Avoiding the clinch: judicial respect for the rules inherent to sport

In a recent bout in the High Court, the specificity of sporting disputes once again came to the fore. In Bruce Baker v British Boxing Board of Control [2014] EWHC 2074 (QB), 25 June 2014, Sir David Eady was faced with the old chestnut of a request for a court to interfere with a national sporting body’s decision to sanction one of its participants. One interim application later, and the BBBC was still standing.

Bruce Baker is a longstanding manager of boxers and previously held a licence to that effect granted by the British Boxing Board of Control (“BBBC”). Following his participation in two promotions in Bethnal Green, which had not been sanctioned by the BBBC in April and October 2013, the BBBC instituted disciplinary proceedings and found him guilty of misconduct. His licence was withdrawn on 11 February 2014. The events had been sanctioned by a German body known as the GBA, a rival to the German association represented in the European Boxing Union (the BDB).

Mr Baker challenged the withdrawal before an internal appeal body – the “Stewards” – but also applied to the High Court for interim relief requiring the BBBC to restore his licence. The manager alleged that the BBBC had disciplined him because he participated in an event sanctioned by a German boxing body that it did not recognise, contrary to free movement and competition law and procedural unfairness.  The BBBC sought a stay of the action under section 9 of the Arbitration Act 1996.

The Court rejected Mr Baker’s application.

The application failed, first, because it was premature.  An appeal was pending before the independent Stewards of Appeal, due to be heard in July.  Without it being necessary to decide whether the Stewards constituted an arbitral or a domestic body under the principles set out in England and Wales Cricket Board Limited v Kaneria [2013] EWHC 1074 (Comm) (as to which see Nick de Marco’s post here), the Court decided that the complaint ought to have been brought before them, “so that any such attack can be made on the procedure taken as a whole”, on Calvin v Carr [1980] AC 574 and Modahl v British Athletic Federation [2002] 1 WLR 1192 principles (at [38]).

Second, as to the competition law challenge, the Judge placed an emphasis on the European model of sport, i.e. “[t]here is no legal prohibition on the organisation of any sports under the umbrella of a national governing body” (at [15]), and such a body is “free to stipulate that its members should comply with its rules” (at [18]). He pointed to the “detailed methodology available as to how the [European] Commission will apply competition rules in the sporting context” – i.e. the test in C-519/04 P Meca-Medina and Majcen v European Commission [2006] ECR I-6991 at paras. [42]-[45]. The Court considered it entirely lawful for a sport governing body to have a rule that allowed a party to be disciplined for actions assessed to be inimical to the sport, indeed such a rule was “inherent in the organisation of the sport“ (at [20]). This broad approach is interesting given that Meca-Medina was initially identified as a watershed for the CJEU’s so-called dilution of the ‘sporting exception’ from EU law: “the mere fact that a rule is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down” (at [27]).

Finally, the judge considered that there was no triable issue. The decision in relation to Mr Baker was plainly based on an assessment of the facts in the case, which a Court “should be slow indeed to substitute its own opinion for” (at [28]). He also concluded that any damage to Mr Baker in the absence of interim relief would not be removed by the temporary restoration of his licence.  Damage flowed from his being found guilty and the concern that if he failed in his appeal in July, he would not have a licence at that point (at [31]).  Moreover, if there were any damage to Mr Baker it was compensable in damages, in contrast to the potential damage to the BBBC’s interests as a sport's governing body.  The Court also noted that Mr Baker had delayed in seeking this remedy and “remains unrepentant” – the balance of convenience therefore lay against the granting of the relief (at [33]-[34]).

The Court’s approach is a classical illustration of the respect given to sporting rules, and internal processes within a sport to enable national authorities to pursue objectives such as “ensur[ing] that the sport is conducted fairly, including the need to safeguard equal chances for the boxers, boxers' health, the integrity and objectivity of the sport and the ethical values in the sport” (at [20]). It also reflects the EU position that something more than the inherent organisation of sport in the European model is needed for breaches of EU law to be found.

Adam Lewis QC appeared for the BBBC in the High Court.  Nick De Marco represents the BBBC in the appeal proceedings.