Disciplined for `bringing a sport into disrepute': a framework for judicial review.

• Jurisdiction: Australia
• Author: Kosla, Martin
• Date: 01 December 2001

[Athletes and sports officials are from time to time disciplined by their sports' governing bodies for `bringing the sport into disrepute'. These `disrepute clauses' give rise to concerns not only about their ill-defined and wide-reaching nature but also about their potential for stifling dissent and diversity. Although an aggrieved individual may challenge the decision of a sport's disciplinary tribunal by way of judicial review, success may be difficult. The courts are generally reluctant to intervene in the internal disputes of voluntary associations and will not review the decisions of tribunals to determine their correctness. Where the defence is that the behaviour did not bring the sport into disrepute, the best that can be done is to invoke the `no evidence' principle and establish that the tribunal made a finding in the absence of evidence such that the decision is `so aberrant that it cannot be classed as rational'. This article seeks to construct a framework that will assist the judiciary in determining the kind of conduct `which reasonable and honest minds could possibly' classify as capable of bringing a sport into disrepute. It argues that the key considerations are public exposure and whether the conduct caused injury to the sport, rather than the accused's personal interests.]

I INTRODUCTION

The governing organisation of a professional sport conducts `an entertainment business ... on a large scale'. (1) It is in the organisation's best interests that the good public image of its sport is maintained. The governing body controls the behaviour of individuals engaged in its sport through various rules, codes and regulations, both to facilitate game play and to protect the integrity of the sport. These measures cover familiar topics such as violence, racial vilification and performance-enhancing drugs. It is not possible for the rules and codes of conduct to expressly provide for all misbehaviour that may have an adverse effect on a sport. (2) For this reason, wide-reaching clauses are employed to catch misconduct that falls outside the scope of specific rules. Various laws and rules that govern the way a sport is played often prohibit an individual from `generally behaving in a manner which might bring the game into disrepute'. (3) These laws and rules are supplemented by clauses in the codes of behaviour directed to off-field conduct. These provide, for example, that an individual must not: `indulge in conduct detrimental to the game'; (4) `behave in any way so as to bring [the sport] into disrepute'; (5) engage in `any act prejudicial to the interests of any competition or to the interests of [the] sport generally'; (6) or `engage in conduct unbecoming to their status which could bring ... the game ... into disrepute.' (7) These `disrepute clauses' and similar `catch-all' provisions, however, give rise to concerns about their imprecise and wide-ranging character as well as their potential for stifling dissent and diversity. These concerns are amplified when individuals found guilty of `bringing the sport into disrepute' are harshly punished. (8)

An individual disciplined for bringing a sport into disrepute may attempt to challenge the decision by way of judicial review. However, success may be difficult as the courts are generally reluctant to intervene in the internal disputes of private organisations. The aggrieved person will first need to establish the presence of a justiciable issue. Even if the individual satisfies a court that it ought to review the decision of a sporting tribunal, the court `will not do so in order to decide whether the tribunal properly appreciated or treated' the material before it. (9) Where an individual pleads that the conduct in which they engaged did not bring the sport into disrepute, their best defence (in the absence of bias (10)) is to invoke the `no evidence' principle. The accused will need to establish that the tribunal made a finding in the absence of evidence such that the decision is `so aberrant that it cannot be classed as rational'. (11) Yet the prospects for successful judicial review may be regarded as thin. The disrepute clause is a criterion which `is so imprecise, and its application so much a matter of impression, that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case.' (12) However, closer inspection of the disrepute clause reveals that it does have limitations and boundaries and must, therefore, operate within a framework.

This article seeks to construct a framework for judicial review in the hope that such a framework will assist the judiciary in determining the kind of conduct `which reasonable and honest minds could possibly' (13) classify as capable of bringing a sport into disrepute. The article examines how a reasonable tribunal would deal with cases like a goalkeeper performing a Hitler-style salute to the opposing team's Jewish fans; (14) a boxer biting the ear of his opponent during a title fight; (15) the captain of a national rugby squad using recreational drugs; (16) the Chief Executive Officer of a national soccer league being arrested on charges of fraud and corruption (in his private affairs); (17) or a footballer legally changing his name to Whiskas for the week after signing a lucrative sponsorship deal with a cat food company. (18) The article submits that the key considerations in determining the kind of behaviour `which reasonable and honest minds could possibly' (19) classify as capable of bringing a sport into disrepute are public exposure and whether the conduct caused injury to the sport, rather than the accused's personal (and financial) interests. It argues that misconduct will only be injurious to a sport if it affects the performance of an individual's public duties or functions in the sport, or if the individual has been put forward as subscribing to a particular standard of behaviour and that standard has been lowered in the eyes of the public.

II NO EVIDENCE ON WHICH TO BASE A CHARGE OF DISREPUTE

The disciplinary tribunal of a sporting organisation cannot conclude that an individual has brought a sport into disrepute without a factual basis upon which its opinion can rest. There must be evidence that the facts alleged exist. (20) If the tribunal makes a finding in the absence of evidence, it commits a fundamental error of law, (21) and the aggrieved individual may challenge the tribunal's decision by way of judicial review. However, before a court intervenes in the matter, the individual will first need to succeed in crossing the jurisdictional threshold by establishing the presence of a justiciable issue.

A The Jurisdictional Threshold

There is no general law entitlement to automatic judicial review of a private tribunal's decision on the basis of legal error. For a court to intervene in an internal dispute within a voluntary association, something more than a mere error of law is required. An aggrieved individual will need to establish the existence of a justiciable issue by demonstrating that there has been an interference with a private right that has been adjudged to deserve protection. (22) The courts' general policy has always been to decline to intervene in the internal affairs of voluntary associations, including tribunals set up by such associations to deal with disciplinary matters. (23) In Cameron v Hogan, (24) the High Court held that the rules of an association do not operate to create an enforceable contractual right between the members of the association. A member of a voluntary association cannot maintain an action founded directly on a claim of a breach of the rules of the association `except to enforce or establish some right of a proprietary nature'. (25) The case `operates as a general discouragement to members of sporting bodies and social clubs who want to take their internal disputes to the courts.' (26)

Although the doctrine in Cameron v Hogan has been distinguished in some cases, (27) it has not been overruled. As such, it remains a binding authority. (28) However, various ways have been found to avoid its application. (29) In Buckley v Tutty, for example, the High Court held that if a decision adversely affects a person's livelihood, the aggrieved person can challenge the ruling on the basis that it is an unreasonable restraint of trade, without having to prove the existence of a contractual relationship or property interest. (30) This doctrine is now a regular means of challenging the disciplinary decisions of professional sporting organisations in the courts. (31) For example, a professional footballer who depends on playing football for the whole or a great part of their livelihood is, in the eyes of the law, `engaged in trade for the purpose of the doctrine that renders unreasonable restraint of trade illegal'. (32) Accordingly, an individual engaged in professional sport will succeed in crossing the jurisdictional threshold simply on the basis that a tribunal's decision adversely affects his or her livelihood. A person engaged in amateur sport, however, may have difficulty in establishing the existence of a justiciable issue by relying solely on unreasonable restraint of trade. They may still need to establish interference with a proprietary interest or contractual right in spite of the fact that they are being paid to play, coach or officiate matches. (33)

An aggrieved individual may rely on the fact that the sporting organisation is incorporated. Incorporation has proven to be another method of bypassing the rule in Cameron v Hogan. (34) In some jurisdictions, members of an association incorporated under an Associations Incorporation Act have a contractual right to the enforcement of the rules of the association. These rules constitute the terms of a contract between the incorporated association and its members for the time being. (35) An individual engaged in amateur sport in such a...