Applicability of judicial review to cases involving sports governing bodies
Historical government apathy toward the world of sport and the way sports governing bodies have historically developed, i.e., independent and self-governing, means that neither their decisions nor the procedures employed in arriving at them are amenable to Judicial Review.
Discuss the extent to which the above statement is true in the light of current law.
This paper will attempt to effectively discuss the extent to which historical government apathy toward the world of sport and the way sports governing bodies have historically developed (i.e., independent and self-governing) means that neither their decisions nor the procedures employed in arriving at them are amenable to judicial review in view of current law. Therefore, it will be necessary to describe and analyse current law; evaluate the extent to which the courts are capable of interfering with the decisions of sports governing bodies in the context of judicial review; evaluate the current arguments surrounding the court’s seeming reluctance to do so; and offer a historical basis for this reluctance, before drawing a conclusion.
The English courts have consistently held that challenges to sports governing bodies should be brought in private law proceedings and not judicial review. This is because the courts have stressed the relationship between a sports governing body and its members is generally private and contractual and this leads to private rights on which effective actions for a declaration, an injunction or damages might be based. The most recent illustration occurred in the Administrative Court on 17 October 2005 in R (Mullins) v. Appeal Board of the Jockey Club[1]. This case focused upon the November 2002 edition of the Hennessy Gold Cup at Newbury when Irish jockey David Casey rode the Willie Mullins trained ‘Be My Royal’ to victory at odds of 33-1. Subsequently, a urine sample taken from the horse was found to contain morphine[2]. However, although the Disciplinary Committee of the Jockey Club acknowledged morphine might be found in a horse entirely innocently, applying a strict liability construction, the Disciplinary Committee found there had been a breach of Rule 53 of the Orders and Rules of Racing and disqualified the horse. Therefore, Mr Mullins appealed to the Appeal Board of the Jockey Club, which upheld the decision of the Disciplinary Committee, so Mullins then sought judicial review confining his claim to a declaration that the disqualification of ‘Be My Royal’ was unlawful under the Civil Procedure Rules at rule 54.1. However, the Administrative Court answered in the negative, holding that the Court of Appeal’s decision in R v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan[3] was binding and determinative of the inapplicability of the judicial review jurisdiction of the Administrative Court.
Moreover, that view was also consistent with a number of previous cases emanating from the seminal authority of Law v. National Greyhound Racing Club[4] where the claimant was a trainer whose licence had been suspended because he had charge of a greyhound which had been found on examination to have prohibited, performance-enhancing substances in its blood. The claimant issued an originating summons seeking a declaration (and an injunction and damages) that the stewards’ decision was void and ultra vires, but the National Greyhound Racing Club moved to strike out the claimant’s action on the grounds that he should have sought judicial review under section 31 of the Supreme Court Act 1981. However, that contention was rejected at first instance and by the Court of Appeal[5] and the English courts would refuse similar orders to review the decisions of sports disciplinary tribunals[6].
More immediately, Law v. National Greyhound Racing Club[7] raises an interesting and sometimes overlooked aspect of the amenability of decisions of sports governing bodies to judicial review because it was the sports governing body (the National Greyhound Racing Club) that sought to proceed in this way. Arguably, aspects of the judicial review process such as its limitation periods, the non-availability of damages, the discretions as to relief, disclosure, cross-examination and interim relief would seem to portray judicial review in a more attractive light for a governing body and less so for an individual applicant, although in practice this does not seem to be appreciated by sports authorities[8]. Therefore, the ratio in Law was effectively refined in R v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan[9] into whether the domestic tribunal in question was sufficiently ‘governmental’ in operation and nature to be susceptible to judicial review[10]. This is because the Court of Appeal acknowledged the Jockey Club regulated a significant national activity, that it exercised powers that affected the public and was in their interest, but the Court of Appeal still held that neither by its framework nor its rules nor its function did the Jockey Club fulfil a governmental role[11].
In addition, in R (Mullins) v. Appeal Board of the Jockey Club, Justice Burton noted that the purported exercise under the Rules of Racing by the Jockey Club of jurisdiction over the public must be seen in its context[12]. However, the judgements of Lord Hoffmann in R v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan[13] and Justice Burton in R (Mullins) v. Appeal Board of the Jockey Club[14] also betray a frustration with the academic criticism that accompanies the reluctance to view the decisions of sports bodies as amenable to judicial review. Typical of that criticism is Beloff’s view that, if there is an ‘organic link’ between decisions of public bodies and those of private tribunals, the justification for separate procedural treatment ‘appears to vanish’[15].
Nevertheless, the riposte by the courts is that this analysis is undermined by its assumption that if judicial review proceedings are unavailable to challenge a disciplinary decision of a body such as the Jockey Club then an aggrieved claimant has no remedy. As Lord Justice Farquharson stated in R v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan[16], there could be no hardship to the applicant in his being denied judicial review because if his complaint that the disciplinary committee had acted unfairly was well founded, he could have proceeded by writ seeking a declaration and an injunction; a tactic which Lord Justice Farquharson observed “may be a more convenient process”[17]. However, with the exception of the House of Lords decision, the ruling of the Court of Appeal in R v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan[18] is likely to be followed. Nevertheless, challenges persist and claimants continue to be attracted to the contention that R v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan[19] is vulnerable and promotes a wholly unnecessary preclusion of public law regulating sport[20].
However, in a cultural and economic sense, sport plays an increasingly prominent role in national life and consciousness that will become all the more apparent in the run-up to the London Olympics of 2012, and that has already seen the Chancellor announce in his 2006 Budget that he is to set aside £600 million in elite athlete support[21]. Moreover, in the decision in R (Mullins) v. Appeal Board of the Jockey Club[22], the claimant suggested the Court of Appeal in R v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan[23] had overlooked a relevant factor because the Jockey Club receives substantial sums from the government derived from the betting levy, and this went towards demonstrating that sport occupies a more substantial, and necessarily public, place in society[24].
However, whilst Justice Burton doubted the factual veracity of this contention[25], it could be argued that the stated view of the Administrative Court somewhat evaded the issue at hand because the Jockey Club, and a number of other leading sporting bodies, are not ‘indisputably’ private. They regulate an important aspect of national life and were it not for their existence it would be necessary for Parliament to create a public body to perform their functions[26]. Moreover, the Jockey Club does in fact receive significant funding via the betting levy administered by the Horse race Betting Levy Board (‘HBLB’), a statutory body established by the Betting Levy Act 1961, operating in accordance with the provisions of the Betting, Gaming and Lotteries Act 1963, that covers the costs of the so-called ‘integrity services’ provided by the Jockey Club[27]. However, in the context of Mullins, the key integrity service underwritten by the levy is that provided by the Horse racing Forensic Laboratory (‘HFL’), which is the Jockey Club’s drug testing agency to subvent its activities. Nevertheless, such financial and governmental linkage does not of itself mean that the decisions of the Jockey Club that should be held to be amenable to judicial review. Therefore, at best, it is a factor that can be taken into account in conjunction with the broader policy argument that the continuing reluctance to treat sporting bodies as public in nature is needlessly formalistic in operation and procedure[28].
Moreover, the parameters of judicial review, as laid down by the English Court of Appeal in cases such as R v. Panel on Take-overs and Mergers, ex p. Datafin[29], should consistently extend to some, if not all, the decisions of sports governing bodies, since R v. Panel on Take-overs and Mergers, ex p. Datafin concerned a non-statutory, self-regulating association established by those who had a common interest in devising and operating a code of conduct regulating takeovers and mergers of public companies[30]. The Court of Appeal acknowledged the association had government backing and was exercising duties in the public interest in the sense that the Department of Trade and Industry relied on the panel[31]. Accordingly, the Court of Appeal held that if a body has a public function, or at least if its decisions produce public law consequences, then, in principle, the courts might intervene and, in this instance, should intervene, subjecting the panel in question to the control of public law[32].
Therefore, in assessing the amenability of a body to judicial review, the source of that entity’s power is, usually, the decisive test[33]. Accordingly, if the source of power is statutory in nature, clearly the body is subject to judicial review[34] and if the source is contractual in nature, then the body is subject to private law only[35]. Anywhere in between and the courts should look at both the source of the body’s power and the nature of the duty it is performing[36]. Therefore, in summary, the assertion that the R v. Panel on Take-overs and Mergers, ex p. Datafin[37] parameters should be extended so the decisions of sports bodies might come within the orbit of judicial review has not been made out to the satisfaction of the Court of Appeal. At best, and as with the previous argument concerning the growing socio-economic importance of sport, the above contention forms part of an argument that the English view on the nature and function of sports bodies is incongruous with respect to the monopolistic and increasingly dominant powers of the major sports governing bodies. Accordingly, this factor has been influential in the recognition by a number of comparable jurisdictions that, on occasion, sport’s operational remit should be the concern of public law.
The question as to whether decisions of sports bodies might be amenable to judicial review has been answered in the positive in Australia and New Zealand amongst others[38]. This is because, in Australia, in Forbes v. NSW Trotting Club Ltd[39], the High Court held amenable to review a decision of the defendant that had resulted in the disqualification of the claimant (a successful, if notorious, professional gambler) from entering its racecourses[40]. However, although the High Court acknowledged the defendant was not strictly a public body, its decision was held to be judicially reviewable because its function was to control ‘public activity’[41]. Moreover, in New Zealand, the combined effect of the provisions of section 3 of the Judicature Amendment Act 1972, which provides an artificially extended definition of what constitutes a ‘statutory power’ and a ‘statutory power of decision’, and the celebrated judgements surrounding the Finnigan v New Zealand Rugby Football Union (NZRFU)[42] litigation, has meant that New Zealand sports bodies are much more likely to be susceptible to review than those in England and Wales.
Furthermore, it would also appear that the New Zealand courts would entertain an application for review even where the rights and interests at stake are not necessarily tangible[43]. This is illustrated by the fact that in Stininato v. Auckland Boxing Association[44], for example, the Court of Appeal granted leave because the decision of the defendant not to grant Stininato a licence to box professionally necessarily and adversely affected the claimant’s interest, the safeguarding of his professional reputation[45]. However, in reality, sports governing bodies in New Zealand seem to have little to fear from judicial review provided their disciplinary procedures apply the norms of propriety and conduct appropriate for, and reflected in, their rules. This is largely because judicial review of the decision-making competencies of domestic (sports governing) bodies, although permitted, is not an excuse for excessive judicial interference in the operation of appropriately established tribunals[46].
Under section 6 of the Human Rights Act (HRA) 1998, public authorities must, on pain of a claimant being entitled to any relief or remedy the court may grant subject to section 8, act in accordance with the European Convention on Human Rights (ECHR) 1950[47]. Therefore, the fundamental issue for sports authorities such as the Jockey Club is whether they fall within section 6’s definition of a public authority[48]. However, at first instance, it must be recognised that section 6(3)(a) provides that it is unlawful for a public authority to act in a way that is incompatible with the ECHR 1950[49]. This is of interest to sports bodies because, arguably, the provision creates a ‘horizontal’ effect mandating the courts to ensure ECHR 1950 rights are not violated in situations such as internal disciplinary sports hearings. Therefore, this contention remains at a nascent stage[50]. Accordingly, suffice it to say that the most regular matter for consideration by the courts will, in all probability, be the horizontal effect of section 6 of the ECHR 1950[51], but this is not rendered amenable to judicial review by the applicability of the ECHR 1950 (section 6) to its disciplinary proceedings.
In conclusion, regarding the extent to which historical government apathy toward the world of sport and the way sports governing bodies have historically developed (i.e., independent and self-governing), and whether their decisions and the procedures employed in arriving at them are amenable to judicial review, the English Court of Appeal’s perspective on this issue is a sound, if conservative, one. In any event, the debate on this issue has been overtaken somewhat by the repercussions for sports bodies of a finding that they might be considered hybrid public authorities under the HRA 1998. However, the influence of the HRA 1998 will probably be such that the amenability of decisions of sports governing bodies to judicial review will become of academic and obtuse procedural concern only. Nevertheless, when it comes to reviewing decisions of largely voluntary and socially beneficial organisations, such as sporting bodies, the judiciary should exercise a light, restrained touch[52].
Bibliography
Anderson. J ‘An Accident of History: Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review’ (2006) 35(3) CLWR 173
Anderson. R, Mulcahy. J & Reindorf. A ‘‘Independent and impartial?’ The Potential Impact of the Human Rights Act 1998 on Sports Tribunals’ (2000) 4 International Sports Law Review 65
Beloff. M et al ‘Sports Law’ Hart Publishing: Oxford (1999)
Boyes. S ‘Regulating sport after the Human Rights Act 1998’ (2001) 151 New Law Journal 444
Boyes. S ‘The Regulation of Sport and the Impact of the Human Rights Act 1998’ (2000) 6(4) European Public Law 517
Caldwell. J ‘Judicial Review of Sports Bodies in New Zealand’ in E. Toomey (ed.), ‘Keeping the Score: Essays in Law and Sport’ University of Canterbury: Christchurch (2005) at p.49
Downes. S ‘Chancellor courts support with Olympic funding’ The Times (22nd March 2006)
Hunt. M ‘The ‘Horizontal Effect’ of the Human Rights Act’ [1998] Public Law 423
Jay. D ‘Sports Clubs and Administrative Law’ (1999) 73 Australian Law Journal 559.
O’Connor. A ‘The Insider’ The Times (18th April 2006)
Vamplew. W ‘Reduced Horse Power: The Jockey Club and the Regulation of British Horseracing’ (2003) 2(3) Entertainment Law 94
[1] [2005] EWHC Admin 2197.
[2] Anderson. J ‘An Accident of History: Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review’ (2006) 35(3) CLWR 173.
[3] [1993] 1 WLR 909.
[4] [1983] 1 WLR 1302.
[5] Ibid at p.1307, citing Parker LCJ in R v. Criminal Injuries Compensation Board, ex p. Lain [1967] 2 QB 864 at p.882. NB: also the concurring judgements of Fox LJ at p.1309 and Slade LJ at pp.1311-12.
[6] See, for example, R v. Eastern Counties Rugby Union, ex p. Basildon Rugby Club 1987, unreported, QBD; R v. Disciplinary Committee of the Jockey Club, ex p. Massingberd-Mundy [1993] 2 ALL ER 207.
[7] [1983] 1 WLR 1302.
[8] Ibid – NB: the comments of Slade LJ at pp.1301-12.
[9] [1993] 1 WLR 909.
[10] [2005] EWHC Admin 2197 at paragraph 23.
[11] R v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1993] 1 WLR 909 at pp.929-30, per Farquharson LJ.
[12] [2005] EWHC Admin 2197 at paragraph 30.
[13] [1993] 1 WLR 909.
[14] [2005] EWHC Admin 2197 at paragraph 30.
[15] Beloff. M et al ‘Sports Law’ Hart Publishing: Oxford (1999) at p.231.
[16] [1993] 1 WLR 909.
[17] Ibid at p.930.
[18] Ibid.
[19] Ibid.
[20] Anderson. J ‘An Accident of History: Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review’ (2006) 35(3) CLWR 173
[21] See Downes. S ‘Chancellor courts support with Olympic funding’ The Times (22nd March 2006).
[22] [2005] EWHC Admin 2197 at paragraph 30.
[23] [1993] 1 WLR 909.
[24] R (Mullins) v. Appeal Board of the Jockey Club [2005] EWHC Admin 2197 at paragraph 10.
[25] Ibid at paragraph 35.
[26] The extensive nature of the Jockey Club’s regulatory remit can be seen clearly in the terms of its incorporating Royal Charter of 1970 and in the outline given by the Royal Commission on Gambling in the Rothchild Report, Cmnd 7200 (1978) at paragraphs 9.24-9.30. See also Vamplew. W ‘Reduced Horse Power: The Jockey Club and the Regulation of British Horseracing’ (2003) 2(3) Entertainment Law 94.
[27] O’Connor. A ‘The Insider’ The Times (18th April 2006).
[28] Anderson. J ‘An Accident of History: Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review’ (2006) 35(3) CLWR 173
[29] [1987] QB 815.
[30] R v. Panel on Take-overs and Mergers, ex p. Datafin plc [1987] QB 815, CA.
[31] Ibid at p.835, per Donaldson MR.
[32] Ibid at p.838, per Donaldson MR.
[33] Ibid at p.846, per Lloyd LJ.
[34] Ibid citing Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at p.409, per Lord Diplock.
[35] R v. Panel on Take-overs and Mergers, ex p. Datafin plc [1987] QB 815, CA at p.846.
[36] Ibid at p.852 per Nicholls LJ. See also R v. Advertising Standards Authority Ltd, ex p. Insurance Service plc (1990) 2 Admin LR 77.
[37] Ibid.
[38] For South Africa, see Jockey Club of South Africa v. Forbes (1993) (1) SA 649 (A).
[39] (1979) 143 CLR 242.
[40] See also Justice v. South Australian Trotting Control Board (1989) 50 SASR 613.
[41] Jay. D ‘Sports Clubs and Administrative Law’ (1999) 73 Australian Law Journal 559.
[42] [1985] 2 NZLR 159; (No.2) [1985] 2 NZLR 181 & (No.3) [1985] 2 NZLR 190.
[43] Caldwell. J ‘Judicial Review of Sports Bodies in New Zealand’ in E. Toomey (ed.), ‘Keeping the Score: Essays in Law and Sport’ University of Canterbury: Christchurch (2005) at p.49.
[44] [1978] 1 NZLR 1 at p.28 per Cooke J.
[45] Stininato v. Auckland Boxing Association (No.2) [1978] 1 NZLR 609 at p.612, per Richardson J.
[46] See comments made obiter by Keith J in Harness Racing New Zealand v. Kerr, 1996 unreported. CA. Evidently, where the sporting body has been established by statute, it must, on pain of judicial review, act intra vires its legislative framework. See New Zealand Trotting Conference v. Ryan [1990] 1 NZLR 143 & New Zealand Harness Racing v. Kotzikas [2005] NZAR 268.
[47] Anderson. R, Mulcahy. J & Reindorf. A ‘‘Independent and impartial?’ The Potential Impact of the Human Rights Act 1998 on Sports Tribunals’ (2000) 4 International Sports Law Review 65 & Boyes. S ‘The Regulation of Sport and the Impact of the Human Rights Act 1998’ (2000) 6(4) European Public Law 517.
[48] Hansard HL Deb, vol 678, col 70WA (2nd February 2006).
[49] Anderson. J ‘An Accident of History: Why the Decisions of Sports Governing Bodies are not Amenable to Judicial Review’ (2006) 35(3) CLWR 173
[50] Boyes. S ‘Regulating sport after the Human Rights Act 1998’ (2001) 151 New Law Journal 444 and Hunt. M ‘The ‘Horizontal Effect’ of the Human Rights Act’ [1998] Public Law 423.
[51] Stretford v. FA Ltd [2006] EWHC Ch 479.
[52] McInnes v. Onslow-Fane [1978] 1 WLR 1520 at p.1535, per Megarry V-C; Cowley v. Heatley, The Times (24 July 1986), per Browne-Wilkinson V-C & Gasser v. Stinson, 1993, unreported, QBD.