Should Sports Governing Bodies be subject to Judicial Review?

In public law, judicial review is a method that a claimant can use to challenge the legality of decision made against them. The Judiciary have made it clear that the purpose of judicial review is not to deliberate over whether the decision made by the public body is right or wrong, but whether the right procedures were followed in order to reach the decision. There are several grounds for a claimant to challenge how the decision was made against them. Firstly, the legality of the decision can be challenged on the basis that it was unfairly reached by the body making the decision. Secondly, the body making the decision legally had no power to reach the decision. Thirdly, the reason behind the decision was not a strong enough reason to justify the decision.

So, whilst judicial review could be viewed as a method used by the judiciary to hold public bodies accountable for any unlawful decisions, there are many obvious reasons why a claimant shouldn’t expect judicial review to work in their favour entirely. Firstly, the court would never substitute in a more appropriate decision. A public body can reach the same decision again, as long as the decision was reached in a lawful way. Judicial review is not a good way to argue that a decision was incorrect.

“The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within its lawful limits.”-Richards J, R v Jockey Club ex parte Aga Khan [1992]

Before discussing whether sport’s governing bodies should be subject to judicial review or not, the legal status of a governing body must first be established. Whilst a sport’s governing body may be governmental in name, it is in no way governmental. In fact, a sport’s governing body is not applicable for judicial review because it is a private body. The 1992 case of R v Jockey Club establishes that governing bodies exercise purely private powers. Governing bodies obtain their power through their private contractual relationship it has with its participants. In essence, governing bodies have no legal status.

If someone were to challenge a decision of a governing body made against them, they would have to do so on the grounds that there was no contract between the two parties, the governing body was in breach of the contract, or the governing body is restricting the trade of the claimant.

One may question why there is even a debate as to whether or not governing bodies should be subject to judicial review. The legal status of national governing bodies is clear, part 54 of the Civil Procedure rules states that private bodies cannot be judicially reviewed, and most national governing bodies have a structured quasi legal system; thus, arguing that they may be well equipped to function without judicial review.

There are several broad arguments for governing bodies to be subject to judicial review. Firstly, it was established in the 1986 case of R v Panel on Takeovers and Mergers that the decisions of a private body exercising public functions could be subject to judicial review. If it could be argued that a sport’s governing body carries out at least some of the functions that a public body would, then it perhaps sport’s governing bodies should be subject to judicial review. With a holistic view, sport’s governing bodies could be seen to carrying out public functions in many ways. Governing bodies are responsible for participation figures of their respective sports, which has an impact and health and fitness figures. A lot of the major sports in the UK are now a part of the physical education curriculum at most schools. There are also numerous instances where there has been intervention from the legislature and the judiciary, on topics such as stadium safety and issuing football banning orders to hooligans; showing that some sports are already integrated within public law.

One might question why it would be an improvement to make sport’s governing bodies subject to judicial review, and there are many justifications for this. Although most governing bodies have internal legal infrastructures, this doesn’t necessarily mean that natural justice is applied. The case of Caster Semenya and the IAAF demonstrates that a quasi-legal system produces decisions that would most likely not be reached by a national court. Furthermore, cases such as the landmark 1995 Bosman ruling demonstrate that many sporting topics will end up reaching EU or national courts anyway. In this case, the European Union had informed UEFA that their transfer window infringed their freedom of movement laws, and the failure of UEFA to rectify this is ultimately what lead to the case reaching the European Court of Justice. The more general arguments for judicial review being introduced for sports governing bodies is that the rights of workers are at risk if decisions taken against them are accountable by the government. Nonetheless, in some sports there is a real threat of monopolies being created and monopolies should be regulated by national courts.

One highly plausible argument in favour of a quasi-legal system without the intervention of judicial review is that it is a much cheaper system than the involvement of national courts, from the perspective of the taxpayer. If a sport’s governing body can create an efficient legal infrastructure, then it prevents many cases from reaching national courts. Perhaps in the early origins of sport, sport’s governing bodies would be considered to be public bodies. However, the commercialisation of sport has taken it further in to the private sector.

In conclusion, the legal status of sport’s governing bodies makes it abundantly clear that they are not subject to judicial review. Their power stems from the private contractual relationship that they have with participants and they are in no sense governmental. So long as sport’s quasi legal system can deliver natural justice, the calls for judicial review are not as prominent. This also is where the problem lies, if the legal infrastructure of a sport’s governing body (especially one that is deeply tied to public law) fails to produce decisions lawfully, then how is it held accountable? One might suggest that some sport’s governing bodies be subject to judicial review. But for now, there is no real threat of governing bodies being applicable for judicial review. 

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