources

1. ‘FA must reform or face losing funding, says Sports Minister Tracey Crouch’ (BBC Sport, 24 July 2016 ) <https://www.bbc.co.uk/sport/football/36877406> accessed 5 January 2019 
2. ‘A Code for Sports Governance’ (UK Sport, )  accessed 5 January 2019
3. Patrick sawer , ’What happened at Hillsborough in 1989?’ (The Telegraph , 28 June 2017) <https://www.telegraph.co.uk/news/0/happened-hillsborough-1989/> accessed 5 January 2019
4. Taylor and O’Sullivan, ‘How should national governing bodies of sport be governed in the UK? An exploratory study of board structure’ (2009) 17(6), Corporate Governance 681
5. PART 54 – JUDICIAL REVIEW AND STATUTORY REVIE’ (Ministry of Justice) <https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part54> accessed 6 January 2019

[1] Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117

[2] Ibid, See Judgments of the Court

[3] See, Billie King jean, ’Challenging The Call: Sporting Governing Bodies and Judicial Review ‘ [2017] Sports are a Microcosm of Society

[4] Taylor and O’Sullivan, ‘How should national governing bodies of sport be governed in the UK? An exploratory study of board structure’ (2009) 17(6), Corporate Governance 681 p 682

[5] Simon Gardiner and others, Sports Law ( 3rd edn, Cavendish Publishing 2006) p 95

[6] Taylor and O’Sullivan, ‘How should national governing bodies of sport be governed in the UK? An exploratory study of board structure’ (2009) 17(6), Corporate Governance 681 p 682

[7] Simon Gardiner and others, Sports Law ( 3rd edn, Cavendish Publishing 2006) p 96,97

[8] Ibid p 683

[9] ‘FA must reform or face losing funding, says Sports Minister Tracey Crouch’ (BBC Sport, 24 July 2016 ) accessed 5 January 2019

[10] Code of Sports Governance was published by UK Sport and Sports England in 2016 resource can be seen on ‘A Code for Sports Governance’ (UK Sport, ) accessed 5 January 2019

[11] ‘Following the disasters of the 1946 Disaster in Bolton (33 Deaths), The 1972 disaster at Ibrox in Glasgow (66 Deaths), the Bradford Fire in 1985 (55 Deaths) See, Simon Gardiner and others, Sports Law ( 3rd edn, Cavendish Publishing 2006) p 95

[12] Hillsborough Disaster in 1989 with a total of 96 Deaths. See, Patrick sawer , ’What happened at Hillsborough in 1989?’ (The Telegraph , 28 June 2017) accessed 5 January 2019

[13] Simon Gardiner and others, Sports Law ( 3rd edn, Cavendish Publishing 2006) p 179

[14] See, section ‘Sporting Bodies Carrying out public functions’ Billie King jean, ’Challenging The Call: Sporting Governing Bodies and Judicial Review ‘ [2017] Sports are a Microcosm of Society

[15] Mark James, Sports Law (2nd edn, Palgrave Macmillan 2013) see, p 27

[16] Part 54 of the Civil Procedures Rule in relation to Judicial Review. See, PART 54 – JUDICIAL REVIEW AND STATUTORY REVIE’ (Ministry of Justice , ) accessed 6 January 2019

[17] Ibid, See Section “who may exercise the powers of the high court”

[18] Ibid, See Section “Court’s power in respect of quashing orders”

[19] Modahl v Brittish Athletic Federation Ltd [2001] EWCA Civ 1447, [2002] 1 WLR 1192 

[20] See judgments held by the courts in R v Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1993] 1 WLR 909.

[21] See Catherine Bond ‘Judicial Review of the decisions of sporting bodies’ p 604 Edward Grayson, Sports and the Law (3rd edn, Tottel Publishing Ltd 1999) 

[22] Ibid See, p 604

[23] Ibid See, p 604

[24] R v Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1993] 1 WLR 909.

[25] Ibid, See Judgments held by the courts

[26] Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117

[27] Mcinnes v. Onslow-Fane [1978] 3 All ER 211, [1978] 1 WLR 1520

[28] Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591

[29] The Claimants request for Judicial Review for The unjust decisions made by the Sports Governing Bodies who deem to have Public Powers of the Sport as seen in, Ibid, Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, Mcinnes v. Onslow-Fane [1978] 3 All ER 211, [1978] 1 WLR 1520

[30] R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC Admin 2197

[31] R v Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1993] 1 WLR 909.

[32] Ibid, See Judgments of the Court of Appeal

[33] See, section on ‘A Supervisory Jurisdiction’ Billie King jean, ’Challenging The Call: Sporting Governing Bodies and Judicial Review ‘ [2017] Sports are a Microcosm of Society

[34] Bradley v Jockey Club [2004] EWHC 2164

[35] Mullins McFarlane and the Jockey Club [2006] EWHC 986 (QB)

[36] See, Statement made by Billie King jean, ’Challenging The Call: Sporting Governing Bodies and Judicial Review ‘ [2017] Sports are a Microcosm of Society, on cases Bradley v Jockey Club [2004] EWHC 2164 and Mullins McFarlane v the Jockey Club [2006] EWHC 986 (QB)

[37] J Nagle v Feilden [1966] 2 QB 633

[38] Ibid, see judgement of Lord Denning

[39] Mark James, Sports Law (3rd edn, Palgrave Macmillan 2017) see, p 37-41

[40] Ibid see, p37-41

[41] J Nagle v Feilden [1966] 2 QB 633

[42] Ibid  See, p 643, Simon Gardiner and others, Sports Law ( 3rd edn, Cavendish Publishing 2006) p 207

[43] Ibid, See, p 644

[44] Greig v Insole [1978] 1 WLR 302 

[45] Ibid, See Judgements by the Court

[46] The ICC Decided to change the qualification rules for test cricketers so that no player could play in a match disapproved by the ICC without the ICC’s Expressed permission, during the time of the promoter engaging cricketers to join an Autumn Winter Series in Australia, In which the ICC did not approve the events.

[47] Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 413, p 438

[48] Ibid p 440, Sourced from Simon Gardiner and others, Sports Law ( 3rd edn, Cavendish Publishing 2006) see, p 211