Six reasons for sports disputes to be public

Publicity, from the publication of tribunal decisions to the ‘gold standard’ of public hearings, has always been, in my view, the most effective way to achieve fairness and probity. We have seen sports bodies gradually agreeing, over the years, to publish decisions of their tribunals (though there is still reluctance in some quarters) and in the landmark Pechstein Human Rights case (I wrote about here), and the English cricket disciplinary case considering allegations of racism brought by Azeem Rafiq (discussed here), we have finally seen some public hearings in sport.

Speaking to other sports lawyers recently about when we might finally find out the decisions in the Manchester City/Premier League disputes (or even who sits on the tribunals), and the impact of public judicial review challenges to decisions of the Independent Football Regulator, if and when it comes in, I sense a growing consent among lawyers who regularly act in sports cases that we should, and we shall, move further towards public hearings in sport in the next few years.

Here are six reasons why I argue for greater publicity.

1. Holding tribunals to account

The most important reason that legal proceedings are in public is that open justice encourages fair and proper decision making, whereas decisions taken behind closed doors are more prone to corruption or neglect. In the words of the American Supreme Court Justice Brandeis: “Sunlight is said to be the best of disinfectants.” Similarly, Lord Shaw found in the seminal English case of Scott v Scott [1913] A.C. 417, quoting the jurisprudent Bentham: “‘In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.’ ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.’.”

Holding sports tribunals to account, under the spotlight of publicity, is just as important as holding courts to account, and sports tribunals are no less prone to bias, corruption or negligence than are judges.

2. Inspiring public confidence

Sporting justice should not only be done, it should be seen to be done. Publicity is the best way to inspire public confidence in the fair, independent and efficient decision making of sports tribunals. Where decisions are made behind closed doors, with little communication or understanding of how they are made, suspicion can naturally arise.

3. Public understanding

Not only should public hearings help inspire public confidence in the sports tribunal decision-making process, it shall also help public understanding of it: why decisions are made as they are, and how they are made. Publication of judgments alone cannot always achieve this, unless you can see what happens at the hearing it is often difficult to work out how the decisions were arrived at.

4. Public Interest

Sport is a matter of genuine and legitimate public interest, and not simply a private matter. One only needs to remember the political controversy over the European Super League attempted breakaway in football, or controversies over Russia’s participation in the Olympics following the invasion of the Ukraine to appreciate that. Likewise, one of our arguments in the ECB cricket disciplinary case was that a hearing about racism in the national sport of cricket, based on allegations which had already been discussed in parliament, was obviously a matter of public interest. There is also a public interest in sport being fair, in having a level playing field – whether considering doping, match-fixing or financial fair play regimes, and many other things in between, the integrity of sport requires that each participant is treated equally, consistently and fairly.

5. The public are interested

The “public interest” is separate from the fact that the public are often very interested in sport and its disputes – but they certainly are. When I appeared for Newcastle United FC in a technical legal dispute about jurisdiction and an implied arbitration clause held in the Competition Appeal Tribunal, we were told that more people (tens of thousands) logged on to watch the hearing than in any of the court’s previous hearings. There is a definite audience for sports hearings – perhaps much more so than many routine court proceedings. The fact that a public hearing can now easily be achieved by providing members of the public with a link to watch the hearing being streamed online, and that most of the sports hearings I appear in these days are either remote (online), or in person with some witnesses joining by video link, makes it very easy to have public hearings today.

6. Enrichment

Finally (developing point 3) public hearings in sport should enrich the whole sector. Lawyers and other tribunal members, whether those who act in sport and those who rarely do, or wish to in the future, could learn by seeing how sports disputes are determined. Sports administrators and players, sports commentators, students, fan representatives and anyone actively involved in sport would be able to learn more about the decision-making process, and how best to advance their own case in future. Public hearings should encourage tribunals in one sport to meet higher standards shown in other sports, and lead to an overall raising of the standard of decision making and knowledge.

These six arguments are, in my view, so compelling as to easily outweigh the objections of some traditionalists in the sector who seek to cling on to private decision making. Of course there will be cases where confidentiality is important: whether protecting the identity of an accused in some circumstances (as some anti-doping rules provide), or confidential financial information of a team from its competitors, or of the identity or details of victims in safeguarding cases, for example. But state courts have long been able to deal with such sensitive matters, whether by having some hearings or part of hearings in private, documents redacted, or some witnesses granted anonymity and so on. Exceptional steps can always be taken where they are necessary – but the starting point ought to be, and I hope in my professional lifetime will soon begin to be, that sports disciplinary proceedings should be in public.