LEVELLING THE PLAYING FIELD
MASTER GRAEME MEW
Levelling the Playing Field Master Graeme Mew had an extensive sports law practice prior to his appointment as a judge of the Ontario Superior Court of Justice and served as an arbitrator and mediator for the Court of Arbitration for Sport, Sport Resolutions, World Rugby and the Sport Dispute Resolution Centre of Canada.
In November 2019 the sports headlines proclaimed the finding, by an independent panel, that Saracens, the highly successful Premiership Rugby club, had breached salary regulations and had been fined £5,360.272.31 and deducted 35 league points. At the time, the panel’s decision had not been made public. It was not until January, after details of the panel’s decision had been leaked, and a further 70-point deduction had been imposed by Premiership Rugby after Saracens were said to have failed to prove compliance with the salary regulations during the current season, that the full decision was released by Premiership Rugby. That decision, a comprehensive 323 paragraph treatise, would compare favourably, in terms of its thoroughness and authoritative tone, with any judgment from a senior court. Which was hardly surprising, given that the chair of the threeperson panel appointed to hear the case by Sport Resolutions, the national sport dispute resolution service, was Master John Dyson. The other members were Aidan Robertson QC (also a Middle Templar) of Brick Court Chambers and Jeremy Summers, a partner at Osborne Clarke and a highly experienced World Rugby judicial officer. The panel’s decision came after a five-day evidentiary hearing. It dealt not only with the interpretation and application of the salary regulations but, also, whether the regulations themselves were anti-competitive under EU law and what standard of review or deference should be accorded to the findings
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of Premiership Rugby’s Salary Cap Manager. There was a time when the resolution of sports disputes was much simpler. Rugby was an amateur sport. Disputes usually involved matters of on-field discipline. Hearings were often convened quickly after a match. Video evidence was rarely available. Indeed, at the lower levels of the game, it was not unknown for such hearings to take place around a drink-filled table in a corner of the clubhouse bar after the game. Justice was dispensed quickly, efficiently and with the minimum of fuss or disruption to post-match social activities. Today, sport is big business. Rugby is no exception. The laws of the game are but one element of the regulatory machinery. At a national and international level, there is a myriad of regulations governing leagues, movement of players, anti-doping, safe sport, marketing, branding, broadcasting, image rights, conduct, terms of engagement of players, and so it goes on. More broadly, a body of sports law has evolved, consisting of rules that govern the practice of sport and the resolution of sports disputes. These rules straddle the boundaries between many well-established branches of the law. But there are also generally applicable legal principles that have been recognised by sports tribunals and courts which form part of what some academics and commentators refer to as the lex sportiva. One of the most important developments in sports law has
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been the growing sophistication and technicality of the jurisprudence of specialist sports tribunals and appeals panels. Where once these bodies acted almost exclusively as disciplinary tribunals, they now often hear cases that require a detailed knowledge of the law and a determination of how specific legal issues should apply in the context of a sports dispute. The Saracens case is a prime example. Inevitably, the increasing sophistication of the subject matter that sports tribunals deal with, and the way that they operate means that their procedures have become more court-like in appearance. They are required to adhere to the rules of natural justice; legal representation is now commonplace; lay panel members have been replaced by lawyers and judges (both sitting and retired); the applicable rules are professionally drafted; decisions and reasons for reaching them are handed down in the same style as court judgments. The sanctions imposed are pronounced and justified in a similarly judicial style. Not everyone sees these developments as positive. Traditionalists yearn for less complicated and legalistic days. Yet one consequence of this socalled ‘juridification’ of these sports tribunals has been a greater degree of acceptance of their decisions by the parties appearing before them which, in turn, has led to fewer challenges to their authority coming before the courts. In the Saracens case, within a fortnight of the tribunal’s decision and its dramatic consequences being notified to the parties, Premiership Rugby and Saracens put out a joint statement confirming the sanctions and, in the case of Saracens, announcing that no review of the decision would be sought. Unfortunately for Saracens, the aftereffects of the decision rumbled on.
