The rebalancing of power - the need for greater transparency in sports tribunals

Published 02 May 2017 By: William Clerk

Handshake by a gavel on the table

Sports governing bodies (“SGBs”) sit at the pinnacle of the sports that they regulate and they wield great power over their athletes. This power is most obviously shown when SGBs exercise disciplinary jurisdiction over their participants and act in their capacity as prosecuting authorities within their sport. 

Most SGBs have the power to sanction participants for breaches of their rules, and these sanctions can be severe – for example, the power to impose lifetime bans on players who are found to have committed match-fixing offences.[1]

However, despite the profound effect that a SGB’s exercise of its powers can have upon an athlete, in the author’s view this power is all-too frequently operated in the shadows, away from the public view and, as a result, without any or adequate interrogation or accountability.

This article examines the legal framework within which SGBs exercise their powers over athletes, and questions the duties that may exist upon SGBs when they are acting as prosecuting authorities. Specifically, it looks at:

  • Applicability of regulations – an explanation of how and why athletes are bound by an SGB’s rules and regulations (terms used interchangeably).

  • Construction of the regulations and restrictions on powers – the application of the law of contract.

  • The role that public law plays in overseeing SGBs exercise of power.

  • Specific duties and/or universal standards – is there an obligation to disclose relevant previous cases?

  • Author’s comment

 

Applicability of regulations 

The starting point is trite but worth restating: the relevant SGB’s powers will be limited expressly in accordance with its own regulations.

Some SGBs specifically empower independent bodies to exercise powers against athletes – for example, the International Tennis Federation (“ITF”) empowers Professional Tennis Integrity Officers (“PTIOs”) to prosecute breaches of the ITF’s Anti-Corruption Code, and proceedings brought by the PTIOs are heard before an independent anti-corruption hearing officer (“AHO”) who has power conferred on her to sanction athletes in accordance with the ITF’s Anti-Corruption Code

Whether a power is exercised by a SGB itself, or by a third party appointed by the SGB, the first stage of the legal analysis remains the same – either the SGB or the third party is exercising a power against an athlete, as provided for within the SGB’s regulations.

The applicability of a SGB’s regulations to itself (or to a third party whom a SGB has empowered) causes little controversy. However, the question often arises: on what legal basis is an athlete bound by the regulations when invoked by the SGB or a third party against the athlete? The answer to this question depends on identifying the nature of the power operated by the SGB.  

In the vast majority of cases at the professional level, athletes are bound (if at all) by a SGB’s regulations as a result of some contractual relationship pursuant to which the athlete agrees to be bound by the SGB’s regulations.

This contractual relationship may be express (where an athlete signs a contract pursuant to which she agrees to be bound by a SGB’s regulations) or implied (for example implied by conduct where an athlete participates in an event pursuant to the rules and regulations of a SGB). The contract may be directly between the SGB and the athlete, or it may be between a subsidiary body and the athlete but incorporating the SGB’s regulations. In each case where an athlete is bound by a SGB’s regulations it is as a result of a contractual agreement (whether express or implied) to be so bound.

The following is a short and non-exhaustive list of examples of how tribunals have found athletes to be contractually bound by SGBs’ regulations:

  1. In Guillermo Olaso de la Rica v. TIU,[2] a CAS tribunal found that Guillermo Olaso de la Rica (a Spanish tennis player) was contractually bound by the Uniform Tennis Anti-Corruption Programme (“UTACP”) by virtue of having signed the 2010 ATP player’s consent and agreement to the ATP official rulebook (“the 2010 Player’s Agreement”) which stated in terms, “I accept that I must comply with and be bound by all provisions with the Uniform Tennis Anti-Corruption Program”. CAS rejected the player’s submission that he was not bound by the UTACP because it was presented to him as a “mere formality to be filled in before registering for the 2010 Challenger tournament of Sao Paolo” and was not explained to him.

  2. In Vadim Devyatoviskiy v. IOC,[3] a CAS tribunal found that Vadim Devyatoviskiy was contractually bound to comply with the World Anti-Doping Code by virtue of having signed the Olympic Charter. 

  3. In Vanessa Vanakorn v. Federation Internationale de Ski (FIS),[4] a CAS tribunal found that Vanessa Vanakorn (the name under which Vanessa Mae competed in alpine skiing), was subject to the FIS rules as a result of signing a declaration accepting to be bound by them (and noted that in any event she did not challenge the applicability of the FIS rules). 

  4. In Modahl v. British Athletic Federation Ltd,[5] the English Court of Appeal held (by a majority) that whilst there was no express contract between Diane Modahl (an international level 800m runner) and the BAF, there was an implied contract arising from, inter alia, her participation in the relevant events pursuant to which she agreed to be bound by the BAF’s rules.

Having established which regulations apply and that both the SGB and the athlete are bound by them, the second stage of the legal analysis is to consider how the SGBs’ regulations are construed, and what limits (if any) there are on their operation.

 

Construction of the regulations and restrictions on powers – applicable law of contract 

If a contractual relationship has been established between the SGB and the athlete then the SGB’s regulations fall to be construed according to the applicable substantive law of contract (the governing law). (Note - there are situations where such a contractual relationship will not arise and where any challenge will rely on the tribunal’s inherent supervisory jurisdiction over bodies exercising disciplinary or regulatory proceedings; these situations are beyond the scope of this article).

The method of identifying the governing law will be

  1. to look at the regulations themselves to see if there is any express governing law; and/or

  2. to have regard to the procedural rules of any tribunal before which a challenge is brought, which rules may specify a default on mandatory governing law.

For example, when an appeal lies to CAS, the question of governing law is decided pursuant to Article R58 of the CAS Code which states that any appeal before CAS shall be decided: 

….according to the applicable regulations and, subsidiarily, according to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate.”[6]  

In practice, the governing law will most often be expressly stated with the SGBs’ regulations themselves (see Olaso (cited above) at §73 – the player’s signing of the 2010 Player’s Agreement not only caused the player to be bound by UTACP but also by the choice of governing law, in that case the laws of the State of Florida). Once the governing law is identified, construction of the regulations may then proceed in accordance with the governing law’s principles of construction.

Beyond construction of the regulations themselves, the most important consideration is the limits which the governing law of contract may place upon the exercise of powers enjoyed by a SGB pursuant to its own regulations. Most jurisdictions recognise the principle of freedom to contract – i.e. the starting point being that the SGB and the athlete may contract on whatever terms they wish. However, most (if not all) jurisdictions also recognise that this freedom is not unfettered. 

In the sports specific context, CAS has stated that in addition to limitations arising from the governing law, there is further:

a set of unwritten legal principles – a sort of lex mercatoria for sports or, so to speak, a lex ludica – to which national and international sports federations must conform, regardless of the presence of such principles within their own statutes and regulations or within any applicable national law, provided that they do not conflict with any national “public policy”(“ordre public”) provision applicable to a given case.[7] 

One such unwritten principle is the field of play doctrine – the subsidiarity principle recognised by the CAS whereby it will not review a “field of play” decision (i.e. a decision made by a presiding match official) in the absence of proof of bias, malice, bad faith, arbitrariness or legal error.[8]

Although it is beyond the scope of this article to compare and contrast specific doctrines of contract law across multiple jurisdictions, the following are examples of the types of doctrines giving rise to restrictions that may operate upon private parties’ freedom to contract in the sporting context: 

  1. Proportionality - stated by CAS to be a “general and fundamental principle of law” .[9] 

  2. Restraint of trade - which often goes hand-in-hand with proportionality, but which was used in the case of Matuzalem, c/o Monteneri, Monteneri sports law & management llc v. FIFA[10] to overturn an award of CAS on the ground that it violated a fundamental principle of law that no contractual restriction on economic freedom may be excessive. Whilst in English law there is no implied term that a contract will not be in restraint of trade, as a matter of public policy courts and tribunals will not uphold agreements which are unreasonable restraints of trade – thus, the doctrine is a shield and not a sword.

  3. The rule against penalty clauses - a principle of English contract law, refined and restated by the Supreme Court in Cavendish Square Holding BV v. Talal El Makdessi; ParkingEye Limited v. Beavis[11]; to be contrasted with the permissive approach to penalty clauses under Swiss Law (for more on which, please see this LawInSport article by Despina Mavromati: “How CAS deals with excessive contractual penalties in football”.[12]

  4. Implied restrictions on the operation of contractual discretion - this is a developing area of jurisprudence, and likely to be very jurisdiction-specific. The decision of Braganza v. BP Shipping Ltd and Anor[13]is notable in relation to the jurisdiction of England and Wales and is of potentially broad application to all situations where any party exercising a contractual discretion (for example a SGB exercising its discretion to impose a sanction on a player for a breach of its regulations); the Supreme Court of England and Wales has stated that a party in this position has an implied contractual duty to act in good faith and reasonably in the exercise of its contractual discretion.

 

The role of public law

The last point above (implied restrictions on the operation of contractual discretion) is often introduced as an implied term into the relevant contract by athletes seeking to challenge decisions SGBs made against their interests.

Whilst a claim (or a challenge to a SGB’s exercise of its discretion) may be framed as a private law action for breach of an implied term in a contract, the same private law framework may be used to indirectly invoke public law principles to place obligations upon SGBs to act: 

  1. within the scope of the powers conferred upon them; and

  2. fairly.

(For more on this, please see this LawInSport article by Phillippa Kaufmann QC and Sarah Hannett: “How public law principles balance the power of sports governing bodies”.[14]

The requirement of “fairness” is the most nebulous and, unsurprisingly, the most controversial. On appeal to a tribunal that hears a matter de novo (for example CAS) the relevance of fairness at first instance is often limited – in N., J., Y., W. v. FINA it was stated in clear terms that:

the virtue of an appeal system which allows for a full rehearing is that issues of the fairness or otherwise of the hearing before the Tribunal of first instance fade to the periphery”.[15]

Nevertheless, there is established CAS jurisprudence that first instance bodies have obligations:

to obey the two basic rules of natural justice audi alteram partem [to let the accused party know the case against it and give it an opportunity to respond] and nemo judex in causa sua [to have the issue determined by body that is impartial and independent][16]

 

Specific duties and/or universal standards: an obligation to disclose relevant previous cases?

How then does this legal framework apply to specific cases?

Many of the disciplinary proceedings brought by SGBs are conducted confidentially before disciplinary panels. This is often for good reason: where a player is charged but found not guilty of an anti-corruption offence, it may cause irreparable reputational harm to the player to release the details of the charge and the proceedings before any guilt is established. For this reason, many anti-corruption agreements provide reciprocal contractual guarantees of confidentiality regarding first instance proceedings – for example, see the Uniform Tennis Anti-Corruption Code. 

However, this can lead to a problem for an athlete and/or her representatives. Staying with professional tennis: consider the example of a tennis player charged with an anti-corruption offence; how can that player obtain adequate advice and ensure that she is represented fairly and fully in any disciplinary hearing if she has no access to previous decisions made by the relevant disciplinary tribunal? If a previous case was appealed to CAS and was reported there will be no problem – the decision will be publicly available. But for any other previous case that was not appealed, whilst the outcome of previous hearings establishing the commission of corruption offences will be made public (via the TIU’s website), the decision of the independent hearing officer (including, crucially, the reasoning by which decisions on the appropriate sanction in each case were arrived at) will remain confidential. What the tennis player and/or her advisors have at their disposal is simply a list of charges and sanctions imposed, without (excepting those very few cases appealed to CAS) any clue as to the approach by which those sanctions were arrived at.

In the author’s view, the result is clear: the player and her representatives will be unable to assess properly whether to challenge or accept any charge made against her. If she decides to contest the charge, she will be hamstrung by an inability to make adequate submissions at any hearing and will be immediately on the back foot faced by an opponent (the PTIOs) armed, no doubt, with relevant previous decisions and a knowledge of the approach most likely to be taken by the tribunal. There is, from the athlete’s perspective, an obvious and prejudicial inequality of arms.

Of course, this inequality will be more keenly felt in any proceedings under a governing law that is a common law system (i.e. that is partly developed through jurisprudence and the doctrine of stare decisis) as opposed to a governing law that is a codified, civil law system. Nevertheless, even in the latter case, an athlete may derive valuable guidance from a non-binding previous case as to the practical approach previously adopted (and therefore likely to be adopted in future) by the relevant tribunal.

The author was struck recently by Michael Beloff QC’s statement (in an interview with LawInSport published on 31 January 2017) that, 

[in an adversarial system] you have both sides argued and it is as a result of the quality of the argument that the adjudicative body or person is able to reach the conclusion most consonant with justice.” [17]

The quality of argument on both sides is only ensured if there is a corresponding quality in material made available to the advocates (or athletes, if they are representing themselves). In this author’s view, this must include disclosure of relevant previous decisions where these would not otherwise be available.  It is no answer that if these decisions are not disclosed and therefore not before the tribunal when it makes its decision then there is no problem – for this begs the question of whether these previous decisions should have been before the tribunal and whether they would or could have properly informed the approach taken by the tribunal.

In such a case, the answer may be for the athlete to rely on the legal framework above to show either: 

  1. a discrete implied term that the SGB will disclose all relevant decisions to her in advance of any disciplinary hearing (redacted as necessary); and/or (more probably)

  2. an implied term that the SGB will conduct its disciplinary process in accordance with the rules of natural justice, which may only be upheld by disclosure of all relevant decisions to her in advance of any disciplinary hearing (redacted as necessary). 

 

Comment

As the money in sport has substantially increased in recent years, so too has the power enjoyed by its governing bodies and the effects on individual participants of the SGBs exercising these significant powers.

We should not lose sight that with these powers comes a concomitant duty on the SGBs to uphold the rules of natural justice in the exercise of their powers, particularly when assuming the role of prosecuting authority.

It is now more important than ever that we scrutinise disciplinary proceedings brought by SGBs, in the interests both of individual participants but also sport as a whole. 

One way of doing this may be for SGBs to fund and/or contribute to (either collectively or individually) a centralised database of previous disciplinary decisions, redacted as necessary. Where appropriate redaction may be carried out; it is in nobody’s interest that disciplinary proceedings are confined to the shadows.

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Author

William Clerk

William Clerk

William is a barrister specialising in civil and commercial law at 2 Temple Gardens (see https://www.2tg.co.uk/barristers/profile/william-clerk).  He is rapidly developing a busy sports practice with a strong focus on the commercial, disciplinary, and regulatory aspects of sports disputes across all major sports.  He is frequently instructed to advise on the interpretation and application of sports bodies’ regulations.

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