Disciplined for `Bringing a Sport into Disrepute': A Framework for Judicial Review

Article excerpt

[Athletes and sports officials are from time to time disciplined by their sports' governing bodies for `bringing the sport into disrepute'. These `disrepute clauses' give rise to concerns not only about their ill-defined and wide-reaching nature but also about their potential for stifling dissent and diversity. Although an aggrieved individual may challenge the decision of a sport's disciplinary tribunal by way of judicial review, success may be difficult. The courts are generally reluctant to intervene in the internal disputes of voluntary associations and will not review the decisions of tribunals to determine their correctness. Where the defence is that the behaviour did not bring the sport into disrepute, the best that can be done is to invoke the `no evidence' principle and establish that the tribunal made a finding in the absence of evidence such that the decision is `so aberrant that it cannot be classed as rational'. This article seeks to construct a framework that will assist the judiciary in determining the kind of conduct `which reasonable and honest minds could possibly' classify as capable of bringing a sport into disrepute. It argues that the key considerations are public exposure and whether the conduct caused injury to the sport, rather than the accused's personal interests.]

I INTRODUCTION

The governing organisation of a professional sport conducts `an entertainment business ... on a large scale'. (1) It is in the organisation's best interests that the good public image of its sport is maintained. The governing body controls the behaviour of individuals engaged in its sport through various rules, codes and regulations, both to facilitate game play and to protect the integrity of the sport. These measures cover familiar topics such as violence, racial vilification and performance-enhancing drugs. It is not possible for the rules and codes of conduct to expressly provide for all misbehaviour that may have an adverse effect on a sport. (2) For this reason, wide-reaching clauses are employed to catch misconduct that falls outside the scope of specific rules. Various laws and rules that govern the way a sport is played often prohibit an individual from `generally behaving in a manner which might bring the game into disrepute'. (3) These laws and rules are supplemented by clauses in the codes of behaviour directed to off-field conduct. These provide, for example, that an individual must not: `indulge in conduct detrimental to the game'; (4) `behave in any way so as to bring [the sport] into disrepute'; (5) engage in `any act prejudicial to the interests of any competition or to the interests of [the] sport generally'; (6) or `engage in conduct unbecoming to their status which could bring ... the game ... into disrepute.' (7) These `disrepute clauses' and similar `catch-all' provisions, however, give rise to concerns about their imprecise and wide-ranging character as well as their potential for stifling dissent and diversity. These concerns are amplified when individuals found guilty of `bringing the sport into disrepute' are harshly punished. (8)

An individual disciplined for bringing a sport into disrepute may attempt to challenge the decision by way of judicial review. However, success may be difficult as the courts are generally reluctant to intervene in the internal disputes of private organisations. The aggrieved person will first need to establish the presence of a justiciable issue. Even if the individual satisfies a court that it ought to review the decision of a sporting tribunal, the court `will not do so in order to decide whether the tribunal properly appreciated or treated' the material before it. (9) Where an individual pleads that the conduct in which they engaged did not bring the sport into disrepute, their best defence (in the absence of bias (10)) is to invoke the `no evidence' principle. The accused will need to establish that the tribunal made a finding in the absence of evidence such that the decision is `so aberrant that it cannot be classed as rational'. …