UK: Best practice recommendations for sports discipline

18 November 2016

Christopher Quinlan QC was appointed by the British Horseracing Authority (BHA) to lead a review of the structure, composition and processes of the BHA's Disciplinary Panel, Licensing Committee, and Appeal Board to identify areas of improvement in order to update the BHA's system in line with best practice in sports governance. His report was published on 29 September 2016. While he found that the BHA's disciplinary system was fair, he made a number of recommendations intended to improve stakeholder confidence and to enhance the legal robustness of the system. Many of his recommendations, though specific to the BHA and the sport of horseracing, will nevertheless be relevant to other sports organisations (be they national governing bodies, international federations, tournament organisers or others). We have therefore extrapolated the key principles from the Quinlan report below for sports organisations to consider how they might be relevant to their sport (the full Quinlan report can be accessed here).[1]

1. Structural independence of the judiciary

Panel appointments. The procedure for appointing disciplinary panel members (both to a wider standing panel and to tribunals for specific hearings) should be set out clearly in a sports organisation's rules, and publicised. While there is no legal bar to a sports organisation itself appointing its disciplinary panel members, it is best practice for (a) members of a standing panel to be appointed by a bespoke judicial selection committee, following a process of open competition judged against published criteria, and (b) members of specific tribunals to be convened (from the standing panel) by an independent 'Judicial Panel Chairman' or similar (discussed below).

Independent oversight of the panel. It is preferable for disciplinary panels to be overseen by a 'Judicial Panel Chairman' or similar, who should be independent of the sports organisation. The role of the Judicial Panel Chairman would include (among other things) chairing hearings, selecting tribunals to hear cases (first instance, and, if applicable, appeal), and chairing the judicial selection committee that appoints panel members. If the Judicial Panel Chairman chairs a hearing, then it is clear that s/he should have no involvement in selecting the appeal tribunal (that task should be delegated to a deputy).

Standing panel memberships. If a sports organisation has an internal first instance and appeal tribunal, then there is merit in keeping the memberships of those panels separate (although that does not preclude the Judicial Panel Chairman from overseeing both panels). The members of any appeal panel should be independent of the sports organisation and, to ensure this, the sports organisation's rules might provide that those members cannot (a) have been the holder of a licence or permit granted by the sports organisation within the previous five years, (b) hold any current disciplinary position (e.g. referee/umpire/disciplinary commissioner), or (c) be a director of, or employed by, the sports organisation.

Tribunal chairs. It is desirable for tribunals to be chaired by a legally-qualified person with relevant post-qualification experience (at least seven years), judicial or quasi-judicial experience and sufficient knowledge of the relevant sport. However, the applicable rules should contain a clause permitting variation where the Judicial Panel Chairman directs or the parties agree otherwise.  

Security of tenure. While disciplinary panel members may be appointed for renewable terms (and there is no strict legal requirement for a maximum number of terms), notice of appointment terminations should be exercisable only: (a) by the judicial panel member him/herself, or (b) by the sports organisation only where the member has (i) committed a serious or repeated breach of his/her obligations to the sports organisation or of the applicable rules, or (ii) committed a criminal offence or acted in any manner that brings him/her or the sports organisation into disrepute.

Separation of powers. It is not uncommon for first instance tribunals of sports organisations to include persons from the sport in question. That is not objectionable provided that there is a clear separation of powers/functions, and that members of the sports organisation's legislative body (sometimes called a 'council') or executive do not sit on tribunals. Part of the separation of powers requires a bright line between the prosecution and the judiciary. To improve the formal separation between the prosecution and the judiciary, the secretary to a disciplinary panel should report to an appropriate person on the executive team, and not to anyone connected with the prosecution team. Similarly, active members of the disciplinary/prosecution arm (such as, for example, referees/umpires/disciplinary commissioners), and any person responsible for appointing and/or overseeing those individuals, should not sit on any disciplinary panel and should not have any involvement in selecting tribunals.

Declaring conflicts of interest. Disciplinary panel members ought to declare conflicts of interest when they are appointed to a tribunal (which declaration ought to be disclosed to the parties). It is advisable for sports organisations to have a standard form for this purpose, and to provide guidance on how the form should be completed. The template form (and any guidance on that form) should be publicised.

Meetings of the judiciary. The disciplinary panel members of most sports organisations meet for (among other things) training purposes and to discuss recent cases. The attendees of those meetings should include the chair of the disciplinary panel, members of the disciplinary panel, and the secretary to the disciplinary panel. If any of the sports organisation's employees are invited to attend, such invitation should ordinarily be extended only for appropriate and specifically-minuted purposes. In particular, while it is appropriate for sports organisation employees (which might include members of the prosecution team) to report on recent rule changes, they should not provide a view on how those rules should be interpreted.

Provision for de novo appeals. Consistent case law confirms that disciplinary systems, when they are challenged as being unfair, are to be looked at as a whole. Where a participant has a full right of appeal to an independent and impartial appeal tribunal, those appeal proceedings might 'cure' procedural defects in the first instance proceedings and the 'curing effect' is more likely to apply where an appeal tribunal hears the case de novo (i.e. where it has the power to conduct a full re-hearing). Therefore, it is advisable for the sports organisation's rules to provide that (at least in some, perhaps exceptional, circumstances) the relevant body has the power to hear appeals de novo.

2. Decisions

Quality of written decisions. A tribunal's decisions must contain sufficiently-detailed reasons. Having a lawyer chair hearings might assist in this respect. Further, in its reasoning, a tribunal should be able to criticise the relevant sports organisation.

Explanation where disciplinary action not taken. Sports organisations (or their tribunals) should explain why disciplinary action has not been taken in relevant cases.

Time limits. The rules should specify a reasonable time limit in which decisions will be issued, subject to a qualification to provide for exceptional circumstances.

3. Inequality of arms

Pro bono legal representation. Sports organisations should consider establishing formal partnerships (such as with, for example, Sport Resolutions UK) to offer participants access to free legal advice and representation where applicable.

4. Procedural rules

Compendious set of procedural rules.  It is preferable for a sports organisation to have a single comprehensive set of procedural rules dealing with case management.

Disclosure. The sports organisation should have clear procedural rules on disclosure, including: (a) the nature of the material to which they apply, (b) the test to be applied by the sports organisation (and the tribunal or its chairman) in assessing whether the material in the party's possession falls to be disclosed, and (c) provision for the parties to apply to the tribunal (or its chairman) for a disclosure order.

Alternative dispute resolution. Procedural rules should provide for alternative disposal of matters in certain cases. This might include provisions for a fast-track for minor or admitted offences, formal cautions, agreed sanctions and resolution of a matter (where the parties consent) without an oral hearing.

Appeal deposits. If a sports organisation requires participants to pay a deposit when they file an appeal, a clear policy should be set out in the applicable rules as to when those deposits will be forfeited (e.g. where in the opinion of the tribunal the appeal was without any realistic prospect of success).

***

The BHA has welcomed the recommendations in the Quinlan report and resolved to adopt them all in due course, notwithstanding that it might comfortably have decided not to do so (given that the report concluded its process was fair in any event). It is to its credit that the BHA's pursuit of excellence is such that it will go the trouble and expense of complying with the recommendations when it has no legal requirement to do so. Other sports might benefit from considering the report and how they might fare if their disciplinary processes came under similar scrutiny (e.g. by a reviewer or, worse, by a court).



[1] Since the recommendations in the Quinlan report were designed to achieve best practice (rather than make an unfair system fair), it does not follow that simply because a rule or practice that forms part of one of his recommendations is not currently being observed by a sports organisation then that organisation's practices are necessarily unlawful or otherwise prone to legal challenge. Whether or not a sports organisation's disciplinary processes are fair will depend on a variety of factors. 

(Max Duthie and Lauren Pagé have been advising the BHA on discipline-related matters in recent months)