The International Sports Law Journal

The International Sports Law Journal (2020) 20:18–35
https://doi.org/10.1007/s40318-020-00165-9
ARTICLE
Challenging the call: Should sports governing bodies be subject

to judicial review?
Ben Cisneros1
Published online: 3 March 2020

© The Author(s) 2020
Abstract
English law is settled in its view that Sports Governing Bodies (“SGBs”) are not amenable to judicial review, following the
Court of Appeal decision in R v Disciplinary Committee of the Jockey Club, ex p Aga Khan. However, this article argues
that, 27 years on from the leading decision, the issue merits reconsideration owing to flaws in judicial reasoning and, in
particular, the subsequent growth of the government’s involvement in sport. Moreover, the availability of judicial review
in other jurisdictions and against other self-regulatory organisations suggests that the position of SGBs in English law is
anomalous. Since Aga Khan, the courts have developed a private law “supervisory jurisdiction” which somewhat accounts
for the absence of judicial review but, building on the work of Michael Beloff QC (among others), this article considers the
substantive and procedural limitations of private law in challenging SGBs, finding that judicial review may be a preferable
forum for sporting litigants. The paper also provides the opportunity to reflect upon the nature of the public–private divide
in English law today.
Keywords Judicial review · Sports governing bodies · Supervisory jurisdiction · Public law · Sports litigation
1 Introduction affecting athletes, coaches, clubs, agents (collectively “par-

ticipants”) and even supporters. The propriety of these com-
The past 30 years have seen a vast evolution in the world petences is not in doubt, but, given the industry’s growth, the
of sport. Significant investment, both public and private, need for accountability is greater than ever.
has caused the industry to flourish, and there is increasingly This paper will focus on the use of judicial review (“JR”)4
more at stake for all those involved: athletes, clubs, agents, as a way of challenging SGB decisions and rules, to achieve
sponsors and fans—not to mention the State. In 1997, Ebs- legal accountability. English law is settled in its view that
worth J commented that “sport today is big business”1; but SGBs are not amenable to JR following the Court of Appeal
if it was big then, it is prodigious now. Sport is a booming (“CA”) decision in R v Disciplinary Committee of the Jockey
industry and a central part of modern life. It is “part of our Club, ex p Aga Khan5 but, as Beloff et al. suggest, “it is
national identity”.2 not clear that the last word has been said on the subject”.6
With so much riding on every match, race or tournament, This paper will argue that, 27 years on from the leading
it is vital that there is good governance within each sport. decision, the issue merits reconsideration owing to flaws in
This is the job of Sports Governing Bodies (“SGBs”) at judicial reasoning and, in particular, the subsequent growth
national and international level—for example, in England, of the government’s involvement in sport. Moreover, the
the Football Association (FA) or the Rugby Football Union availability of JR in other jurisdictions and against other
(RFU). These incorporated associations have a monopoly 1
Jones v Welsh Rugby Football Union (The Times, 6 March 1997).
in their sporting market,3 with extensive regulatory powers 2
Department for Digital, Culture, Media & Sport, Sporting Future—
enabling them to exclusively determine and apply the rules A New Strategy for an Active Nation (Policy Paper) Chap. 1.
3
Russell v Duke of Norfolk [1949] 1 All ER 109, 119 (Denning LJ).
4
“Judicial Review” shall be defined in this paper as the remedy
available under s.31 Senior Courts Act 1981, regulated by Part 54 of
* Ben Cisneros
the Civil Procedure Rules 1998.
[email protected]
5
[1993] 1 WLR 909.
1 6
Law Graduate of Selwyn College, Cambridge, UK Beloff et al. (2012), p. 46.
13
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The International Sports Law Journal (2020) 20:18–35 19
self-regulatory organisations suggests that the position of 2.1 The public function test
SGBs in English law is anomalous.
Since Aga Khan, the courts have developed a private law The potential scope of JR was extended in R v Panel on
“supervisory jurisdiction” which somewhat accounts for the Takeovers and Mergers, ex p Datafin,14 in which Lloyd LJ
absence of JR, but, as it will be argued, private law remedies held:
suffer from substantive and, particularly, procedural limita-
I do not agree that the source of the power is the sole
tions, such that JR may be a preferable forum for sporting
test whether a body is subject to judicial review…the
litigants. The standing requirements and hearing process of
source of the power will often, perhaps usually, be
JR give it particular appeal in the sports context, and it can
decisive. If the source of power is a statute, or sub-
be seen as a more efficient alternative to private law actions.
ordinate legislation under a statute, then clearly the
The approach of New Zealand, allowing challenges to SGBs
body in question will be subject to judicial review. If,
in public or private law,7 should be followed.
at the other end of the scale, the source of power is
In Finnigan v NZRFU, Cooke J, as he then was, con-
contractual, as in the case of private arbitration, then
sidered that SGBs fall into a “special area where…a sharp
clearly the arbitrator is not subject to judicial review…
boundary between public and private law cannot realisti-
But in between these extremes there is an area in which
cally be drawn”8 and, ultimately, it is this fundamental issue
it is helpful to look not just at the source of the power
which has made this area of law so fraught with controversy.
but at the nature of the power. If the body in question
Though this paper does not aim to assess the propriety of a
is exercising public law functions, or if the exercise of
divide between public and private law, which an orthodox
its functions have public law consequences, then that
view of English law would prescribe,9 the analysis under-
may…be sufficient to bring the body within the reach
taken herein allows conclusions to be drawn about the softer
of judicial review.15
nature of that divide today.
This decision led to the emergence of the public function
test, which has since been formally adopted into the Civil
2 The state of play Procedure Rules (“CPR”).16 As such, a claim for JR can
only be brought in respect of an enactment, a decision, an
Whether a body may be subject to JR is a question which has action or a failure to act relating to the exercise of a “public
troubled courts for decades. Determining the precise scope function”.17
of JR is incredibly difficult, and it can only be inferred from The precise meaning of this term has been the subject
“the catalogue of the borderline cases”.10 of much deliberation, and there remains some uncertainty.
Various criteria for determining amenability have In Datafin itself, Sir John Donaldson MR spoke simply of
emerged over the past 100 years, with the traditional a “public element, which can take many forms”,18 while in
approach being the “source of power” test.11 Under this for- the more recent case of Hampshire County Council v Beer
mula, if the power to make the decision in question was t/a Hammer Trout Farm,19 Dyson LJ spoke of the need for
derived from statute or the Royal Prerogative, it would be sufficient public “flavour” to bring a body’s decision within
amenable to JR but, if the power was rooted in contract, it the reach of public law.20 This criterion is “very broad, not
would be excluded from public law.12 However, the law in to say question-begging”,21 but there is a growing body of
this area has developed such that it is now proper to speak case law from which principles can be extracted.22
of a “public function” test.13 In Beer, the CA held that a decision of Hampshire Farm-
ers Markets Limited, a private company, had sufficient pub-
lic flavour in order to be amenable to JR, largely owing to its
close relationship with Hampshire County Council and the
7
Armstrong (2008). 14
8
[1987] QB 815.
[1985] 2 NZLR 159, 179. 15
9
Ibid. 847.
E.g. Woolf (1986). 16
10
Civil Procedure (Amendment No. 4) Rules 2000 (SI 2000/2002).
Wade and Forsyth (2014), p. 532. 17
11
Civil Procedure Rules Rule 54.1(2)(a)(ii).
E.g. Law v National Greyhound Racing Club [1983] 1 WLR 1302; 18
Datafin, 838.
CCSU v Minister for Civil Service [1985] 1 AC 374. 19
12 [2004] WLR 233.
Hampshire County Council v Beer t/a Hammer Trout Farm [2004] 20
1 WLR 233 [12]. Ibid. 240.
21
13
R (Holmcroft) v FCA and Barclays [2018] EWCA Civ 2093 [40]; Ibid.
22
Williams (2017b), 15–26. Ibid. 240-241.
13
20 The International Sports Law Journal (2020) 20:18–35
fact that it was regulating access to a public market. Simi- 2.2 The position of SGBs
larly, the International Stock Exchange of the United King-
dom (“UK”) and the Republic of Ireland (a limited com- Traditionally, SGBs have fallen outside the scope of JR, fol-
pany) was held amenable to JR owing to its wider “public” lowing the CA decision in Law v National Greyhound Rac-
role.23 ing Club.34 Primarily, this was justified on the basis that the
In Datafin, the Panel on Take-overs and Mergers was source of the SGB’s power was contractual and the appropri-
found to be susceptible to JR. The panel was a self-regulat- ate remedy was, therefore, in private law. This approach was
ing body in charge of enforcing the City Code on Take-overs applied by the courts in, inter alia, R v Football Association
and Mergers, with no statutory, prerogative or common law of Wales, ex p Flint Town United FC35 and R v Football
powers. The court noted the panel’s immense power and Association, ex p Football League.36
thought the fact it was not a statutory body was a “com- However, the issue returned to the CA in Aga Khan,
plete anomaly”24 explicable only as an accident of history. where the applicant sought to challenge a decision by the
It was also key that the government had “incorporated the disciplinary committee of the Jockey Club (an SGB) to dis-
panel into its own regulatory network”25 and that private law qualify his horse for failing a drugs test. Notwithstanding the
control would be ineffective.26 Therefore, though Sir John functional shift instigated by Datafin, the position in Law
Donaldson MR suggested that amenability depends simply was upheld and JR denied. Hoffman LJ, as he then was, held
on finding a “public element”, the reasoning in the cases that the SGB operated “entirely in the private sector and its
suggests a narrower approach27—there will only be a public activities are governed by private law”.37
function where certain “public” features can be identified. While he made clear that private clubs are capable of
Yet there may also be uncertainty about what “public- also exercising public powers, he found that “there is no
ness” is. As Hoffman LJ stated in Aga Khan, in line with public source for any of [the Jockey Club’s] powers”.38 The
previous authorities,28 public law and public interest are not court heavily emphasised the existence of a contractual rela-
the same thing: tionship between the parties and noted that the applicant
would likely have a remedy in private law.39 Farquharson
Private power may affect the public interest…But that
LJ stressed that “public law remedies do not lie against
does not subject it to the rules of public law.29
domestic bodies, as they derive solely from the consent of
The court in Aga Khan considered that, to be amenable to the parties”.40
JR, the power must be “governmental”.30 It may be that this For JR to lie, according to Hoffman LJ, the power may
interpretation is too narrow,31 but, for the purposes of this be de facto or de jure, but it must be “governmental in
paper, it suffices that “public” means “governmental”. nature”.41 As Sir Thomas Bingham MR stated:
Therefore, it follows from the CPR and an established
the Jockey Club…has not been woven into any sys-
body of case law that the modern test for amenability to JR is
tem of governmental control of horseracing…This has
one of the public functions. Though the source of the power
the result that while the Jockey Club’s powers may be
may be relevant, the existence of a contractual relationship
described as, in many ways, public they are in no sense
is not necessarily inconsistent with JR,32 provided that the
governmental.42
rights asserted are not purely contractual.33
A final thread of the CA’s reasoning was the rejection of the
argument that “but for” Jockey Club’s existence, the gov-
ernment would be forced to intervene to regulate horserac-
ing and, as such, its powers could be considered “public”.
23
Farquharson LJ straightforwardly dismissed the idea that
R v The International Stock Exchange of the UK and the Republic
of Ireland, ex p Else (1982) Ltd [1993] QB 534.
24
Datafin, 835.
25
Ibid.
34
26
Elliott and Varuhas, (2017), p. 133. [1983] WLR 1302.
35
27
Ibid. [1991] COD 44.
36
28
R v East Berkshire Health Authority, ex p Walsh [1985] QB 152, [1993] 2 All E.R. 833.
37
164. Aga Khan, 931.
29 38
Aga Khan, 932. Ibid.
30 39
Ibid. 931. Ibid. 924.
31 40
Elliott and Varuhas (2017), pp. 133–138. Ibid. 928–933.
32 41
R (McIntyre) v Gentoo [2010] EWHC 5 (Admin) [29]. Ibid. 931.
33 42
Walsh. I.e. Where there is no public element. Ibid. 923.
13
“any governmental body would assume control of racing”,43 3.1.1 The source of the power
while Sir Thomas Bingham MR accepted that “the govern-
ment would probably be driven to create a public body to Firstly, it is argued that Aga Khan focuses too much on the
do so”44 but ultimately held that this did not alter the fact source of the powers of SGBs, as opposed to their func-
that its powers derived from contract and were thus not tion, which sits uncomfortably with the decision in Datafin
“governmental”.45 and subsequent authorities.51 The court emphasised that
This approach has been definitive in English law and has JR was unavailable because the source of the power was
been followed consistently,46 surviving its most recent chal- a consensual, contractual relationship between the parties.
lenge in R (Mullins) v Jockey Club (No. 1).47 However, this approach fails to recognise the true nature of
the relationship between participants and SGBs, as well as
the nature of SGB power.
3 The case for judicial review
The “contract” is fictional To describe the relationship
Given the case law to date, SGBs are highly unlikely to between a participant and an SGB as purely contractual is
be considered amenable to JR without a Supreme Court artificial and unrealistic. SGB regulations bind participants
(“UKSC”) decision overruling Aga Khan.48 It is submitted regardless of any express contract and may even preclude
that there is a strong case for such a decision and that the individuals participating altogether.52 In Modahl v British
existing line of authority has been a “wrong turn”49 in Eng- Athletics Federation,53 the CA held that there are three ways
lish law. This Part will re-evaluate Aga Khan, criticising the in which a contractual link can be established between an
court’s reasoning, drawing on support from analogous Eng- SGB and an athlete: the “club basis” (a chain of mutually
lish case law and that of other jurisdictions. SGBs perform a interdependent contracts starting with an employment con-
public function now more than ever, and so, properly apply- tract with a sports club in which the athlete agrees to be
ing the test laid out in Part 2.1, should be amenable to JR. bound by the SGB regulations), the “participation basis” (a
It is important to establish at the outset that, though the contract is implied by virtue of the athlete’s participation
argument herein will refer to SGBs in the abstract, each case under the regulations) or the “submission basis” (a contract
would turn on its own facts and it is likely that some SGBs is implied by virtue of the athlete’s submission to the SGB’s
would be more readily susceptible to JR than others.50 How- regulatory procedures).54 Though there will be exceptions,55
ever, given the fundamental similarities between the position in the archetypal case, there is no express contract with the
and powers of SGBs, and the broad government interest in SGB. Indeed, in Modahl, Parker LJ dissented, considering
sport as a whole, it is legitimate to predicate the argument on there to be no real intention to create legal relations, nor any
the basis that they would generally be treated alike. consideration to speak of.56
As Lord Denning MR observed in Enderby Town FC v
3.1 Re‑evaluating Aga Khan Football Association,57 this “contract” is simply a “fiction
created by the lawyers to give jurisdiction”.58 It is neces-
The argument for overruling Aga Khan rests on two main sary for the effective administration of sport, 59 as there
propositions: that it places too much weight on the source of is no statutory scheme by which to otherwise enforce the
SGB power and fails to appreciate its public flavour—some- rules. SGBs, as argued below, are de facto public bodies: it
thing which has become more pronounced in subsequent is simply an accident of history that they must rely on the
years. These central strands of argument shall be considered contractual jurisdiction. Using a fiction created to increase
in turn, though it is impossible to separate them entirely. oversight of SGBs to now deny such oversight via JR lacks
51
Morgan (2012), 105.
43 52
Ibid. 930. Nagle v Feilden [1966] 2 QB 633.
44 53
Ibid. 923. [2001] EWCA Civ 1447.
45 54
Ibid. 923-924. James (2017), pp. 31–32.
46 55
Jones v WRFU. E.g. England rugby players will be contracted to the RFU when
47
[2005] EWHC 2197 (Admin). playing for the national team.
56
48
Beloff et al. (2012), p. 262. Modahl, [72–83].
57
49
Ibid. p. 264. [1971] Chap. 591.
58
50
E.g. Football is referenced in statute and attracts far greater public Ibid. 606.
59
interest than any other sport. James (2017), p. 29.
13
common sense—the law should be “mature enough” to “do for the administration of sport.68 The latter is certainly true,
away with” such fictions.60 so it would be dangerous to suggest that there is insufficient
consent for the “contract” to be binding, but it must nonethe-
The lack of genuine consent There is also a lack of genu- less be recognised that the consent is artificial.69 The court
ine consent to SGBs’ jurisdiction, undermining further the here took an “unusually two-dimensional view”70 which is
argument against JR in Aga Khan. Each SGB has its own particularly unsatisfactory because “when genuine consent is
set of regulations61 which cover an incredibly broad array absent, this is precisely when abuse of power is most likely,
of issues including discipline, doping, intermediaries, cor- and judicial protection most needed”.71 The court should
ruption, betting, safety, safeguarding, player licensing, eli- instead have focused on the unavoidability of submission to
gibility, transfers, club ownership and finance, as well as the decision-maker.72
the rules of the sport itself. They are even able to limit free- Farquharson LJ’s view was echoed by the CA in Stret-
dom of expression.62 As Lord Denning MR observed, such ford v Football Association,73 but the European Court of
regulations are, in reality, a “legislative code”63 going far Human Rights recently took a different approach,74 holding
beyond a contractual regime. They regulate an entire sphere that an arbitration clause enclosed in an SGB’s regulations
of conduct, both commercial and personal, and give SGBs had not been agreed in a “free and unambiguous manner”75
the enormous power to impose sanctions which can range and, thus, the athlete’s rights under Art.6(1) ECHR had not
from 1-week suspensions, to lifetime bans64 as well as points been validly waived. Though this was a human rights case,
deductions, fines, or even relegation. it nevertheless recognised that consent to SGB regulations
Enormous power alone, though, is insufficient to under- is not real—a decision English courts will have to take into
mine the purported contractual relationship. Freedom of account.76
contract is a fundamental feature of English contract law,
and, as such, parties are free to agree to all these things. The Should consent preclude judicial review? It is also arguable
key point, however, is that there is no “agreement” in the that the reasoning in Aga Khan is unsound because it could
true sense of the word—these are rules which are imposed be applied to all forms of voluntary activity subject to a
rather than consented to. statutory licensing regime.77 It could be said that an appli-
One might argue this is true of most contracts entered into cant to a statutory licensing authority “voluntarily” submits
in the modern day—for example, employment or consumer to its jurisdiction, as they could choose not to engage in
contracts. However, the enormous power of SGBs is doubly the relevant activity. Of course, in such cases, “consensual
significant because they hold a monopoly. As such, partici- submission” would not preclude JR. Nor should it for SGBs.
pants are in an incredibly weak position and have no choice That said, Sir John Donaldson MR said in Datafin that
but to accept the regulations.65 This is ultimately “Hobson’s “bodies whose sole source of power is a consensual submis-
choice”—terms are imposed on a “take it or leave it” basis, sion to its jurisdiction” (emphasis added) will be excluded
and the latter is no option at all. By contrast, in the employ- from the scope of JR.78 Consensual submission is not a statu-
ment and consumer contexts, there will ordinarily be other tory licensing authority’s sole source of power. However, the
job opportunities and other products to buy in the market.66 same is arguably true of SGBs, as they wield de facto public
In such monopolistic circumstances, “consensual submis- power—power which is impliedly devolved, or perhaps even
sion” provides no basis on which to exclude JR,67 as there expressly derived, from government, as explained below.
is no genuine consent. Indeed, the source of the power cannot be fully separated
This argument was rejected by Farquharson LJ in Aga from the nature of the power. The dicta in Datafin properly
Khan. He suggested that the “reality of the consent” was
not undermined, as the imposition of rules was necessary
68
Aga Khan, 930.
69
Beloff (2006), 2; Pannick (1997), 152.
70
60
Nagle v Feilden, 646. Elliott and Varuhas (2017), p. 139.
71
61
E.g. FA Handbook; RFU Regulations. Ibid.
72
62
Boyes (2017). Elliott (2012), 101.
73
63
Enderby Town, 606; Breen v Amalgamated Engineering Union [2007] EWCA Civ 238.
74
[1971] 2 QB 175, 190. Mutu and Pechstein v Switzerland App nos. 40575/10 and
64
E.g. Former UK Athletics coach George Skafidas was given a life- 67474/10 (ECHR, 2 October 2018).
75
time ban from all sport in 2016. Ibid. [114].
65 76
Beloff and Kerr (1996). Manchester City Council v Pinnock [2010] UKSC 45.
66 77
In any event, these areas are also regulated heavily by statute. Beloff et al. (2012), pp. 263–264.
67 78
Pannick (1992), 2–5. Datafin, 838.
13
suggest that where a body is exercising a public function, in Aga Khan,86 endorsing the view of Rose J in R v FA, ex p
there will not be a purely contractual relationship—the very Football League:
publicness of the power means that public law is applicable,
regardless of any contract.79
I find no sign of underpinning directly or indirectly by
Given the fictional nature of the “contract” and the arti-
any organ or agency of the State or any potential gov-
ficiality of the consent to SGBs’ jurisdiction, placing such
ernment interest…nor is there any evidence to suggest
weight on the source of the power as the court did in Aga
that if the FA did not exist the State would intervene to
Khan is inappropriate80—particularly when the modern test
create a public body to perform its functions.87
for amenability requires a more functional approach, and
the existence of a contract has been held not to be fatal to With respect, it is suggested that such views are out of date
JR claims in subsequent decisions.81 SGBs’ power may for- and merit reconsideration. The government today has a clear,
mally be predicated on contract, but the reality is that they direct interest in sport,88 and there is plenty to suggest that,
are performing a public function. in the absence of SGBs, they would intervene.
In the first decade of the twenty-first century, Excheq-
uer funding of sport reached unprecedented levels89 and,
3.1.2 Satisfying the public function test in 2002, sport was properly recognised in government, as a
key policy objective of the Department for Digital, Culture,
Having established that there should be no contractual and/ Media and Sport (“DCMS”).90 The DCMS is now primarily
or consensual bar to an application for JR against an SGB, responsible for administering public sports policy, albeit at
it can now be argued that SGBs should be amenable to JR arm’s length via several non-departmental public bodies91
because they satisfy the public function test set out in Part (“NDPBs”), including Sport England and UK Sport. The
2.1. Though there has always been a strong case for SGBs traditional view that “‘the government does not and should
satisfying this test,82 it has now become irrefutable owing to not run sport’ no longer reflects the complexities of modern
the change in government policy, which allows the missing sports policy”,92 nor the reality of its implementation in the
“governmental” element to be found. UK.
The enormous public interest in sport gives it great The 2015 DCMS “Sporting Future” policy paper gave
potential as a government policy tool to achieve social and some telling indications of the government’s direct inter-
political objectives, and it is undoubtedly used to promote est in sport, setting out the government’s strategy of “har-
national standing.83 Indeed, throughout modern history, nessing the power of sport for the good of our whole soci-
sport has been used as a bargaining tool in international ety”,93 emphasising sport’s personal, economic and social
relations.84 This immediately suggests a public element, but impact. Sport’s role in the pursuit of public health goals is
more specific arguments can be made. These arguments are significant,94 and SGBs are often key to implementing such
ones which have often been put forward, but it is submitted policy.95
that the wider context has changed such that they can now In addition, as the 2015 paper announced, government
be made more forcefully. agencies Sport England and UK Sport have developed a new
Code for Sports Governance setting out the levels of “trans-
The “But For” argument Firstly, it is submitted that, but for parency, accountability and financial integrity” required of
the work of SGBs, the government—owing to its direct SGBs seeking public funding.96
interest in sport and its governance—would itself be driven
to regulate sport, demonstrating that SGBs are, in reality,
carrying out a public function. This is a test frequently used
to determine amenability85 but was answered in the negative 86
Supra, note 43; criticised by Beloff and Kerr (1996).
87
[1993] 2 All E.R. 833.
88
Gardiner et al. (2012), pp. 89–90.
89
79
Elliott and Varuhas (2017), p. 140. Lewis and Taylor (2014), p. 10.
90
80
Elliott (2012). Ibid. p. 22.
91
81
Clark v University of Lincolnshire and Humberside [2000] 1 WLR Ibid. pp. 23–24.
92
1988; R (McIntyre) v Gentoo (n 32). Ibid. p. 10.
82 93
Beloff and Kerr (1996); Beloff et al. (2012), p. 268. Supra, note 2, Chap. 3.
83 94
Boyes (2017), 364. Boyes (2017), 363–364.
84 95
E.g. Sporting boycotts of apartheid South Africa, Cold War Olym- Supra, note 2, Chap. 1.
pic boycotts. 96
‘A Code for Sports Governance’ (uk sport) <http://www.ukspo
85
Pannick (1992), 5. rt.gov.uk/resources/governance-code> Accessed 14 March 2019.
13
Furthermore, the DCMS Committee (“DCMSC”)97 has addressing corruption in sport. Principal among these was
conducted detailed enquiries into matters of concern within the Sport and Sports Betting Integrity Action Plan, launched
sport, including homophobia,98 women and sport,99 match- by the Gambling Commission in 2015, which delineates the
fixing in tennis100 and, currently, sports governance more responsibilities of, inter alia, SGBs and government in com-
broadly.101 The DCMSC’s very existence demonstrates a batting corruption. Such an initiative is yet another example
government interest in sport, but the nature of its enquiries of how the government’s interest and involvement in sport
reveals a particular desire to ensure accountability. This is has grown since the early 1990s.
perhaps best exemplified by its 2018 “combatting doping in There is thus a strong argument that “but for” SGBs, the
sport” report which followed an intrusive and very public government would be driven to regulate sport itself, such
enquiry, centred around British Cycling.102 is its interest in the sector. SGBs are therefore exercising a
Indeed, the government is particularly concerned with public function.
anti-doping. In 2003, the UK government signed the Copen-
hagen Declaration on Anti-Doping in Sport, in which they The “Interwoven” argument Moreover, as required by the
agreed to formally recognise and implement the World Anti- courts in Datafin and Aga Khan, SGBs are “woven into the
Doping Code (“WADC”) and, in 2006, ratified the Inter- fabric of public regulation”.106
national Convention against Doping in Sport. Moreover, For example, the role of administering anti-doping rules
the government showed its dedication to the anti-doping is not exclusive to UKAD. All SGBs adopt the WADC into
movement by creating the UK Anti-Doping agency in 2009, their own regulations and assume responsibility, along with
another NDPB. It is responsible for the sample collection, UKAD, for its implementation. Indeed, it is often the SGBs
testing and whereabouts programmes of the majority of UK themselves that act as prosecutor in doping cases and who
athletes. By funding an anti-doping programme and by sign- are responsible for enforcing bans imposed by the National
ing up to internationally agreed anti-doping objectives, the Anti-Doping Panel.
government seeks to promote fair and clean sport, further Much the same point can be made with regard to anti-cor-
highlighting its direct interest. ruption. Working closely alongside the police and the SBIU,
A further example of government expansion into sport SGBs have taken a proactive role in the fight against corrup-
has been in the field of anti-corruption. The Gambling tion.107 All major SGBs have extensive anti-corruption regu-
Commission—another NDPB—created the Sports Betting lations108 aimed at deterring and punishing conduct which is
Intelligence Unit (“SBIU”) in 2005 to monitor gambling and corrupt, or potentially so, through sporting sanctions. While
uphold integrity in sport, while s.42 of the Gambling Act not all conduct punished by SGBs is also criminal, the most
2005 was introduced by the government specifically to target serious cases will be and, by implementing such comprehen-
match-fixing.103 Section 42 makes it a criminal offence to sive regulations, SGBs play an important role in preventing
“cheat at gambling”,104 which includes interference with a criminal behaviour.
sporting event to which the gambling relates.105 However, SGBs’ jurisdiction does not cover those who
More recently, in 2014, the government published the UK may be involved from outside of sport in corruption and,
Anti-Corruption Plan, which set out a cross-governmental thus, an effective approach to tackling the problem requires
approach to tackle corruption, including specific measures cooperation with, inter alia, law enforcement agencies and
government.109 As aforementioned, this joined-up approach
is explicitly recognised in the Sport and Sports Betting Integ-
97
rity Action Plan, which imposes certain requirements on
The Parliamentary Select Committee to which the DCMS is
accountable.
each of the key stakeholders, including the Gambling Com-
98
DCMSC, Homophobia in Sport (Report, HC 113, 2017).
mission—a government agency. In this context, too, SGBs
99
DCMSC, Women and Sport (Report, HC 513, 2014).
are therefore woven into the fabric of public regulation.
100
DCMSC, ‘Match Fixing in Tennis’ (Parliament) https://www.
Moreover, the SGBs of sports such as rugby, football,
parliament.uk/business/committees/committees-a-z/commons-select/ boxing and other contact sports have exclusive jurisdiction
culture-media-and-sport-committee/inquir ies/parliament-2015/inqui over an area which would ordinarily be governed by the
ry/. Accessed 14 March 2019. criminal law. Following R v Barnes,110 violent conduct in
101
DCMSC, ‘Sport governance inquiry’ (Parliament) https://www.
parliament.uk/business/committees/committees-a-z/commons-selec
t/digit al-culture-media-and-sport-committee/inquir ies/parliament
106
-2017/sports-governance-17-19/. Accessed 14 March 2019. Aga Khan, 923.
102 107
DCMSC, Combatting doping in sport (Report, HC 366, 2018). Ibid. p. 145.
103 108
Ibid. p. 143. E.g. RFU Regulation 17; FA Betting Rules 2019–2020.
104 109
S.42(1) Gambling Act 2005. Thompson (2016).
105 110
S.42(3) Gambling Act 2005. [2004] EWCA Crim 3246.
13
the sporting arena is exempted from criminal sanction, as negating any need or desire to create a government body.115
long as it remains within reasonable bounds of the rules. Government:
As such, these SGBs fulfil the function of policing those
believes sports are best governed by modern, transpar-
bounds by ensuring that violent conduct in breach of the
ent, accountable and representative governing bodies,
rules is sanctioned appropriately. In other words, a jurisdic-
able to act decisively in the long-term interest of each
tion is carved out of the criminal law for certain SGBs. This
sport and its participants116
specific function has strong public flavour in itself, given the
otherwise public nature of the sanctions the conduct would However, this reflects an implied devolution of governmen-
attract, and it is also an example of how SGBs are woven tal power. By actively choosing not to legislate in this field,
into public regulation. owing to its satisfaction with the work of the FA, the govern-
Indeed, this is highlighted explicitly in the memorandum ment is impliedly granting the SGB power to continue regu-
of understanding between the FA, FAW, the Crown Pros- lating football, in the same way that Lloyd LJ considered the
ecution Service and the Association of Chief Police Offic- panel in Datafin to be operating.117 The same can be said of
ers.111 It recognises that there are often situations in which many SGBs, though there isn’t such explicit evidence. The
football’s SGBs will have concurrent jurisdiction with law government has a strong interest in sport’s regulation, but,
enforcement agencies and sets out the terms of their coop- due to their expertise and natural independence, it considers
eration in relation to both investigating and sanctioning. existing SGBs better-placed to perform that function and
A further example is the statutory regulation of foot- thus, far from abstaining, gives them implied authority to
ball hooliganism, which was the culmination of prolonged continue doing so. That sport is administered by private bod-
efforts by the government, in combination with the police ies is simply an accident of history.118
and football’s SGBs, to gain control of the issue.112 For the In any event, SGBs’ receipt of public funding, via Sport
offences under the Football (Offences) Act 1991 to be made England and UK Sport, suggests that their power may be
out, or for a Football Banning Order to be imposed under somewhat derived from government expressly.
the Football Spectators Act 1989, the match with which
the relevant conduct is connected must be a “designated” Public interest Finally, the “massive public interest in
football match—ultimately, a game under the authority of sport”119 plays a role in creating public flavour. The fact that
the SGBs.113 In this regard, football’s SGBs are inextricably sport can affect people’s lives in so many ways, as fans, par-
integrated into governmental regulation. ticipants and aspiring participants, means that the public at
Of course, these latter examples are confined to certain large has an interest in its good governance. Though “public
sports and as such can only advance the argument insofar as interest” has been considered distinct from “public law”,120
those specific SGBs are concerned. However, there is strong it is suggested that the two can be linked. Public interest
evidence of a more general integration of SGBs into the affects government decision-making and ultimately drives
public sphere and, in any event, as noted above,114 it may public policy. As such, an area of significant public interest
be that certain SGBs are more susceptible to JR than others. is almost inevitably an area of government interest, such that
its regulation will have public flavour. Sport is one such area.
Implied devolution of power One might nonetheless argue Moreover, all SGBs act, or at least purport to act, in the
that the government has still abstained from directly inter- public interest.121 They commonly cite as their object the
vening in day-to-day sports regulation; it is left to private promotion and growth of the sport throughout their terri-
bodies and as such falls properly within the private sector. tory.122 This may include commercialisation, but the primary
Indeed, in 2018, the government rejected a petition to cre- objective remains the development of the sport itself, which
ate an independent regulator for English football, on the
basis that the existing authorities do a satisfactory job,
115
DCMS, The Government must introduce an independent regula-
tor for English football (Petition Response, 29 March 2018) <https
://petition.parliament.uk/petitions/213108?reveal_response=yes>
Accessed 14 March 2019.
111
‘Protocol on the appropriate handling of incidents falling under 116
Ibid.
both criminal and football regulatory jurisdiction’ (The FA, 23 117
Datafin, 849.
December 2013) <http://www.thefa.com/-/media/files/pdf/the- 118
fa-2013-14/gover n ance / crown - prose c utio n -fa-faw.ashx?la=en> Anderson (2006), 183.
119
Accessed 4 November 2019. Lewis and Taylor (2014), p. 10.
112 120
James (2017), p. 223. Supra, note 29.
113 121
Ibid. p. 243. Lewis and Taylor (2014), p. 826.
114 122
Supra, note 50. E.g. RFU Rules, FA Articles of Association.
13
is in the public interest. SGBs thus perform a function which Standards Authority (“ASA”)132 and the former Press Com-
is “other-regarding”123—something typical of government— plaints Commission133 have been considered to be subject
which might further suggest that a public function is being to JR, as has the Code of Practice Committee of the British
exercised.124 Pharmaceutical Industry (“CPC”).134 All are/were private,
self-regulatory organisations without any statutory basis but
There are thus multiple ways to demonstrate that SGBs which regulate(d) important parts of public life and were
wield de facto public power. Undeniably, as the sports indus- woven into the fabric of public regulation.
try has grown exponentially over the past two decades, so Indeed, in R v Advertising Standards Authority Ltd, ex p
has the government’s interest in it. In Aga Khan, Hoffman LJ Insurance Service plc,135 Glidewell LJ, in holding that the
considered that the English legislator’s attitude to racing was ASA was subject to JR, said:
“akin to its attitude to religion…something to be encouraged
The Authority has no powers granted to it by statute or
but not the business of government”.125 This statement can
at common law, nor does it have any contractual rela-
no longer hold true. Aga Khan merits reconsideration: SGBs
tionship with the advertisers whom it controls. Nev-
are performing a public function.
ertheless it is clearly exercising a public law function
which, if the Authority did not exist, would no doubt
be exercised by the Director General of Fair Trading.
3.1.3 Supporting case law
For the reasons outlined in Part 3.1, it is argued that SGBs
The argument premised herein is not altogether unsupported are analogous.
by English case law. Indeed, in Aga Khan itself, Farquharson In Professional Counselling Aids,136 Popplewell J reluc-
LJ refused to “discount the possibility that in some special tantly found the CPC amenable to JR, emphasising that
circumstances the remedy might lie”,126 while Lord Woolf Datafin had “enlarge[d] enormously”137 the scope of JR and
MR similarly left the possibility open in Wilander v Tobin placing reliance on the decision in Insurance Service. The
(No. 2).127 It is suggested that the new-found governmental latter was endorsed specifically in Aga Khan.138
element provides such special circumstances. Likewise, the Bar Council was held reviewable in R
In R v Jockey Club, ex p RAM Racecourses,128 Brown v General Council of the Bar, ex p Percival139, a body
J held that he would have allowed JR of the Jockey Club “empowered by its rules to prosecute [complaints] before
but for the fact that he was bound by the decision in Law. the disciplinary tribunal as an adjudicating body exercis-
He considered the function of regulating a sport “strikingly ing powers delegated by the judges”.140 The Council has
akin to the exercise of a statutory licensing power” and, as an important role in regulating the Bar—a field in which
such, had “no difficulty in regarding it as one of a public the government certainly has an interest, given the way bar-
law body”.129 The court in R v Disciplinary Committee of risters affect the determination of individuals’ fundamental
the Jockey Club, ex p Massingberg-Mundy130 considered rights. But for the Bar Council it seems incredibly likely that
itself similarly bound, but otherwise would have allowed JR. a statutory authority—like the Solicitors Regulatory Author-
More recently, in Jockey Club v Buffham, Gray J described ity—would be created. SGBs perform a similar role, regu-
the Jockey Club as a “public authority in every sense”.131 lating an area of government interest and quasi-judicially
The Jockey Club—no longer the regulator of horseracing in determining fundamental rights.
Britain—was no different in its role and powers than other
SGBs.
Support can also be derived from the “borderline cases”,
particularly those in which “self-regulatory bodies” have 132
R v Advertising Standards Authority, ex p Vernons Organisation
been held amenable to JR. For example, the Advertising [1992] 1 WLR 1289.
133
R v Press Complaints Commission ex p Stewart-Brady [1997]
EMLR 185.
134
123 R v Code of Practice Committee of the Association of the British
Williams (2017a), 664.
124
Pharmaceutical Industry ex p Professional Counselling Aids (1990)
Ibid. 657. 10 BMLR 21.
125
Aga Khan, 932. 135
R v Advertising Standards Authority Ltd, ex p Insurance Service
126
Ibid. 930. plc [1990] 2 Admin LR 77.
127 136
[1997] 2 CMLR 346, 355. Supra, note 135.
128 137
[1993] 2 All ER 225. Ibid. 39.
129 138
Ibid. 247. Aga Khan, 931–932.
130 139
[1993] 2 All ER 207. [1991] 1 QB 212.
131 140
[2003] 2 WLR 178. Ibid. 228–229.
13
Furthermore, parallels can be drawn between the posi- Canada,149 South Africa150 and, albeit to a limited extent,151
tion of SGBs and the limited company subjected to JR in the USA.152 The English position thus appears to be an
Beer. In the same way that Hampshire Farmers Markets Ltd. anomaly, “unjustifiably lagging behind its Commonwealth
regulated access to a market in which there was significant counterparts”.153
public interest, so too do SGBs. Indeed, the market to which The argument here runs deeper than simply saying “they
SGBs regulate access is an awful lot larger, as it operates at do it, so we should do it”. The crucial point is that these
national level. jurisdictions have recognised the public flavour of SGBs:
More recently, the Independent Press Standards Organisa- they have recognised why SGBs properly fit into the public
tion (“IPSO”), which is one of several independent regula- sphere. SGBs have much the same role and powers world
tors of the UK press, was subjected to JR.141 Though the over, so it appears incongruous that English law is asking
court did not formally decide the jurisdictional point, Warby the same question and getting a different answer. This is
J allowed JR to proceed in spite of the fact that IPSO has not particularly significant as regards the other common law
been recognised by the statutory Press Recognition Panel jurisdictions, as the principles at play are broadly the same.
and his own recognition that “the argument against IPSO That England is the odd one out is telling.
decisions being amenable to [JR] is stronger than it was in Most concerning perhaps is that JR of SGBs has long
the case of the Jockey Club”.142 Though it operates in the been available in Scotland.154 Of course, Scots law does not
public interest, IPSO does not operate a monopoly and the distinguish between public and private law in the same way
court doubted that government would step in if it did not as English law, which may account for the different result,
exist, as the Leveson Report did not recommend state regula- but it nonetheless sits uncomfortably given the geographi-
tion of the press.143 This might be seen as a further enlarge- cal proximity of the jurisdictions. Indeed, in some sport-
ment of the scope of JR which, in fact, goes beyond SGBs. ing contexts, athletes from the two jurisdictions compete
Therefore, allowing JR of SGBs would not be at odds with together, under a single SGB.155 It was held in Lennox v
existing case law and would, in fact, make it more coher- British Show Jumping Association156 that such bodies
ent—that they are not considered amenable is anomalous. would be reviewable in Scotland. This results in “forum
shopping”,157 whereby a party will simply seek to claim in
3.1.4 The comparative argument the most favourable jurisdiction. Such inconsistencies are
unsatisfactory and, for example, could lead to the situation
It is also relevant that other jurisdictions have recognised whereby athletes of the same nationality, in the same sport,
the public function of SGBs. In French law, sports discipli- might have differing legal remedies available to them simply
nary sanctions are classed as administrative acts which can because of the team/SGB of which they are a member.
therefore only be reviewed by the administrative courts,144 The fact that so many other jurisdictions have recognised
while in Spain the public nature of sport is recognised in the public flavour of SGBs certainly makes Aga Khan appear
constitutional law145 and there is a specific administrative anomalous. However, Hoffman LJ was not drawn by com-
court dedicated to resolving sports regulatory disputes.146 parative arguments:
Turning to other common law jurisdictions, the High
different countries draw the line between public and
Court of Australia allowed JR of an SGB in Forbes v NSW
private regulation in different places. The fact that cer-
Trotting Club,147 where the function of controlling the
tain functions of the Jockey Club could be exercised
sport—“a public activity”—was considered significant.
by a statutory body and that they are so exercised in
The same position has been reached in New Zealand,148
some other countries does not make them governmen-
tal functions in England.158
141
Coulter v Independent Press Standards Organisation [2018]
EWHC 1017 (Admin).
142
Ibid. [33].
143 150
Ibid. [35]. Jockey Club of South Africa v Forbes [1992] ZASCA 237.
144 151
Van Kleef (2015), 11–12. Kelly (2011), 74.
145 152
Ley 10/1990, de 15 de octubre, del Deporte. Finley v Kuhn (1978) 439 US 876 (7th Cir).
146 153
El Tribunal Administrativo del Deporte. Armstrong (2008), 73.
147 154
[1979] HCA 27. St Johnston FC v Scottish Football Association, 1965 SLT 171.
148 155
Finnigan v NZRFU; Le Roux v NZRFU (1995) unreported, 14 E.g. The British Olympic Association.
March; Loe v NZRFU (1993) unreported, 10 August. 156
1996 SLT 353.
149
Vancouver Hockey Club Ltd v Hockey Ventures Inc. (1987) 18 157
Munro (2005), 683.
BCLR 2d 372 (BCSC). 158
Aga Khan, 932.
13
While it is certainly true that different jurisdictions approach consistently by English courts.163 As Lord Oliver explained
the public/private divide differently, comparative analysis in in Leech v Deputy Governor of Parkhurst Prison,164 alterna-
this field has particular value. The sports industry is truly tive remedies are relevant to the court’s decision to permit
international: athletes from England and Wales regularly JR, but not to the prior question of amenability.165
compete against athletes from other jurisdictions and the Therefore, the inadequacy of private law remedies can-
fact that foreign athletes can access JR might give them not by itself make the case for amenability, but is relevant
an advantage—as explained in Part 4—which adds to the to the broader question of whether SGBs should be subject
case for JR. It is surely desirable to enhance consistency to JR. As such, this Part will highlight the limitations of the
in international sports law generally, especially when there private law causes of action used to challenge SGBs, both
are good, principled reasons for doing so. To do so is in the substantive and procedural, and will argue that they should
interests of both the administrators and participants of sport not preclude a claim for JR. This will demonstrate that the
globally. debate in Part 3 is not purely academic166: there are practical
The court’s approach in Aga Khan is out of date, and it is reasons why an aggrieved sports participant would want to
time to follow our Commonwealth counterparts. pursue JR as opposed to a private law cause of action.
On this view, sporting claimants have rights in both pub-
3.1.5 To what extent? lic and private law. This might be thought odd in the light
of the procedural exclusivity rule,167 but, though a claim
Having argued that SGBs should be amenable to JR, it is cannot be brought in public and private law simultaneously,
important to consider to what extent they would be so. For the harshness of this rule has been mitigated168 such that a
an application for JR to succeed, not only must the body claim is unlikely to be struck out simply for using the “less
be susceptible to JR, but so must the specific decision in appropriate” procedure.169 Indeed, in Clark v University of
question.159 A public body in the modern day exercises Lincolnshire and Humberside,170 Sedley LJ considered that,
many functions, some of which will not be “public”—such though JR could have been sought, a claim in private law
as entering employment contracts—and these will not be was just as appropriate as there was simply “a contractual
judicially reviewable.160 relationship which happens to possess a public law dimen-
SGBs similarly perform a multitude of functions. Many sion”.171 The same can be said of the participant–SGB rela-
operate their national team and, as such, undertake an array tionship. It is argued that rights against SGBs may arise in
of commercial tasks such as negotiating sponsorship and public and private law172 and, as such, that litigants should
paying players. Such purely commercial functions would be be able to mount their claim depending on which jurisdic-
outside the scope of JR. It is only the regulatory function of tion would provide the better remedy in the circumstances.
SGBs which should be reviewable—only in this regard can Indeed, this is the approach taken in New Zealand.173
their function be described as “public”.
4.1 Private law causes of action
4 Private law remedies Claims for breach of contract, restraint of trade and in the so-
called private law “supervisory jurisdiction” have proved to
The final issue which must be considered is the availability be the primary mechanisms for challenging SGBs in English
of private law remedies. In Aga Khan, Hoffman LJ stated
that the existence of “entirely adequate” remedies in private
law meant that no injustice would be caused by the denial of
163
a public law remedy.161 This appears to allow the argument R (Shoesmith) v Ofsted [2011] EWCA Civ 642; Holmcroft; c.f.
Datafin.
that private law remedies in the sporting context are, in fact, 164
[1988] AC 533, 580.
inadequate and, as such, JR should be allowed. However, he 165
Williams (2017b), 20.
also stated that JR should not be used “to patch up” remedies 166
Beloff et al. (2012), p. 261.
available against bodies which would otherwise not be ame- 167
O’Reilly v Mackman [1983] 2 AC 237.
nable to JR.162 Indeed, this seems to be the approach adopted 168
Beloff et al. (2012), pp. 265–266; Trim v North Dorset DC [2010]
EWCA Civ 1446 [21].
169
Clark v University of Lincolnshire and Humberside (n 81), [39].
Elliott and Varuhas (2017), pp. 490–494.
159 170
Gardiner (2014), p. 50. Ibid.
160 171
Walsh. Ibid. [16].
161 172
Aga Khan, 933. Beloff et al. (2012), p. 262.
162 173
Ibid. Armstrong (2008), 96–97.
13
law and, as such, will be considered here. However, chal- broadly the same as those they would owe if their decisions
lenges could also be mounted to varying degrees in the con- were amenable to JR.185
tractual “public policy” jurisdiction,174 competition law175 However, this may undermine one of the principal argu-
and EU law—though the latter would also be possible in JR. ments in favour of precluding JR: that it would illegitimately
cut across the intentions of the parties to the contract.186
4.1.1 Breach of contract After all, if contract law itself recognises that party auton-
omy is limited by principles equivalent to those of JR, how
As explained above, SGB regulations are readily interpreted can the argument against the applicability of these principles
as contracts.176 Though this is somewhat artificial, it is a in JR be maintained? One might argue that the court in Bra-
fiction the law has adopted consistently, out of necessity. ganza was merely giving effect to the presumed intentions of
Without an express or implied contract between the SGB the parties, but the reality is that the court went much further
and the participants, SGBs would have no legal basis for the than that.187 These standards will invariably be applied “in
exercise of its powers177—participants could simply choose the absence of very clear language”188 to the contrary. In
not to accept SGB regulatory decisions, and sport would private law terms, it appears that these are terms implied
descend into chaos. As merely de facto public bodies, SGBs “in law” into certain types of contract, rather than “in fact”.
must rely on private law. Therefore, the argument in support of Aga Khan becomes
As such, courts can perform a degree of review via claims difficult to sustain.
for breach of contract. Some SGBs today explicitly prescribe It is also a limit of the implied terms approach that
the principles of natural justice and procedural fairness in parties could exclude their application through express
their regulations.178 Thus, a decision might be challenged terms.189 One might argue that the same “exclusion” could
as a breach of an express contractual term. A court could be achieved in JR via an ouster clause. However, given the
then make a declaration as to the validity of the decision restrictive interpretative approach taken by the courts to such
and remedy any ill-effects by awarding an injunction and/ clauses,190 it is suggested that an effective exclusion of the
or damages.179 courts’ jurisdiction would be less likely in public law.191
Equally, the courts have shown themselves willing to Of course, an action for breach of contract will only be
imply the principles of natural justice into SGB regula- available where a contract exists. Though the courts have
tions.180 Indeed, “public law principles” were implied into been willing to imply contracts readily in the sports con-
contracts at the highest level in Braganza v BP Shipping,181 text,192 participants without a contract, such as those pre-
to conduct a review “almost indistinguishable from the gen- vented from entering the sport in the first place, will have no
eral approach to review of public powers”.182 This mirrors remedy here. This action will also be of limited use to par-
the view of Lord Woolf MR in Modahl v British Athletics ticipants looking to challenge regulations themselves: only
Federation (No. 1)183 that there is: new regulations which the SGB makes ultra vires could be
challenged. When an action for breach of contract is unavail-
no reason why there should be any difference as to
able, JR would provide a remedy.
what constitutes unfairness or why the standard of fair-
ness required by an implied term should differ from
4.1.2 Restraint of trade
that required of the same tribunal under public law184
It can thus be said with confidence that the substance of An associated mechanism for challenging SGBs is the doc-
the obligations owed by SGBs as a matter of private law is trine of restraint of trade. According to the leading case,
174
Edwin Peel, Treitel on The Law of Contract (14th edn, Sweet and 185
Maxwell 2015), p. 549. Kleef (n 145), 8.
186
175
Boyes (2017), pp. 366–367. Elliott and Varuhas (2017), p. 145.
187
176
E.g. Korda v ITF (1999) unreported, 29 January; Jones v WRFU. In any event, it is unrealistic to suggest intentions can be pre-
177 sumed from such a fictional contract.
James (2017), p. 30. 188
178 BT v Telefónica O2 UK [2014] UKSC 42 [37].
E.g. RFU Regulation 19.1.6; British Cycling Disciplinary Rules. 189
179 Elliott and Varuhas (2017), p. 145.
James (2017), p. 39. 190
180 Anisminic v Foreign Compensation Commission [1969] 2 AC
Jones v WRFU; Wilander v Tobin [1997] 2 CMLR 346.
181
147.
[2015] UKSC 17. 191
182
This is subject to the general exclusion of the courts entailed by
Elliott and Varuhas (2017), p. 143. an arbitration clause—Stretford v FA. However, there is some doubt
183
(1997) unreported, 28 July. over this following Mutu and Pechstein.
184 192
Ibid. pp. 17–18. Modahl.
13
Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co,193 an “indirect financial benefit”, Chambers’ “prospects of suc-
a contractual term which places a restraint on the exercise of cess” at the Olympics were “at best, speculative”, such that
an individual’s trade will be void unless it can be justified as it would be difficult to argue that there was any restraint of
reasonable by reference to the interests of the parties and the trade.209 As Mackay J put it, “his prospects of arguing…that
interests of the public.194 It has evolved as a public policy this is a right to work case are not good”.210
tool to protect individual autonomy and has been extended This was built on the decision of Gasser v Stinson,211
to non-contractual cases.195 It can be used to challenge not where it was held that the restraint of trade doctrine could
only SGB decisions,196 but also regulations themselves.197 not apply where an athlete was merely deprived of a “chance
Though it does not give rise to an action for damages, courts of building up a reputation and to later exploit it for com-
can make declarations as to validity198 and may be able to mercial gain” but that it would apply where an athlete was
award an injunction.199 prevented from participating in a competition from which
However, the doctrine is not without its limitations. they otherwise would have been able to make a financial
Firstly, it is not always clear where the burden of proof lies in gain as a “direct consequence”. Therefore, amateur athletes,
sports cases, nor how the standard of reasonableness should or athletes competing at such a level that they are unable
be formulated.200 In Stevenage Borough FC v The Football to be sure of obtaining any direct financial gain from their
League,201 Carnwath J suggested that the burden was on the participation, may be left without a remedy under restraint of
individual seeking to challenge the provision, adopting a trade. In such circumstances, JR could provide a meaningful
reasonableness standard influenced by JR,202 but in Newport alternative.
AFC v Football Association of Wales203 the court treated the
issue using orthodox contractual principles, with the onus on 4.1.3 The supervisory jurisdiction
the SGB to justify the rule. There is still no “universal and
immutable standard of review”.204 Such uncertainty makes Given the possible vacuum in the law where those affected
the doctrine unappealing. by SGB regulations are not in a contractual relationship with
Its greatest limitation, though, is that it is confined to the SGB,212 English private law appears to have developed
cases concerning “trade”.205 In Ray v PGA Ltd.,206 the court a residual “supervisory jurisdiction”. In Bradley v Jockey
held that the doctrine did not apply because the claimant’s Club,213 affirmed on appeal,214 it was held that, even in the
contract was a “training” contract, not a “trading” con- absence of a contractual relationship, an SGB decision “is
tract.207 More famously, British sprinter Dwain Chambers subject to the supervisory jurisdiction of the court in accord-
was refused an interim injunction to enable him to compete ance with the principles stated in Nagle v Feilden”.215
at the 2008 Olympics, in part, because the Olympic Games In Nagle, Lord Denning MR stated that courts may have
is an amateur event.208 The court held that, even if it could a jurisdiction to see that exercise of “predominant power
be argued that his Olympic participation could give rise to over…a trade or profession…is not abused”216 as a matter
of public policy. Indeed, in Bradley, Richards J noted that
this area has assumed “even greater importance” given the
attitude of the courts towards the JR of SGBs.217 He stated:
193
[1894] AC 535.
194
Beloff et al. (2012), p. 73. given the difficulties that sometimes arise in draw-
195
Pharmaceutical Society v Dickson [1970] AC 403. ing the precise boundary between the two, I would
196
Lewis and Taylor (2014), p. 922. consider it surprising and unsatisfactory if a private
197
E.g. Eastham v Newcastle United FC [1964] Ch 413. law claim in relation to the decision of a domestic
198
Lewis and Taylor (2014), p. 92.
199
Newport AFC v Football Association of Wales [1995] 2 All ER
87.
200
Beloff et al. (2012), p. 74.
201
(1996) 9 Admin LR 109. 209
202 Ibid. [46].
[2006] ISLR, SLR 128 [60]. 210
203 Ibid.
(1995) unreported, 12 April. 211
204 (1988) unreported, 15 June.
Beloff et al. (2012), p. 72. 212
205 Wade and Forsyth (2014), p. 543.
E.g. Ray v Professional Golfers Association (1997) unreported, 213
15 April. [2004] EWHC 2164 (QB).
214
206
Ibid. [2005] EWCA Civ 1056.
215
207
Beloff et al. (2012), p. 74. Bradley, [34].
216
208
Chambers v British Olympic Association [2008] EWHC 2028 Nagle, 647.
217
(QB). Bradley, [34].
13
body required the court to adopt a materially different The result is that there is a significant lack of clarity over
approach from a judicial review claim218 the true basis of the jurisdiction expounded in Bradley and
Mullins. This is unsatisfactory and may be practically sig-
As such, under this supervisory jurisdiction, the court may
nificant in determining whether amateurs can claim, whether
review both procedural and substantive fairness and make
regulations as well as decisions can be challenged, and
a declaration as to the “lawfulness of the decision taken”219
where the burden of proof lies. Indeed, in Bradley, Richards
regardless of the existence of a contract.
J deliberately left the question of the burden open.231 Yet, as
Nonetheless, the scope and basis of this jurisdiction
he noted, such difficulties would evaporate if JR applied.232
were not entirely clear following Bradley, with particular
At the time of Nagle and Onslow-Fane, the scope of JR was
uncertainty over whether it was limited to cases concern-
more limited than it is now—had the functional approach to
ing the claimant’s right to work. However, in Mullins v
amenability existed, it would surely have provided the more
McFarlane and The Jockey Club,220 it was held that there
natural solution.233
was “no jurisdictional…boundary to the power of the Court
Moreover, if it is based on restraint of trade, a broad juris-
to grant declaratory relief in this context”221—it was not
diction as suggested in Mullins would seem to extend a field
so restricted. It thus appears incredibly broad, and it may
of public policy; something which, on orthodox private law
be that the matter need only be of “importance”.222 It was
principles, is controversial234—particularly without proper
exercised in both Fallon v Horseracing Regulatory Author-
consideration of the reasons for doing so. Recognising that
ity223 and McKeown v British Horseracing Authority,224 but
SGBs are exercising a de facto public function would give a
remains a relatively unexplored area, raising a plethora of
principled justification for review.
questions.
There are thus many question marks hanging over the
Primarily, its basis remains uncertain. Bradley placed
supervisory jurisdiction. There is a confused body of law
great reliance on Nagle, which itself was a “restraint of
which has the effect of providing JR “by the back door”; an
trade” case,225 but the jurisdiction has been construed far
intellectually unsatisfactory approach and one likely to cause
more broadly. Bradley may have elided restraint of trade
difficulties in practice. Accepting JR of SGBs, it is submit-
with the court’s general jurisdiction to grant a declaration
ted, would be preferable.
(now under CPR 40.20),226 a point of confusion evident
throughout the case law. In McInnes v Onslow-Fane227 “pub-
4.1.4 Substantive assessment
lic law principles” were seemingly applied under the court’s
general jurisdiction, but the court drew heavily on Nagle and
Each of the private law causes of action discussed has its
restraint of trade.228 Likewise, JR principles were injected
merits, but also limitations. Particular uncertainty lies over
into restraint of trade in Nagle and Stevenage Borough FC.
restraint of trade and the supervisory jurisdiction, largely
It may be that in Nagle and Onslow-Fane, the courts were
owing to attempts to infuse the private law with public law
seeking a basis for the grounds of review necessary to do
principles. Allowing JR of SGBs would obviate the need
justice and so resorted to the doctrine of restraint of trade,
to perform contortions in private law: it has a body of rules
as opposed to relying specifically on the court’s general
which could readily be applied to SGBs in a transparent and
jurisdiction.229 Indeed, Hoffman LJ thought there was “an
principled way, with no need for adjustment, regardless of
improvisatory air”230 about the solution in Nagle.
the applicant’s status (professional or contractual), and by
judges skilled in their application.235
Furthermore, mounting a challenge to the regulations
themselves would be more straightforward in JR. Indeed, in
218
Ibid. [37]. Aga Khan, Farquharson LJ suggested that:
219
Ibid. If for example the JC failed to fulfil its obligations
220
[2006] EWHC 986 (QB). under the charter by making discriminatory rules, it
221
Ibid. [39].
222
Boyes (2017), 366.
223
[2006] EWHC 2030 (QB).
224
[2010] EWHC 508 (QB).
225
Nagle, 644.
226 231
Lewis and Taylor (2014), p. 935. Bradley, [35].
227 232
[1978] 1 WLR 1520. Ibid. [33].
228 233
Ibid. 1528. RAM Racecourses, 246-247 (Brown J).
229 234
Lewis and Taylor (2014), p. 936. Peel (2015), p. 550.
230 235
Aga Khan, 933. Pannick (1997), 153.
13
may be that those affected would have a remedy in 4.2 Procedural matters

public law236
The JR procedure is often conceived as providing protection
In JR, SGB regulations could be substantively challenged
to defendant public bodies, which are politically accountable
on the well-recognised grounds of fundamental rights,237
and whose effectiveness would be hindered by the threat
Wednesbury reasonableness238 or proportionality,239 though
of ordinary litigation.247 Oliver has argued that there is no
discrimination claims could today be brought under Part 7 of
reason why SGBs should benefit from such protection248 but,
the Equality Act 2010. Successful challenges to SGB regu-
given the softening of the procedural exclusivity rule, this
lations have been scarce in the contractual and supervisory
protective function has diminished in importance for de facto
jurisdictions,240 while restraint of trade is limited. JR would
SGBs, as appropriate claims outside of the JR time limit may
provide a reliable means of challenge, including for amateur
nonetheless be brought in private law.
athletes.
It must also be recognised that JR procedure may bring
The remedial differences are also salient. In contract, the
advantages for claimants, especially in the sporting context.
available remedies are comprehensive: damages, injunctions
Three procedural points of difference add force to the argu-
or a declaration. In the supervisory jurisdiction, however,
ment that private law remedies are not necessarily adequate,
applicants can only obtain a declaration. Though a declara-
and JR more suitable.
tion can be a “highly effective weapon”,241 its effect may
be limited in a non-contractual context. One cannot be in
4.2.1 Hearing procedure
contempt of court for ignoring a declaration242 and, if there
is no contract, there remains no basis upon which to claim an
Firstly, the JR hearing procedure is far better suited to sports
injunction. It is therefore unclear just how effective a remedy
disputes than that of private law, as recognised by Carnwath
this would be, albeit that there would be public pressure on
J in Stevenage Borough FC:
SGBs to comply.
By contrast, in JR, declarations and injunctions,243 as in spite of the efforts of the parties, and the economy of
well as mandatory, prohibiting and quashing orders,244 are presentation, the writ procedure, with pleadings, dis-
available. The latter would be particularly powerful in undo- covery and oral evidence, inevitably is more elaborate,
ing the effects of sanctions, though would largely have the time consuming and expensive than judicial review…
same effect in practice as an injunction. Remedies in JR [where] the case for each party can generally be set
are certainly more powerful than those under the supervi- out in one main affidavit…supported only by relevant
sory jurisdiction, though both are discretionary, while the documents; rather than, as in this case, in some 16 wit-
principal difference with the contractual jurisdiction is com- ness statements, 15 files of documents and transcripts
pensation—in JR, damages are rarely available.245 However, of 5 days of oral evidence249
they are not usually the most important remedy for sport-
JR is a far more expedient and inexpensive process, fac-
ing claimants246 and, in any event, if cases must be brought
tors which may be of great pertinence for athletes, clubs
within the short time limit of JR and are disposed of quickly,
and even SGBs themselves. The speed at which the sports
the potential for significant losses to accrue is less likely.
industry moves makes swift dispute resolution vital for both
participants and SGBs,250 so the availability of JR would be
of real significance.
236
Aga Khan, 930. Of course, there are ways to expedite private law proceed-
237
R v Secretary of State for the Home Department, ex p. Simms ings. CPR changes have permanently established Shorter
[2000] 2 AC 115. and Flexible Trials schemes,251 allowing for a “simplified”
238
Associated Provincial Picture Houses v Wednesbury Corporation procedure which can offer dispute resolution “on a commer-
[1947] 2 All ER 680. cial timescale”.252 These might well be appealing to sporting
239
R (Daly) v Secretary of State for the Home Department [2001] 2
AC 532.
240
Boyes (2017), 372.
241 247
Beloff et al. (2012), p. 276. Elliott and Varuhas (2017), p. 477.
242 248
McMullen (2019). Oliver (1997).
243 249
S.31(2) SCA 1981. (1996) 9 Admin LR 109.
244 250
CPR 54.2. Beloff et al. (2012), pp. 268–269.
245 251
R (Quark Fishing) v Secretary of State for Foreign and Common- CPR Practice Direction 57AB.
wealth Affairs (No. 2) [2006] 1 AC 529 [94–96]. 252
‘100th Update to the Civil Procedure Rules’ (Justice) <https
246
Beloff et al. (2012), p. 268. The most important remedy is usually ://www.justice.gov.uk/courts/procedure-rules/civil> Accessed 15
the sanction being overturned. March 2019.
13
claimants, but importantly only apply if the parties mutually SGB were held to have standing, paving the way for JR of
agree. Thus, procedure could be used as a negotiating tool SGBs in New Zealand. These groups can be considered to
by defendant SGBs in order to draw out proceedings and have an interest in SGB decisions and would be best placed
deter litigation. There is no such opportunity for manipula- to vindicate that through JR.
tion in JR. Part 8 CPR proceedings might be more appealing,
as they allow for a procedure similar to JR where there is 4.2.3 Time limits
no dispute of fact. However, a defendant can still object to
its use,253 and the starting point remains that evidence will Finally, it is worth commenting on the 3-month limitation
be heard orally and that any preliminary ruling on written period in JR.261 This short time limit would be no object in
evidence will be temporary.254 the sports context, as urgency is invariably essential262 due
Of course, interim injunctions and declarations can be to the fast-moving nature of the industry. Indeed, where it is
obtained in private law under Part 25 CPR, which offers a sporting suspension being challenged, claims will need to
swift protection where appropriate. However, such interim be made almost immediately.
determinations tend to favour claimants, while SGBs typi-
cally fare better at trial.255 It is also unclear whether interim 4.2.4 Procedural assessment
measures are available in the supervisory jurisdiction.256 A
streamlined process of JR would avoid any such inconsisten- Given the foregoing, it is submitted that private law rem-
cies, allowing for swift and, most importantly, final dispute edies will not always be adequate for challenging SGBs.
resolution. The more straightforward procedural requirements of JR
are particularly well suited to the sports sector, where dis-
4.2.2 Standing putes “arise at short notice…[and] where the swiftness of
the court’s ruling is as important as the result itself”263 and
Secondly, JR’s broad test of standing257 may be of impor- where interested parties might not have private law standing.
tance in the sports context. In private law, the only per- JR can provide a final ruling within weeks or even days of
son entitled to sue is the person whose right has been the challenged decision.264 JR is arguably the “preferable
infringed.258 In public law, by contrast, a court will likely vehicle” for sports dispute resolution.265
allow any applicant to proceed where they have a strong However, it must be acknowledged that it is a scarce
prospect of succeeding on the merits.259 resource. Unlike claims in private law, which can in theory
As noted in Part 3, there is a huge public interest in sport. be presented in any county court, there are only five admin-
Thus, there is a strong argument for allowing challenges to istrative courts to handle JR claims nation-wide. As such,
SGBs to be made not only by the participants whose rights delays are common, somewhat offsetting the procedural
have been affected, but also interested parties more gener- advantages. Nonetheless, the lower-cost and conclusive
ally. Clubs are backed by passionate fans, athletes are rep- nature of JR remains significant, and applications can be
resented by unions,260 and both are often supported com- heard more swiftly in urgent cases.266 In the situation where
mercially. In cases where athletes or clubs cannot afford, an SGB makes an unlawful decision late one evening prohib-
or choose not to mount a legal challenge, such groups may iting an individual from competing the following morning,
wish to. This was the central issue in Finnigan v NZRFU JR could provide an effective remedy.
where individuals not in a contractual relationship with the
4.3 Arbitration
253
CPR 8.8.
The role of private law in sport cannot be adequately con-
254
Beloff et al. (2012), pp. 261–262.
sidered without mention of arbitration. The past two dec-
255
Ibid.
ades have seen arbitration emerge as the primary means of
256
International General Electric Co of New York v Commission- dispute resolution for many SGBs and, certainly, for doping
ers of Customs & Excise [1962] Ch 784; c.f. Transport for London v
Griffin [2012] EWHC 1105 (QB).
257
R v Inland Revenue Commissioners, ex p National Federation of 261
CPR 54.5.
Self-employed and Small Businesses [1982] AC 617. 262
258 Beloff et al. (2012), p. 261.
Subject to limited provision for “public interest interventions” in 263
private law matters on appeal to the Supreme Court (Rule 26 SCR Ibid. pp. 268–269.
264
2009). Ibid. p. 261.
259 265
Wade and Forsyth (2014), p. 587. Ibid. p. 266.
260 266
E.g. The Rugby Players Association; Professional Footballers’ A Queen’s Bench judge is on duty 24 h a day to hear applications
Association. for JR which cannot be delayed until normal hours of business.
13
disputes. As such, it might be thought that the role JR would the consensual relationship between participants and SGBs
play would be merely residual and that arbitration clauses is highly unsatisfactory, and its emphasis on the source of
will pose an insurmountable hurdle to any challenge in the the power is inappropriate. The exclusion of SGBs from the
ordinary courts, in private or public law.267 This may be scope of JR is also out of line with other jurisdictions as
true in some cases, but it does not preclude the need for JR. well as English authorities on other self-regulatory organisa-
Firstly, not all SGBs use arbitration. For example, the tions. Most significantly, since the early 1990s, government
RFU and, indeed, World Rugby (rugby union’s international involvement in sport has grown inexorably such that SGBs’
governing body, which is governed by English law268) make public function can now be straightforwardly established.
no provision for arbitration outside of anti-doping, while In 1991, Rose J considered that allowing JR of SGBs would
British Cycling provides for it on a purely voluntary basis. be “a quantum leap”.272 In 2019, continuing to deny JR of
As such, there will remain circumstances in which arbitra- SGBs would be a categorical mistake.
tion is irrelevant, and the ordinary courts’ jurisdiction will Of course, there will still be sports cases that can be dealt
be the only forum for challenges to SGBs. with in private law, and it is not suggested that JR be used
Secondly, the validity of “forced arbitration” clauses con- exclusively. However, the availability of private law reme-
tained in SGB regulations has been cast into doubt by the dies should not preclude JR, particularly as it will often offer
ECtHR decision in Mutu and Pechstein,269 which recognised a more appealing remedy, and, if an application is brought
the lack of genuine consent by participants to SGB regula- properly, there is no reason for it to be denied. New Zea-
tions. This reinforces the analysis in Part 3.1.1 with regard land’s approach should be followed.
to the artificiality of the contract deemed to exist between Finally, the analysis in Part 4.1 demonstrates the substan-
participants and SGBs and may lay the foundation for a tive overlap between the traditionally conceived fields of
future challenge to the validity of SGB arbitration clauses public and private law. The position of SGBs, and their more
in English law. Moreover, it is suggested that, if JR of SGBs recent treatment by English courts, supports the view273
is accepted, the administrative courts might be more willing that any substantive divide between the two spheres is not
to find arbitration clauses invalid, owing to their approach strict. The principal divide appears procedural. Though this,
to ouster clauses.270 too, has been softened, significant procedural distinctions
Arbitration has and will continue to have a significant do exist and, for as long as that remains the case, sport-
role to play in sports dispute resolution, and there are many ing claimants should be able to challenge SGBs in both
good reasons for that. However, it is argued that it does not jurisdictions.
do away with the need for, nor does it preclude, JR.
Acknowledgements This publishing of this paper would not have been
possible without the insightful supervision of Dr. Joanna Bell (St John’s
4.4 Overall assessment College, Cambridge). I thank her for the expert guidance she provided
and for challenging me so thoroughly throughout the research and writ-
In sum, it is argued that the availability of private law reme- ing processes. I would also like to thank Professor Trevor Allan (Pem-
dies should not preclude claims for JR, as they are not neces- broke College, Cambridge) and Dr. Shona Stark (Girton College, Cam-
bridge) for their feedback on my paper. Any errors are wholly mine.
sarily adequate, substantively or procedurally. Allowing JR
of SGBs would bring the advantages of both coherence and Open Access This article is licensed under a Creative Commons Attri-
speed.271 The choice of remedy should be at the discretion bution 4.0 International License, which permits use, sharing, adapta-
of the claimant whose rights have been infringed. tion, distribution and reproduction in any medium or format, as long
as you give appropriate credit to the original author(s) and the source,
provide a link to the Creative Commons licence, and indicate if changes
were made. The images or other third party material in this article are
5 Conclusion included in the article’s Creative Commons licence, unless indicated
otherwise in a credit line to the material. If material is not included in
On the basis of the foregoing analysis, it is argued that regu- the article’s Creative Commons licence and your intended use is not
permitted by statutory regulation or exceeds the permitted use, you will
latory decisions of SGBs should be subject to JR. The rea- need to obtain permission directly from the copyright holder. To view a
soning of the decision in Aga Khan suffers from a number copy of this licence, visit http://creativecommons.org/licenses/by/4.0/.
of fatal flaws undermining its authority. Its reasoning on
267
Stretford v Football Association [2007] EWCA Civ 238.
268
World Rugby Bye-Law 15(b).
269
Supra, note 74.
270 272
Supra, note 191. Football League.
271 273
Beloff (2007), 32. E.g. Oliver (2002).
13
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13

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The International Sports Law Journal (2020) 20:18–35

Challenging the call: Should sports governing bodies be subject

Published online: 3 March 2020

1 Introduction affecting athletes, coaches, clubs, agents (collectively “par-

may be that those affected would have a remedy in 4.2 Procedural matters

References James M (2017) Sports law, 3rd edn. Palgrave, London

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The International Sports Law Journal

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The International Sports Law Journal

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The International Sports Law Journal

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The International Sports Law Journal (2020) 20:18–35

Challenging the call: Should sports governing bodies be subject

Published online: 3 March 2020

1 Introduction affecting athletes, coaches, clubs, agents (collectively “par-

may be that those affected would have a remedy in 4.2 Procedural matters

References James M (2017) Sports law, 3rd edn. Palgrave, London

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may be that those affected would have a remedy in 4.2 Procedural matters