Going public? Sports disciplinary proceedings in light of the racism allegations in cricket
As has been widely reported, in June of this year, the England and Wales Cricket Board (the “ECB”) charged seven individuals with regulatory breaches arising from racism allegations. The allegations were made by former Yorkshire bowler, Azeem Rafiq, against former teammates and coaches. Yorkshire was also charged over its alleged mismanagement of allegations that were brought to its attention.
In a first, the ECB’s Cricket Discipline Commission (the “CDC”) agreed in November 2022 that the disciplinary hearing convened to determine the allegations would be heard in public. The decision was made after an application by Mr Rafiq, who was subsequently supported in his application by Yorkshire.
The hearing was due to commence on 28th November 2022, but the decision was appealed by other interested parties.
A reconstituted CDC panel dismissed the appeal in late 2022 and the hearing is now expected to go ahead in March 2023.
Why is the norm, the norm?
The starting point is, and traditionally always has been, that confidentiality is the bedrock of sports regulatory and disciplinary matters. In the sporting context, private arbitration has the benefit of enabling the selection of arbitrators with sport-specific knowledge and experience who do not need to be brought up to speed on the nuances or customs of the game or the regulatory framework. Panellists may, for example, be former players and coaches, sports and regulatory lawyers and sports administrators. Indeed, this approach was in many ways rubber-stamped by the decision in England & Wales Cricket Board v Kaneria[1] in 2013, which found that a CDC appeal panel hearing was an arbitration under the terms of the Arbitration Act 1996, even though it did not expressly refer to itself as such. Increasingly, the direction of travel has been for governing bodies to intentionally structure their disciplinary matters so that they have the necessary components of an arbitration.
It should be noted that there has always been a tension between this ‘traditional’ approach, and the wish for some who are party to sports regulatory proceedings to have the right to a public hearing, often relying on Article 6 of the European Convention on Human Rights. This tension came to a head in a case involving the high-profile football agent, Paul Stretford, who in 2007 was subject to FA disciplinary charges, which were to be conducted in private under The FA’s Rule K (Stretford v The Football Association Ltd[2]). The charges related to Mr Stretford’s conduct in securing the right to represent Wayne Rooney and evidence he had given in a criminal case. It was held that in exchange for his agent’s licence, Mr Stretford had contractually agreed to be bound by Rule K and in so doing had essentially contracted out of his Article 6 rights.
So, what is different about this case?
The reticence on the part of the CDC and other sports disciplinary bodies to hold hearings in public previously is understandable and has generally been considered to have been best practice, given that sports disciplinary cases often involve sensitive matters. Whilst providing transparency and open justice can be beneficial, the appetite of witnesses to give evidence in this context is a key factor. Often witnesses are providing very sensitive evidence, warranting anonymity, without which they might not provide evidence at all. Often, it is the most sensitive evidence which is the hardest to obtain during an investigation but is the most germane. If the volume or quality of the evidence is fettered, the ability of investigations to obtain the necessary material will potentially suffer.
However, private proceedings, and the granting of anonymity, can also present challenges. For those subject to the allegations, or charged with the regulatory breaches, the source of evidence and how it was obtained is important and anonymity can compromise the ability to respond to, or challenge, evidence. That seems to be a factor in this case. Distinctions can also be drawn between the Stretford case and the present CDC proceedings because the Stretford case, relating as it did to alleged breaches of agents’ regulations, plainly did not have the same societal or public importance as the allegations made by Mr Rafiq. Further, uniquely, in this case the allegations have already been significantly aired in public, and therefore it is not as significant a ‘leap’ to allow for the allegations to be properly and fairly tested in a public forum.
A rational move towards greater openness in sports disputes, or a one-off, based on a unique set of circumstances?
The CDC’s decision may be seen by some as a logical step in improving transparency and accountability in the adjudication of sports disputes. Indeed, the findings of CDC disciplinary panels are made available to the public in almost all cases as soon as reasonably practicable and usually within 5 days after conclusion of the relevant hearing. The ECB also publish the relevant panel’s written reasons in full unless it determines that doing so would be inappropriate.
However, it does not necessarily follow that entire processes should be made public, including evidence, as of right, or as a starting point, and we do not think this case will, or should, set a precedent. Sports disciplinary cases often touch upon a range of highly sensitive matters and issues, and even if such issues are notionally of societal or public interest, that does not mean that the public should be ‘allowed in’. In many cases, that would be counterproductive and potentially damaging. It is our view, therefore, that this is a unique set of circumstances, and the threshold as to whether a case that would ordinarily be heard in private should be heard in public should remain a high one.
[1] [2013] EWHC 1074 (Comm)
[2] [2006] EWHC 479 (Ch) (first instance decision); [2007] EWCA Civ 238 (appeal)
Kieran Mercer is an Associate in the Sports Team at Sheridans, and specialises in sports disputes, regulatory and disciplinary matters.