Article 6 of the European Convention on Human Rights is a good starting point. The Convention probably does not apply to Sports National Governing Bodies (“NGBS”) as they are generally considered to be non-public authorities (although the law is ever-changing). However its contents should be considered as representing best practice. Specifically the Convention states that there is “an entitlement to a fair and reasonable hearing within a reasonable time by an independent and impartial tribunal established by law”.
There is a well-established common law concept that disciplinary procedures must satisfy the requirements of natural justice
“Natural justice” in its widest sense means “fairness in all aspects” i.e. disciplinary procedures/rules must be fair, clear and transparent in the way they are set up and in their application, which must also be consistent.
The aim of disciplinary procedures is to provide for a fair and proper opportunity for a case to be heard before an impartial tribunal. The procedure does not have to be as formal as court proceedings and should ideally be quick and affordable.
The procedure should be easily identified and published widely to those who may be affected by it. Ideally it should be contained within a discrete, readily available document.
Disciplinary procedures which take account of the principles above and the guidance below are less likely to be challenged, either on appeal or in Court. There will always be some difficult cases, but the aim of “fit for purpose” disciplinary procedures is to minimise the risk of subsequent appeals and costly litigation (which wastes time and money).
Is there any substance in the allegation made? This question must be thoroughly investigated and evidence obtained. The investigator should keep an open mind and consider the case for and against the allegation.
Once the investigation has been completed, a decision must be reached, either by the investigator or a separate committee, as to whether a disciplinary charge should be brought. It is worthwhile considering at this stage whether a case is suitable for mediation. Many disciplinary charges arise out of misunderstandings between individuals which could be more effectively resolved outside the disciplinary process.
The charge must be clearly stated, ideally with specific reference to the rule(s) alleged to have been broken, in order to enable the individual concerned to prepare his response.
The charge must be notified to the individual in a clear and transparent manner, and well in advance of any hearing. Failure to do this may mean that the ultimate hearing is unfair. All evidence in support of the charge must be provided to the individual. This is to ensure that the individual is not taken by surprise, which may result in a later challenge.
Convening a Tribunal
The Tribunal, or Panel, which is to hear the charge must be and must be seen to be independent and impartial. It may be convenient to select three individuals from within the sport, but decisions made by that Panel may not be seen to be independent in the event of a challenge.
At least one of the Panel members should understand the sport. It is also useful from a risk management perspective if the Panel members can understand any legal arguments that may be put to them.
Sport Resolutions is written into the disciplinary rules of many NGBs as the provider of an independent legally qualified chairperson for both first instance hearings and appeals. In some cases Sport Resolutions also provides one or more wing members. Alternatively Sport Resolutions can nominate individuals from its Panels for appointment by the NGB on a case by case basis.
In any event the source from which Panel members will be drawn should be clearly identified in the disciplinary procedure.
Panels usually consist of an odd number of members, with 3 being the most popular number. One member of the Panel should be identified as Chairperson in accordance with the disciplinary procedure.
No person involved with the case or with any party to the case in any way, or who has expressed strong views one way or another, should be appointed. Those with links with those with a vested interest in the outcome should also be avoided. The question to ask is “would the reasonable man or woman on the street think that it was fair for this individual to be appointed to decide this case”? If there is any doubt, use someone else. Remember that the aim is always to provide a fair and reasonable hearing and not to secure a particular outcome.
NGBs are given considerable room for manoeuvre in their selection of Panel members. The Courts have decided that they should be given as free a hand as possible to control their own disciplinary processes without running the risk of interference. However those disciplinary processes must still be run in a way that is consistent with the fundamental requirements of fairness. If a process is unfair the risk of a successful legal challenge to the outcome increases.
Procedural Steps Leading to Hearing
Once the Panel has been appointed it is necessary to consider how the case is to be presented. There are a number of standard procedural steps that are required in most cases. Some NGBs include the details of these in their disciplinary procedural rules. Others require the Panel, once appointed, to state the steps that have to be completed pre-hearing. These steps are known in legal terms as directions.
It is important to try as hard as possible to achieve equality as between the parties. This means that each party must be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage when compared with his opponent.
The sort of directions that might be included in disciplinary procedures, or ordered by the Panel, are:
Provision for each side to prepare and disclose to the other side within specified time limits a statement of its case. These documents are sometimes known as pleadings.
Disclosure of the documents that each side relies upon to the other side. This can be done with the pleadings or as a separate exercise.
Exchange of witness statements so that each side can see what the other’s witnesses will say at a hearing. The more complex the charges, the more likely that this direction will be required.
In complex cases, the preparation of certain other documents, such as skeleton arguments, and bundles of documents may also be required.
As a general point a fair hearing requires that a party should be able to examine the evidence upon which the allegations against him are made, preferably well in advance of the hearing. The disciplinary rules should state whether or not the individual is entitled to legal representation (at his own expense). Generally this should be permitted.
Sport Resolutions’ Arbitration Rules provide a useful summary of the procedural steps that might be required in the lead up to a complex disciplinary hearing.
Most disciplinary charges will require a hearing, unless the NGB’s disciplinary rules provide otherwise, for example in cases of admission of a doping offence with the acceptance that there are no mitigating circumstances when a decision may be reached on written submissions.
Any hearing should take place within a reasonable time of the charge being made. This means that sufficient time should be given to the individual to prepare his response, but the hearing should not be significantly delayed. This is particularly important when there is a provisional suspension in place
The disciplinary rules should make clear what notice of the hearing date will be given and by whom. The notice itself should be given promptly and should clearly state the date, time and place of the hearing. The identity of the Panel must be made clear to the individual. A right to challenge the appointment of an individual should also be provided, for example in the event of conflict of interest or risk of bias.
Hearings will usually be in private, with the decision being made public. However disciplinary rules will often include provision for the individual charged to request a public hearing.
At the start of any hearing the Panel members should introduce themselves and clarify exactly how and in what order the evidence is to be heard. They should also confirm the burden and standard of proof to be applied. Ideally they should at this point merely be repeating what is already written down in the disciplinary procedure.
The burden of proof is the legal term for “who has responsibility for proving the charge”. This will usually be the NGB. In a doping case the burden of proof moves to the individual once the presence of the prohibited substance within the body has been established.
The standard of proof is the legal term for “to what degree does the Panel have to be satisfied in order for the charge to be proved”. Usually the charge will have to be proved “on the balance of probabilities”. However in disciplinary cases there is a “sliding scale” under which the more serious the charge, the higher the degree of satisfaction, with something close to the criminal standard of “beyond reasonable doubt” being the upper limit.
Doping offences have a different standard of proof, namely “comfortable satisfaction”. This is somewhere midway between “balance of probabilities” and “beyond reasonable doubt”. An athlete pleading mitigation will have to prove his case on the “balance of probabilities”.
The charge will be presented on behalf of the NGB by an internally appointed prosecutor or external lawyer. The individual or his representative will respond. Witnesses may be cross-examined if permitted by the disciplinary rules or at the direction of the Panel.
What must the panel do?
The Panel has first to consider the facts presented to it after listening to the case for both sides. The members must decide whose evidence they accept and to what extent.
The Panel must then weigh up the accepted facts against the relevant rules and law. It can then reach a Decision. The disciplinary rules should state whether a majority decision is acceptable. Ideally there should be one vote per Panel member.
The Panel must reach and disclose its decision in accordance with the relevant disciplinary rules. Some rules require a written decision to be provided to the parties within a specified time after the conclusion of the hearing. This gives the Panel Members time to think about what they have heard and to confer at a more leisurely pace. In urgent cases, the Panel may retire to consider its decision at the conclusion of the evidence and any summary speeches, returning to give a verbal outcome to the parties there and then, with written reasons to follow, again within a specified time.
It is best practice to provide a reasoned written decision, preferably signed by at least the Chair of the Panel on its behalf. This is particularly true of any procedure where an appeal process is provided.
What should be in the decision? Content can be summarised simply in the words of Lord Justice Wall in a 2006 case, citing a 2002 decision: “…justice will not be done if it is not apparent to the parties why one has won and the other has lost…[reasons]need not be elaborate”.
Penalties and Costs
The Panel can impose only those penalties and costs specifically provided for in the relevant rules. If there is no provision in the rules, the sanction and/or costs cannot be imposed.
The rule of thumb, assuming that the penalty being considered is provided for in the rules, is: “whether … [the penalty] is one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings,could reasonably have imposed.”
Costs against one party or another can be awarded only if the rules allow.
It is best practice to include provision for appeals in the disciplinary rules.
Sport Resolutions provides an appeal arbitration procedure for cases referred to it in its “Arbitration Rules” (see clause 2). This sets out a straightforward process to be followed on appeal.
Grounds for appeal should be clearly specified in the disciplinary rules so that there is no doubt as to when an appeal will be permitted and when it will not. The mere fact that one does not like the outcome should not of itself be a ground of appeal. Is the objection that the process was not followed correctly, or that the relevant evidence was not taken into account by the Panel, or that the Panel got the law wrong, or reached a decision that no reasonable Tribunal could have reached when faced with the evidence before it? Carefully drafted grounds should reduce the risk of unmeritorious appeals.
A few NGBs specify that any appeal will be heard by one legally qualified individual. It is however more common (and probably best practice) for any appeal to be heard by an independent lawyer as chairperson with two wing members nominated from within the sport, perhaps one by each party, alongside. However there is a risk that those appointed from within the sport may find it difficult to be independent (and the wing members can of course out-vote the independent chairperson). It may be worth considering the appointment of at least one independent wing member, or perhaps having an entirely independent Panel at the appeal stage. Sport Resolutions can assist with such appointments.
It is also possible to outsource the administration of the appeal process to a body such as Sport Resolutions, providing an added level of independence and credibility to the process.
Appeals may take place by way of full re-hearing or review. This can be a complex area. In general terms appeals, including those under Sport Resolutions’ procedures, will be by way of re-hearing unless the disciplinary rules specify that they will be by review only. “Review” in this context means that the Appeals Panel looks at whether the original Panel’s decision was fair, reasonable and proportionate in all the circumstances, without re-hearing all the evidence. The Appeals Panel will not interfere with a decision unless it was clearly wrong.
It is usual to limit the number of appeals available by stating clearly in the disciplinary rules how many appeal stages are permitted e.g. to an internal Appeals Panel and then to an external Independent Appeal Tribunal, such as Sport Resolutions and/or the Court of Arbitration for Sport. The disciplinary rules usually provide for the parties to be bound by the decision of the final Tribunal of appeal.
It is very important to get the drafting of disciplinary rules right first time. Areas of difficulty are often not discovered until the rules are challenged. As litigation within sport increases, the risk of exposure as a result of inadequately drafted rules increases. It is worthwhile looking at published rules on the websites of other NGBs to get ideas for improving existing procedures.
Remember the principle “fairness in all aspects”. Even if the wording of the rules is imperfect, sticking to this principle will minimise risk of challenge.
Sport Resolutions (UK) is a trading name of The Sports Dispute Resolution Panel Limited.
The information contained in this guidance is provided for informational purposes only, and should not be construed as legal advice on any matter. Do not act or refrain from acting upon this information without seeking professional legal advice.