Sport, public/private law, and a judge waxing lyrical – Diarmuid Laffan

31 July 2015 by

imageO’Connell & anor v the Turf Club [2015] IESC 57read judgment

This recent judgment of the Irish Supreme Court addressed the issue of whether the decisions of a sport’s organising body should be amenable to judicial review. This is an issue of some vintage and vexation in this jurisdiction’s legal debate, that provides a useful backdrop against which to ask what exactly it is that makes a decision-making duty or power ‘public’.

Factual Background

The First Applicant O’Connell was a jockey under investigation by the Turf Club, the organising body for Irish flat racing. He allegedly failed, contrary to the Club’s ‘Rules of the Racing’, to ensure that a horse he was riding performed at its best, in order that a ‘lay bet’ against it would fraudulently win. In August 2013, before the Turf Club’s investigation had taken place, he launched judicial review proceedings on the basis that the Club’s Rules and disciplinary function were technically invalid under the Irish Constitution. The first issue for the Supreme Court to address was whether the Club is amenable to judicial review.

The Nature of Sporting Bodies

 A potted version of the history recited in O’Donnell J’s judgment explains how it is that private sporting bodies are now considered the potential subjects of public law obligations and remedies.

Most sporting organisations such as the FA or Ireland’s GAA originated in the Victorian era as private bodies organised to administer the sports that evolved as the industrial revolution afforded greater leisure time. The Turf Club was created in 1790 and became the pre-eminent rule-making body for Irish flat racing, its analogue in the UK is the Jockey Club. These clubs came to dominate their sport to such an extent that any racecourse owner, jockey or trainer who wants to participate is effectively obliged to do so under licence from them, and on the terms set by their rules. The clubs’ means of enforcing these rules is via the contracts they enter with industry participants. Through their licensing and disciplinary decisions, the clubs have the power to exclude people from the industry entirely.

Since the Victorian era, sports such as horse-racing have developed to the point where they are no longer just recreational pastimes but big industries that generate huge amounts of money and employ thousands. As the organising bodies exercise de facto regulatory control over important areas of the economy, individuals subject to their decisions have argued that they should be under the same obligations and subject to the same remedies as are public bodies.

The Position in the UK

R v Disciplinary Committee of the Jockey Club ex. p Aga Khan [1993] 1 W.L.R. 909 remains the leading authority on the amenability of the UK’s Jockey Club to judicial review. There Lord Bingham accepted that, absent the Jockey Club, the State would likely regulate horse-racing, and that industry participants were effectively obliged to ‘consent’ to the Club’s rules. Nevertheless, he held that the Club could not be the subject of public law as it was private in origin and its power derived from contract:

“…the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body… It has not been woven into any system of governmental control of horseracing… This has the result that while the Jockey Club’s powers may be described as, in many ways, public they are in no way governmental” (at 923, emphasis added)

As Hardiman J notes in his perceptive concurring judgment in O’Connell, Aga Khan is a prime example of the ‘source of power’ approach to identifying public power. This holds (broadly) that where a body’s power has not been granted by the State, it cannot be considered public in the core sense of having originated in government. There is an alternative approach however.

In R v Panel on Take-overs and Mergers, ex parte Datafin [1987] Q.B. 815 the Court of Appeal held that the body which administers the City Code is amenable to judicial review, in spite of its being a privately organised self-regulatory body that originated independently of central government. This was as a result of:

  • The fact that industry participants had no alternative to compliance with the Code and the Panel’s decisions (Lloyd LJ at 846);
  • Evidence that central government had intentionally decided to allow the City to self-regulate while supporting the Panel with a periphery of statutory powers and sanctions (Donaldson LJ at 835-836);
  • Indications in the case law that the source of a power is not the only relevant factor in determining whether it is public; regard must be had also to the nature of the function in question (Lloyd LJ at 847).

This ‘function-based’ approach facilitates a less astringent approach to designating public power. The argument runs that if a body controls a large area of the economy in a manner that affects the subjects of its decisions in a fundamental way, it is exercising public power regardless of its source.

The Irish Supreme Court’s Judgment

The Supreme Court came to the opposite conclusion to that in Aga Khan. In contrast to the Jockey Club, the Turf Club has been, in Lord Bingham’s words, ‘woven into a system of governmental control’, which has placed it in a position more akin to the Panel in Datafin. While leaving the Club’s core rule-making and rule-enforcing role largely unchanged, the Irish Horseracing Industry Act 1994, as amended in 2001, has placed the Club’s activities within a statutory framework. The Club has been designated the ‘Racing Regulatory Body’ for flat racing, and its role has been defined in relation to a new overarching statutory administrator called Horse Racing Ireland. Further, the Club has been assigned an extended statutory power to exclude persons – with whom it may have no contractual relations – from authorised racecourses, with the support of the police if required, and a statutory duty to afford the subjects of its disciplinary decisions an appeal mechanism.

In these respects, the judgment can be read as an application of Datafin that is reconcilable with the ‘source-based’ approach in Aga Khan; the State can effectively grant public power by omitting to regulate an area, while co-opting a private body that has hitherto done so by lending a degree of statutory support.

The judgments of O’Donnell J and Hardiman J also contain suggestions of a more expansive application of the function-based approach, which may proceed by applying public law to private bodies with power analogous to that of the State. For example, O’Donnell J places emphasis on the importance of the horse-racing industry to the Irish economy [7], while Hardiman J stresses the unreality of the suggestion that industry participants freely ‘consent’ to the Turf Club’s regulation, and the serious implications the Turf Club’s disciplinary decisions can have for the livelihood of their subjects [15], [26].

Comment

Having found the Turf Club amenable to judicial review, the Supreme Court dismissed the Applicant’s rather forced constitutional arguments on the merits.

It is notable that in most disciplinary cases the contract with the sporting body will contain an implied clause that the body’s procedures will be applied fairly. Why then does it matter whether a sporting body is amenable to judicial review and thus public law duties of fairness? In the first instance, there may be persons who are subject to, for example, adverse licensing decisions, outside the context of any contract with the sporting body. In such cases the civil law may struggle to afford a remedy. Where a contract does exist, as in the disciplinary cases, the main advantage the claimant might derive is the speed of the procedure. To the defendant it has the advantage of a tight limitation period, while both parties might benefit from its flexibility as compared with civil litigation.

I will end on a different note with a lengthy but wonderful extract from O’Donnell J’s judgment where he captures why so many of us care about sport in the first place:

Games may be intrinsically trivial activities – the placing of a ball by action of foot or head across the line between two posts and under a third – but they capture the imagination not only because they showcase the athleticism of the human body and of animals but also because they distil so much of the human condition: courage; fortitude and grace under pressure; cowardice; mean-spiritedness and cynicism; the emergence of youthful talent; the slow decline of age resisted by determination; skill and experience;, the value of discipline; the excitement of unpredictable flamboyance; the collective strength of a team and the joy of irrepressible individualism; the fine line between triumph and tragedy; and the significant role of luck. Sport involves measurement, not just against the best of contemporary standards, but also against the inspirational stories of the past. It unquestionably matters when sportsman or woman walk for the first time on the Centre Court in Wimbledon, or onto the field of play at Croke Park or Semple stadium, approaches the first tee in a major championship or enter the parade ring at the Curragh, Cheltenham or Epsom Downs. These are the fields of dreams and memories.” [9]

And, on why rules are rules,

Why, as some have had reason to ruefully observe, is a second serve permitted in tennis but not in golf? [8]

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