Kaneria’s life ban upheld

The Commercial Court has dismissed a challenge by Pakistani international bowler Danish Kaneria to a lifetime ban upheld by the Appeal Panel of the England & Wales Cricket Board’s Disciplinary Commission (“ECB”).

In Kaneria v ECB [2014] EWHC 1348 (Comm), Kaneria brought challenges to the ban under sections 68(3) and 69 of the Arbitration Act, claiming that the Appeal Panel had committed a “serious irregularity” by exceeding its powers and had otherwise erred in law in imposing the ban.

The ECB’s Appeal Panel upheld the ban for offences relating to spot fixing – see: http://sportslawbulletin.org/2013/07/19/kaneria-lifetime-ban-upheld.

Readers may recall that, in an important precedent, the Commercial Court held in March 2013 that the appeal proceedings constituted an arbitration for the purposes of the Arbitration Act – see: http://sportslawbulletin.org/2013/05/13/cricket-disciplinary-appeal-is-an-arbitration

In the most recent decision, Mr Justice Hamblen dismissed all of Kaneria’s claims. Pursuant to the relevant ECB directive, the Panel expressly enjoyed the “absolute discretion” to impose the lifetime ban. The Court found that, stripped to its substance, Kaneria’s allegation was that the Panel had erroneously exercised its discretion, rather than that the Panel had purported to exercise powers it did not have. The Court also found that Kaneria’s complaints that the lifetime ban was inconsistent and disproportionate did not show arguable errors in law.

The decision is of wider interest for two reasons.

First, for the judge’s observations on the deference to be given to a specialist sports tribunal. Under s.69(3)(d) of the Act, a court should grant permission to appeal on a question of law only if (among other criteria) it is “just and proper in all the circumstances for the court to determine the question”. The Court held that “there was force” in the ECB’s submission that it was not just and proper to do so in this case because the question of sanction “relates to the exercise of an absolute discretion … vested in a specialist cricketing Panel with wide-ranging knowledge and experience of the game”. “That Panel”, the judge continued, “is in a far better position than this Court to consider how to exercise a discretion to determine the appropriate sanction” (para 41).

These observations are novel in the context of an Arbitration Act challenge to an award by a specialist sports tribunal. They are not, however, particularly surprising. Courts extend deference to specialist bodies both when exercising judicial review and the analogous supervisory jurisdiction of sports governing bodies in Bradley v Jockey Club [2005] EWCA Civ 1056.

In Bradley, Mr Justice Richards (affirmed on appeal), observed that it was important for the court to limit itself to a supervisory role on the issue before the Court (whether the relevant Appeal Board had properly determined the proportionality of the sanction). This was because the Appeal Board in that case included “members who are knowledgeable about the racing industry and are better placed than the court to decide on the importance of the Rules in question and decide the weight to be attached to breaches of those Rules”. Similar observations have been made in further Bradley review cases e.g. by Mr Justice Stanley Burnton (as he then was) in Mullins v McFarlane [2006] EWHC 986 at [38].

In Kaneria deference was extended on the issue of whether to hear an appeal on a question of law,rather than the application of settled law to facts as in Bradley and Mullins. The Court had found that what had been dressed up by Kaneria as an error of law argument was no such thing. Kaneria was simply challenging the Appeal Panel’s exercise of its “absolute discretion” to impose a life ban.

The second point of interest is whether the fact that there had already been two full hearings on the issues – the appeal in Kaneria was by way of rehearing – could properly influence whether it was “just and proper in all the circumstances” for the court to grant permission on an alleged error of law. The ECB made submissions that in principle it could be – particularly where both decisions had been taken by specialist tribunals. The Court did not reach a conclusion on this point, which will have to wait for another day, but in the light of the Court’s decision and the deference shown it will be an uphill struggle for any appellant to claim permission on an alleged error of law where he has had a full appeal before the sporting body.

The decision in Kaneria, taken with the previous decision of the Commercial Court that the ECB’s appeal process constituted an arbitration, is further support for the tendency in domestic sports law at least for disputes, including disciplinary disputes, to be determined by way of arbitration (so long as a valid arbitration clause is contained in the Rules or in some other contract), and for the court’s power to intervene in the decisions of such arbitral bodies to be strictly limited.

Ian Mill QC (instructed by Chris Walsh of Onside Law) represented the ECB in the recent Kaneria proceedings. He also acted for the ECB, leading Nick De Marco, in the disciplinary and appeal proceedings and in the previous the previous Commercial Court proceedings.