Challenging the Actions of a Sport Governing Body

There has been considerable discussion, over the years, as to whether the actions of sports governing bodies could be challenged in a court of law. The discussion created a plethora of arguments and such arguments formed, subsequently, the basis for the development of a more clarified framework regarding the governance and regulation of modern sport. Such framework also confirmed the proposition that, under certain conditions, actions of sports governing bodies [or of their disciplinary bodies] could be challenged under certain causes of action.

The starting point has always been that because sports governing bodies are private bodies, they are not subject to judicial review. This view has prevailed over the years, by creating enormous exclusions and limitations to challenges, particularly against decisions of disciplinary and other decision making bodies belonging to sports governing bodies. This view, however, is no longer absolute.

The Court of Appeal has confirmed on several occasions [Bradley v Jockey Club (2004), Flaherty v NGRC (2004), R (Mullins) v Appeal Board of the Jockey Club (2005)] that sports governing bodies are not public bodies for the purposes of judicial review. Their actions [or decisions] may, nevertheless, be subject to judicial control, in the same form of review for public bodies.

One important argument of this discussion and in relation to possible remedies, usually relates to the perceived contractual relationship between sports governing bodies and their members [clubs, athletes, etc]. This contractual relationship arises out of the regulatory framework of the sports governing body in question and the actions and/or decision making process of such body, may affect the rights of its members. It follows that the actions of such sporting governing body would be subject to the same judicial control, in the situation where a contractual relationship exists between the sports body and its members. 

However, such review and/or control of the decision making process of the sports body is not absolute and it does not cover the majority of cases. The court, for example, would not primarily look at whether the sports body had a discretion to enforce contractual obligations, otherwise enforceable by national courts, but whether such discretion was exercised [or not] outside the defined parameters that were reasonably open to the sporting body [or its disciplinary organs].

Although the current authorities support the position that sporting governing bodies [being private bodies] are not subject to judicial review, they nevertheless, exercise functions that could affect the rights of its members [i.e. their trade]. Where a contract exists, the court in question could apply its supervisory control and would examine whether the decision reached by the sports governing body was lawful or not. The court, however, will not reach a decision in the place of the sporting governing body.

If such contract, therefore, exists [as a result of the regulations of the sports governing body] and its terms have been breached, it follows that the sporting governing body could be sued upon, if the claimant could establish a legal basis under the law of contract. If such contractual basis could be established, an action  for damages would normally arise.

One final consideration also relates to the distinction between a decision reached by a sporting governing body itself, as opposed to one reached by a disciplinary body, which has been constituted by the sporting body, but it is independent from it. Although the former situation may not create a problem in terms of the contractual claim, the latter situation is not so clear. Clients seeking advice, may need to focus on this distinction, as the final claim may be affected in terms of jurisdictional and remedial considerations.

In conclusion, it is submitted that this area of regulation and governance continues to develop rapidly and it emphasises the importance of the dichotomy of public/private law and its connection with sports law. Although the Court of Appeal has clarified several issues arising out of this heading, the argument could still be made that because of the continuous development of sports law, further clarification is required. 

Dr. Gregory Ioannidis

2 April 2013