A Level playing Field – Sports Governance and Discipline in Asia

15 August 2017

Alex Norman, Justin Walkey

Earlier this year, Qin Sheng, a footballer for Shanghai Shenhua, one of the Chinese Super League's leading teams, was shown a red card for stamping on an opponent. The victim was unhurt and went on to score later in the game. The red card itself was fairly uncontroversial – video replays showing that it was a blatant and intentional infringement. The six month ban that was handed out to Qin by the Chinese Football Association (the "CFA") did, however, cause a few eyebrows to be raised.

Qin was also granted no indulgence by his club who dropped him to the reserve team, fined him and cut his salary for the remainder of the season to the minimum wage for a Shanghai worker. Qin also apologised to his teammates in front of TV cameras and received a very public dressing down from his club's chairman.

For an ordinary sending off in the Chinese Super League (the "CSL"), a player gets a one game ban, although it is not unusual for longer bans to be given for more severe offences. Similar incidents in other football leagues around the world have resulted in much less severe punishments. When the Bournemouth player Tyrone Mings was adjudged to have stamped on Manchester United's Zlatan Ibrahimovic, he received a five match ban from The Football Association in England.
So why did the CFA hand down such a long ban for, what in the eyes of many, was a relatively low-grade incident? Was this actually the right decision? And who decides how long bans are in the first place?

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To the seasoned football fan, Qin's ban was undoubtedly harsh. Some journalists have speculated that the length of the ban and Qin's treatment reflected the CFA's desire to save "face" and show the world that the increasingly-globally viewed CSL doesn't accept this type of on pitch behaviour. It was perhaps significant that the incident occurred in a match that was broadcast internationally on a number of foreign networks.

But, if this is true, the CFA's reaction may have been somewhat of an own-goal, as the western media clamoured to denounce the six month ban as unduly harsh and representative of a system which isn't transparent or fair.

The CSL and CFA are not alone in being criticised for disciplinary decisions relating to on-field incidents. Luiz Suarez was famously handed a four month ban by FIFA for an apparent bite on an Italian player during a World Cup match in 2016, which, given it was not his first offence of a similar nature, many considered lenient. Chelsea (ex-)captain John Terry's ban of four matches and £220,000 fine for racially abusing an opposition player was also criticised by some for being lenient in light of the gravity of the offence.

The question for all sports governing bodies that also have a disciplinary function to deal with on-field offences is what can be done to ensure these disciplinary structures are properly equipped to both hand out the appropriate sanctions and also ensure that those sanctions are appropriate in the context of the perception and advancement of the sport more widely?

The Why

To answer this question, it is worth taking a step back to think about what a disciplinary function in relation to on-field incidents is designed to do. This is a question which is worthy of academic debate in itself, but one theory is that it can be boiled down to two simple objectives: (a) to provide appropriate sanctions for rule infringements to uphold the laws of the game; and (b) creating a practical, fair and transparent system which promotes wider understanding of how the laws of the game will be applied.

Although this sounds simple enough, there are a number of practical difficulties with putting in place appropriate structures to achieve these aims.

The How

Getting a disciplinary structure right is not easy. There is no "one size fits all" approach and different sports and jurisdictions have to look at what is right for them in the context of their specific circumstances. A number of different models can be adopted.

In rugby, for example, typically a national union convenes a first instance disciplinary panel shortly after a weekend's games to review videos and take evidence from players, citing officials and referees in relation to specific red-card incidents, before deciding what sanction to apply with reference to the sanctioning guidelines set out in the World Rugby regulations. Appeals are allowed on certain specific grounds and are usually (but not always) decided behind closed doors without reference to external independent bodies.

Other sports take different approaches, but to achieve the desired outcomes discussed above, there are a number of things that sports governing bodies should take into account when designing disciplinary processes:

  1. Structure and independence

    One of the key structural considerations is how the first instance disciplinary panel interacts with the appeals panel (if there is one). Key considerations include: (a) the membership of those panels and if there should be any commonality in terms of personalities involved; (b) the grounds on which a first instance decision can be appealed; and (c) if is it desirable (or, indeed, possible) to have "independent" panel members at either stage. One of the issues sports governing bodies can struggle with is that they are seen to be both “prosecutor” and “judge” in disciplinary hearings. Having true independents in disciplinary panels obviously helps counteract this perception, but in practice getting independents can sometimes be challenging, especially in amateur sports where the pool of willing candidates tends to be those already materially involved in the sport.
     
  2. Final resolution

    There is a big divide here between sports which settle disputes finally "in house" and those which allow for external final determination. Governing bodies which include scope for appeals to ultimately be heard by external arbitral bodies, such as the Court of Arbitration for Sport ("CAS") have the advantage of appearing to be more impartial, but also open up the possibility of taking final decisions which affect the sport outside of the control of the governing body and, potentially, putting those decisions in the hands of those who don’t understand the nuances of the sport in question. FIFA, for example, has followed the IOC in codifying the place of CAS as the ultimate appeals body for disputes, but this may not be appropriate for all sports governing bodies.
     
  3. Evidence and procedure

    The question of how much (or how little) evidence, legal (or non-legal) representation and/or pre-hearing submissions are allowed at disciplinary hearings is an important one. The governing body must consider a number of legal and practical factors, including ensuring that the disciplinary body has the ability to get all the information it needs, but also that the process is not disproportionately expensive or complex for those involved.
     
  4. Sanctioning guidelines?

    Sanctioning guidelines help disciplinary panels reach conclusions as to the level of penalty that is appropriate and some sports have adopted them to help ensure consistency. Using the rugby example above, the World Rugby regulations set down clear minimum sanctions for certain types of offence (depending on the nature of the offence and its severity), before allowing for the application of aggravating or mitigating factors to increase or reduce the sanction respectively. There is clearly an element of judgment required to be exercised by those sitting on the disciplinary panel, but their primary job is to implement the rules and regulations of the relevant body, in this case World Rugby. Having transparent and public sanctioning guidelines can be of real value to sports governing bodies in showing that sanctions are not capricious or arbitrary.
     
  5. To publish or not to publish

    Decisions of disciplinary bodies, with reasons, are typically sent to the relevant parties once the decision has been made. However, the level of disclosure of reasons and the extent to which decisions and their reasons are publicised, is a matter of preference for the sports governing body. Whether or not you agree with the length and severity of Qin Sheng’s ban, it is interesting to consider if greater disclosure over the reasons for it from the CFA would have helped quell some of the negative public outcry.

Putting in place effective disciplinary structures is not easy, and requires significant forethought and planning, both in drafting the rules, procedures and sanctioning guidelines, but also in terms of ensuring they are workable and easy to administer in practice. Advance consultation of stakeholders (such as clubs and players) is also a helpful way to show transparency and also to ensure disciplinary processes are appropriate.

A failure to put in place effective structures can open up not only questions about the appropriateness of sanctions, but also about the integrity of governing bodies themselves, meaning this is something that all sports governing bodies should have a keen eye on.

Authors

Alex Norman

Registered Foreign Lawyer
China and Hong Kong

Call me on: +852 2248 6000
Walkey-Justin

Justin Walkey

Chairman Asia Pacific
China and Hong Kong

Call me on: +852 2248 6000