Historically, the courts have been reluctant to overturn decisions of a Sport's Governing Body (GB) for want of fair or rational decisions: it is generally accepted that sport has the necessary expertise to deal with its own disciplinary issues. As Lord Denning stated in Enderby Town v the FA:
"Justice can often be done better by a good layman"
However, it is nevertheless essential that GBs have in place a disciplinary and dispute resolution system which is well structured and is as watertight as possible.
The basic requirement of natural and constitutional justice applies to sports disciplinary hearings as it does any form of tribunal. This right is strengthened by Article 6 of the European Convention of Human Rights. GBs organising their disciplinary procedures should bear in mind that an athlete will be entitled to a certain level of fair procedures, although how far the GB is expected to go will often depend on the severity of consequences.
In the case of Russell v Duke of Norfolk in 1949, Lord Denning concluded that common justice would require a proper hearing if someone were to lose their livelihood. Similarly, in the Irish case of Quirke v Bord Luthchleas na hEireann, where an athlete was facing suspension from the 1988 Olympic Games in Seoul, the Irish High Court ruled that the very highest standards of fair procedures would have to be in place because the athlete's lifetime ambition was under threat.
GBs must ensure basic procedural requirements are present across the board. The precise requirements of any hearing will depend on the facts of the case, as well as the circumstances surrounding it, for example, how quickly the case is to be convened (as is the case with the CAS Ad Hoc division).
Comment
Constructing and organising disciplinary proceedings is one of the most important tasks for a GB. A sensible pre planned policy, alongside carefully drafted rules that leave little or no room for alternative interpretation should allow GBs to immunise against legal challenge.
Beyond this, it is a case of taking considerable care during each step of the disciplinary process. All correspondence should be recorded, and procedures followed with as much precision as possible, bearing in mind the Data Protection Act applies to personal information processed in relation to disciplinary proceedings.
The reality is that decisions made by GBs are being challenged more frequently in the civil courts. This puts the onus on GBs to adopt a highly structured approach to discipline. Provided GBs comply with the basic standards set by the courts and when constructing and reviewing rules refer to the grounds upon which challenges have been brought in the past, it is possible to maintain the non interventionist status quo.
Finally, the advantages of alternative dispute resolution should be at the forefront of the GB's considerations. Private bodies, such as Sports Resolutions, can provide cost effective and efficient means of dealing with disciplinary issues, and the incorporation of dispute resolution clauses which allow for disputes to be dealt with by completely independent arbitration bodies into the constitution should be considered.
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