Should NGBs continue with a disciplinary process even when criminal investigations are underway?
Published 15 February 2012 By: Andrew Nixon
The Football Association (FA) has ended the captaincy rein of John Terry following the adjournment of his trial for alleged racist comments during Chelsea's league match with Queens Park Ranger's last year (a decision that has also resulted in the resignation of Fabio Capello). Many will argue that the FA was left with no choice. However, the matter once again poses the question as to whether or not governing bodies should stay their own internal processes in circumstances when there is a corresponding criminal investigation against the athlete under their jurisdiction.
One of the difficulties the FA has faced is that it has not had the opportunity to conduct its own investigation into the incident or hold a disciplinary hearing. The FA, having no doubt consulted with the CPS, will have satisfied itself that a stay was the right decision in the circumstances. Indeed, it is common for governing bodies to adopt this approach when a criminal investigation is underway. However, the FA's decision will have inevitably been made on the basis that the criminal trial would be expedited and the adjournment has placed them in an awkward situation.
It seems likely that had the FA been aware that the case would be adjourned until mid summer it would have given due consideration to expediting its own internal process (notwithstanding the fact the criminal process was underway). Whilst it is never ideal to conduct an internal investigation prior to a criminal trial (for reasons of possible prejudice) the FA would have at least been able to ensure it had some certainty of outcome in relation to Terry's immediate international future. Indeed many sports take the view that an internal disciplinary investigation and hearing should go ahead unless the respondent athlete can show cause why it should not. The case for proceeding with the internal hearing can be compelling, for the following reasons:
- the charges would be different;
- the standard of proof is lower in disciplinary proceedings;
- the disciplinary proceedings would not be admissible as evidence in the criminal context; and
- speed is of paramount importance.
The Terry case is a good example of a matter which would have benefited from an expedited internal process, as that process would have quickly resolved the issues that are relevant to the sport.
In Fallon v Horseracing Regulatory Authority the High Court declined to interfere with a ban imposed on Fallon by the HRA in the UK pending the outcome of Fallon's criminal trial, which was then estimated to be 18 months later. A report commissioned by Dame Elizabeth Neville found that there is no rule of law that provides that, merely because criminal proceedings are contemplated (or have begun), private disciplinary proceedings must be stayed pending the outcome of the internal process. According to the report, there is in fact a substantial public interest in the internal process continuing unhindered. The question of prejudice is obviously fundamental, but the difference in the standard of proof marks the internal process as a very different type of tribunal. Indeed, the expedited disciplinary process conducted by the International Cricket Counsel in relation to the match fixing allegations against the three Pakistani cricketers was not considered to be prejudicial to the criminal trial and is a case in point.
The private v public debate is an interesting one. The Terry case demonstrates the difficulties that are often posed when the CPS decide to involve itself in sport. Generally, the criminal courts are reluctant to intervene, and are content to leave the imposition of sanctions to the governing bodies that run the sport. There are numerous examples of on field violence in sports such as rugby and football that are left to be determined by sporting tribunals. A recent example was Manu Tuilagi's on-field assault on Chris Ashton, in which RFU disciplinary officer Judge Blackett, when imposing a ban on Tuilagi, commented that had this incident happened ‘in the street' it would have been dealt with by the criminal courts.
The difference here is that a member of the public made a complaint to the police, and that forced the CPS to investigate, ultimately concluding it was in the public interest to press charges. The question is whether or not leaving disciplinary proceedings in abeyance whilst concurrent criminal proceedings are underway is in the best interests of the sport. The Terry case (albeit with a dose of hindsight) presents a compelling case that it is not.
For more information contact Andrew Nixon on: 020 7842 3871.
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Andrew Nixon is a Partner in the Sport Group at Sheridans. Referred to in this year's Legal 500 as a “very bright and talented sports lawyer” Andrew's practice focuses principally on regulatory, governance, disciplinary, arbitration and dispute resolution within the sport sector. Andrew's clients include governing bodies, sports clubs, sports agencies and individual athletes.