Sport is usually a welcome distraction from the world of politics. However, the two collided this month when some of the biggest names in English football, were called before Parliament to answer to the House of Commons’ Digital, Culture, Media and Sport Committee. The Committee’s questions concerned the support provided by the Premier League to teams in lower leagues who are struggling to cope with the financial consequences of COVID-19, and more generally concern the accountability of sporting bodies for their decisions.
The fall-out from this continues as the ‘Saving the Beautiful Game' manifesto, unveiled by a group comprising the likes of ex-Manchester United player Gary Neville, Mayor of Greater Manchester Andy Burnham and former FA director David Davies. The manifesto proposes that a ‘new independent regulator’ should be established to resolve disputes in football.
The proposal for a regulator raises a number of interesting legal questions concerning the powers a regulator will require, its corporate and legal structure, and whether the regulatory functions would be subject to the jurisdiction of the courts through judicial review.
The current legal position
At present, the courts of England and Wales have clear jurisdiction to consider the actions of sporting bodies for issues relating to breach of contract, the restraint of trade doctrine, statutory competition law provisions and civil causes of action. However, for challenges that relate more to the propriety of decisions that are made by sporting bodies, and concerning whether such decisions should be reviewed by the courts in a judicial review context, the approach of the courts in England and Wales has been far more restricted.
The case law to date reflects the position that, while sporting bodies in England and Wales may exercise functions which are in the public interest, and in some ways akin to those of public bodies, and despite exercising a form of regulatory decision making authority over sports, they are not, in fact, exercising public functions. As such, the decisions of sporting bodies in England and Wales are not currently amenable to judicial review, and are therefore largely unaccountable to any independent external process of scrutiny or review.
The case for judicial review
Interestingly, other similar jurisdictions have taken a very different approach. The case of Finnegan v New Zealand Rugby Football Union Inc  encapsulates the approach taken by the courts in New Zealand. There, the court acknowledged the need for sporting bodies to be properly held to account given the public interest in their decisions and actions. In addressing the question of the claimants’ standing to challenge a decision to send the All Blacks on a tour of South Africa during the apartheid era, the court acknowledged that unless the claimants were afforded such standing there would be no effective way of establishing whether or not the NZRFU was “acting within its lawful powers”. A similar approach is taken in Australia, South Africa, Canada and Scotland and in civil law jurisdictions like France and Spain, the regulation of sport is reviewed by the administrative courts.
While the case law in this country has so far rejected the amenability of sporting bodies to judicial review, the door is not firmly shut. The leading authority in this area is Aga Khan, a Court of Appeal decision in which Farquharson J would not “discount the possibility that in some special circumstances the remedy may lie”, meaning that there is still scope for the Supreme Court to change the course of the law in this area should there be a compelling legal argument and opportunity for doing so. Perhaps all we need is the right case to raise the issue?
The RFU’s recent decision to permit transgender women to continue to compete in women’s rugby, despite World Rugby’s recent decision to ban this, has sparked controversy. The reaction from sports participants, campaign groups and the public to these decisions also raises questions as to the potential for parties to seek to challenge such decisions through the judicial review process. Decisions to include or exclude transgender players could raise the potential for challenge on the grounds of illegality (on the basis of inconsistency with the governing body’s duties under the Equality Act), procedural impropriety (due to issues with the process in reaching the decision), or irrationality (where there are issues with the substantive decision itself). All of these issues would be suitable for examination by the courts in the context of judicial review, because the procedural standards and process for conducting judicial review and the remedies available arguably make the Administrative Court the most appropriate forum for considering these decisions.
At a time when the world is facing unprecedented challenges which impact all sectors of society including sport, the case for a new approach to regulation may never have been greater. This is the case not only as regards decisions which have an economic impact, but also decisions in relation to equality, diversity and inclusion. This reflects the role of sport in society. In that context, it will be interesting to see whether the proposal in the “Saving the Beautiful Game” manifesto gains traction, and what form this may take if it does.