The Supreme Court Act

Sport constitutes a major part of life in Britain, however, traditionally, legal intervention in this area has been regarded as unnecessary. Where judges regard sport as 'better served if there was not running litigation at repeated intervals by people seeking to challenge the decisions of the regulating bodies'. Sport being regarded as essentially a private activity, with its own internal legal and administrative structure, resulting in a non-interventionist approach by the courts.

Judicial interference has occurred though, where procedural justice is breached by the governing bodies, especially where commercial interests are concerned, and the monopoly power, that many of the bodies hold, is exploited. Hence the challenges to the decisions of governing bodies is generally through issues of public law, with varying degrees of success though. Conceptually, challenging many governing bodies poses technical legal problems, with their status as unincorporated associations.

Thus without separate legal personality, the body itself cannot be sued only its individual members. Recently, with increasing economic interests in sport, the significance of decisions in financial terms, has grown, and therefore the amount of litigation. This has been simultaneous to the juridification of sport, with governing bodies often holding wide powers of control, employing internal tribunals to deal with members. Governing bodies may attempt though to exclude the right of legal redress for its members through its rules which control the sport.

In St Johnstone Football Club Ltd v Scottish Football Association Ltd, the SFA prohibited the plaintiff, as one of its members from instigating a legal appeal against its decision. This was held contrary to public policy, thus the rule was held void, despite the defendants having agreed to the rule through its contractual membership to the SFA. Recently though, FIFA have introduced a similar rule limiting appeal to specialised tribunal, which was seen in the case involving Tottenham Hotspurs.

Therefore it is uncertain whether the courts would allow such a rule with no challenge yet to be made. However, one important factor in this case is that an independent tribunal was employed, which was not available in St Johnstone. In view of this, the courts may allow such a rule, providing that the tribunal is seen to be fair. For the decision to be considered in law, it is necessary for all internal remedies to have exhausted. In Calvin v Carr, a original void decision made by a stewards inquiry was overturned by the internal appeal committee.

This stage was held to be necessary before legal redress was sought, with bodies having the power to cure its own void decisions, provided matters were conducted fairly. The two main grounds for a challenge through law is under judicial review or breach of natural justice, examining the procedural fairness of the governing body, and whether the decision was unreasonable or arbitrary. Under judicial review, the court is initially required to decide whether the body is actually reviewable under Order 53 of the Supreme Court Act 1981.

This though is a major obstacle, the law generally only allowing review of decisions where rights or benefits of individuals and matters of public law are involved. What bodies should be dealt with under public law has caused much debate, in and outside of a sporting context. Traditionally, only bodies created through statute or Royal Prerogative would qualify, but with reform of the public sector and the introduction of contracting out, many private bodies now perform public functions, and consequently are reviewable.

The significance of the public/private distinction and the right to review lie in the remedies available. For under private law, often unequal bargaining power results in contracting parties being unable to change unfair rules resulting in arbitrary government. Where public law is concerned though, arbitrariness may be challenged and subsequently changed under the processes of judicial review. In Law v National Greyhound Racing Club, a trainer's licence was revoked by the defendant following a domestic tribunal.

On appeal, despite the public effect of the decision, the contractual relationship between the parties excluded judicial review, the defendant having no rights or duties towards the general public. R v Disciplinary Committee of the Jockey Club exparte Massingberd-Mundy, concerned a challenge of the powers of the Jockey Club under judicial review. The court was bound by the decision in Law, being unable to distinguish the two bodies, hence found the Jockey Club not subject to review. Lord Justice Neil, stated though, that but for Law, it would be concluded that there was a right of review over certain decisions.

Subsequently, in R v Jockey Club exparte RAM Racecourses, the court was once again bound by Law regarding the right of review of Jockey Club decisions, with the majority of decisions being excluded by contract. Lord Simon Brown, stated obiter, that where the power exercised was 'quasi-licensing' this could be subject to review. Recently, the Court of Appeal in R v Disciplinary Committee of the Jockey Club exparte Aga Khan, upheld the notion that the Jockey Club is a domestic body, whose relationships were based on contract, thus not subject to judicial review.

Whilst in R v Football Association exparte Football League, the FA was judged to be a domestic body, its powers being derived from private law, despite its monopoly over an area of national importance. The FA not been underpinned, in any way, by the State, and in its absence an equivalent body would have been established by the private sector and not the Government. It seems that courts are reluctant to find a general right of review for governing bodies despite their monopoly power and its potential to effect the public.

Even though it was acknowledged in the Aga Khan case that but for the existence of a voluntary governing association, a statutory body would have been established. The key factor in all the decisions involving the governing bodies though, seem to concern the contractual relationships of the parties, that exclude review. Hence, cases of a sporting context have yet to develop the flexibility of Roy v Kensington & Chelsea & Westminster Family Planning Council, in allowing review where the public issues are sufficient to overlook the private nature of the body.

The Jockey Club is able to raise many public issues, in light of the public interest and revenue created through betting but is still not subject to review. Therefore it is likely that other bodies generally will not be reviewable, the courts regarding its administrative structure as adequate to deal with problems. With the body reflecting integrity and aiming to protect the fundamental interests of the sport. Further problems arise when the governing bodies of amateur sport are involved.

In Currie v Barton, the decisions of a county tennis association were not reviewable, with livelihood not effected, the player in question being an amateur. Grounds of judicial intervention also arise where there is evidence of non-compliance with rules or bad faith. Non-compliance of rules is most commonly found in the ultra vires acts of the governing bodies. In Everton v Football Association, all English clubs were banned from European competition by the FA, in light of the Heysel disaster, leading to claims of ultra vires. The courts under public emotional pressure to uphold the decision were seen to side step the issues.

Resolving that the power was derived from UEFA which was based in Switzerland was outside of the court's jurisdiction. The decision of the FA was subsequently upheld with no finding of ultra vires. In Davis v Carew-Pole, the court judged that the stewards of the National Hunt Committee had acted ultra vires in disqualification of a stable keeper. Where the alleged offence had not been committed or subject to the rules applied, and the disqualification was for an indefinite period which was contrary to the rules of the Committee. Further examples of non-compliance involve the misinterpretation of rules.

Guidelines were laid down in Rush v Modified Sprint Car Association of NSW, where the court held that strict constructions were to be used, looking at the exact wording of the rule to avoid ambiguity. Ignoring or changing the rules retrospectively, also amount to non-compliance, and are liable to challenge in law. However, there is a lack of authority in the sporting context, although it is argued that if the matter is sub judice, any tampering to the rules can leave the decision void. Therefore, governing bodies can be challenged in law, where its decisions fail to comply with the law, which will be given a narrow interpretation.