12 March 2001
Sport, and in particular football, is undeniably big business. The rapid growth in satellite and cable television, which has led to unprecedented competition in the battle to secure the rights to sporting events, means there is more at stake than ever. The large revenue shared by Premier League clubs and the prize of qualification for the Champions League and UEFA Cup has led to players enjoying bigger salaries and chairmen and fans demanding success quicker. To secure the signatures of and to keep the best players, clubs have had little choice but to reconfigure wage structures and give in to the demands of the top and not so top players. Even then, players have moved on to rival clubs where their prospects of winning silverware and appearing on the European stage are enhanced or guaranteed.
Athletes have embraced the use of lawyers to defend them on doping charges for some years; being found guilty is too serious to risk going it alone. It appears that footballers (backed by their clubs) are following suit. This is no surprise, as the consequences of lost cup ties and dropped points have become so dire that having the manager banished to the stands or a key player sidelined for crucial games must be avoided at all costs if clubs are to get value for money for the wages they pay. There is a growing realisation that players, managers and clubs lack the time and expertise to defend charges brought against them, and so lawyers are being called in to help.
While some members of sporting disciplinary bodies may find the involvement of lawyers unpalatable, others will know that it is vital for those charged to present as well-prepared a defence as possible, and in appropriate cases the involvement of lawyers is necessary. Disciplinary tribunals should be greatly assisted by lawyers, so long as they remember that they are not in court and that common sense appeals more than clever technicalities.
For the lawyer, appearing before a sporting disciplinary tribunal is a very different experience to that of appearing before a High Court judge.
The pace of Football Association (FA) disciplinary proceedings puts even our post-Civil Procedure Rules civil justice system to shame. Charges are brought swiftly, written answers from those charged are required within 14 days, and where an oral hearing is required, it normally takes place within weeks. Decisions are given on the day of the hearing and written reasons are provided if requested. The rules are all-important. Clubs that are FA members are bound by their contract to abide by the FA's procedures, with players and managers bound by extension. If written submissions are put in they will be read, but oral advocacy skills hold greater sway. Sporting tribunals are not courts of law and the use of legal authorities would be, in the majority of cases, inadvisable. Tribunal members will take a great deal of convincing that such material is of assistance to them. It is, however, often tempting and helpful to draw on concepts found in other areas of the law and to use them by analogy in support of the arguments raised. Lawyers generally prefer to hang their arguments on something more than common sense.
That said, my experience of the FA tribunals was that the hearings were conducted formally and followed a set procedure. While the strict rules of evidence were not applicable, they were by no means ignored altogether. Regardless of the arguments as to whether or not a member of a sporting association is entitled to rely upon the European Convention on Human Rights, and of whether Article 6 of the convention materially extends the scope of a person's rights beyond those protected by the common law rules of natural justice, there was a clear intention to ensure that FA hearings are conducted fairly. This was no less apparent before the Disciplinary Commission than before the Appeal Board, which was chaired by an independent QC flanked by two senior members of the FA Council who sit as magistrates.
So, while the team is forced to adapt its style of play to less familiar surroundings and to a different rulebook, the game itself is familiar, the referee is still in charge and the back of the net remains firmly in the same place.
Mark Phillips QC (assisted by Daniel Bayfield) recently represented Arsène Wenger and Patrick Vieira of Arsenal FC on their disciplinary hearings in front of FA tribunals