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Mutu & Pechstein v Switzerland; Hartlepool United FC & Ors v The FA; The FA v David Manasseh
One of the most controversial aspects within the evolving world of sports law involves players’ and athletes’ rights to a fair hearing in disciplinary proceedings brought by sports’ governing bodies. This area is particularly interesting because of the peculiar intersection (and contradiction) between arbitration law – developed as an alternative to the courts, primarily for resolving commercial disputes between private parties –and sport- which often requires open decisions, standard penalties and so on.
Three recent cases have signalled some significant developments in the area. The first, and most important (perhaps the most important sports’ law case for a long time) is the decision of the European Court of Human Rights in Mutu & Pechstein v Switzerland (2 October 2018, nos 40575/10 et 67474/10; full judgment currently only available in French).
The Romanian former football player, Adrian Mutu, and the German professional speed skater, Claudia Pechstein, having both been banned from their sports for doping offences, have been involved in long running litigation, including final appeals before the Court of Arbitration in Sport (CAS) and challenges to the arbitral awards in their appeals before the Swiss Federal Tribunal. They claimed that their ECHR Article 6 rights to a fair hearing had been violated in various ways. The two most significant challenges considered were (i) to the independence of CAS, and (ii) the failure to grant a public hearing. The Court dismissed the first challenge by a 5-2 majority with a powerful dissent, but upheld the second.
An important starting point in the Court’s determination of both aspects of the challenge was the recognition that the players’ consent to CAS’s jurisdiction was not unequivocal and could not be described as having been freely given (“n’avait pas été libre et ‘sans equivoque’.” ). Like many players, they had to accept the arbitration clauses in the sports’ governing bodies’ rules if they wanted to earn their living by participating in the sport. I described this anomaly as “compelled consent” in an article discussing a previous decision in the Pechstein saga. Strasbourg jurisprudence provides that a person can waive some of their Article 6 rights to a fair hearing by agreeing to an arbitration clause, so long as such agreement is voluntary and not compulsory. The decision in Mutu & Pechstein reflects the practical reality in professional sport that such consent is not genuinely free. The player has not therefore waived their Article 6 rights and so the Court can intervene.
The Court dismissed the challenge to CAS’s independence. A person appearing before CAS can only nominate an arbitrator from a “closed list”. Who is on that list is determined by an executive that is weighted heavily in favour of sports governing bodies and not players. The majority of the Court, despite dismissing the challenge, found that Ms Pechstein did not have full freedom of choice over the selection of an arbitrator, unlike the norm in commercial arbitration  and that organisations opposed to athletes in CAS litigation exercised a “real influence” (“une réelle influence” ) in the mechanism for appointing arbitrators in force at the material time. However, the players had not established bias or lack of independence in respect to the specific arbitrators appointed in their cases, and so this limb of their challenge failed.
The minority of the Court put forward a powerful (and in my respectful opinion, compelling) dissent on this point. They argued (at ) that according to the settled case-law of the Court, it is not sufficient for arbitrators to be impartial individually if the structure of the organisation lacks the appearance of independence and impartiality. The Court must have regard to “the manner of appointment of its members and the duration of their term of office … the existence of guarantees against outside pressures … and the question whether the body presents an appearance of independence” (citing Campbell and Fell v. the United Kingdom, 28 June 1984, nos 7819/77 and 7878/77, § 78 , Series A no. 80). The Court would expect the composition of employment tribunals, for example, to have a balanced composition.
CAS has made some important institutional changes that begin to redress some of the alleged imbalance in its structure since the Pechstein case was before it, but this area of controversy is likely to continue and the majority decision in this case may not be the last word.
The second challenge was successful. The Court unanimously found that the players’ right to a public hearing guaranteed by Article 6(1) had been violated. Access to the public and press can be prohibited in the interest of morality, public order or national security, or where the interest of minors require. In some circumstances the right to a public hearing is not always necessary – particularly those cases where factual disputes do not arise. Ms Pechstein had requested a public hearing. Her case turned in part on contested facts. The outcome would affect her professional reputation and credit – it was a case in which she had a right to a public hearing.
The Court of Appeal in England previously came to the contrary view in Stretford v The FA  EWCA Civ 238. The football agent, Paul Stretford, advanced various challenges to FA disciplinary proceedings brought against him – including that they did not comply with his Article 6 rights. The court below stayed his challenge because of the mandatory arbitration clause in FA Rule K. The Court of Appeal decided (at ) that by agreeing to that arbitration clause, Mr Stretford had waived his right to a public hearing under Article 6(1):
“…the inclusion of Rule K was not in any sense required by law or compulsory. An arbitration clause has become standard in the rules of sporting organisations like The FA. The rules regulate the relationship between the parties, which is a private law relationship governed by contract … Clauses like Rule K have to be agreed to by anyone, like Mr Stretford, who wishes to have a players’ licence, but it does not follow that the arbitration agreement contained in them was required by law or compulsory. To strike down clauses of this kind because they were incompatible with article 6 on that basis would have a far-reaching and, in our opinion, undesirable effect on the use of arbitration in the context of sport generally.”
Such a finding is incompatible with the decision of the ECHR in Mutu & Pechstein. In finding that the players’ rights to a public hearing had been violated, the ECHR repeated that the case involved a “forced arbitration” (“il s’agit d’un arbitrage force” ). If that is right it is as true for all persons required to agree to an arbitration clause in order to participate in professional sport. The Strasbourg case-law now suggests a person does not waive their right to a public hearing if an arbitration clause is compulsory in the sense that it is a requirement to participate in professional sport.
The effects are indeed likely to be far-reaching. Some of the comment so far has focussed on the potential practical difficulties of holding public hearings. In its press statement about the case, the CAS indicated that it has “already envisaged the possibility of having public hearings at its newer and much larger future premises at the Palais de Beaulieu in Lausanne.” But the consequences are far wider. The FA example is a good one: most disciplinary cases against football players, agents or club officials are held under FA rules that do not provide for an appeal to CAS, are in private, and allow the person charged no recourse to the courts. They now appear to violate the participant’s Article 6 rights, at least insofar as the participant requests a public hearing and it is refused. The same will be true for many other sports.
Media and the public interest in sporting disputes means it is likely this issue will be brought to a head sooner rather than later. The press will often want to cover a disciplinary hearing against a high-profile player, and if the player wants the hearing to be in public legal challenges to the refusal to allow a public hearing are likely.
A strong reason for the right to a public hearing is that it instils public confidence in the integrity of proceedings, and avoids the real or perceived risk of bias, negligence or corruption at worst that can be heightened by secret decision making made behind closed doors. Sports bodies must now seriously consider allowing public hearings (where they are requested) in the future – and from a practical point of view that most likely means providing the press with access. Who knows, it may not be long before we start to see televised sports tribunals.
As far-reaching as all these things might at first appear, however, there is nothing in the Mutu & Pechstein decision that threatens the very existence of arbitration in sport. Rather, the decision reflects the fact that arbitration in sport is of a special type – very different from routine private arbitration. It is already the case that most sports disciplinary cases end in a public judgement and sanction, even though the hearing itself is held in private. Many penalties are standardised, and decisions in one case often referred to and relied on in others; all of this is in marked contrast to the norm in arbitration. Allowing some hearings to be held in public merely further reflects this distinction.
In Hartlepool United FC, Green, Chandler & Buncall v The FA (21 September 2018, FA Appeal Board), the participants appealed against “excessive” sanctions following a finding by a Regulatory Commission that they had bene involved in sham “scouting agreements” to cover payments of agents’ fees. As we discuss in chapter 12 of “Football and the Law”, cases involving similar such (deliberate) breaches had begun to lead to agents being banned for about 6 months to include one transfer window. In the Hartlepool case the Commission imposed bans of around 13 months on most participants finding that previous cases were not a “static jurisdiction” and they were justified in “taking a firmer view of penalties” than in earlier cases, to act as a deterrence.
The Appeal Board allowed the appeals and reduced the sanctions finding that the Commission erred in its approach. They accepted that, whereas previous cases were not precedents, penalties should be imposed having regard to how others in a like position are punished to ensure a proper measure of parity and proportionality. Having regard to the need for parity as a principle of fairness, they did not accept the conditions for imposing deterrent penalties were met. Deterrence is often antithetical to fairness, albeit capable of justification in some circumstances . There was no evidence suggesting such circumstances arose. It was for the FA as regulator to introduce a deterrent element to sanctions if it felt circumstances required it – not for Regulatory Commissions or Appeal Boards to do so .
The case touches on some important points that arise with increasing frequency. In the absence of standard sanction guidelines (as exist in doping, for example), there is a danger of sports disciplinary panels applying widely inconsistent sanctions to similar offences. Another danger arises where tribunals take it on themselves to increase sanctions because of a concern previous sanctions might had not prevented the breach. The approach of the Appeal Board in Hartlepool, starting from a recognition of the principles of fairness and proportionality, provides a check on such tendencies.
Another important point arose as a footnote in a recent case that led to a 3-month ban on a high-profile football agent. At the end of their decision in The FA v David Manasseh (28 September 2018, FA Regulatory Commission) the Commission re-iterated the fundamental principle of “equality of arms so that neither party is placed at an unfair disadvantage in their ability to present their case” in proceedings brought by The FA . An issue arose relating to previous similar cases. Mr Manasseh’s lawyers asked for disclosure of a decision in another agent’s case, but The FA refused to provide it on the basis it remained confidential at the time. However, it emerged the decision had in fact already been used by The FA in redacted form (so it was not clear who the parties were).
This raised a “wider question” as the Commission noted :
“The FA Regulatory Legal Department is responsible for the bringing and prosecution of all disciplinary proceedings against Participants subject to the jurisdiction of the FA. It therefore has access to all previous decisions. Although the FA’s practice is now to publish all disciplinary decisions on its website unless it considers there is good reason not to, there are quite a lot of decisions which are not publicly available and remain confidential. They are therefore not available to Participants charged with disciplinary offences and they and their advisers will only occasionally be aware of those unpublished decisions.”
The Commission acknowledged it was not its function to propose solutions to this but drew The FA’s attention to “the problem and the need to find a way to ensure equality of arms in all cases.”
The problem is one experienced in many sports’ disciplinary proceedings, not only before The FA. Sports’ tribunals generally still do not have a uniform system by which all decisions are made public and available – there remains selection and inconsistency in approach. In cases before The FA for example, one side (the regulator/prosecutor) shall generally have access to all decisions including those that remain confidential, and can decide which of the unpublished ones to rely on; the other side does not. In appeals before the CAS, which also does not publish all disciplinary decisions, international sports federations shall often have access to unpublished decisions in which their federations were a party; the individual player bringing an appeal shall not. This is a clear example of where the kind of strcutural imbalance of sports tribunals that concerned the dissenting minority in Mutu & Pechstein can have a negative effect on a party’s Article 6 rights to a fair hearing of not checked.
These three cases signal an important trend in sports law. In recognition of the right to a fair hearing they all further demonstrate the important distinctions between sports disciplinary hearings and the rules relating to standard private arbitration. The importance of public decisions, the parties having equal access to those decisions, the emergence of a system of precedent or, at least, an approach that requires like cases be treated alike and, in part to guarantee all these things, the right to a public hearing. None of these things make any sense when viewed through the narrow prism of private arbitration law; rather they recognise the ways in which sports disciplinary arbitration is a special creature that must be fashioned according to the needs and requirements of the sport and the rights of athletes and players to a fair hearing in cases that often impact their right to earn a living and their reputation.
These cases reflect the recognition that arbitration in sport is not genuinely voluntary; that unlike in arbitration law more generally, it is in the interests of the integrity of sport to have consistent and public decisions when rules are broken; and that as part of the bargain, and to ensure fair hearing rights, it is necessary to further reform and develop sports arbitration by means of a more open, transparent system of justice. In that sense, all three cases are important and most welcome.
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