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Littleton Chambers Sports Law Essay Competition – Winning Essays 2023

19.03.24

First Place Essay – Kate Gardiner

Score: 48/50

Transparency has been prized as foundational to good governance in sport (see, for instance, the International Olympic Committee’s Basic Universal Principles of Good Governance, principle 2). To what extent (if at all) are sport regulators justified in using confidential procedures, such as arbitration, to deal with participant misconduct?

Introduction

1. Sports regulators, or sports governing bodies (“SGBs”), occupy an unusual position of power, operating “their own internal quasi-legal system” (James, 2017)[1]. The SGB serves as the rule-making body, or legislature, whose rules (or laws) are interpreted and enforced by a disciplinary tribunal or panel, rather than a court.
2. Whilst Lord Denning famously once asserted that before such panels “justice can often be done…better by a good layman than by a bad lawyer” (Enderby Town FC v The Football Association (1971) Ch 691 at [605]), the rapid commercialisation of sports has raised the stakes for participants and SGBs alike. As such, sporting justice systems have become increasingly formalised, and confidentiality has become the modus operandi. The establishment of the Court of Arbitration for Sport in 1984 has been central to this transition.
3. This essay defends the entitlement of SGBs to such confidentiality, before contending that the current methods via which participant misconduct is addressed are not confidential enough. Transparency and privacy are not mutually exclusive and when a participant faces allegations of misconduct, she should have the right for any charge to be kept confidential until a decision is reached. Moreover, whilst it is acknowledged that the publication of relevant decisions by SGBs is essential to transparency, and that more could be done to this regard, it is submitted that if the relevant panel decides in her favour, the participant should have the right to redactions from publication.

In defence of confidential procedures

4. It is submitted that SGBs are entirely justified in using confidential procedures to deal with participant misconduct. SGBs are fundamentally private bodies who have contracted with their participants, and as in many other areas of commercial law, it has become commonplace to include a clause specifying the forum and/or method for dispute resolution – such as Rule K of the Football Association, which provides for arbitration. Participant misconduct is no more than a breach of that contract, meaning that SGBs are well within their rights to require that the relevant procedure is confidential.
5. Critics have expressed concern with reference to the apparent public interest in the decisions of SGBs. Beloff et al (2012)[2] contend that “sport is by nature more a public than a private activity”, whilst Lord Dyson has asserted that sport “is played in the public domain. Millions of people are interested in it and follow it. It could hardly be more different from a private arbitration dispute between two people who’ve got a contract which has gone wrong, where the public really has no interest”[3].
6. Yet such concerns are based on a fundamental misunderstanding of the distinction between the public and private domains. Similar comments could be made about any major corporate body, such as multi-national consumer goods corporations or international oil and gas suppliers. Their consumers are inherently interested in their products and yet they are free, under private law, to handle disputes with such confidentiality as they might wish.
7. In R v Disciplinary Committee of the Jockey Club Ex p. Aga Khan [1993] 1 W.L.R. – where it was confirmed that the powers of the Jockey Club, in spite of its incorporation by Royal Charter, were derived from private contractual agreements between the club and its members and were not open to judicial review – it was emphasised that “private power may affect the public interest and livelihoods of many individuals. But that does not make it subject to the rules of public law” (p.909H). Plainly, SGBs remain within their right to conduct disciplinary procedures confidentially.
8. Moreover, the use of such confidential procedures, particularly arbitration, has significant merits:
   1. It brings greater flexibility, meaning the procedure can be adapted to the specific sport concerned;
   2. It protects the privacy of athletes, particularly in respect of doping allegations where disputes may involve personal medical information;
   3. It allows decisions to be made by specialised experts, meaning disputes may be handled more swiftly than otherwise possible;
   4. It can be used to set short deadlines – for example, the 60 days from the date a tennis play requests a hearing under the International Tennis Federation’s Anti-Doping Rules – thus meeting the urgent needs of athletes who need to know whether they can continue to play.

9. Yet this does not mean the existing methods of handling participant misconduct are without fault: it is submitted that the current procedures used by SGBs are, in fact, not confidential enough. This critique is made in reference to two key parts of the process, which will be addressed in turn.

The publication of allegations against participants

10. It is common practice for an SGB to announce that it is pressing charges against a participant. It is submitted that this is unsatisfactory and that confidentiality should be preserved until any decision is made.
11. The reasoning for this is simple:
    1. Participants, and not just SGBs, should benefit from the confidential nature of any proceedings.
    2. The announcement of charges prior to any verdict leads to undue media attention and potential reputational damage. These matters are of great significance particularly for those participants with on-going sponsorship negotiations. Moreover, as such announcements may often coincide with the lead-up to major competitions, the effects of heightened stress on a participant’s performance is not to be underestimated.

12. Whilst SGBs may contend that such methods are necessary to ensure that their authority is visible, it is suggested that when a participant suffers reputational damage as a result of alleged misconduct, so too does the SGB and wider sport itself. Thus it is in the SGBs’ own interests to only make announcements in respect of that misconduct which is proven. This is especially the case when the public would otherwise be unaware of doping allegations surrounding a player.

13. It is acknowledged that in instances where the public is witness to the misconduct – for example, on-pitch foul play or breach of SGB rules on social media – it is important that the public is aware that justice will be done. Yet one of the very benefits of the established procedures is the rapid speed with which matters can be pursued: the RFU often holds disciplinary hearings within days of an alleged on-pitch offence. As such, there is no need that the charge or the procedure itself be made public, as the decision should enter the public domain within a relatively short time window.
14. It is also acknowledged that this submission raises challenges in respect of provisional suspension, such as those imposed by WADA when a participant fails her drugs test or otherwise breaks the strict rules. A critique of this system – which essentially promotes the notion of “guilty until proven innocent” – is beyond the remit of this essay, but it is suggested that if such bans were still necessary, athletes could simply be quietly absent from competitions. Whilst inferences might be drawn, this would still be preferable to the outright announcement of charges as it would allow the participant to avoid trial by media.
15. Thus, it is contended that SGBs should keep matters of participant misconduct entirely confidential until a decision is reached.

The publication of decisions

16. The publication of decisions by SGBs is essential to ensure that participants experience open justice and it is conceded that the current system used by many SGBs is far from satisfactory.
17. For example, many anti-corruption agreements contain clauses requiring confidentiality in first instance proceedings, such as the Uniform Tennis Anti-Corruption Code. As Clerk (2017)[4] explains, a participant who is unable to access earlier decisions may not obtain adequate advice and thus may not be able to ensure fair representation before a panel at the first instance. As such, SGBs should be encouraged to publish all decisions, thus enabling participants to understand the reasoning previously applied by the panel before which they are due to appear and thereby ensuring access to open justice.
18. Indeed, in Manchester City Football Club v The Football Association Premier League Ltd & Others [2021] EWHC 711 (Comm), the Court of Appeal held that there is public interest in the manner in which disciplinary proceedings are prosecuted by SGAs against clubs. However, attention must be given to the reasoning at [42], where it was held that “in each case, in considering whether a judgment should be published, it is a question of weighing confidentiality and any detriment to the parties from publication against the public interest in publication, particularly where the judgment raises matters of some general importance”.
19. The application of such reasoning to instances of participant misconduct would differ significantly to those of misconduct by entire clubs.
20. Firstly, the detriment to the participant caused by publication is far greater than any detriment caused to a club in similar circumstance, simply due to the relative imbalance of power between the SGB and the participant, who has fewer resources available to them to address media attention and reputational damage than a club.
21. Secondly, the public interest in publication regarding participant misconduct is significantly lower than the public interest involving an entire club, as an individual dispute is of less consequence for the public.
22. As such, Manchester City provides authority for the contention that in matters of participant misconduct, full publication of the decision is not necessary – although, as stated, the publication of decisions would help to ensure justice for participants.
23. It is therefore suggested that the solution for SGBs is as follows: the entirety of proceedings, including the announcement of charges, should be kept confidential, but when a decision is reached, the SGB should endeavour to publish it. If a participant has been cleared of misconduct, the decision should be redacted unless she gives her consent. That the RFU have gone so far as to preserve confidentiality even where a participant is found to have breached its rules in an instance where he was held to be facing significant personal mitigating circumstances[5]demonstrates that this is not beyond the realms of possibility.

Conclusion

24. SGBs are plainly justified to handle disputes regarding participant misconduct through confidential procedures. The on-going commercialisation of sport, which is closely entwined with its increased popularity, strengthens, rather than limits, such an entitlement.
25. Yet it should not just be SGBs who benefit from the confidential nature of their dispute resolution, but athletes too: the current system of the publication of charges is contradictory and has significant negative consequences for both parties. Transitioning to a system of publishing all decisions, but in a redacted or otherwise confidential form, would meet the private interests of participants and SGBs, whilst satisfying public interest at the same time.
26. Confidentiality and transparency need not be mutually exclusive. The increasing commercialisation of sport does not serve in favour of arguments regarding public interest but rather reinforces that it is an industry revolving around privately contracting parties. The target for those concerned should not be placing limits on the confidentiality relied upon by SGBs, but rather ensuring that participants, too, are able to benefit from the fundamentally private law basis of sports.

[1] Sports Law 3^rd Edition (2017) by Mark James, at 2.1

[2] Sports Law 2^nd Edition (2012) by Michael Beloff QC et al, at 8.33

[3] Lord Dyson, speaking on LawInSport Podcast E87. Quoted in “An Authority On Transparency In Sports Arbitration – MCFC v The Premier League” (Street, 2021) LawInSport. Available at: https://www.lawinsport.com/topics/item/an-authority-on-transparency-in-sports-arbitration-mcfc-v-the-premier-league#_Toc80963033. Accessed 26/02/23.

[4] “The Rebalancing of Power – the Need for Greater Transparency in Sports Tribunals” (Clerk, 2017) LawInSport. Available at: https://www.lawinsport.com/topics/item/the-rebalancing-of-power-the-need-for-greater-transparency-in-sports-tribunals  Last accessed: 26/02/23.

[5] RFU Judgment dated 17/05/22. Available at: https://www.englandrugby.com/dxdam/e8/e8c631db-abca-403f-b0ab-49161442d1ae/AnonymisedSummaryPlayerMay22.pdf Last accessed: 26/02/23.

Second Place Essay – Joseph Sinclair

Score: 45/50

1. INTRODUCTION

After a full hearing before the Cricket Discipline Commission (“CDC”), the England and Surrey cricketer, Jason Roy, received a £2,500 fine and a two-match ban suspended for 12 months.[1] He had been charged by the England and Wales Cricket Board (“ECB”) with bringing the game, the ECB and himself into disrepute contrary to ECB Directive 3.3. This is a serious allegation. What had he done? Fans speculated,[2] but nobody was any the wiser. The ban was dependant on good behaviour. How was this to be measured? Only parties to the proceedings may ever know.

Roy’s case illustrates the difficulties confidentiality presents. It offers little guidance to participants of the sport and does even less to instil confidence in the regulator’s work. This is not an isolated instance. Opaque processes permeate sports discipline. This essay will scrutinise the justifications of confidentiality and argue that it goes against effective and fair adjudication. It recommends that all regulators should engage in “proportionate transparency”: being as open as possible within their commercial, practical and monetary constraints.

1. PRELIMINARY MATTERS

Before considering the question’s substance, three terms require demarcation.

Transparency

Transparency is an ambiguous and contested concept. More so in the context of sport where institutions and stakeholders are so varied. This essay will embrace this flexibility and adopts an outcome-orientated approach: that transparency requires there is sufficient information to show how and why a decision has been decided. As set out below, some weight will need to be given to the fiscal, personal and commercial matters unique to each sport.

Confidential Procedures

Drawing this term widely can lead to lost focus on the goal of transparency. Rather than consider the minutiae of procedural transparency, this essay will scrutinise confidential procedures from the outcome-based perspective set out above. This will mean that focus is given to different aspects of the regulatory process depending on the subject-matter, sport, and interests at stake.

Participant

The term will include clubs, coaches, and others that come within the ambit of regulatory oversight. Focussing on athletes alone would detract from important transparency considerations.

1. SCRUTINISING THE JUSTIFICATIONS OF CONFIDENTIALITY 

Confidentiality is often cited as one of the key advantages of alternative dispute resolution (“ADR”), such as arbitration.[3] It is attractive for sports such as football where disputes carry significant media attention.[4] Confidentiality is also important in maintaining commercial, competitive and personal privacy. Looking at each in turn:

First, many participants are businesses. Adverse publicity can impact their profits and relationships with customers, investors and sponsors. This applies not only to the person subject to disciplinary proceedings, but other participants that may be peripheral to the misconduct. In these circumstances confidentiality is as important for commercial efficacy as in conventional business.

Second, in order to resolve a regulatory charge, a tribunal may hear evidence on tactics, training, engine specifications, or other subject-matter that is not in the public domain. For participants, the process is involuntary and the publication of this information may give competitors an unfair advantage. In turn, this may lead to participants being unable or reluctant to properly respond.

Third, individuals increasingly face accusations of impropriety for matters outside of their sporting life. For example, article 11 of UEFA’s Disciplinary Regulations provides that a person may face disciplinary measures where their conduct “is insulting or otherwise violates the basic rules of decent conduct” or “whose conduct brings the sport of football, and UEFA[…] into disrepute”. This can include a wide array of private or embarrassing conduct, or involve third parties not subject to regulatory oversight.

All of the above are legitimate concerns, but insufficient to justify confidentiality. Adjudicators are often experts within a given sport and will be alive to these issues, which is itself an advantage of ADR. With effective case management, issues can be identified and steps taken to anonymise witnesses or redact parts of a determination where serious hardship may be caused.[5] Taken with the reasons in favour of transparency below, confidential procedures are therefore not justified.

1. IN FAVOUR OF TRANSPARENCY

This segment argues that there are three reasons why confidentiality is not justified in sports misconduct proceedings: (i) the procedure is forced and should adhere to basic standards of justice; (ii) transparency guarantees consistency in decision-making; and (iii) it ensures confidence.

A Forced Procedure

Beyond pure recreation, participants seeking to engage in sport have to submit to the jurisdiction of a regulator. The regulator has a monopolistic power to stop them from competing and can impose significant fines and costs, saddling them with debt. In certain instances, its oversight includes matters concerning the minutiae of their personal life. The adjudicatory process is foisted upon the participant with the outcome impacting their reputation and standing in the sporting community. They have little say on who is appointed to determine their claim, the rules of evidence, and how the hearing will take place. What follows is that confidentiality is at the insistence of one party at the possible expense of the accused, public and other participants.

The European Court on Human Rights (“ECtHR”) has highlighted the importance of public hearings as a “fundamental principle” of art. 6(1) of the European Convention on Human Rights (“ECHR”): “[t]his public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained”.[6] This includes pronouncement of a judgment in public.[7] A person’s rights can be waived in favour of arbitration where the decision is “free, lawful and unequivocal”. Where, as in sports regulation, a person is forced to engage in ADR, the tribunal must guarantee that person’s article 6 rights.[8]

The need to secure these safeguards must also be gleaned against national courts’ reluctance to intervene in all but the most egregious instances of unfairness. In Cronin v Greyhound Board of Great Britain Ltd [2013] EWHC Civ 668, the board had not given any reasons for its decisions to sanction Mr Cronin. Although the court found this to be wrong, the overall procedure had been fair and his appeal was dismissed. With costs exposure and high legal burdens, participants are reluctant litigants before national courts and will avoid litigation where possible. Where the disciplinary processes are confidential, this hampers the exposure of injustice and development of good adjudicatory practice.

Consistency & Procedural Integrity

Many rules governing participant conduct are ambiguous, such as article 11 of UEFA’s Disciplinary Regulations cited above. How the regulated conduct themselves depend on how these rules are interpreted. What, for example, amounts to reckless dart throwing contrary to r.3.15 the Darts Regulation Authority’s (“DRA”) rule book? The decisions recorded against Nathan Aspinall or Jeffrey de Graaf shed no light.[9] Regulators must also ensure that awards are consistently applied to avoid arbitrariness. Returning to Aspinall and de Graaf, how do we know that the £250 fine issued to each is consistent or correct? Under r.20.2, the DRA has no obligation to say.

With the extending tentacles of regulatory oversight into participants’ personal lives, the need for consistency and predictability is ever-greater. This is best achieved by ensuring there are mechanisms in place for decisions to be published. A positive example is the recent CDC decision on charges brought by the ECB against cricketer Alex Hales.[10] In 2009, a photo had been posted of Hales in blackface taken. He was charged in 2022 contrary to ECB Directive 3.3, cited above. The commissioner relied on previous cases concerning the use of blackface by players to categorise the seriousness of the breach and the appropriate sanction.[11] Mr Hales had protested the publication of the decision. To this, the commissioner underlined the importance of transparency: “…this decision should be published so as to emphasise that such posting on social media, however historical, will not be tolerated”.[12] Yet as Roy’s case shows, this approach is not a consistent.

The Confidence of Fans, Finance, Competitors, and Victims

A fundamental role of a regulator is that it maintains the integrity of the sport it oversees. This includes upholding the values of the community within which the sport operates. This is achieved in large part through the confidence in its processes. Participants and interested stakeholders’ conduct is guided by their confidence that the rules are enforced fairly, consistently, and properly. Transparency plays its role by ensuring that everyone is able to understand how proceedings work and why decisions are made.

The importance of procedural confidence is underlined by the on-going case concerning Yorkshire County Cricket Club (“YCCC”). In March 2023, the CDC will adjudicate the ECB’s charges concerning the well-publicised allegations of racism at YCCC. The club has already admitted the charges against it, including the destruction of evidence.[13]However, at least three players have refused to engage, citing the concern that they will not receive a fair hearing. The CDC has taken the exceptional step of opening the proceedings up to the public.[14] By opening the door, the players’ allegations can be scrutinised. An observer can decide whether justice has been done.

The YCCC case also offers an illustration of the importance of sport as a common good. Sport and its participants play a prominent role in national life and consciousness.[15] How participants conduct themselves is of wider importance, which justifies the depth of regulatory oversight. Fans and the public have expectations and standards which they expect to be upheld. It is essential that regulators are seen to be meeting these standards. This wider interest goes beyond behavioural transgressions and into the running of clubs. Greater attention has been given to this within football owing to the stratospheric rise of money in the sport and clubs’ social and communal significance.[16] They are not simply for-profit businesses but institutions that matter to many. This was acknowledged by the British government in respect of Derby County, who were relegated after disciplinary proceedings before the English Football League (“EFL”) for breaching financial rules: “The loss of Derby County would have been devastating to fans, employees and the local community. While the club was saved in the end, other clubs may not be so lucky in future.”.[17] The EFL’s approach to transparency in the Derby County proceedings is a bench-mark, with a considerable amount of information put into the public domain to effectively inform the interested public.[18]

Moreover, sports clubs such as football teams often prioritise performance over profitability and debtors approach loans and unpaid bills differently to conventional businesses. They are patient and flexible in order to avoid negative publicity and confrontation with fans.[19] Fearing the knock of the bailiffs is an important safe-guard against financial mismanagement. Its absence means that transparency plays a greater role in safeguarding clubs’ financial stability and acting as an accountability lever.

For other sports, regulators indirectly receive part of their funding from the government such as Sport England.[20] They also fulfil the oversight function that would otherwise be conducted by a public body.[21] Opacity in the regulation of participants can inhibit identifying serious issues at an early stage. This leads to  political pressure to withdraw funding or implement sweeping changes. These pressures are present in the on-going crisis within Swim England following allegations were made of the mismanagement of child bullying claims.[22]

Finally, participants can hold and abuse positions of responsibility, causing serious harm. Transparent processes give confidence to victims to come forward in the knowledge their concerns will be taken seriously. UK Athletics’ (“UKA”) recent decision to publish findings concerning inappropriate behaviour by a coach is testament to this.[23] Through transparency, the regulator reminds and reassures “anyone with a concern to come forward”. This can be contrasted with the opaque handling of complaints by British Gymnastics (“BC”) identified in the Whyte Review. Without a transparent procedures, gymnasts, parents, and coaches were left with the view that some coaches were protected while others readily sanctioned. The result was the underreporting of safeguarding issues and a culture of impunity.[24]

1. CONCLUSIONS: TOWARDS PROPORTIONATE TRANSPARENCY

For the reasons above, the use of confidential procedures is difficult to sustain. There are cogent reasons for transparency and the reasons for confidentiality can be properly managed. Yet the question remains of how transparency might work in practice.

Transparency following an on-pitch brawl or use of poor language will invariably be treated differently to the intricacies of a club’s financial mismanagement or the breach of technical engine regulations in motorsport. Each instance will be case-specific. There is also the constraint of funding. Conducting regulatory proceedings costs time and money, a significant portion of which may be borne by the participants. Larger or commercially successful sports may have the means to provide a high standard of transparency. Yet others will struggle with the burden.

Both of these factors militate towards a flexible but outcome-focused approach to transparency. This should be proportionate to the issues at stake, with a view to ensuring that stakeholders have an informed grasp of the proceedings and the outcome. Complete transparency will be aspirational, but regulators must try to achieve the highest of standards to ensure full confidence in their operations. As the above demonstrates, there is a clear and cogent need in all cases for regulators to demonstrate effective accountability and fairness.

[1] https://www.ecb.co.uk/news/2546535

[2] https://cricblog.net/news-the-most-hilarious-reasons-why-jason-roy-was-suspended-by-the-ecb/

[3] See, for example, Anderson, J. Modern Sports Law (2010) at §3.01

[4] De Marco KC, N., Football and the Law 2^nd Ed. (2022), §29.11(c)

[5] De Marco KC, N., the Dichotomy and Future of Sports Arbitration – Legal Aid and Publications of Decisions, Law in Sport, 20 July 2016

[6] Diennet v France (18160/91), 26 September 1995, §33

[7] Straume v Latvia (59402/14) 02 June 2022, §§124-126

[8] Suda v Czech Republic (1643/06) 28 October 2010, §§48-49; Pechstein v Switzerland (App No’s 40575/10 & 67474/10), 02 October 2018, §§113-115

[9] See http://www.thedra.co.uk/_files/ugd/20bb2f_9cd5f4a5b6bd4c2b826e29f934b1cab3.pdf & http://www.thedra.co.uk/_files/ugd/a06151_8af4821b02564f00b8cce3b9c65674a6.pdf

[10] See https://resources.ecb.co.uk/ecb/document/2022/11/09/ab8f2dd7-40ee-459f-b82c-3549df8341f4/CDC-Alex-Hales.pdf

[11] §7

[12] §11

[13] Daily Mail, 22 February 2023, Yorkshire plead guilty to destroying evidence related to racism claims made by Azeem Rafiq, raising further questions over the integrity of the ECB’s disciplinary process

[14] The Guardian, 03 February 2023, ECB hearing on alleged racism at Yorkshire descends into chaos as trio pull out

[15] Anderson, §2.34

[16] Morrow, S. The People’s Game? Ch. 2, Football Clubs: Businesses or Social Institutions? pp.56.-60

[17] Sustainable Future – Reforming Club Football Governance, February 2023, p.41

[18] https://www.efl.com/-more/governance/judgments/judgments-202021/

[19] Urdaneta, R. et al, Transparency and Accountability in Sports: Measuring the Social and Financial Performance of Spanish Professional Football, Sustainability 2021, 13(15), 8663

[20] See https://www.uksport.gov.uk/about-us/faqs

[21] Anderson, §2.35

[22] The Times, 02 February 2023, Swim England accused of ‘failing children’ over alleged bullying

[23] https://www.uka.org.uk/news/news-and-features/result-of-the-adjudication-in-uk-athletics-v-minichiello/

[24] §1061-1063; see also 1019 of The Whyte Review: an independent investigation commissioned by Sports England and UK Sport following allegations of mistreatment within the sport of gymnastics, June 2022

Third Place Essay – Oliver James Hinds

Score: 42/50

Introduction

“Governance”, broadly, refers to the exercise of authority.[1] In sport, governance primarily occurs on three levels: local, national, and international.[2] National governing bodies (‘NGBs’), such as the FA, often play a pivotal role in administering national-level disciplinary procedures in sport.[3] In the UK, the ability of NGBs to operate their own disciplinary procedures has resulted in the use of different means of resolving sports disputes, such as arbitration and mediation.[4] These procedures are further influenced by statute law, common law, and measures confined to the sports industry, including the principles of good governance.[5] As an example of the latter, Principle 2 of the IOC’s Basic Universal Principles of Good Governance refers directly to ‘transparency’,[6] which itself can be defined as an ‘institution’s openness to the gaze of others’.[7]

On an international stage, the Court of Arbitration for Sport (‘CAS’) has emerged in recent decades as arguably ‘the international “supreme court” for sports’.[8] This independent body provides for the settlement of sports disputes through arbitration or mediation.[9] With regards to participant misconduct, where the original disciplinary decisions are taken by the sports governing bodies themselves, CAS’ Appeal Arbitration Procedure is used.[10] Under R59 of the CAS Code, which applies to this Procedure, ‘[t]he original award, a summary and/or a press release setting forth the results of the proceedings shall be made public by CAS, unless both parties agree that they should remain confidential. In any event, the other elements of the case record shall remain confidential’.[11]

Ultimately, ‘[p]rivacy and confidentiality are fundamental features of arbitration’.[12] However, arbitration is adopted both nationally and internationally in an industry where transparency is paramount.[13] There is a clear tension between the principles of confidentiality and transparency,[14] and a satisfactory resolution to this conflict is yet to be found. In this paper, an argument will first be presented that sport regulators are justified to a large extent in using confidential procedures, such as arbitration, to deal with participant misconduct. A case will then be put forward that sport regulators are not justified in using such procedures whatsoever. Lastly, it will be submitted that the use of confidential procedures is justified to a certain extent, but to improve upon this, a new, three-staged test should be introduced, both domestically and internationally, when deciding whether to waive the confidential nature of sports proceedings.

Confidential procedures are justified

It can be argued that sport regulators are justified to a great extent in using confidential procedures, such as arbitration, to deal with participant misconduct. Indeed, ‘[a]rbitration is often considered among the best avenues for dispute resolution in sports’, with privacy representing a ‘[s]ignificant advantage’.[15]Confidentiality has been described as ‘the bedrock of sports regulatory and disciplinary matters’ and a reluctance to hold public hearings has traditionally been considered ‘best practice’.[16]

The confidential nature of such hearings is beneficial when sensitive matters are dealt with, as is often the case in participant misconduct cases.[17] In such instances, the anonymity afforded to witnesses due to the private nature of proceedings can prove crucial to an investigation.[18] Moreover, confidentiality helps to prevent the grave risk that is posed to careers when sports disputes attract media attention.[19] Additionally, private proceedings carry other advantages to sports dispute resolution, such as speed, flexibility and expert determination.[20]

The confidentiality of arbitration is ‘easier to justify’ when such arbitration is freely consented to.[21] Indeed, it can be said that sports arbitration is freely consented to by all parties involved. This view was echoed in Stretford, which concerned an arbitration clause contained within the FA Rules.[22] In this case, the Court of Appeal noted that ‘it does not follow that the arbitration agreement […] was required by law or compulsory’.[23]

Therefore, particularly if confidential proceedings are consented to by all involved, an argument can be made that sport regulators are justified to a great extent in using such procedures, given their numerous advantages.

Confidential procedures are unjustified

Conversely, it can be said that the use of confidential procedures by sport regulators to deal with participant misconduct cannot be justified whatsoever. Indeed, the notion that sports participants freely consent to the use of arbitration, as implied by Stretford, is ultimately flawed.[24] Rather, the inclusion of arbitration clauses in regulations by sports governing bodies means that individuals merely have the “choice” between agreeing to arbitrate in the event of a dispute, or not taking part in the sport at all.[25] Consequently, sports arbitration is ‘fundamentally non-consensual in nature’.[26] The spotlight was shone on the forced nature of sports arbitration at the CAS in Pechstein, where the European Court of Human Rights held that ‘the acceptance of CAS jurisdiction by the second applicant must be regarded as “compulsory” arbitration’.[27] Such a conclusion makes the use of confidential procedures to deal with sports disputes more difficult to accept.[28]

Although the forced nature of sports arbitration could arguably render its use automatically unjustifiable, there are further considerations which add weight to the notion that confidential procedures cannot be justified, regardless of the issue of consent. For example, it is plausible that the lack of public hearings in sport may diminish public confidence in the integrity of proceedings.[29] Indeed, it even risks bias, negligence, or corruption.[30]

Moreover, where confidential awards are issued, sanctions may be imposed inconsistently in participant misconduct cases.[31] Additionally, a lack of publication of arbitral decisions has resulted in an imbalance of available resources for parties in sports disputes.[32] For example, in cases heard by the FA, the regulator often has access to unpublished decisions which can be relied upon.[33] The same is true for appeals at the CAS, where international sports organisations can generally access unpublished decisions in which their federations were a party.[34] On the other hand, individuals, such as sanctioned participants, do not have such a luxury in either instance.[35] This fundamental flaw in the sports dispute process rose to the surface in The FA v David Manasseh, where the Commission expressed its desire ‘to draw attention to the problem and the need to find a way to ensure equality of arms in all cases’.[36]

Perhaps the strongest advocate of the notion that the use of confidential procedures in sport is unjustified, Duval, asserts that the ‘fundamentally public function’ of sports governing bodies means that the CAS should be subjected not to the standard of due process applicable to international commercial arbitration, but instead to that which is applicable to public courts.[37] He even insists that, due to its jurisdiction being based upon sport regulators’ monopoly power rather than free consent, ‘the CAS has to abide by strict standards of transparency’ which ‘mandate that the CAS hearings be held in public and that its awards […] be publicly released’.[38]

Overall, therefore, there is certainly an argument to be made that sport regulators are not justified to any extent in using confidential procedures to deal with participant misconduct.

Somewhat justifiable

Ultimately, there are advantages and disadvantages to the use of confidential procedures by sport regulators when dealing with participant misconduct. Indeed, Duval concedes that there is potential for apprehension by athletes if misconduct cases were to be made public.[39] Despite the lack of valid consent to such procedures by individuals, the advantages of private sports proceedings, such as its use of experts to determine matters,[40] render its use in sport as being key to an effective sports dispute resolution system. Consequently, the use of confidential procedures by sport regulators to deal with misconduct cases is somewhat justifiable. However, it is submitted that the use of such procedures can be further justified if a universal test was to be introduced to deal with the polarising issue of confidentiality.

Current landscape

The process of dealing with participant misconduct via sports arbitration is unique.[41] In contrast to arbitrational norms, it is often the case that hearings are held in private, yet the sanctions themselves are public and standardised, and the decisions are frequently relied upon in future proceedings.[42] For example, the CAS publishes a significant proportion of the decisions it makes under the Appeals Arbitration Procedure.[43] This suggests that the aforementioned ability of parties to mutually agree to keep such awards confidential is used sparingly, despite the personal and sensitive information contained in many decisions.[44] Moreover, CAS proceedings ‘take place in camera, unless the parties agree otherwise’ and the CAS Code stipulates that ‘a public hearing should be held if the matter is of a disciplinary nature’ at a physical party’s request (R57).[45]However, such requests may be denied in various circumstances.[46]

Public interest

It has been put forward that the CAS may be asked to provide for public hearings when cases are of a broader public interest.[47] The issue of public interest in sports disputes and the publication of judgments was referred to in MCFC v The Premier League, which has contributed to the theory that ‘the ever-growing public interest’ in sport indicates ‘a direction of travel, towards publication where appropriate’.[48] Fundamentally, ‘[p]rivate hearings raise questions of transparency in decision-making where matters of public interest are concerned’.[49] Indeed, there is a case to be made that there ought to be a greater consideration given to the transparency and publication of sports disputes when there is an element of public interest involved.[50]

New test

In this author’s view, it is a slight exaggeration to proclaim that ‘going public is an urgent necessity for the CAS’.[51] A more measured approach of setting a high threshold for hearing sports disputes in public, despite the presence of public interest, is preferred.[52] Nonetheless, there remains an absence of a clear, universally-applied test to determine whether participant misconduct cases in sport are to be heard and determined privately or publicly. The CAS’ list of exceptions contained in R57 is, in this author’s view, excessively vague and lengthy, whilst uncertainties remain regarding its interpretation.[53] However, credit ought to be given to the CAS for its attempt to codify a policy for providing a public arena for its appeal hearings. Indeed, sport regulators on a national level have failed to introduce similar measures, and this lack of uniformity is a key reason for reform.[54]

It is submitted that the following three-legged test ought to be applied to the question of whether participant misconduct cases in sport are to be heard publicly:

• If both parties would like the dispute to be heard in public, the case shall be heard publicly.
• If only one party would like the dispute to be heard in public, would doing so be in the public interest? If so, the dispute shall be heard publicly. If not, the dispute shall be heard privately.
• If neither party would like the dispute to be heard publicly, then the case shall be heard in private. This applies even if there is an element of public interest in proceedings.

This test would allow for a clearer process for all, and both preserve the advantages of private proceedings when they are truly consented to by both parties, whilst countering the drawbacks of confidentiality and accounting for the growing demand for transparency in sports dispute resolution in light of the convincing public interest argument. For this test to be even more effective, it ought to be applied on both a national and international level.

Conclusion

Overall, sport regulators are somewhat justified in using confidential procedures, such as arbitration, to deal with participant misconduct, given their advantages. However, the lack of true consent to such procedures by all parties limits its fairness. A universal test ought to be introduced, which not only provides for the benefits of private procedures when validly consented to, but introduces a fresh wave of transparency when such consent is not forthcoming and public interest calls for greater openness.

Table of cases

Manchester City Football Club Ltd v The Football Association Premier League Ltd & Others [2021] EWHC 711

Mutu and Pechstein v Switzerland App nos. 40575/10 and 67474/10 (ECHR, 2 October 2018)

Paul Stretford v The Football Association Ltd & Another [2007] EWCA Civ 238

The Football Association v David Manasseh (Regulatory Commission of the Football Association, 28 September 2018)

 

[1] Mary A. Hums and Joanne C. MacLean, Governance and Policy in Sport Organizations (3^rd edn, Routledge 2017) 3.

[2] ibid 4.

[3] David Watt, Sports Management and Administration (2^nd edn, Routledge 2003) 86, 88.

[4] Leanne O’Leary, ‘Independence and impartiality of sports disputes resolution in the UK’ (2021) 21 ISLJ <https://doi.org/10.1007/s40318-021-00189-9> accessed 26 February 2023.

[5] ibid.

[6] International Olympic Committee, ‘Basic Universal Principles of Good Governance within the Olympic Movement’ (Olympics, 2022) <https://stillmed.olympics.com/media/Documents/Beyond-the-Games/Integrity/Bonne-Gouvernance-EN.pdf> accessed 26 February 2023.

[7] Mark Fenster, ‘The Opacity of Transparency’ (2006) 91 Iowa Law Review <https://scholarship.law.ufl.edu/facultypub/46/> accessed 26 February 2023.

[8] Johan Lindholm, The Court of Arbitration for Sport and Its Jurisprudence: An Empirical Inquiry into Lex Sportiva (1^st edn, T.M.C. Asser Press, 2019) 3.

[9] CAS, ‘Frequently Asked Questions’ (TAS/CAS) <https://www.tas-cas.org/en/general-information/frequently-asked-questions.html> accessed 26 February 2023.

[10] ibid.

[11] CAS, ‘Code: Procedural Rules’ (TAS/CAS) <https://www.tas-cas.org/en/arbitration/code-procedural-rules.html> accessed 27 February 2023.

[12] Julian Christopher Patric Brown, ‘The Protection of Confidentiality in Arbitration’ (2021) London Metropolitan University <https://repository.londonmet.ac.uk/6685/1/Brown-Julian-Christopher-Patric_Final-Submission_26Feb2021.pdf> accessed 26 February 2023.

[13] International Olympic Committee (n 9).

[14] Kieran Mercer, ‘Going public? Sports disciplinary proceedings in light of the racism allegations in cricket’ (The Backpage, 20 January 2023) <https://www.backpagesport.co.uk/blog-master/going-public-sports-disciplinary-proceedings-in-light-of-the-racism-allegations-in-cricket> accessed 26 February 2023.

[15] Peter Koh, ‘Arbitration in Sports and Related Issues’ in Yashraj Samant and Chirag Balyan (eds), Specialized Arbitration: Emerging International Trends and Practices (1^st edn, Thomson Reuters 2021) 239.

[16] Mercer (n 14).

[17] ibid.

[18] ibid.

[19] Liberty Whitehouse and Georgina King, ‘Sport and Arbitration: the ideal doubles pairing?’ (Linklaters, 18 December 2020) <https://www.linklaters.com/en/insights/blogs/sportinglinks/2020/december/sport-and-arbitration-the-ideal-doubles-pairing> accessed 27 February 2023.

[20] ibid.

[21] Antoine Duval, ‘Time to go public? The need for transparency at the Court of Arbitration for Sport’ (2020) 2020-07 Asser Research Paper <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3688340> accessed 27 February 2023.

[22] Paul Stretford v The Football Association Ltd & Another [2007] EWCA Civ 238 [6]; Nick de Marco KC, ‘The Right to a Fair Hearing in Sports’ Cases’ (Sports Law Bulletin, 8 October 2018) <https://www.sportslawbulletin.org/right-fair-hearing-sports-cases/> accessed 26 February 2023.

[23] ibid [49].

[24] ibid.

[25] Antonio Rigozzi and Fabrice Robert-Tissot, ‘“Consent” in Sports Arbitration: Its Multiple Aspects’ in Elliot Geisinger and Elena Trabaldo-de Mestral (eds), Sports Arbitration: A Coach for Other Players? ASA Special Series No. 41 (Juris 2015) 59.

[26] ibid. 60.

[27] Mutu and Pechstein v Switzerland App nos. 40575/10 and 67474/10 (ECHR, 2 October 2018) para 115; Duval (n 21).

[28] ibid.

[29] de Marco (n 22).

[30] ibid.

[31] ibid.

[32] ibid.

[33] ibid.

[34] ibid.

[35] ibid.

[36] The Football Association v David Manasseh (Regulatory Commission of the Football Association, 28 September 2018), para 70; ibid.

[37] Duval (n 21).

[38] ibid.

[39] ibid.

[40] Whitehouse and King (n 19).

[41] de Marco (n 22).

[42] de Marco (n 22).

[43] Lindholm (n 8) 17.

[44] ibid 20.

[45] Duval (n 21); CAS (n 11).

[46] ibid.

[47] ibid.

[48] Manchester City Football Club Ltd v The Football Association Premier League Ltd & Others [2021] EWHC 711; Ashley Cukier, ‘Transparency 1 – 0 Confidentiality? Manchester City v The Premier League in the Court of Appeal’ (Littleton Chambers, 22 July 2021) <https://littletonchambers.com/wp-content/uploads/2021/07/AJC-Man-City-v-Premier-League-220721..pdf> accessed 26 February 2023.

[49] John Mackenzie, ‘Arbitration, Confidentiality and Sport’ (Shepherd and Wedderburn, 4 August 2021) <https://shepwedd.com/knowledge/arbitration-confidentiality-and-sport> accessed 27 February 2023.

[50] Duval (n 21); The Sports Law Podcast, ‘Episode 7: Past, Present, and Future Developments in Sports Law’ (5 January 2023) <https://open.spotify.com/episode/76r7V05TM0iCyjj0n80DGf?si=72a639c4e68e44e2> accessed 27 February 2023; Mohinderpal Sethi KC, ‘Public Interest in Sports Proceedings’ (13 January 2023) <https://www.youtube.com/watch?v=Qh9qj4N4ZgU> accessed 27 February 2023.

[51] Duval (n 21).

[52] Mercer (n 14).

[53] CAS (n 11); Duval (n 21).

[54] John Mehrzad KC, ‘Privacy: A Hot Topic in Sports Law’ (25 January 2023) <https://www.youtube.com/watch?v=qSpHRb9hrMc> accessed 27 February 2023.