Monday, 9 April 2012

Extending Justiciability Against Sports Bodies Determination.

Justiciability - Capable of Being Decided By A Court

Our next discussion is WHO should arbitrate sports dispute in Malaysia. It is true that anybody can talk about football..but none may capable of adjudicating sports matters. Some regulatory functions need exercise of expert judgement. For example, in the lower scale, the rule of the games during play and competition is decided by the referee. Interestingly, the word referee referred to a person appointed by the British Parliament to examine patent application as early as 1621. The word umpire acquires more sense as 'the judge of play in games and sports'. Second example, if there is a breach of any statutory terms, the sports executive committee have autonomous power to hear and decide. Disciplinary committee functions only at the lower level and their decision is not final. The question is 'Why them'? One of the reason is they belong to 'powerful organisation'. They have capacity to act 'governmental alike' while still operating and possessing institutional legal structures with private bodies entities. Those who are not understand their governmental structure always complaint about this...but in fact it is desirable that sporting bodies should be reasonably free to conduct the private affairs. Court cannot interfere with these private matters.

Despite their administrative efficiency, let's interpret 'them' in the context of Natural Justice. This concept precludes any members of this 'powerful organisation' from sitting in any hearing. If this happens, there is a reasonable likelihood or suspicion of bias unless (1) the disciplinary code is well demarcated as 'prosecutorial' and 'adjudicating' function. It means those who prosecute must not involve or participate or appearing to participate in the evidence gathering process. (2) Any member who sits in the hearing does not participate as adjudicator during the appeal. The simple reason is to avoid the tendency of supporting the previous decision made by him. (3) The proper way is to appoint individual members of the same profession who understand well a breach of professional code of conduct. Some of these requirements are obligatory followed. There is no room to challenge.  

However, if I may suggest, the available challenge now is not only when 'powerful organisation' mistakenly solicit to pack disciplinary committee and tribunal with their own officials. Of course, this ground is validly accepted. Any suspension imposed to any aggrieved party shall subsequently revoke on the basis of a likelihood of bias. The new ground of challenge is on custom and practice. First, the statute of sports body had granted discretionary power to the manner and form of its hearing (for example, power to decide there is no appeal). The monopoly position have been traditionally acknowledged as being reason to supervise and control their power (in the name of integrity and bad story should be discussed internally). Second, certain clauses / articles appear unconstitutional against the rights of person (freedom of speech) in the Federal Constitution. However, the plea by sports body is on the practice of contractual relationship. The issue of excluding the court's intervention and jurisdiction by contract is valid justification and has been considered in many sports cases. The breach of any terms will purport tort actions against members. But the point that sports (for example football) belongs to everyone, and in a position of major national importance. It should be treated as public law issues and no more contractual private affairs.

Sports Law Malaysia