The importance of giving clear reasons in sports disciplinary decisions: lessons from the Gerwyn Price decision
Published 12 November 2019 By: Victoria Brown
This year saw the Darts Regulation Authority (DRA) give out its highest ever sanctions, namely fines of £8,000 and £12,0001 to Gerwyn ‘The Iceman’ Price for unsportsmanlike behaviour during the quarter-final and final respectively of the 2018 PDC Grand Slam.
In July, the appeal panel dismissed Mr Price’s appeal on breach, but upheld his appeal against the quantum (level) of sanction. This article reviews Mr Price’s case and discusses what lessons might be learned. Specifically, this article will:
- reflect upon the decision and why guidelines for sanctions are so important;
- consider the consequences of Mr Price’s approach to his appeal; and
- suggest some practical takeaway points.
On 16 and 18 November 2018, Gerwyn Price faced Simon Whitlow and Gary Anderson respectively in the quarter-final and final of the 2018 PDC Grand Slam of Darts. Although Price went on to take the trophy, his conduct, which included slow play and over exuberant celebrations2, was widely criticised as bad-tempered and unsportsmanlike.3
Both incidents were picked up by the DRA who subsequently imposed sanctions of £8,000 and £12,000. There was a separate fine for comments made on social media of £1,5004.
Mr Price appealed the decision, submitting substantial grounds of appeal covering some eleven grounds in relation to both breach and sanction. The chairman of the appeal panel (the Panel) declined to hold a hearing, so matters were dealt with on the papers with submissions from both parties.
Ten of eleven grounds related to the decision on breach of the DRA Rule Book5 (the Rules). Notwithstanding that detail, Mr Price raised additional matters in his skeleton argument which the Panel declined to hear in the absence of any good reason for not raising them sooner (paragraph 8). A copy of the Panel’s decision is available here6.
The Panel upheld the decision on breach in forthright terms. Many of Mr Price’s allegations were said to be “factually incorrect” or “without merit”, and he was often criticised for not having raised his complaints during the hearing itself (paragraph 14).
The only complaint as to breach that made some headway was on the definition of “gamesmanship” (paragraph 14.14). The disciplinary committee had used the definition introduced in the 2019 Rules, namely “any action carried out by a Player during an Event that is intended to gain an advantage by putting off an opponent” (paragraph 2.1 of the Rules) Of course, that post-dated Mr Price’s conduct; however, it did not ultimately succeed, as the Panel found that taking the 2019 Rules definition was a rational approach to finding a common-sense definition of “gamesmanship” applicable to Darts. Inviting Mr Price’s comment on the definition would not have changed the first-instance findings.
That must be right. Gamesmanship is a notoriously difficult concept to define, and the 2019 Rules may be thought to do a better job than most. Snooker, for example, prohibits any conduct which is “ungentlemanly”.7 Other sports deal with gamesmanship much more specifically. Cricket grades “unfair play” by four different levels, providing examples of each (such as “deliberate distraction”) and discretion to the umpire for categorisation of “unfair actions not covered elsewhere”.8 No doubt both snooker’s nebulous definition and cricket’s broader discretion would have hindered Mr Price’s appeal further.
Mr Price also criticised the sanctions ruling, raising eight specific faults with the decision (paragraph 6.11). They can be summarised as follows:
- the sanction was too harsh and out of kilter with comparable incidents;
- the disciplinary committee considered irrelevant matters and failed to consider relevant matters;
- the disciplinary committee failed to adequately explain its reasoning; and
- if guidelines existed, they were not disclosed.
The Panel upheld this element of the appeal. They found that the absence of reasons provided for the level of sanction was impermissible (paragraph 19). The Panel concluded that the level of the fine: “smacks as a disproportionate reaction that cannot be justified without a clear explanation” (paragraph 21).
The Panel substituted the following sanctions for those given by the disciplinary committee (paragraph 23):
- for bringing the game into disrepute and gamesmanship in the quarter final: £4,000, being two times the level of fine for Mr Price’s first offence (aggressive behaviour, gamesmanship and pushing his opponent following his match with David Pallett in August 2017); and
- for bringing the game into disrepute and gamesmanship in the final: £6,000, being three times the level of fine for Mr Price’s first offence.
The Panel found that two and three times the fines for the first offence were standard multipliers used by sports governing bodies (SGBs) for repeat offenders (paragraph 21), although unfortunately did not specify the decisions or sports they relied on.
The first point of note is that the DRA, at the time of Mr Price’s case, had no formal guidelines on appropriate sanctioning levels. The first instance Panel therefore had no obvious starting point when deciding Mr Price’s sanction. During the course of Mr Price’s case, the DRA did in fact introduce (for the first time) new guidelines, following in the footsteps of numerous sports including rugby, horse racing and football. But what the case has made absolutely clear, therefore, is that where there is no obvious starting position, an SGB needs to provide particularly clear reasons for any sanctions it awards.
Providing clear reasons for decisions has long been a point of interest in public law generally, and more recently has become an established element of the court’s supervisory jurisdiction in the private law9 realm of disciplinary decisions of sports governing bodies. Although not amendable to judicial review, it is clear that the standard of review is akin to the public law judicial review tests.10
In 2013 in Cronin v Greyhound Board of Great Britain,11 the Court of Appeal (although finding that the overall process was fair) found it arguable that, at least at some stage in disciplinary procedures, committees are required to give reasons for their decisions. The point was not decided any more definitively than that, however, as the matter before the Court was an appeal against strike out. The Court accepted a submission on behalf of Mr Cronin that the duty to provide clear reasons arguably arose because disciplinary decisions have a potentially profound impact on the ability of a person to participate in his chosen occupation. Lord Justice Maurice Kay, giving judgment of the Court, said:
“16. Reminding myself that, at this stage, we are concerned only with the arguability and not with the ultimate correctness of Mr Cronin's case, I am satisfied that the absolutist stance of the Board is arguably wrong and that, at least at some stage in the procedure, a duty to give reasons arises. Even if an affected person has no wish to challenge an adverse decision, he may be entitled, as a matter of law, to such reasons.”
There is a further point of interest in respect of costs. Notwithstanding Mr. Price’s success, he did not seek and was not awarded any of his costs. Rather, he suggested each party bear their own costs and the Panel’s costs decision12 was that Mr Price must pay 20% of the DRA’s costs. Although Mr Price had been successful, it was on a narrow point related exclusively to sanction. In doing so he had raised “a whole series of grounds which should not have been properly pursued in the first place”. He therefore was not entitled to his costs in the usual way. The Panel accepted that 80% of the DRA’s time had been spent on the substance of the appeal on which Mr Price lost (paragraph 11 of the costs decision). In balancing Mr Price’s approach with the extent of his success, the Panel reached the 20% award. Although the Panel’s costs decision13 refers to the DRA’s counsel having raised Baxendale-Walker14 it does not go on to grapple with the reasoning. Baxendale-Walker was an appeal against a finding by the Solicitors Disciplinary Tribunal of conduct unbefitting of a solicitor. The Tribunal had ordered that the Law Society should pay 30% of the solicitor’s costs at first instance because one of two allegations was not proved. The Court of Appeal allowed the Law Society’s appeal and instead ordered the solicitor to pay 60% of the Law Society’s costs. The Court held that the position of a regulatory body in enforcing compliance with its rules was different to that of parties in ordinary civil litigation. They are entrusted with investigating disciplinary matters and prosecuting them where appropriate. If the body is to safeguard standards, it must bring properly justified complaints of misconduct. Hence, whereas the normal approach in civil litigation is costs follow the winner, ordinarily that does not apply to disciplinary proceedings.
This decision is also reminiscent of the case of Jamie Jones15 which involved a fixed snooker match in September 2016. The WPBSA charged both Mr Jones, who was said to have been involved in fixing the match, and Mr David John, the individual responsible for the fixing. Mr Jones was charged with involvement in fixing for improper payment, intended future fixing, and a failure to report. He admitted the failure to report but denied the remainder, which were ultimately dismissed. Following a decision on breach, there was a further hearing in respect of sanction and costs. Mr Jones was required to pay one third of WPBSA’s costs, and Mr John two thirds. Mr Jones appealed. He claimed that costs should have been awarded in his favour or, alternatively, not against him. The Appeals Committee held that Mr Jones should not have been ordered to pay WPBSA’s costs of the hearing in respect of the unsuccessful prosecution of the denied charges.
The Gerwyn Price decision highlights three key points for SGBs and sports lawyers:
- the importance of disciplinary bodies providing clear reasoning for their decisions.
- the importance of having guidelines on sanctioning.
- the real, practical consequences (in terms of costs) of pursuing bad points.
Although there is still not yet any absolute right to reasons for an athlete to be given reasons to justify the level of a disciplinary sanction, this case adds further weight to the need to do so to avoid any allegation of procedural unfairness. That makes sense. Decision makers must act rationally, fairly and for a lawful purpose. It is difficult to ensure that a decision meets these criteria unless we know the reasoning behind it, and especially difficult to demonstrate that relevant matters were considered, and irrelevant matters were discounted.
It is precisely this that we saw in the Price decision. The level of sanction seemed surprisingly high when compared to the misdemeanour, the previous sanction and the levels of prize money. Without reasoning, it could not be safely inferred that the decision was fair, rational and confined to relevant considerations.
So, sanctions guidelines make everybody’s job easier. They provide a starting position and provide a reasoned logical approach to the standard questions. They also encourage justification if and when one does depart from those guidelines. No doubt that in turn encourages decision makers to turn their mind to the internal and external logical consistency of their reasoning.
As to costs, if Mr Price had not pursued the grounds so heavily criticised, and focused on his best points, doubtless he would not have paid any of the DRA’s costs. The formulation of his appeal accordingly had a real and meaningful financial cost to Mr Price.
For the sport, the lesson is that there is a clear appetite amongst the DRA to address gamesmanship. With the introduction of a definition into the 2019 Rules and robust sanctions, we see a regulator taking real steps to stamp out poor behaviour. In a game of focus, that may be thought to have been a long time coming. The Panel itself criticised the DRA’s introduction of sanction guidelines as “belatedly introduced”, though one might think better late than never.
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- Tags: Cricket | Darts | Darts Regulation Authority (DRA) | Disciplinary | Dispute Resolution | DRA Rule Book | Snooker | UK
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She regularly appears in courts and tribunals and has represented clients in the Court of Appeal, High Court, Employment Appeal Tribunal, County Court and Employment Tribunal. Victoria also has significant international experience, and has worked on cases involving the European Patent Office and the Astana International Financial Centre.
Victoria acts for and against individuals, public authorities, FTSE 100 companies, senior executives, major financial institutions and NHS Trusts.
Victoria regularly provides training and CPD to firms and directly to clients, ranging from seminars to practical tribunal training (see, for example, coverage in The Times). She is a contributor to Lexis PSL and Atkins Court Forms.
Before coming to the Bar Victoria read Law at the University of Durham. She was graded ‘Outstanding’ on the Bar Professional Training Course and received the ‘Most Successful Advocate Award’.