Sports disciplinary proceedings often concern allegations of sexism, racism and discrimination and — due to the high-profile individuals involved — attract widespread media attention.
While most hearings of this nature take place behind closed doors, the recent case involving former England cricket captain Michael Vaughan OBE was open to the public. Should this set a precedent for future disciplinary hearings? Or does it place our principle of ‘innocent until proven guilty’ at risk?
Here, Solicitor Laura Earps gives her take on the future of sports disciplinary proceedings.
An unprecedented public hearing
At a hearing in November 2022, the CDC (Cricket Discipline Commission) took the unprecedented step of ruling that a substantive hearing of a CDC panel would be held in public.
This was announced by the ECB (England and Wales Cricket Board) on 7 February 2023 in reference to the disciplinary charges against YCCC (Yorkshire County Cricket Club) and a number of individuals in light of allegations made by Azeem Rafiq (who applied for the hearing’s public setting). Accredited members of the media were permitted to view and report on a live feed of the hearing.
Such a step was unusual, as the CDC usually operates in private. It was also unprecedented in that Mr Rafiq — who was not a party to the charges — was permitted to not only be heard but to make an application before the panel.
The CDC’s decision
In the case of ECB v YCCC and Others, the panel held that in five of the cases, some racist and/or discriminatory language had been used by those individuals, which was prejudicial to the interests of cricket and brought the game into disrepute.
Under the chairmanship of Lord Patel — installed with the support of the ECB — Yorkshire County Cricket Club had already admitted certain agreed and amended charges. Gary Ballance admitted the charge of using racist and/or discriminatory language.
In relation to the sixth respondent — Michael Vaughan — after all the available evidence was reviewed, the panel found that it was unable to uphold the allegation that he had used racist and/or discriminatory language.
Myself and other members of our award-winning litigation team, including our Head of Litigation and Best Lawyers’ Lawyer of the Year 2024, Paul Lunt, acted for Michael Vaughan.
A departure from the norm
Historically, the ECB has held all disciplinary hearings in private.
This is in-line with the general principle that sports regulatory and disciplinary matters are private matters — emanating from a private contract between club and player — and since arbitrations are normally confidential to the parties involved.
It’s therefore a question of when a departure from the norm is justified. In our view, there must be some element of high public interest and exceptionality to support such an argument.
The public interest
Sports disciplinary proceedings often involve allegations of sexism, racism and other discrimination.
As such, there is arguably a public interest reason for conducting such hearings in public, as the public expects a thorough and transparent investigation to be conducted.
On the contrary, there are circumstances where the seriousness of the conduct being examined warrants a private hearing. Arguably, there is a greater interest that applies to the individual charged, where the principal of ‘innocent until proven guilty’ could be put at risk.
With sports disciplinary proceedings often attracting widespread media attention, cases are often reported on in the press and much of the evidence relied on by the parties involved makes its way into the public domain quickly.
Respondents sometimes comment publicly on the allegations, which results in limited confidentiality before the hearing has even started. Accordingly, the justification for privacy largely falls away.
Further, full publicity may prevent the parties involved from seeking to obtain an advantage by leaking confidential information and seeking to frame a media narrative in support of their own case.
On the other hand, the mere fact that an individual is alleged and/or charged with discriminatory conduct is enough to cause serious and long-lasting reputational damage. Particularly in the modern era, it could be argued that public hearings essentially open the door to ‘trial by media’, which is at odds with Article 6 of the European Convention on Human Rights — the right to a fair trial.
The principle of open justice
There is also the open justice principle to consider — that justice must be seen to be done, which is a fundamental principle of our legal system.
This principle is reinforced by Article 6(1) of the European Convention on Human Rights, which provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
In the case of Mutu and Pechstein v Switzerland, the European Court of Human Rights found that an arbitration clause in the rules of a sports governing body that didn’t permit a public hearing was a breach of Article 6. We consider this to stand in contrast with the case of Stretford v The Football Association, which found that the arbitration clause within The FA Rules meant that a football agent had waived his rights to a public hearing.
In the case of Cape Intermediate Holdings Ltd v Dring, Lady Hale helpfully explained the open justice principle, which included the right to public hearings:
“The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases — to hold judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly… But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken”.
The same principles outlined by Lady Hale are also applicable to sports disciplinary proceedings. Disciplinary panels should not be immune to being held accountable for their decisions. It could be said that public hearings provide fans, athletes and the general public with confidence in the integrity of sport and how and why decisions are made.
Should all sport disciplinary hearings be public?
It’s important that a balance is struck between conducting a fair and thorough investigation (and subsequent disciplinary hearing) and the rights of the individuals who are charged (whose reputations and livelihoods are at stake, pending the outcome of the proceedings).
It had been considered best practice to conduct sport disciplinary hearings in private, given their highly sensitive nature. There is a well-established common law concept that disciplinary procedures must satisfy the requirements of natural justice, which — in its widest sense — means ‘fairness in all aspects’. It’s therefore important that disciplinary procedures are fair, clear, transparent and consistent in their application.
Failure to abide by the above principle is not only a potential breach of Article 6 of the European Convention on Human Rights, but it also leaves national governing bodies open to legal challenges and criticism.
The future of sport disciplinary proceedings
The CDC’s decision may be considered a fundamental one for the future of disciplinary proceedings and could go some way to improve the transparency and accountability of the disciplinary process in sport. However, there is naturally some element of publicity in such cases, and we query whether this is enough to satisfy the public interest and open justice argument.
It’s well known that the findings of the CDC panel are made available to the public as soon as they are published in almost all cases.
Typically, the ECB also publishes the written decision of the CDC. The same is true for The FA (which routinely publishes the decisions of its regulatory commissions and appeal boards), the Premier League (where rules provide that the final decisions of its disciplinary commission be published) and the English Football League (which also publishes disciplinary decisions).
As such, it may not follow that the entire process should now be made public.
To have some of the most serious allegations made by complainants in all cases — with parties on both sides taking the stand and open to cross-examination — would be extraordinary.
As such, we would argue that this case has to be viewed as truly exceptional and shouldn’t be relied on as precedent for future disciplinary proceedings.
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