A guide to a robust sports disciplinary process
A disciplinary process, sporting or otherwise, operates within its own context and is most effectively administered by those who know the organisation best. Quick ‘common sense’ decisions in smoky rooms won’t pass muster any more.
Successful decision making requires an understanding of the ground rules, and their careful application. The starting point must be to continue to apply common sense. But tribunals that do not have a reasonable understanding of the judicial approach in this area risk challenge and potentially a costly battle in the courts.
So what does a twenty first century disciplinary decision making body need to think about?
1 - Provide and operate within adequate powers
A tribunal only has power to operate within the contractual limits which set its boundaries of jurisdiction, otherwise the courts will determine the tribunal to be operating ‘out of bounds’. If you are starting afresh, or are operating a disciplinary process which hasn’t been reviewed for some time, then it is important to establish a disciplinary process which provides clear rules and powers. It is also important to establish a structure of one or more decision making bodies and a mechanism to appoint those bodies. This is vital to the integrity of the process.
If well managed, it can provide clear direction to individual tribunals to help them to stay within the boundaries of fairness and jurisdiction. We have worked through countless practical issues that arise in setting up an effective process and would be pleased to share our experiences of working on solutions for disciplinary processes with you.
2 - Beware of the rules of a fair process
Over the past decade, a vast body of case law has been issued defining the rules of ‘fairness’ by decision making tribunals. Whilst tribunals may apply their own instinctive understanding of what it is to be fair, it is important that they operate within the context of this wider body of law which defines the rules of ‘natural justice’. A well drafted set of disciplinary rules will build in a fair process. Tribunal members should endeavour to take part in some training on the rules of natural justice to ensure that they understand the more detailed approach taken by the courts.
There is, always a difficult balance between ensuring that you act fairly, whilst maintaining an expeditious and efficient process. Perhaps the most tricky situation arises when a party suddenly announces that it has last minute written submissions or evidence shortly before the hearing. There are a number of strategies and approaches to such circumstances, and a robust procedure with clear timetables will assist tribunals in dealing with such dilemmas.
3 - Deal with conflicts at the outset
The courts’ approach to questions of bias has shifted a little over the past decade. Previously a simple question was asked about whether a tribunal member was actually biased. Now they consider whether there is a potential perception of bias. A recent example of this is the decision regarding the state immunity of General Pinochet being set aside because the judge hearing the case had not disclosed his links with Amnesty International.
What is of paramount importance is that disciplinary rules have a built in process to ensure that conflicts of interest are disclosed. An appointment procedure should prevent someone with an obvious conflict from being selected to a tribunal. A tribunal, once formed, should consider conflict issues which can sometimes materialise after the details of a particular matter unfold. Even if a potential conflict of interest seems to be remote, a tribunal should nevertheless disclose a conflict to the parties and allow them the opportunity to respond. The worst situation for a tribunal is to find itself challenged by a conflict during proceedings, which it did not raise with the parties at the outset. That said, we have been involved in cases where the courts have recognised that practical issues arise for disciplinary structures within organisations where certain proximities of relationship are inevitable. We have adopted strategies to find the best practical approach to dealing with conflicts.
4 - Manage the separation of functions
Another issue arises in the separation of tribunals from the management of the body involved. In a case in 2011, a student lawyer was charged with misconduct, with the case eventually going to an appeal within its internal process. The appellate tribunal included the vice-president of the council of the relevant organisation. There was no suggestion of actual bias, but a challenge to the decision was eventually successful because the vice president also sat on the organisation’s council. As such, she was involved in the governance and regulatory policymaking of the organisation which was deemed to be at odds with her role in determining individual disciplinary issues.
So, an independent tribunal must be truly separated from the governing structure of the community within which it operates. In this regard, the purist approach is to appoint tribunals comprising of people who are entirely external to the community. Such a process can verge towards an external arbitral process. In reality it is not necessary to go that far. There are practical reasons why tribunals should include people carefully selected from your organisation.
But it is important to give careful thought to the interface between independent tribunals and the governing structure of your organisation.
5 - A structured approach to testing evidence
In order to decide whether a rule has been breached, a tribunal will need to weigh up the facts which it may hear from a variety of sources. As a general rule, contemporaneous documentary evidence is likely to be more persuasive than retrospective evidence, such as a statement provided some time after the event. The tribunal should look for inconsistencies and for records of evidence which require some explanation (for instance an authenticated photograph which appears to show what happened). As a rule, the tribunal should allow contested evidence to be challenged; generally by allowing cross examination of the evidence, or at least by questioning the evidence themselves. Given the ever increasing use of social media, tribunals should be careful about the authenticity of evidence - they should explore what the evidence shows, whether it is selective, who produced it and in what context. We have seen recent examples where, in a sporting context, members of the public have tweeted the governing body pictures of what they claim to be genuine events. Tribunals must be alive to treating external evidence, such as this, with caution.
6 - Build in “careful” flexibility
We would always advise that a set of rules expressly allow a tribunal to depart from the procedural rules in order to provide them with some flexibility to deal with the unexpected. Without some flexibility, tribunals could easily find themselves constrained and unable to deal with the variable circumstances which might arise. But, tribunals must be careful with these types of rules. They should not be interpreted as a free for all. They do not enable a tribunal simply to ignore the rules entirely and do their own thing. Where exceptional circumstances require and justify some departure from the rules, the tribunal must minimise such departure and continue to act consistently with the general spirit and purpose of the rules.
7 - Conduct a fair hearing
Disciplinary tribunals tend to comprise of three members. It might sometimes be possible to appoint a single decision maker, but this is rare and even numbers of tribunal members are a bad idea because of the risk of a hung panel. There should be a chairman who should take control. Someone needs to take the lead to provide structure to the process. A hearing without structure can lead to a real risk of unfairness. The objective for a tribunal is to get to a position where it has properly weighed up the facts and the meaning of a relevant rule, so that it has all the ingredients it requires to issue a determination.
Often a tribunal will verbally announce its finding at the end of the session. It is so much easier to reach a final determination whilst the three tribunal members are together. The verbal intimation of a finding should be logically prepared so that there is no ambiguity about the breach(es) and the sanctions imposed. This should then be followed up in writing, as soon as possible, with the same precision. The decision does not at this stage require to disclose reasons.
8 - Provide clarity of sanctions
Sophisticated rules will provide a tribunal with clear guidance on the range of sanctions available for different grades of seriousness in relation to different breaches. Those subjected to a body of disciplinary rules should not have any difficulty in understanding the precise categories of sanctions that may be imposed upon them, should they breach such rules. Tribunals should go through a logical process in weighing up all the relevant factors to decide on the seriousness of the breach. For instance, the rules might provide a range of sanctions from a bottom to a top end, possibly with a cap as a maximum sanction. There are clear benefits in allowing for some inbuilt flexibility to the rules to enable tribunals to deal with the unexpected, as outlined above. However, the courts will tend to be intolerant of widely drafted sanctions which apply to wide ranging offences. It is preferable that different types of breaches are considered, particularly in relation to the range of sanctions that will apply to each.
As a rule a tribunal should ask itself whether the sanction it is considering to impose is effective in the circumstances; proportionate to the breach; and dissuasive. That three point test has been considered to be appropriate by the courts.
9 - Provide reasons
It is now well established that tribunals must give reasons for their decisions. A party is entitled to understand the logical process that led to a decision and to weigh up whether it might have a right to appeal, or perhaps even have a determination against it judicially reviewed.
We don’t advise that every disciplinary tribunal issue a lengthy reasoned opinion akin to a judge’s opinion following a court action. There must be some distinction between a judicial process and an internal disciplinary process which may not involve lawyers. However, reasons must be logically complete. They must involve every essential ingredient which led to the decision. The absence of an important building block will be problematic if a decision is later challenged. A court is unlikely to believe a tribunal when it explains that its decision was founded on a particular fact or proposition if that wasn’t included within its written reasons.
10 - Include a right of appeal
Once an internal disciplinary process is exhausted, and a person faces a final and binding decision, that person may be entitled to ask the courts to judicially review the decision on the grounds that there was no power for the tribunal to have issued such a sanction, or that the tribunal acted unfairly. The Scottish courts retain a supervisory jurisdiction to consider such matters and potentially to overturn a decision or remit it back to the tribunal.
Judicial reviews involve considerable legal cost. Disciplinary tribunals, particularly where they hear regular cases, can get things wrong from time to time. An appeals process enables a matter, including powers and fairness issues as well as errors in analysis, to be re-considered within your internal process. Generally of course, the appellate tribunal should be better qualified than the first instance tribunal to decide the matter and you might, for instance, involve lawyers or very experienced practitioners as appellate tribunal members.
In summary, the important ingredients of a robust disciplinary process are:
- a carefully considered structure of tribunals, ideally with an internal appeals process and a method of appointment of tribunals;
- a clear body of disciplinary rules (a breach of which may give rise to carefully expressed sanctions) and procedural rules to enable tribunals to fairly determine the issues before them; and
- providing tribunal members with training to ensure that they understand the jurisdictional and fairness rules which will enable them to ‘stay within the lines’.
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This briefing note sets out a summary of the law at the time of writing and is for information purposes only.
It should not be regarded as legal advice but if you would like further information please contact:
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About the Author
Neeraj Thomas is a Senior Associate and leads the Sports Law team at Burness Paull LLP.