BAR COUNCIL CONFERENCE

SPORTS ARBITRATION IN IRELAND AND ABROAD

SATURDAY 10 FEBRUARY 2007

_______________________________

JUST SPORT IRELAND (JSI)

ANSWERING IRELAND’S CALL FOR A NATIONAL SPORTS DISPUTE RESOLUTION BODY

ERCUS STEWART S.C

Introduction Arbitration – forefront of dispute resolution International commercial contracts National level – engineering, construction, insurance etc Arbitration is private, binding and enforceable JSI- independent organisation established to use arbitration to resolve sports disputes outside of the court system

Sports self regulation v court intervention Courts traditionally reluctant to intervene in sports disputes Sports bodies guard the right to self regulate JRM Sport Ltd t/a Limerick Football Club v The FAI, [2007], Clarke J, Enderby Town Football Club Ltd v The Football Association Ltd [1971], Lord Denning – “Justice can often be done in them (domestic tribunals) better by a good layman than by a bad lawyer” Court intervention only in exceptional circumstances

Fair procedures Were fair procedures adopted? Quirke v Bord Luthchleas na hEireann (BLE) [1988], Clancy v the Irish Rugby Football Union (IRFU) [1995], Kieran Gould v Michael McSweeney & Ors, High Court, Smyth J, 23 January 2006 Concept of natural justice

nemo iudex in causa sua (nobody shall be a judge in his own cause) audi alteram partem (hear the other side)

Sport in the courts Today NGB’s face increasing legal challenges to their decisions E.g. Disciplinary matters, eligibility, registration etc Increasing awareness of sports commercial value Greater number of amateurs than professionals in Ireland i.e. honour and glory of winning rather than financial reward more often fuels desire to win

Just Sport Ireland - JSI Establishment necessary due to increased litigation in sporting world Sport arbitration scheme more appropriate resolution forum than court Turf Club cases - Moran v O’Sullivan [2003], Bolger v Osborne [2000], Kinane v Turf Club [2001] GAA/FAI cases - JRM Sport Ltd t/a Limerick Football Club v The FAI, [2007]

The merits of sports arbitration Independent resolution of disputes Inexpensive Fast, effective resolution (e.g. 24 hours)

Hearings conducted speedily Private and confidential – no media attention

The Court of Arbitration for Sport (CAS) International sports arbitration organisation, (Lausanne, Switzerland) Formed in 1984 under IOC (now independent) Addresses amateur/professional disputes E.g. doping, player transfers, sponsorship, disciplinary disputes, television rights

JSI – How will it work? Supported by the Federation of Irish Sport (FIS) Cost-effective Fair and expeditious No legal representation required Adverse publicity avoided JSI rules in line with CAS model clauses

JSI - Mediation Flexible procedure Impartial JSI mediator In practical terms, JSI Registrar facilitates the mediation e.g. organises dates and venue, facilitates exchange of documents etc Procedure entirely confidential

JSI - Arbitration Available if sports bodies/persons are party to agreement with provision for JSI resolution Establishment of arbitration tribunal Internal remedies must first be exhausted Hears appeals against disciplinary, selection decisions etc Notice of Appeal Defence/Counterclaim

JSI - Arbitration JSI Registrar facilitates the arbitration e.g. fixes dates and venue etc Hearings – 1 Arbitrator or 3 Resolution via oral hearing or written submissions Registrar determines costs Important factors when granting award or contribution are financial resources and outcome of the arbitration

JSI - Arbitration Simplicity of procedure JSI documents easily understood Downloadable forms similar to GAA’s Dispute Resolution Authority (DRA) Enforceability of arbitration decision Right of appeal to CAS if NGB Rules permit Confidential procedure

Composition of JSI JSI panel – Barristers, solicitors and arbitrators with experience in some field of sport More senior members will mentor younger members Beneficial to young barristers and solicitors keen to learn arbitration process

Remit of JSI

JSI will not handle disputes re; doping, employment, industrial relations

FAI, GAA and IRFU – internal dispute resolution bodies

They may in future opt for JSI

Conclusion JRM Sport Ltd t/a Limerick Football Club v The FAI, Clarke J – Sports bodies should be left get on with administering their sport Bernard Foucher – Sports disputes should be settled “within the family of sport” CAS has set example for JSI to follow JSI tenets – Simplicity, accessibility and enforceability Well suited to Irish sporting world

END

DEREK BRENNAN, PRESIDENT

FEDERATION OF IRISH SPORTS

Personal/Sporting Background Derek Brennan General Manager for Ireland of U.K. based Life Assurance Company. Past Chairman - Irish Cricket Union Past President - Leinster Cricket Union and C.Y.M. Cricket Club (also past Club Captain). Current Trustee and Chair of Disciplinary Committee C.Y.M. Sports Club Volunteer in Sport for over 30 years

“Cricket civilises people and creates good gentlemen. I want everyone to

play cricket. I want ours to be a nation of gentlemen”.

Federation of Irish Sports Background

o Started as Committee of Volunteers

o First full-time Chief Executive –Sarah O’Connor - commenced in January

o Funded by Members Subscriptions / Commercial Patrons / ISC Grant

o Strategic Plan

o Early stage dispute resolution

o Reasons

o Support

o Chairman of Arbitration Panel

o Next Stage

END

NATIONAL AND INTERNATIONAL SPORTS DISPUTE RESOLUTION

DARREN BAILEY, SENIOR LEGAL COUNSEL FOR THE INTERNATIONAL RUGBY BOARD

International governing body of the Game Over 100 members globally Approximately 3 million registered players Global Regulator Tournament Organiser Strategic Developments

Objectives and Functions of the Board Promoting, fostering, developing, extending and governing the Game. Framing and interpreting the Bye-Laws, t he Regulations and the Laws of the Game

Objectives and Functions of the Board Deciding and/or or settling all matters or disputes relating to or arising out of the playing of or the proposed playing of the Game or Match or any dispute between two or more Unions relating to the application of the Regulations

Objectives and Functions of the Board To regulate and co-ordinate arrangements to ensure that there is a fair and equitable programme of matches, tours and tournaments for Senior National Representative Teams of all Council Member Unions.

Objectives and Functions of the Board Controlling all other matters of an international character affecting the Game To prevent any discrimination against Unions or Persons on the grounds of race, sex, religious or political affiliations

Three Main Areas of Authority Laws of the Game Bye-Laws Regulations Relating to the Game

Regulations Relating to the Game Player status, player contracts and player movement Agents Eligibility Illegal and/or foul play Anti Doping

Illegal and/or Foul Play Ordering off Biting Misconduct Temporary suspensions Appeals

Fundamental Imperatives

Health and welfare of players Image and reputation of the sport Level playing field Attract future generations of participants Minimise risk of external enforcement

Unique Features

Expedited Process Rugby specific sanctioning regime Universality Principle

Implementation of Wada Code

IRB Wada compliant Programme Issues flowing from the revised sanctioning regime Relationship with Unions The role of CAS

Trends / Developments Complexity Use of precedent Cross sport applications END

THE DISPUTES RESOLUTION AUTHORITY OF THE GAELIC ATHLETIC ASSOCIATION (“THE DRA”): EXPERIENCES THUS FAR MICHEÁL O’CONNELL B.L.*

*The speaker acknowledges the valuable assistance of Liam Keane, Solicitor, in reviewing this paper in draft and supplying information in relation to the DRA. All opinions are solely those of the speaker and not of the DRA or the GAA. This paper does not constitute legal advice and no responsibility is accepted in the event that loss is sustained in reliance upon it.

BACKGROUND SUMMARY Arbitration became an obligatory dispute resolution process for members and units of the GAA in May 2005, and it has been in operation since then. A committee had been formed in order to redraft the entire disciplinary code of the GAA from scratch, and arbitration was considered to be a useful adjunct to that new code. As it turned out, however, against a background of increasing resort to the courts by members of the Association, the arbitration system in fact became a rule before the revisions to the substantive disciplinary code. The new substantive disciplinary rules were passed in April 2006 and came into effect on 1 January 2007. Arbitration by the DRA is, essentially, external arbitration operative through an arbitration clause, which is integrated in the rules of the Association: the rule concerned is an “arbitration agreement” within the meaning of the Arbitration Act 1954. The rule goes further than the usual type of arbitration clause, however, as it establishes both the arbitral body (the DRA) and the procedures to be adopted in any arbitral proceedings taken on foot of the clause: these procedures are set out in a code known as the Disputes Resolution Code (the Code). In its nearly two years of operation, the DRA has handled some 73 claims. In this paper, it is proposed to discuss, in broad outline, the structure and procedures of the DRA in their context, and some of the issues raised and lessons learnt over that period. The perspective is that of a member of the committee that promoted the system, and an arbitrator of some of the claims made under it. However all opinions expressed in this paper are solely those of the speaker. Neither the GAA, nor any of its committees have been consulted in relation to this paper, and ought not to be associated with any opinions expressed. THE DRA IN THE CONTEXT OF THE GAA’S RULES The obligation to refer legal disputes is contained in Rule 159 of the Official Guide, the rulebook of the GAA. It provides as follows:

“(a) In the event of any dispute or difference between any member or unit of the Association with any other member or unit of the Association, as to the legality of any decision made or procedure used by any unit of the Association in pursuance of the Rules and Bye-Laws of the Association, which cannot be settled by amicable means within the Rules of the Association, such dispute may be referred by either party to Arbitration under the Disputes Resolution Code annexed to these Rules, (Appendix 3) as initially approved by Congress and from time to time amended by the Disputes Resolution Authority with the approval of the Central Council.

(b) Such Dispute Resolution shall be conducted in accordance with that Code

and the Arbitration Acts 1954 and 1980 or any statutory modification or re-enactment thereof. The Rules of the Association and the Laws of Ireland shall govern such Dispute Resolution.

(c) No member or unit of the Association may issue proceedings relating to

any such Dispute in any Court of Law in any jurisdiction. (d) No member or unit of the Association shall refer such Dispute to Dispute

Resolution until all available avenues of Appeal under the Rules of the Association have been exhausted.

(e) Disputes arising from or concerning Doping Control under the Rules of

the Association, any Rules of the Irish Sports Council, or under General Law shall not be the subject of any Arbitration under this Rule.”

The Code is an Appendix to the GAA’s rules. It is something of a compromise between the necessary legal requirements and the exigencies of rapid dispute resolution in the sports context. The GAA is made up of Members and Units. The Units are a hierarchy: Central Council, Provincial Councils, County Committees, and Clubs. Where an appeal is available, it handled by the Unit immediately superior to the original decision-maker. Each of those Units has sub-committees and/or divisional committees: where an appeal is available from a subordinate committee, it is handled by the parent Unit. The DRA is external to this structure, but, subject to the exhaustion of internal remedies, a decision of any of those Units or subordinate committees is amenable to challenge before it. While legal disputes traditionally concern disciplinary proceedings, the remit of the DRA is not limited to such cases. Thus parish boundaries, the rights of players to transfer clubs and the like have also featured: often, disciplinary proceedings will be the flashpoint of a dispute where the underlying, substantive quarrel relates to a wider issue. It is perhaps worth commenting on the limits of the function of the DRA. There are many areas of dispute in the sports arena that can and have given rise to litigation in the courts, but which are not the concern of the DRA. Thus, personal injury and other tort actions, employment disputes, disputes under commercial contracts (e.g. sponsorship deals), and the like are not amenable to its jurisdiction. The DRA is essentially concerned with administration: it is a forum for “quasi-judicial review” of administrative decisions or acts made or purportedly made in reliance upon the Official Guide. Doping related issues are expressly excluded, however, as such matters are partly within the remit of the Irish Sports Council, which is not a party to the GAA’s rules and not therefore bound by the clause. There is an express obligation to exhaust the internal appeal mechanisms before bringing a claim before the DRA, because the appellate system in the GAA’s rules allows for what are legal or jurisdictional errors to be identified and acted upon. On disciplinary matters, there is an appeal in almost all cases. In cases where there is no appeal or where there is inadequate time to have an appeal processed, a claimant may seek arbitration immediately.

IS THE DRA SUFFICIENTLY INDEPENDENT OF THE GAA? It would not be surprising to be asked this question, having regard to the fact that the DRA was established by the GAA at its annual Congress of 2005, and deals only with cases reviewing internal decisions of the GAA. The allegation might be made that the raison d’être of the DRA was merely to thwart the intentions of those who would otherwise have resort to the courts. If that was the intention of the voting delegates at Congress 2005, they will have been more than a little disappointed when the first decision of the DRA1 reversed three years of (mis)interpretation of one particular rule by the highest Units of the Association. Certain safeguards are built into the general law, impartiality included2, and the Code is designed to ensure the independence and impartiality of the DRA; for example no serving officers of the GAA may be on the panel of arbitrators maintained by the GAA3. The independence of the DRA is qualified in two substantive respects, however: first, although the Secretary is entitled unilaterally to amend the Code, he is obliged to have the amendment ratified by Central Council; secondly, the DRA is entitled to an indemnity from the Association in respect of any financial losses arising from the operation of the DRA. One might add that the Association, acting by a Congress with power to amend its rules, may amend or delete Rule 159, getting rid of the DRA entirely. This is, of course, a matter of contract, rather than a matter pertaining to the independence of the DRA4. The context in which the DRA was established was one in which there was no specialist sports arbitral body in Ireland. Arbitration per se did not guarantee the needs of both claimants and respondents in the sports context, because the parties were not obliged to move rapidly. Thus, if the system lacks independence, that is an innate and unavoidable defect, because there is no alternative but the Courts or arbitration regulated only by the Arbitration Acts, neither of which addresses the special needs of sports dispute resolution. It is submitted that the two compromising factors identified above are practical requirements, without which the operation of the system would be seriously undermined, and any unfavourable perception generated is that of a bias of necessity. STRUCTURE OF THE DRA Where arbitration is sought, application papers are sent to the Secretary of the DRA who is in essence the “Central Office” in the system. Its “judges” are the members of a bipartite panel maintained by the Secretary: the first section being lawyers, and the second being non-lawyers who have experience and expertise in matters relating to the GAA. Each claim is heard by a Tribunal of three, which must contain at least one person from each section of the DRA’s panel. The rationale for this is to secure the necessary

1 DRA 1/2005 2 Arbitration Act 1954, section 39 3 Disputes Resolution Code, section 1.1 (see also section 5.2) 4 Obviously – because an arbitrator’s authority is irrevocable – such a rule change could not interfere with pending clams.

legal expertise, while ensuring at the same time that a widest possible perspective is achieved. There are at present 67 legal and 37 non-legal personnel on the DRA’s panel of arbitrators. All are volunteers, although expenses are covered. The high number of panel members increases the risk of inconsistent decision-making but reduces the individual burden, and ensures that the DRA is never in a position where a case cannot quickly be disposed of for the want of arbitrators. In order to ensure consistency, every DRA Tribunal has at least one (often two) members who have previously sat on a Tribunal. Sometimes, an interim decision requires to be made with such urgency that a Tribunal cannot be convened in time: in such cases the Secretary may adjudicate on such matters, and this jurisdiction has been exercised on a number of occasions. PROCEDURES It is not proposed to dwell ad nauseum on the DRA’s practice and procedure, as it is relatively straightforward and the Code sets the rules out in full. Instead it is proposed to deal with certain themes that exist, or at least should exist, in the system, having regard to the special nature of sports-related disputes. Nonetheless, for the purpose of completeness, the procedure is roughly as follows. A claim is commenced by completion of a Claim Form, service of it on the Respondent Unit(s), and service thereafter on the Secretary of the DRA. Copies of the Forms and the contact details of the Secretary of the DRA are available on the DRA’s website: www.sportsdra.ie. The Claim Form is designed to elicit as much information about the claimant’s case as can be given at that stage. Due to the need to resolve disputes quickly, there is no place for catch-all generalised pleadings, and failure to give sufficient information in Claim and Response Forms has given rise to adverse costs orders. Also, where an urgent hearing or interim relief is sought, a defective or unclear Claim Form may compromise that application as it slows down the whole process. It is essential to the usefulness of the DRA that the parties are cooperative in identifying the precise issues of complaint, and it is damaging to be seen to be obstructive or to engage in procedural stratagems. The Claim Form will ordinarily name both the initial decision-maker and the appellant decision-maker as Respondents. If other parties are affected by the outcome of the decision, they should be named also. The Respondent has 7 days in which to deliver a Response Form: this period may be abridged in urgent cases. The Secretary will also empanel his Tribunal during this time. Any objections to the make-up of the Tribunal must be delivered to the Secretary, with reasons, within 3 days of notification of the identity of the Tribunal members5.

5 Disputes Resolution Code, section 5.3

A preliminary meeting is usually held, in which the issues in the case are clarified, relevant documentation identified and other pre-hearing steps outlined. Again, this is an occasion where the parties must be, and be seen to be, cooperative in bringing the matter to hearing quickly and efficiently. Deadlines are usually set for the carrying out of different tasks, and practitioners should be in a position to say at the preliminary meeting how long it will take to assemble and copy documents, prepare submissions etc. Sometimes a second preliminary meeting is required. As with preliminary meetings, hearings usually take place outside business hours: this is because the Secretary and Tribunal Members are volunteers, and because the rescheduling necessary to have hearings held during working hours tends to delay cases. The hearing will operate in much the same way as any other arbitration hearing. One significant difference is that there are quite often – in the speaker’s experience – no disputes as to relevant evidence in the case. For example, while there may be a dispute as to whether or not A kicked B, there is often no dispute as to the primary facts in the decision-making process (e.g. the content of letters; whether or not a witness was allowed to give evidence etc.). Since it is that process that is under review, rather than the actual question as to whether A kicked B or not, it may not be necessary to call any witnesses (and indeed a recital of the material facts could be prepared in advance of the hearing). Often, the claim will turn on the interpretation of a Rule. In other respects, the hearing proceeds in a manner that will be familiar to those with experience of court or arbitration procedure. The substantive law relating to sports-related disputes is quite thin on the ground in this jurisdiction. Many of the arguments before the DRA have turned on principles derived from the law of judicial review and contract, with particular attention to canons of contractual and statutory interpretation. Judicial decisions from this jurisdiction, England & Wales, and Australia have been considered, as well as decisions of the Court of Arbitration for Sport. Unless the case is an urgent one, a decision will usually be reserved and delivered in writing some days later. Sometimes, the decision, with or without reasons, will be delivered orally and reduced to writing on a later date. The remedies available are not circumscribed by the Code, but as a rough generalisation, the reliefs granted fall into two major categories, first, equitable relief, and secondly declaratory relief. A typical successful outcome for a claimant will be a declaration that a decision is null and void, and an order directing a rehearing. An interesting question arises as to whether damages are available. There is certainly no bar to an award of damages, but in an amateur sport, it is difficult to see in what circumstances an award of damages would be appropriate. Under the Code, costs follow the event unless exceptional reasons dictate otherwise6. This reflects the general law7. Where a decision is delivered on the evening of the

6 Disputes Resolution Code, section 11.2

hearing, costs will usually be argued at that point; if the decision is reserved, the question of costs is open for further argument: in practice, an agreement or consent decision usually results. The Tribunal may, if requested by ether party, measure costs. This has not yet occurred: obviously it would require a fresh “taxation” type hearing. SPEED The theme of speedy resolution of claims breaks down into two aspects: time limits and flexibility. Time limits are short and strict. A claimant has just seven days from the accrual of the dispute to serve his claim on the respondent(s) and to bring it before the DRA. There is an entitlement on the part of the Secretary to extend this time period if satisfied that “good reason” for extending time8. Other procedural time limits are likewise strict, for the same reasons. A justification for the seven-day time limit, which may be applied equally to the other time limits within the system, was given by a Tribunal in one case in 2005:

“The 7-day time limit, while at first blush draconian in the extreme (compare the six-year time limit for breach of contract and the three- and six-month time limits for judicial review), is essential to the management of competitions and functions of the Gaelic Athletic Association at all levels. Making fixtures in the modern era of Gaelic games is a difficult and complex process, and if legal or arbitral proceedings cannot expeditiously be dealt with, the prospect of massive disruption to a multitude of third parties will become a reality. In law, the equitable doctrine of laches or acquiescence, operates in a similar manner to defeat litigants who have not acted promptly. The power to extend the seven-day time limit ameliorates the apparent harshness of the time limit.”

Secondly, the procedures are flexible and can be moulded in each case having regard to the circumstances. The preliminary hearing will normally determine what type of a case is concerned, whether the evidence will be disputed (if not, the parties can agree a recital of the facts to be prepared in advance of the hearing), what rules are at issue, what documentation is required and so on. In practice, arbitrators have been flexible and prepared to attend hearings at very short notice and outside business hours, which is a massive advantage compared with the Courts system. Not all cases require speedy resolution: some types, in particular boundary dispute-type cases, have been maturing for generations, and suffer little for a further delay of four to six months. In the majority of cases, however, where suspensions have been imposed and competitions are ongoing, time is of the essence. In these cases, strict time limits and flexibility result in claims being heard and decisions being made decisions being made as quickly as, in one instance at least9, the day after submission of the claim documents.

7 Rules of the Superior Courts, O 99, r 1(3); Cooper Flynn v RTÉ [2004] 2 IR 72, 82; Vogelaar v Callaghan (Unreported (Supreme Court) 13 July 1998) 8 Disputes Resolution Code, section 2.2 9 DRA 19/2006

Such speed of decision-making perhaps opens up the DRA to criticism that a greater risk of error is being run; indeed in one case evidence emerged some six weeks after the hearing of the claim, which might have had an effect on the outcome of the claim. In answer to that charge, however, it is submitted that the alternative – allowing extended periods of time for pleading and research – would defeat the very reasons for maintaining a separate arbitration system and ousting the courts’ jurisdiction. FINALITY Connected with the above in many respects, is the question of finality, and with it, the thorny issue of interim or interlocutory relief. The greatest weakness in the courts system, which derives from its inability to deliver speedy determinations, is seen in the case of interlocutory “player reinstatement” injunctions. Typically, a player is suspended by his or her governing body, having been found guilty of some indiscretion. The player is aggrieved, and an application is made to Court in the week leading up to the next game in the competition. Sometimes, these are known as “ambush injunctions” but the disciplinary decision will often only have been made a few days before the next competitive game, so the plaintiff player is not necessarily at fault. The Court is generally dealing with the matter ex parte or on short service. The Campus Oil10 test applies. The first part of the test (i.e. a stateable case) will usually be satisfied. The balance of convenience question will more difficult: in sport, particularly amateur sport, money will not cure an incorrect interim decision on any later date: that decision will be determinative of the case, whether the application were granted or not. The status quo cannot be preserved either way. In practice, the court would usually find for the player: faced with a conflict between, on the one hand, the player’s right to play, and on the other, the governing body’s general interest in the enforcement of rules and (less importantly) the competing team’s interest in a weakened opponent, the balance almost by definition favours the player. Thus, the very low hurdle of the first aspect of Campus Oil is applied, where – in reality – final relief is being granted. It would appear to be a policy of the DRA, and it is submitted that it should be its policy, to avoid interim decisions entirely, except where it is utterly impossible to do otherwise. Interim remedies are of course available, and respondent units of the GAA, who choose to drag their heels in urgent cases, tend to expose themselves to risk in this regard. In general, where an upcoming game is concerned and a full hearing is impossible, the DRA will see whether the Respondent is in a position to postpone a game before determining on an interim basis whether a player should be reinstated.

10 Campus Oil Ltd v Minister for Industry and Energy [1980] IR 82

GUIDANCE Tribunals of the DRA are obliged to give reasons for their decisions11. The purpose of this is (i) to satisfy the parties, and in particular the unsuccessful party, that their arguments have been heard and appreciated, and (ii) to give the Association and its members guidelines as to how they should carry out their functions under the rules. The publication of decisions compromises the privacy of individual cases, and the policy may change in the future; however there are no present plans to change it. With a view to better guidance of the Association, an amicus curiae procedure is built into the Code, whereby Central Council may be invited to attend and make submissions in cases in which it is not involved as a party12. The purpose of this is to help ensure that, in dealing with a dispute at a lower level of the Association, the DRA’s decision does not generate a wider precedent that has effects unforeseen in the context of the local dispute. ACCESSIBILITY The Courts are available to all who choose to use them, and at the cost of €110.00 for stamping of a Plenary Summons, one is a litigant and entitled to a trial, subject only to the narrow statutory or inherent jurisdiction to strike out hopeless cases. The real inhibitor, so far as sports-related injunctions are concerned, is the risk of an adverse costs order. When the DRA was first proposed, various issues arose for consideration, deriving from the question of accessibility. The number of Court actions was increasing exponentially in the years leading up to 2005. In addition, the threat of proceedings was giving rise to apprehension on the part of committees of the GAA and a perception that irregular compromises might be made to avoid litigation. What would the advent of a specialist authority bring – more or less claims? The clear answer is that more cases have been taken, this notwithstanding a €500.00 deposit having to be lodged with the claim (towards the arbitration expenses): although the decision to require a deposit was not easily taken, no complaint has ever been raised that this was an improper barrier to justice. The number of claims being brought (33 in the first 7 months) gave rise to criticism from GAA administrators as well as sections of the media. Accessibility was seen an encouragement to litigate, and the presence of a perceived watchdog was considered to exacerbate many the problems that existed before the DRA. Remedial suggestions included (a) to increase the deposit (€2,000.00 was favoured); (b) to introduce a “filtering” system, whereby the Secretary could refuse to accept “hopeless” cases, and (c) to revert to the courts system.

11 Disputes Resolution Code, section 11.2 12 Disputes Resolution Code, section 9.3

If one assumes, for the sake of argument, that accessibility is indeed A Bad Thing13, one must ask whether, and if so, how, the number of claims can and should be whittled down. Increasing the deposit requirement with a view to deterrence is, it is submitted, ham-fisted and unjust, affecting only the small clubs and their members, and ruling out good cases in the process. Introducing a “leave stage” merely gives rise to an extra layer of cost and administration, not to mention a second hearing, which would only serve to compromise the speed and efficiency of the system. Reverting to the Courts system, with all its infirmities, solely to limit the number of cases being taken is, it is submitted, both short-sighted and regressive. The amount of deposit was in fact increased: however that was to more closely reflect the actual expenses of the DRA than for any ulterior purpose. In its second year of operation, there has been a noticeable reduction in the number of cases brought to the DRA (3 per month average, compared with 5 per month average in 2005). It is submitted that this has occurred as a result of the DRA clarifying many areas under the rules, both for the benefit of administrators and individual members, and it is hoped that with the commencement of new clearer and fairer disciplinary rules and a healthy fear of the adverse costs order discouraging unmeritorious clams, this trend will continue. THE STANDARD OF REVIEW In April 2005, his Honour Judge Bryan McMahon delivered judgment in what will hopefully have been the last GAA-related case before the Courts14. In dealing with a wide range of issues in dispute in that case, his detailed written judgment provides helpful guidelines to the DRA and to parties before it on the types of issues that now arise before the DRA. On the standard of review, Judge McMahon stated (at p. 26):

“… one must expect that laymen applying the disciplinary rules will occasionally do so in a somewhat robust manner. Provided those administering the rules, however, do so in a bona fide manner, giving each side a fair opportunity of participating, the onus on members who wish to challenge the findings and decisions is a heavy one. One must be careful that the heavy hand of the law does not weaken the operation of such voluntary bodies or undermine the considerable benefits they bring to society”

This epitomises the “judicial reluctance” approach of the courts in dealing with sports-related disputes15. Should specialist arbitral tribunals be equally reticent? There are

13 With apologies to Sellar and Yeatman (1066 and All That) 14 Barry and Rogers v Ginnity (Unreported, Circuit Court (McMahon J), 13 April 2005) 15 Cowley v Heatley (1986) Times 24 July (Browne Wilkinson VC) (“Sport would be better served if there was not running litigation at repeated intervals by people seeking to challenge the decisions of the regulating bodies”) Wilander v Tobin [1997] 1 Lloyds Rep 296 (Lord Woolf MR) (“the court’s supervisory role must not be used to make sports’ governing bodies’ non-technical internal disciplinary processes inoperable”)

many worthwhile considerations impinging upon this question. For example, a specialist tribunal is, in theory at least, versed both in law and in the technical aspects of sport; on the other hand, the persons under review are still laymen (in most cases, and certainly in amateur sports); it is generally agreed that a technical error on the part of a sports body should not permit transgressors to avoid their punishment; nevertheless, the administrators are in a position of power and responsibility, and respect both for the rules of the sports body and the law ought not to be compromised. Another major factor is the quality, or clarity, of the rules of the sports body concerned. Sometimes rules are a patchwork of amendments, which do not hang together particularly well as a coherent whole16. Where there is ambiguity or inconsistency in rules, the administrative units within the sports body are faced with a difficult task of implementing rules that are ill-suited to the matters before them. Arbitral tribunals must be sympathetic to sports governing bodies in these cases: nobody gains if the punishment for unclear rules is a situation where indiscipline simply cannot be dealt with. Obviously, the advice to sports bodies must be to keep their rules under review, but arbitral tribunals must recognise that, where this does not happen, life must go on for the body concerned: a badly drafted contract may be all there is to deal with in a commercial dispute; so it may also be with rules. It is submitted that sports arbitral tribunals, while having some expertise in the matters within the sporting arena, exist essentially to deal with challenges to legality. Unless designated as an appeals body17, a sports arbitral tribunal should be conscious of this limitation. If it becomes de facto another appeals body, then it becomes part of the administrative machinery of the sports body under review. Where there is an existing appeals structure, that appeals structure may be made redundant by the existence of a further appeal simpliciter. In exercising its function of review, therefore, it is submitted that the proper test to be applied by a sports arbitral tribunal is to: (a) Insist on strict compliance with the express rules of the sports body, (b) Allow considerable flexibility to sports bodies operating bona fides (i) within the

confines of express rules, and (ii) in dealing with issues not covered by express rules.

Is it unduly harsh to insist on strict compliance with express rules in all cases? The history of the GAA is replete with tales of players escaping punishment arising from names printed in English and (the old favourite) failure to use Irish watermarked paper. It is submitted that, where a rule is clear and unambiguous, it is easier for the sports body concerned to comply with it than to breach it. For an arbitral tribunal to allow clear rules to be ignored or misapplied frays the edges of the sports body’s rules. It serves

16 It is certainly arguable that the disciplinary rules of the G.A.A. had reached this state by 2006. 17 An crucially different process, which reopens the merits of the decision under appeal (either de novo or on foot of a transcript/report). The UK’s Sports Dispute Resolution Panel, for example, which provides arbitration facilities in the ordinary way, also has a facility whereby it can be designated by a sports governing body as an appeals body with power to conduct full-blooded appeals. The DRA has no such function at present.

neither the sports body nor its members to leave the rules in such a state of uncertainty.18 Where situations arise that are not covered by express rules, as indeed they do, even with the most comprehensive codes, the arbitral tribunal must be careful not to insist on sophisticated standards of administrative decision-making: complex legal principles will be misunderstood and misapplied by laymen, and will therefore undermine the effectiveness of the administrative process. Provided that administrators have acted honestly, fairness of a robust sort should be sufficient to satisfy the arbitral tribunal. Each of these principles is tempered. First, where a mere technicality is proved, the arbitral tribunal must be conscious of the discretionary nature of equitable relief: thus a technical challenge to a disciplinary sanction which makes no attempt to assert the innocence of the claimant should be treated with some circumspection. Secondly, express compliance with rules ought not to save an administrative decision that is unreasonable in the legal sense. In this respect, it is to be remembered that applying the doctrine of unreasonableness is a foray into questions of fact and degree, and the hurdle for the claimant is a high one.19 A final question is whether the above analysis is an invitation to sports bodies to promote vagueness in their rules as a means of avoiding mishaps. Do more rules mean more tripwires? It is submitted that while more sophisticated disciplinary rules generate more occasions for technical non-compliance, if they are clear, the rules will guide those implementing them so that disciplinary committees and other administrative units will have some degree of certainty that their procedures pass muster. In other words, there may be more tripwires, but the lights are switched on. FURTHER INFORMATION Further information on the DRA, including the Disputes Resolution Code and copies of all decisions, may be found on its website: www.sportsdra.ie.

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18 It is important to note in this regard that breach of a rule is a question of law, not of fact and degree: the test in O’Keeffe v An Bord Pleanala18 is not the appropriate standard of review for misapplication or misinterpretation of rule. The test is whether there has been a breach or not, simpliciter. 19 See O’Donohoe v O Baroid and Quirke (High Court, Unreported (McCracken J) 23 April 1999)