Law: Tell that to the judge (or rather, sports court)

Sporting tribunals are taking on a quasi-judicial role in their bid to clamp down on drug taking. But is this system fair on Britain's sportsmen?
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The Independent Culture
FOR A few top international athletes, the world championships in Seville will mark the pinnacle of their careers as they accept their medals. But for a small number it could be the nadir if they find themselves hauled before tribunals to answer allegations of doping.

Increasingly, the outcome of legal wrangling in sports courts is becoming as newsworthy as the sporting events themselves.

Last week's hearing before a disciplinary tribunal of the Rugby Football Union received acres of newsprint coverage because it dealt with the allegation that former England captain, Lawrence Dallaglio, had brought the game into disrepute, following tabloid newspaper allegations that he had boasted of taking drugs. He was fined pounds 15,000 and ordered to pay another pounds 10,000 in legal costs.

However, Dallaglio is only the latest in an ever-lengthening line of sportsmen and women who have had to face the disciplinary wrath of their sport's governing bodies.

But are these bodies biting off more than they can chew? Should sporting authorities be taking on a quasi-judicial role when they are dealing with matters that could ruin a competitor's career and livelihood? Are there sufficient legal safeguards in place? And does the concept of natural justice even get a look-in when the "blazerati"- as one lawyer describes the male-dominated sporting establishment - is sitting in judgment?

Specialist lawyers are split on the answers, although there is a view developing that, as sport evolves quickly into a mega business, the men in blazers are fast becoming out of touch. One of Dallaglio's legal team, solicitor Andrew Morris, says the main problem is inconsistency in decision- making and a lack of parity of process between sporting bodies.

Rod Fletcher and Judith Seddon, two solicitors at the London law firm, Russell Jones & Walker, have devised a 10-point checklist to gauge whether or not sporting disciplinary tribunals are fair, or if they border on the status of kangaroo courts.

Their listed essentials are that the investigation process should be objective, that an independent and impartial tribunal must hear the case, and that standard of proof should be beyond reasonable doubt, as it is in general criminal trials. Legal representation should be available in all cases, they say, and an effective right of appeal must be available to the accused.

Other lawyers agree there should be guidelines, but say that ultimately it is preferable that the professional bodies, rather than the civil or criminal courts, hear cases.

Mel Goldberg, of Grower Freeman & Goldberg, and a committee member of the British Association for Sport and Law, acted for Hans Seger, the Wimbledon goalkeeper faced with charges of match fixing. Goldberg says: "It is generally a good thing to keep sportsmen out of the courts and to have the professional bodies deal with matters, provided that those sitting on the committees have legal expertise."

Lawyers are also concerned that regardless of who sits in judgment, the tribunals slavishly adhere to the strict letter of the law. Nick Bitel of Max Bitel Greene, acted for Dougie Walker, the sprinter who was exonerated of a doping charge in July. According to Bitel, "the sporting authorities try to enforce rules, not justice". He maintains that a charge such as bringing the game into disrepute, is so vague as to be meaningless. "Players don't know what constitutes a breach," he says.

Tony Morton-Hooper of the lawyers Mishcon de Reya, in London, who acted for the athlete Diane Modahl, agrees. `There are still a number of sporting bodies which subscribe to badly drafted rules."

The approach many bodies - especially the smaller authorities - take towards legal advice may be far from adequate. Morton-Hooper says: `They will often resort to asking `who knows a lawyer?' and someone will pipe up, `my cousin is a conveyancing lawyer in Andover', so that person gets the job - who might be a brilliant property solicitor, but not remotely qualified for this task."

Both Morton-Hooper and Goldberg point out that the main problem with disciplinary rules in sport is that they involve the concept of strict liability. For example, in doping cases, argument of innocent ingestion is not an adequate defence. Rules are rules and there is often no discretion allowed when handing down judgment and punishment.

Morton-Hooper also points out that sports people have difficulty in getting a remedy outside the governing body's tribunals. At the moment, it is unlikely that judgments will be open to judicial review as the governing authorities are not viewed as public or even quasi-public bodies.