In 1823, William Webb Ellis first picked up the ball in his arms and ran with it. And for the next 156 years forwards have been trying to work out why. - Tasker Watkins VC, LJ.

Wednesday, July 13, 2011

Consistency in a World Gone Mad - Part II

So, to pick up this thread again - let's suppose you're a player, who's aggrieved at an inconsistent disciplinary hearing; you've been cited for something in a match when someone else, who did the exact same in the same incident, hasn't. That inconsistency is, you're saying, such that you're getting an unfair hearing.

What can you do about this, or, indeed, any unfair disciplinary hearing?

Good question. The answer may well depend on whether you're a professional player, or an amateur.

The reason is that the Courts - in Ireland, at least - really, really do not like getting involved in sporting disputes. Essentially, they are seen as being private disputes, between private parties, and to be resolved by the private bodies concerned. The Courts won't step in and exercise an oversight function in the same way that they would were there a public dimension to it. So, where there's a state or statutory body involved, overseeing the disciplinary hearing, then the Courts can and will intervene, because there's the public element. But, if not, then it's a private dispute, to be settled at a later date; and if it's a sporting one, that's all the more the case.

In the Coughlan v. FAI case, last January, that was more or less the reason why the judge, Hedigan J., hearing that case, held against the applicant (who was seeking to challenge the FAI's refusal to him of a licence to run Cork City FC). He quoted an aside from another judge, Smyth J., in Gould v. McSweeney:

    Sports organisations do best to resolve differences under their own governing codes, rather than resort to courts of law. Issues of natural justice are important, but the substance of matters rather than their form are important in seeking to resolve internal disputes in such organisations and recourse to the courts should be a last resort, and that only in the rarest of cases.

It is only fair to point out that, even since that hearing, Cork Con injuncted the playing of the Munster Senior Cup final; but it's also fair to point out that the Coughlan v. FAI  case wasn't cited to the judge in that case. If it had been, the result might well have been very different; from the judgement, it seems pretty that, at amateur level, disputes should almost invariably be sorted out in-house.

That's under Irish law. It should be noted that, despite similar reservations expressed (see for example the  last two paragraphs in this case, Flaherty v. National Greyhound Racing), the UK Courts still seem more willing to step in to exercise a general supervisory role, and a case of this kind,  properly argued before the Irish Courts with a full discussion of the UK caselaw, well change the Irish position.

Be that as it may; even as it stands, if you're a professional player, it's different. For one thing, it's your livelihood - a distinction made by Smyth J. in Gould v. McSweeney. Also, as a professional, you're playing for a professional team. You have a contract with them. And that professional team in turn takes part in whatever competition in which you were playing for them under a participation agreement - a contract between your team and the organisers. Now, it might be pointed out that that agreement is between your employer and someone else, not between you and that someone else. That's where the Modahl case comes in.

In Modahl v, British Athletics Federation, Diane Modahl, the British former athlete was charged with failing a drugs test (wrongly, as it turned out). She went in front of a disciplinary committee whose members she felt were not unbiased. She challenged this finding, appealed and succeeded; she then sued for damage caused by the first finding. The Court of Appeal in the UK held that, although she didn't have a contract directly with the organisers, the effect of her participating for years in meetings and clubs run under the BAF was that she had an implied contract with them.

So, you have what is, in effect, an agreement, about your work as a player, between you and the organisers of the tournament. You have a contract with your team; your team have a contract - the participation agreement - with the organisers; and when it comes to discipline, the organisers implicitly (or even expressly) agree with you and your team that they'll deal with it, and deal with it fairly.

That includes disciplinary hearings affecting your work; and that means there's an implied term about a fair hearing at work.

In a sporting context, that'll be interpreted pretty robustly; Diane Modahl lost her case, as it was held that all concerned agreed to accept what was a reasonably fair hearing with no prospect of a different outcome.

That's where professional players have an option. If they don't accept the system, or if they can show that the hearing was unfair, they can go to the Court for an injunction, based on contract, preventing the organisers or governing body from suspending them on the back of what they say is an unfair disciplinary hearing. This has happened in France on more than one occasion, and there are English cases on this, in sport, discussed in detail in Modahl and Bradley v. Jockey Club, both of which are well worth a look.

However, both the IRB and ERC are based in the same city, and operate (so far as anyone can tell). under Irish law. So, an aggrieved player could go straight from the ERC headquarters, get a taxi, and be in the Four Courts looking for an injunction restraining an unfair hearing within fifteen minutes, depending on the traffic down the Dublin Quays.

And, since this post is already long enough, we'll leave the player stuck in the traffic for the moment, and get back to this later.

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