{"id":22190,"date":"2023-07-18T21:35:57","date_gmt":"2023-07-18T21:35:57","guid":{"rendered":"https:\/\/legalblog.ie\/?p=22190"},"modified":"2024-05-05T13:34:05","modified_gmt":"2024-05-05T13:34:05","slug":"fair-procedures","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/fair-procedures\/","title":{"rendered":"Sports &#038; Fair Procedures"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Sports_Organisation_Rules\" title=\"Sports Organisation Rules\">Sports Organisation Rules<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Judicial_Review\" title=\"Judicial Review\">Judicial Review<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Fundamental_Rights\" title=\"Fundamental Rights\">Fundamental Rights<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Nature_of_Body\" title=\"Nature of Body\">Nature of Body<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Sports_Bodies\" title=\"Sports Bodies\">Sports Bodies<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Public_Domain\" title=\"Public Domain\">Public Domain<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Basis_of_Challenge\" title=\"Basis of Challenge\">Basis of Challenge<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Fair_Procedures_Required\" title=\"Fair Procedures Required\">Fair Procedures Required<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Sanctions\" title=\"Sanctions\">Sanctions<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#EU_Competition_Law\" title=\"EU &amp; Competition Law\">EU &amp; Competition Law<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Restraint_of_Trade\" title=\"Restraint of Trade\">Restraint of Trade<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/fair-procedures\/#Fair_Procedures_Restraint_Issues\" title=\"Fair Procedures &amp; Restraint Issues\">Fair Procedures &amp; Restraint Issues<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Sports_Organisation_Rules\"><\/span>Sports Organisation Rules<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Sports organisations are governed by the rules and codes.\u00a0 There may be general beyond the rules of the game.\u00a0 The organisation, clubs, representative organisations and governing bodies, are governed by rules.<\/p>\n<p>Governing bodies may themselves be liable for their own negligence or for negligence of persons for whom they are vicariously liable.\u00a0\u00a0The general principles applicable to unincorporated associations apply.\u00a0 Ultimately, they are governed by contractual relationship formed by the rules and incorporated in them.<\/p>\n<p>Fair procedures may be\u00a0 an implied requirement of rules.\u00a0 Failure to follow fair procedures is likely to be a breach of the rules that may be enjoined by injunction.\u00a0 If express provision is not made for fair procedures, it will be implied in.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Judicial_Review\"><\/span>Judicial Review<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In some cases, rules may be subject to review by court in accordance with criteria applicable for judicial review.\u00a0 Alternatively, a person who is a member of the club, will have the contractual right to have the rules applied.\u00a0 Non-members and other persons affected by decisions may be able to take judicial review proceedings in some cases.<\/p>\n<p>Judicial review may offer the prospect of interlocutory or short notice relief and injunctions.\u00a0 Judicial review may allow actions based on legitimate expectation, short of contract.\u00a0 Public bodies may be obliged to give reasons for decisions, whereas a body found in contract only may not be so required.<\/p>\n<p>Judicial review will apply to public sports organisations and bodies, provided that they are public bodies taking a public function.\u00a0 Individual sports clubs are private and challenges may be undertaken for breach of contract, comprising the rules only.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Fundamental_Rights\"><\/span>Fundamental Rights<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Irish Constitution and the European Convention on Human Rights requires basic procedural fairness in relation to disciplinary procedures which may have a consequence on a person&#8217;s livelihood, good name or liberty.\u00a0 Accordingly, in accordance with the general public law principles, a person is entitled to be furnished with a copy of evidence that reflects on his reputation.<\/p>\n<p>He is entitled to cross-examine and have legal representation for such purpose.\u00a0 He may give evidence in reply.\u00a0 He may address the relevant body in his defence.<\/p>\n<p>The extent of fair procedures will depend on the seriousness of the decision in the circumstances.\u00a0 There is not necessarily or indeed, often a right to an oral hearing.\u00a0 It depends on the circumstances and the extent to which there are issues of fact in dispute, whether there is a possibility of an appeal.\u00a0 Some circumstances may require an oral hearing with verbal cross examination.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Nature_of_Body\"><\/span>Nature of Body<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Whether or not a public body is public, historically depended on the source of its power.\u00a0 However, the courts accept that the exercise of power not based on statute or law is subject to judicial review if it is within public domain.<\/p>\n<p>The Institute of Chartered Accountants although founded on Royal Charter but \u00a0based on private rules was held to be public body in its nature.\u00a0 Although, the body was private in nature, notwithstanding the absence of a statutory basis, the body was held to be a public body subject to judicial review.<\/p>\n<p>If a body is in the public domain, and is monopolistic in relation to its particular sector, it is likely to be subject to judicial review notwithstanding that source of its power is not statutory.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Sports_Bodies\"><\/span>Sports Bodies<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>It is still not fully settled in Ireland, to what extent\u00a0 sports bodies are subject to judicial review. The Irish courts have allowed judicial review of sports bodies.\u00a0 In Quirke v.\u00a0 BL\u00c9, the Irish Athletics Federation&#8217;s decision to suspend an athlete for failure to provide urine sample was permitted judicial review.<\/p>\n<p>A case involving the Turf Club, it was found not to be sufficiently public in nature and to be contractual only.\u00a0 A decision of the Jockey Club to a suspend jockey was in principle that judicial review the matter did not proceed in that fashion. The Turf Club was later placed on statutory footing after 1989 case by 1994 Act.<\/p>\n<p>There was support in England and Wales rejecting judicial review of decisions of sports bodies in relation to certain sports bodies including in particular the Jockey Club and Football League.\u00a0 However, there are cases to the contrary.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Public_Domain\"><\/span>Public Domain<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Some s licensing functions and disciplinary functions operate in the public domain. In the case of other bodies without a monopolistic control over their sport, it appears that they are less likely to be subject to judicial review.<\/p>\n<p>A distinction can be drawn between private decisions of public bodies and public decisions of public bodies.\u00a0 Some bodies are such that their relationship with the public is not based on consent in a meaningful way but on a quasi-statutory code.<\/p>\n<p>The UK courts cases have been more conservative in narrowing the bounds of public law review of sporting organisation.\u00a0 The Football League has been held to be a private body as has Jockey Club, at least as to some of its functions.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Basis_of_Challenge\"><\/span>Basis of Challenge<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An injunction may be available under private law against a failure to follow organisational rules in a suspension.\u00a0 Generally the balance of convenience will lie with an injunction, where a person&#8217;s vital interest may be adversely affected as he or she will stand to lose more relative to the organisation in cases of suspension etc.<\/p>\n<p>A challenge against a private association may be based on breach of contract.\u00a0 It also may be based on breach of competition law, or unreasonableness or breach of constitutional rights to earn a livelihood.<\/p>\n<p>An appeal may be required by fair procedures in certain circumstances.\u00a0 The existence or non-existence of an appeal will bear on the sufficiency of the first instance procedure.<\/p>\n<p>Challenges based on breach of contract presuppose a contractual relationship.\u00a0 This may be found through participation in sports activities by accepting the rules.\u00a0 The courts will infer an obligation to implement the rules fairly.<\/p>\n<p>Whether based on contractual grounds or public law grounds, the courts will be reluctant to invalidate decisions and substitute its own view.\u00a0 The broad principles of judicial review will apply both in formal judicial review and reviews of \u00a0the actual rules.\u00a0 Courts will more readily find fault with procedural shortcomings.\u00a0 They will not interfere on substantive ground unless the decision is irrational.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Fair_Procedures_Required\"><\/span>Fair Procedures Required<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The level of fair procedure is required will depend on the circumstances.\u00a0 The more onerous and thoroughgoing the consequence, the higher the standard that will be expected.\u00a0 In amateur sport, standards required will be significantly less than special sport where the livelihood may be at risk.<\/p>\n<p>Rules which provide sanction for bringing the game into disrepute may allow imposition of discretionary and discriminatory sanction on the grounds of uncertainty.<\/p>\n<p>Regardless of whether the review is by way of judicial review or contractual rules, these courts take a broadly similar approach to that of judicial review.\u00a0 The courts will not substitute their views for those of the decision maker.<\/p>\n<p>Many rules are likely to be subject to implied terms that the governing body will act fairly, follow fair procedures equivalent to natural justice in the determination.\u00a0 Where a person&#8217;s livelihood is concerned, constitutional cases have held that the right to a livelihood may be asserted against private persons who are not emanations \u00a0of the State.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Sanctions\"><\/span>Sanctions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where a sanction is mandatory, there may be no discretion not to apply it, where it is for the benefit of other members of the Association.\u00a0 In such cases, the substitution of the initial decision may be impermissible.<\/p>\n<p>If the rules expressly provide that a match is forfeited or a particular consequence follows, then other members of the Association including, in particular the other team may have a right to have the rule applied without regard to fair procedures .\u00a0 Ultimately, the matter will turn on the interpretation of the rules.<\/p>\n<p>The true interpretation of the rules may mean that certain sanctions are impermissible.\u00a0 For example, sanctions imposed by the Jockey Club on trainers for the alleged misdeeds of jockeys have been held to be ultra vires, outside the powers of the rules.<\/p>\n<p>In a number of instances, and in particular horse racing, bans have been imposed over critical parts of the season involving important or lucrative races.\u00a0 This may bear on the seriousness of the sanction and may be relevant to where the balance of convenience lies in terms of an injunction to restrain alleged breach of the rules or absence of fair procedures.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"EU_Competition_Law\"><\/span>EU &amp; Competition Law<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>European Union law allows for free movement of workers and right to provide services throughout the EU.\u00a0 Antidiscrimination laws prohibit adverse treatment on prohibited grounds.\u00a0 See generally sections in relation to equality.<\/p>\n<p>Competition law and common law restraint of trade doctrine prohibit unreasonable restraints on the exercise of a trade or a profession.\u00a0 In broad terms, any restraint on the exercise of a trade or profession must be objectively justified with reference to legitimate considerations.\u00a0 The interest of the organisation, per se, many not generally suffice for this purpose, unless they are legitimate interests.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Restraint_of_Trade\"><\/span>Restraint of Trade<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Restraints of trade must be reasonable. A restraint is presumptively invalid, unless shown to have an objective and legitimate basis.<\/p>\n<p>In Macken v.\u00a0 O&#8217;Reilly, the plaintiff a well known judge and internationally famous show jumper, challenged a requirement of the National Equestrian Federation requiring Irish show jumpers to ride Irish bred horses only.\u00a0 It was claimed to be in restraint of trade.<\/p>\n<p>The Supreme Court accepted that the probation was in restraint of trade but it \u00a0accepted that there were legitimate public policy considerations.\u00a0 The decision has been criticised in giving too much weight to the public interest which is usually a marginal matter only, in the context of the restraint of trade doctrine.<\/p>\n<p>Rugby and football league organisation&#8217;s rules which limit transfers or provide for payments of compensation between clubs based on transfers are potentially contrary to the rules unless they can be shown to be proportionate in pursuit of a legitimate objective.<\/p>\n<p>In Nagle v.\u00a0 Fielden, a female horse trainer was refused a training licence by the Jockey Club on gender grounds. The Court of Appeal held that the decision was effectively a restraint of trade by the licensing body which was obliged to act reasonably, where a person&#8217;s right to work and livelihood was concerned.<\/p>\n<p>This basis of relief may not be available in the absence of the restraint of trade doctrine. It may not assist in amateur arrangements.\u00a0 The decision would be decided on the basis of equality and constitutional principles in the present day.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Fair_Procedures_Restraint_Issues\"><\/span>Fair Procedures &amp; Restraint Issues<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The constitutional right to earn a livelihood has been recognised as potentially capable of being asserted against third party.\u00a0 However, it is not absolute and may be restricted in the common good.\u00a0 The restriction must be proportionate to the objective.<\/p>\n<p>Right of freedom of association are also protected by the Constitution.\u00a0 It may similarly be restricted in the public good.<\/p>\n<p>Requirements for due natural justice and constitutional justice apply with greater force in the case of forfeiture, expulsion or suspension.\u00a0 It has been argued that suspension may of itself constitute an unreasonable restraint of trade.<\/p>\n<p>The courts will require procedural fairness before important rights such as the \u00a0right to earn a livelihood may be limited or restrained.<\/p>\n<p>Provided there is due process and the rules are for a legitimate purpose, suspensions are likely to be justifiable under the restraint of trade doctrine, provided they are proportionate.<\/p>\n<p>Caps on earning in the Northern Ireland League were held to be invalid as an unjustifiable restraint of trade.\u00a0 In Eastham v.\u00a0 Newcastle United Football Club, a league rule by which a club could \u00a0restrain a player from transferring on, was held to be in restraint of trade.\u00a0 There was no objective justification.<\/p>\n<p>Where an alternative league was sought to be established in cricket, the international cricket governing body and the English Test and County Cricket Board sought to disqualify \u00a0players playing in unauthorised matches.\u00a0 The restraints imposed on reason of playing in a rival test series, endangered livelihood of the cricketers concerned and the restraint of trade could not be justified.\u00a0 It applied to Test and County Cricket.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-22190\" data-postid=\"22190\" class=\"themify_builder_content themify_builder_content-22190 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Sports Organisation Rules Sports organisations are governed by the rules and codes.\u00a0 There may be general beyond the rules of the game.\u00a0 The organisation, clubs, representative organisations and governing bodies, are governed by rules. Governing bodies may themselves be liable for their own negligence or for negligence of persons for whom they are vicariously liable.\u00a0\u00a0The [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[185],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22190"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=22190"}],"version-history":[{"count":8,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22190\/revisions"}],"predecessor-version":[{"id":35949,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/22190\/revisions\/35949"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=22190"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=22190"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=22190"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}