Sports Misconduct Law and the Standard of Evidence
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
What happens when things go bad on the sports field? This article will look at how sports misconduct law fits if at all within the wider sphere of disciplinary advocacy. Is advocacy for sports misconduct a distinct sphere or does it fall neatly within the wider realm of professional misconduct?
There are certainly features that are common to both. Both disciplinary jurisdictions involve investigations followed by hearings before specially constituted tribunals, though the investigation process is typically more drawn out and involved for professional discipline. There are of course certain exceptions, particularly when one considers the matter of drugs in sport.
In regard to the standard of proof necessary to establish a finding of guilt, there is clear common ground. Although on the soccer tribunal that I occasionally appear on there is a school of thought that guilt only needs to be established by the civil standard of “balance of probabilities”, I argue that this is not appropriate in misconduct cases.
Under a civil standard, the trier of fact need only consider it to be more likely than not, or a greater than 50% probability that the respondent is guilty of the offence. This is the standard used to decide facts in contractual disputes, such as building actions. It is argued that given the grave and serious consequences for the player, club official or club member and the effect on reputation, something higher than this standard should be proven.
At the same time, it is clear that the prosecuting body should not have to establish guilt to the criminal standard of ‘beyond reasonable doubt’, so therefore some middle ground to establish ‘proof’ needs to be found.
The standard of “reasonable satisfaction” has been adopted for many years in misconduct cases, and was initially referred to in a matrimonial separation case back in the 1930s. Quaintly, this harks back to a time when no fault divorce did not exist and the concept of misconduct was applicable to broken marriages. Since then, it has been utilised for many years in disciplinary tribunals deciding allegations against professional persons such as lawyers, doctors, surgeons and building practitioners.
In some sports misconduct inquiries that have been before the media, a standard of “comfortable satisfaction” has been mentioned. While the terminology is a little more vague and it is not the phrase referred to in case law, it is probably just a different way of referring to the same ‘hybrid’ standard of proof.
Just as with professional misconduct, an adverse disciplinary finding against a player, official or other participant in sport will have grave and serious consequences. In professional sports there will also be an issue for someone’s livelihood, but regardless, someone’s personal reputation is also at stake.
The standard of reasonable satisfaction (or comfortable satisfaction if you prefer) strikes the right balance of ensuring that the respondent’s rights to a fair hearing are preserved, while at the same time ensuring the standard of proof is not so high that standards could be compromised in the game.
When sitting on a sports disciplinary panel, more often than not charges will be contested. This is not always appropriate, and comes from people taking an emotive rather than a considered approach to charges. If you defend a case and then you lose, any panel doing its job should then ensure you are given a stiffer penalty than someone who ‘fessed up’, was contrite and had simply asked for a lighter penalty.
In other situations a club official will enter a plea of not guilty at the outset (often on behalf of a player) but as the case progresses it becomes apparent that the club is not really challenging the actual charge at all, but is merely trying to argue that other situations need to be taken into account to ensure there is only a relatively light penalty. This may be more down to an innocent lack of knowledge about the process.
In such cases a plea of guilty would be the correct course, and then an explanation by way of mitigation should be proffered.
Having said that, given that reasonable satisfaction still needs to be shown, it is important that good and compelling evidence is shown to exist before a respondent is found to be guilty on a defended matter. This means that the key witnesses must be present. Not infrequently, if a referee fails to attend a hearing in support of their match report and there are no other reliable witnesses to support an allegation, the allegation will be dismissed.
It is important that the evidence establishes more than a “he said she said” scenario, which may be enough (just) to satisfy a civil standard of proof, but on its own will probably not be enough for the tribunal to be reasonably satisfied of guilt.
To reiterate though, respondents to complaints should not “contest the uncontestable”, and the better course would be to present a statement in mitigation that conveys remorse, tells your side of the story within the parameters of a guilty plea, and advises what you have done or intend to do to ensure the conduct is not repeated.
Tribunals are always very keen to hear about remorse and any steps taken to address the behavior concerned, and this will help a respondent minimise any penalty. Conversely, those who challenge charges and fail will not be able to avail themselves of any penalty discount.
Following on from that, tribunals hearing appeals in sports misconduct should not be afraid to increase the penalty if the appeal fails – because speculative or obstinate appeals are not to be encouraged. This just wastes everyone’s time, quite frankly.
The over-riding objective will always be to uphold the standards and values of the sport, and will not necessarily have punishment as a goal except to serve as a general deterrent. In that sense, sports misconduct shares another common characteristic with the broad aims of professional misconduct law.
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© Lovegrove Smith & Cotton 2014