Monday, May 20, 2013

Cricket disciplinary appeal is an Arbitration

The Commercial Court has ruled that Pakistani international bowler, Danish Kaneria's appeal proceedings against his life time ban for involvement in spot-fixing under the ECB's Disciplinary Regulations are an 'arbitration' for the purposes of the Arbitration Act 1996. The decision is a momentous one for sports' lawyers and governing bodies, not least in terms of the Court's supervisory role over sporting bodies' disciplinary procedures and the ability to rely on a Court to entertain appeals from, and make ancillary orders in support of, those processes.

In England and Wales Cricket Board Limited v Kaneria [2013] EWHC 1074 (Comm), the ECB sought a witness summons to compel its main witness, the cricketer Mervyn Westfield to attend the appeal hearing and give evidence. The summons was sought under s.43 of the Arbitration Act on the basis that the appeal proceedings constituted an arbitration; this was contested by lawyers acting for Mr Kaneria. The sole question for the Commercial Court was whether the appeal proceedings constituted an arbitration under the Act.

Unlike in some other notable cases (e.g. Stretford v The Football Association [2007] EWCA Civ 238) nowhere in the ECB's disciplinary regulations were its procedures described as an "arbitration", and there was no written agreement that used the word arbitration. Furthermore, the regulations described the ECB as "prosecutor" and the player as the 'accused'. Mr Kaneria argued that they were internal disciplinary proceedings and not an arbitration.

Mr Justice Cooke found that the characterisation of the appeal proceedings could only be that of arbitration on the one hand or internal disciplinary procedure on the other. It was in this context that Mr Kaneria's arguments about the 'ouster of the court's jurisdiction' were considered. If the appeal proceedings constituted an arbitration then remedies for serious irregularity and rights of appeal or recourse to the court were expressly governed by the Arbitration Act, in particular, sections 67 to 69. Whereas, if they were merely internal disciplinary proceedings, then the court could only intervene if there was either a breach of human rights, a breach of contract or if 'some form of judicial review was found to be available' (such as applied in the decision in Bradley v The Jockey Club [2005] EWCA Civ 1056).

The Court applied the test set out in dicta of Thomas J in Walkinshaw v Diniz [2000] 2 All ER (Comm) 237 that asked whether the procedure was one that in substance sought to determine legal rights and obligations of the parties judicially, with binding effect, enforceable in law, thus reflecting in private proceedings the role of a civil court of law. Applying the factors set out in Walkinshaw, Cooke J. found that

  • the parties to the appeal were afforded a proper opportunity of putting their case, not least as the appeal hearing was a complete re-hearing;
  • there were no unilateral communications between the parties and the arbitrators;
  • the parties had the right to call witnesses and present evidence;
  • the decision of the appeal panel was final - there was no further appeal;
  • the proceedings contemplated that they be carried out between the parties whose substantive rights were determined by them;
  • the jurisdiction of the appeal panel derived from the consent of the parties, by means of the ECB's Regulations which Mr Kaneria accepted when he signed the required undertaking of a cricketer, and he himself had brought the appeal;
  • the constitution of the Appeal panel was chosen by a method to which the parties had consented, that is the ECB's disciplinary regulations;
  • those regulations provided that the Appeal panel be impartial between the parties - and it was independent from the ECB "prosecution";
  • the Appeal panel's decision was intended to be enforceable in law; and
  • the regulations provided that the Appeal panel make a decision on a dispute already formulated at the time.

 

Mr Kaneria had argued that the Appeal Panel was not truly independent because, amongst other things, it contained people associated with the sport of cricket and not just independent lawyers and, moreover, it was appointed by the Chairman of the disciplinary panel. These arguments were rejected. There was a distinction between the ECB as prosecutor and the Appeal Panel which was appointed by an independent QC and contained lawyers. The fact that some members of the Appeal Panel had links with cricket was thought to be beneficial, and it did not mean they could not be impartial. In any event, importantly, Cooke J noted that the real issue was one of impartiality and not independence (although the latter may give rise to the former).

Mr Kaneria's argument that the proceedings were not an arbitration because the word arbitration was not used in the regulations (but words like 'prosecution' were) was rejected. The Commercial Court is used to seeing agreements that amount to arbitration agreements although informally worded. The court looked at the substance of the agreement (here, the regulations) and not the labels the parties used or failed to use to describe them.

Mr Kaneria argued that according to Stretford there had to be 'a clear and unequivocal agreement to arbitrate' in particular because an arbitration involved a waiver of the right to a public hearing under Article 6 of the Convention. But the Court found nothing in these points. Mr Kaneria had agreed to be bound by the ECB rules and regulations and was aware of the disciplinary and appeal procedures. There was no provision that the disciplinary proceedings be held in public and nor was there an expectation that they would be. Indeed Mr Kaneria had never requested that they be. It did not matter whether the proceedings were 'internal disciplinary proceedings' (and subject to Bradley type review) or an arbitration - in either case they would have been held in private.

The decision may put to an end to the debate about whether properly constituted sports disciplinary procedures constitute an arbitration or just internal procedures subject to Bradley type review (and the Court noted that in Bradley two members of the tribunal were Jockey Club members and no one even thought to argue the proceedings were arbitral).

However, this does not mean all disciplinary procedures will inevitably be arbitrations. They are unlikely to be unless they at least satisfy the test set out in Walkinshaw.

There are at least 10 key considerations arising from the decision:

1. Whether or not a disciplinary procedure is an arbitration does not depend on the use of the word in the rules, but the substance of the procedure.

2. Whilst formal independence between the "prosecutor" and the disciplinary panel is not stricly necessary, it will often be important to establish impartiality of the panel; so will the fact that it has some legal/judicial experience.

3. Disciplinary proceedings should contain procedural safeguards that allow both parties to fairly put forward their case, call and challenge evidence etc.

4. It is possible (and was contemplated in Kaneria) for a disciplinary procedure not be an arbitration (because it lacks the necessary legal safeguards) but for an appeal procedure arising out of it to be one - this may be of important practical benefit for sports governing bodies who wish to have a more efficient and less "legalistic" first stage disciplinary procedure but nevertheless seek finality by having an appeal process in the nature of an arbitration.

5. The much trumpeted expansion of the Bradley jurisdiction in some quarters may now be silenced. Although it is likely that some disciplinary bodies' procedures, lacking appropriate legal safeguards, shall not constitute arbitrations and will thus still be subject to the court's supervisory review powers under the Bradley jurisdiction.

6. But in many respects there may be little distinction between the courts' power to review under Bradley principles and under the Arbitration Act - both routes contain important procedural safeguards and in both the bar for an "appeal" is very high.

7. There are a number of advantages for sports bodies in their disciplinary procedures being arbitrations, in particular confidentiality, finality of proceedings and the ability to obtain ancillary orders from the court.

8. Some of these advantages may also be utilised by the athlete. On the other hand the obvious "disadvantage" to the athelete is that, save for an error of law or procedural irrelularity, if the disciplinary proceding is an arbitration he has noweher else to go afterwards.

9. So far as the availability of ancillary orders is concerned, there are a wealth of orders that parties to an arbitration may wish to apply to the Court for, for example, enforcing compliance with a preliminary decision of the disciplinary tribunal (s.42 of the Arbitration Act), obtaining a witness summons (s.43, as applied in the Kaneria case); enforcing compliance with costs orders and the making of any other orders in support of the arbitration a court could make (in exceptional cases including search and freezing orders) (s.44), and applying to the court for a preliminary determination of law (section 45).

10. Lawyers acting in sports disciplinary cases, (whether for athlete or governing body) need to be familiar with the structure of the Arbitration Act so they can advise on rights to appeal under it and other procedural challenges that can be made.

Nick de Marco
Barrister
Blackstone Chambers, London
nickdemarco@blackstonechambers.com

This article was originally published here on the Blackstone Chambers Sports Law Bulletin blog.
Ian Mill QC and Nick De Marco represented the ECB in the Kaneria case.
The full judgment in the case can be found here


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