Sailing through sports disciplinary proceedingsNick De Marco QC
The recent decision1 of the Court of Arbitration for Sport (CAS) in ISAF)2 is another recent example of how sports tribunals deal with corruption or cheating in sport, whilst setting out instructive guidance about fairness in sports disciplinary proceedings generally.
The case concerned the appeal of the professional sailor D., a former member of the Oracle Team USA (OTUSA)3 against the decision of the ISAF4 to ban him from sailing activities under ISAF rules for a period of 3 years.
D. had been found guilty of gross misconduct by an America’s Cup Jury for instructing someone in his team to illegally add weight to the forward king post of one of the OTUSA boats during the Newport Regatta stage of the last America’s Cup World Series. The illegal tampering with the boat was allegedly done to improve its performance and led (along with other discoveries of cheating) to OTUSA withdrawing from the Regatta stages entirely and being subject to a penalty in the main competition.
The Americas Cup Jury banned D. from taking any part in the 34th America’s Cup in 2013. ISAF also concluded D. had breached its rules and banned him from participating in ISAF activities for 3 years.
The appeal to CAS was by way of a ‘de novo’ appeal hearing (i.e. starting from afresh). Even though there had been a lengthy hearing with numerous lawyers before the America’s Cup Jury, and various ISAF hearings, the CAS Rule 575 provided for a full re-hearing and so the CAS panel heard evidence from the key witnesses and determined the allegations afresh.
The distinguished panel found (by a majority) that they were comfortably satisfied D. had given instructions to add weight to the forward king post of the boat in breach of the rules (para. 1296), and the finding on liability was upheld. D. did succeed, however, in having his ban reduced from 3 years to 18 months.
In terms of its approach to cheating and corruption cases generally, CAS confirmed (at para. 1147) that the correct standard of proof was that of ‘comfortable satisfaction’ and not the higher ‘beyond reasonable doubt’ standard D. had asserted (but higher than the normal civil ‘balance of probabilities’ standard).
This is hardly surprising; it reflects the long established CAS jurisprudence in doping cases. The ‘comfortable satisfaction’ test is fast becoming the norm for corruption cases globally, and even gradually in the UK, despite the concept being a slightly ‘foreign’ one to British lawyers.
CAS’s essential requirements for a fair and just disciplinary hearing
CAS spelt out (at para. 1098) six non-exhaustive propositions underpinning the essential requirements of fairness and justice in sports’ disciplinary cases:
- There should be a clear demarcation line between roles of investigator, prosecutor and adjudicator;
- There should be full disclosure of all material in the possession of the prosecution that may assist the person charges;
- The material upon which the adjudicator is invited to base its verdict should be set out clearly and defined to the person charged;
- There should be clear demarcation lines between persons who sit at first instance and those who sit on appeal bodies;
- A person charged should be informed of and given access to the procedures to be applied in his or her case;
- No change to a disciplinary procedure should be introduced with retrospective effect unless favourable to the person charged.
Many of these propositions are likely to be regarded as general good practice in disciplinary proceedings, but are not always applied by sports tribunals. Some Sports governing bodies might argue they don’t have the resources to apply them as they might wish, at least in first instance hearings, and others might not be as familiar with them as they should be.
The dicta in CAS might not have an immediate effect on sports bodies – partly for one of the reasons CAS itself identified: even if there are procedural flaws, and the 6 propositions are not followed, an athlete can remedy those where he has a right to a de novo appeal to CAS. But the propositions set out good practice that may also assist in reducing appeals to CAS.
They should be of interest to sports bodies more generally in part for this reason too. If sports bodies can demonstrate efficient and fair disciplinary processes they are themselves less likely to be the subject of potentially costly legal challenges or appeals.
This is true, also, for those bodies that do not include within their rules a right to appeal to CAS. In the UK, the Courts can still interfere with sports tribunals where there has been unfairness in the procedures – either under the Bradley v Jockey Club jurisdiction (including procedural fairness);9 or, where the courts do not have jurisdiction because the disciplinary rules constitute an arbitration under the Arbitration Act 199610 (eg. in ECB v Kaneria11) under the Court’s power to intervene pursuant to section 6812 of that Act where there has been some serious irregularity.
Although the section 68 test is certainly a higher one than the Bradley or general fairness test, it should be noted that, in order for a sports disciplinary process to qualify as an arbitration in the first place so as to receive the protection under the Arbitration Act, it must be able to demonstrate it has the characteristics necessary for the fair disposal of disputes (see again Kaneria13).
So, whether a sports body includes a right to appeal to CAS or not, and whether its rules constitute an arbitration or not, it is increasingly important that its rules are in accordance with general principles of fairness, and the CAS dicta in the de Ridder case should provide helpful guidance of what that involves.
*Nick De Marco represented ISAF before CAS in Dirk de Ridder v International Sailing Federation and was junior counsel for the ECB in ECB v Kaneria.
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- Tags: Americas Cup | Arbitration | CAS Code | Court of Arbitration for Sport (CAS) | Disciplinary | Governance | International Sailing Federation (ISAF) | Regulation | Sailing
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About the Author
Nick is rated a leading silk in Sports Law and is a member of Blackstone Chambers.
He has advised and acted for a number of sports governing bodies, athletes, most Premier League football clubs and many world-class football players in commercial and regulatory disputes.