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 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 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.

There was increasing clamour from the rugby public for the decision of the tribunal to be published. Under the applicable regulations, all dispute proceedings were supposed to be confidential. But the public interest and the importance of transparent sports governance made it increasingly difficult for Premiership Rugby and Saracens to resist the demands for publication. Indeed, there were reports that Master Dyson himself favoured making the decision public. When that happened, as it was bound to, informed observers quickly concluded that the decision was both legally accurate and wellreasoned. Given its authorship, that will not have come as a surprise. An important element of the decision was how the panel dealt with the decision of Premiership Rugby’s Salary Cap Manager. Under the applicable regulations he was an individual charged with the responsibility of deciding whether payments or other benefits in kind received by players should form part of their salary for the purposes of determining whether there had been compliance with the salary cap rules. In essence, Premiership Rugby clubs are limited in the total amount of salary that can be paid to their players in any given Salary Cap Year. The Salary Cap Manager had determined that certain property co-investments with players by ‘connected parties’ of Saracens should be regarded as ‘salary’ payments to the players concerned. So should payments for alleged promotional appearances, and payments to a player by a hospitality business owned by the Saracens owner’s daughter under a purported agreement for the player to appear at corporate hospitality events. As a result, the total salary payments to players by Saracens exceeded the cap for three salary cap years. The panel adopted a deferential view of the Salary Cap Manager’s determinations; his judgment should only be displaced if it was one which was not reasonably open to him. This test is similar to that applied in the judicial review of decision makers in the administrative law context. It is also consistent with the approach commonly taken by sports tribunals unless, as is sometimes the case, a de novo review is expressly provided for. There were some nice turns of phrase. The case was not the first brush that Saracens had had with the salary cap regulations. In 2015, Saracens had been charged with failing to cooperate with an investigatory audit by Premiership Rugby. Ensuing disciplinary proceedings were settled. As the panel put it: ‘In sporting parlance, Saracens had been issued with a clear “Yellow Card” in 2015 and the onus was then plainly on it to ensure that it stayed firmly within the Regulations, and to seek clarification … If it was in any doubt as to whether it was doing so’. In response to the argument by Saracens that the object of the salary cap was anti-competitive and a breach of EU law, the panel wryly observed that a ‘candid acceptance of the desirability of a salary cap in some form’ by Saracens’ factual witnesses ‘puts the final nail in the coffin of Saracens’ case on object’. The Premier Rugby Limited v Saracens Limited case has not been the only recent high-profile sporting decision involving members of the Inn. At the end of February, the Court of Arbitration for Sport (CAS) released its decision in World Anti-Doping Agency v. Sun Yang & Fédération Internationale de Natation. The case involved allegations that the Chinese swimmer, Sun Yang, had failed to comply with doping control measures and had attempted to tamper with a sample-containing vial. Yang, who had won the 200 metre event at the 2016 Olympics, mounted a vigorous and aggressive defence. He demanded, and was granted, a public hearing (a very rare event in CAS cases). The three-person hearing panel, was composed of an Italian judge, Franco Frattini, Master Philippe Sands and Romano F. Subiotto QC. The hearing can be viewed online (https://vimeo. com/373204016). There were some ‘technical problems’ with the translation of the evidence but the hearing is worth taking a look at. The outcome was a career ending eightyear ban for Yang. The panel did not mince its words in its criticism of the athlete:

It was striking that, in the course of his testimony, at no point did the Athlete express any regret as to his actions, or indicate that, with the benefit of hindsight, it might have been preferable for him to have acted differently. Rather, as the proceedings unfolded, he dug his heels in and, eventually, sought to blame others for the manifest failings that occurred.

The panel’s concluding remarks apply equally to all decisions by sports tribunals:

The Panel has noted the considerable public interest in these proceedings, a reflection no doubt of the Athlete’s reputation and success in his chosen sport. The Panel has proceeded on the basis that its role is to establish the facts, on the basis of the record before it, and to interpret and apply the applicable rules to those facts. This is the rule of law, now of singular importance in the field of sport, and applicable to all athletes, irrespective of their background or status, their standing or success. The application of the rule of law in the domain of sport requires all to be treated equally.

Sadly, cheating, corruption, abuse of power, exploitation, discrimination and poor governance remain persistent features of modern sport. The Saracens and Sun Yang cases are recent examples of how sports tribunals help to level the playing field. Master Dyson and Master Sands are among an increasing number of members of our Inn who have taken up the challenge of administering justice in the world of sport. But there remains much to be done.