Dear Editor: How to avoid successful challenges to sport decisions: fairness and transparency

Gems at Lajoya

“To begin, no formal disciplinary hearing should be arranged until the matter has been investigated. Investigations must be undertaken in an open and transparent manner by persons appropriately skilled and trained in investigating such matters.

“The question of whether there is any substance to the claim must be answered and evidence obtained…”

The following Letter to the Editor, which deals with the successful resolution of dispute in sport, was submitted to Wired868 by attorney-at-law Christophe Brathwaite:

Photo: Fyzabad Secondary head coach Brian Williams gives instruction to his squad during SSFL action against Trinity College East on 20 September at Trincity.
Looking on are (from right to left) assistant coach Kerry Jamerson, team manager Nigel Lakhan and principal Troy Jebodhsingh.
(Courtesy Allan V Crane/CA-Images/Wired868)

Recently, the Secondary School Football League suspended Fyzabad Secondary from further competition in this season’s Premier Division of the Secondary Schools Football League (SSFL). According to the SSFL, the reasons for taking such action lay in the findings of an investigation which revealed that “two students did not have the necessary qualifications for placement into Lower Form 6 and more so that the documents submitted to gain admission into Lower Form 6 were in fact fraudulent.”

These are serious charges and I must state that my discussion here is no way intended to determine or prejudice this matter. I seek, rather, to sensitize the sporting fraternity to the importance of having a clean decision making process if disciplinary consequences are to be preserved.

When there is a clean decision making process, the likelihood of success of a legal challenge which seeks to rescue wrong-doers and threatens to bring the sport of football into disrepute will be substantially reduced.

Adam Lewis and Jonathan Taylor, two gurus of Sport Law, wrote in their text titled Sport Law and Practice that “the extent that any player or team should challenge any football governing body decision is if that body had not acted in accordance with the regulatory functions contained in their rules, lawfully and/or fairly in a procedural sense and in accordance with natural justice.”

Photo: Shiva Boys Hindu College coach Hayden Ryan (centre) poses with school supporters after their 3-0 SSFL Premier Division win over St Mary’s College at Lachoos Road on 19 October 2016.
(Courtesy Sean Morrison/Wired868)

They explained that the likelihood of a challenge being sustained and not dismissed in court weighed heavily on the steps in the decision-making process. Furthermore, that the ideal disciplinary process should be: based upon fact, use reasonableness and not arbitrary, capricious analysis and be in accordance with legitimate expectation.

What does all that mean? Basically, the courts hold sport’s governing bodies to the same standard that they use in matters of judicial review and contract law. Lord Hewart CJ in R v Sussex JusticesExparte McCarthy said “Not only must Justice be done; it must also be seen to be done.” If that is not so, it will be to the decision maker’s detriment.

There is case law dating back as far as 1965 in St Johnstone Football club v Scottish Football Association and recently to Mangope v SA Football Association [2011] where the courts ruled that the decision-making process had been procedurally unfair. The aforementioned cases were messy affairs; injunctions were filed in the former and damages to the tune of millions of pounds awarded by way of costs in the latter case.

It is why I am suggesting that the SSFL as a National Sport Governing Body (NSGB) and the sporting fraternity adopt a preventative approach to such issues. As the old adage goes, “An ounce of prevention is worth a pound of cure.”

Photo: Trinidad and Tobago gymnasts Thema Williams (right) and Marisa Dick pose for a photograph while sightseeing in Rio after the Olympic Test event on 17 April 2016.
(Courtesy Hannifer Dick)

The concept of preventative medicine is firmly entrenched in the medical system because medical resources are scarce and illness is harder to treat than it is to prevent. NSGBs should adopt a similar perspective. To better serve sport and the public interest in sport, NSGBs need to develop “fit for purpose” disciplinary procedures which will less likely be challenged either in appeal or in court. The mission is to concretize their decisions and buttress the public perception that the sport is impartial and fair.

There will always be some difficult cases, but the aim of “fit for purpose” disciplinary procedures is to minimise the risk of subsequent appeals and costly litigation—which wastes both time and money. My mission today is to outline, in as basic a fashion as I can without going into detail, the accepted international best practice when preparing disciplinary procedures for NSGBs.

The “fit for purpose” disciplinary procedures evolved from the principle of natural justice. The principle is enshrined in Clause 5 of our Constitution and internationally it has been articulated in Article 8 of the United Nations Declaration of Human Rights, to which T&T is a signatory.

The principle is that every person is entitled to a fair and reasonable hearing within a reasonable time by an independent and impartial tribunal established by law. Accordingly, it is a well-established common law concept that disciplinary procedures must satisfy the requirements of natural justice.

Photo: West Indies Cricket Board president Dave Cameron.
(Copyright CaribbeanNewsService)

LexisNexis, one of the most prominent legal resources, has succinctly described natural justice as “fairness in all aspects.” A Sven Demeulemeester article in The Sport Law Review crystallizes the concept, stating that “rules must be fair, clear and transparent in the way they are set up and in their application, which must also be consistent.”

Accordingly, the aim of disciplinary procedures must be to provide for a fair and proper opportunity for a matter to be heard, ideally quickly and affordably. The following best practice procedure has been taken from Sport Resource and I am grateful to them for it.

To begin, no formal disciplinary hearing should be arranged until the matter has been investigated. Investigations must be undertaken in an open and transparent manner by persons appropriately skilled and trained in investigating such matters.

The question of whether there is any substance to the claim must be answered and evidence obtained. Once the investigation has been completed, a decision must be reached, either by the investigator or by a separate committee, as to whether a disciplinary charge should be brought.

Photo: Trinidad and Tobago Gymnastics Federation officials (from right) Ricardo Lue Shue, Elicia Peters-Charles and David Marquez pose with Sport Minister Darryl Smith (second from right).
(Courtesy Ministry of Sport and Youth Affairs)

The NSGB may consider at this stage whether a case is suitable for mediation on the basis that many disciplinary charges arise out of misunderstandings between individuals which could be more effectively resolved outside the disciplinary process. It should also consider, if the matter is one of gross misconduct, whether the NSGB Constitution provides for such a dispute to be handled by way of arbitration.

The offence must be clearly stated, ideally with specific reference to the rule(s) alleged to have been broken, in order to enable the individual concerned to prepare his response. The offence must be notified to the individual in a clear and transparent manner, and well in advance of any hearing.

Failure to do this may mean that the ultimate hearing is unfair. All evidence in support of the offence must be provided to the individual. This is to ensure that the individual is not taken by surprise, which may result in a later challenge.

At this juncture, a tribunal can be convened to hear the charge and its members must be seen to be independent and impartial. It may be convenient to select three individuals from within the sport, but decisions made by that panel may not be seen to be independent in the event of a challenge.

At least one of the panel members should understand the sport. It is also useful from a risk management perspective if the panel members can understand any legal arguments that may be put to them.

Photo: Trinidad and Tobago Football Association (TTFA) president David John-Williams (second from right) poses with Women’s National Senior Team coaches (from left) Nicola Williams, Carolina Morace and Elisabetta Bavagnoli at a media conference in the Ato Boldon Stadium, Couva on 1 February 2017.
(Courtesy Sean Morrison/Wired868)

In any event, the source from which panel members will be drawn should be clearly identified in the disciplinary procedure. Panels usually consist of an odd number of members, with three being the most popular number. One member of the panel should be identified as chairperson in accordance with the disciplinary procedure.

No person involved with the case or in any way with any party to the case or who has expressed strong views one way or another should be appointed. Those with links to people with a vested interest in the outcome should also be avoided.

The question to ask is this: “Would the reasonable man or woman on the street think that it was fair for this individual to be appointed to adjudicate on this case?” If the answer is not a clear yes, then use someone else.

Remember that the aim is always to provide a fair and reasonable hearing and not to secure a particular outcome.

NSGBs are given considerable room for manoeuvre in their selection of panel members. The courts have decided that they should be given as free a hand as possible to control their own disciplinary processes without running the risk of interference. However, those disciplinary processes must still be run in a way that is consistent with the fundamental requirements of fairness.

The risk of a successful legal challenge to the outcome increases whenever a process is unfair.

Photo: Trinidad and Tobago gymnast Thema Williams (centre) is flanked by (from left) Tots and Tumblers gymnastics club owner Annette Telfer and attorneys Keith Scotland, Dr Emir Crowne and Reza Ramjohn at a media conference on 27 April 2016 at the Virtus Chambers in Port of Spain.
(Courtesy Wired868)

Christophe Brathwaite is an attorney-at-law who specialises in Corporate, Commercial, Sport and Entertainment Law. He is currently employed at UTT as Legal Officer and holds the position of Deputy Chair of the Pro League’s Disciplinary Committee as well as Chairman of the TTFA/FIFA First Instance Committee. He is also a former director at the Education Facilities Company Ltd (EFCL).

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    Sportt or the ministry should have lawyers available to NSOs for advice on these sort of conflicts.

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