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The world of each and every individual UK sport is controlled by a governing body (“Governing Bodies”). From the Football Association (“the FA”) to the England and Wales Cricket Board, and even the British Dragon Boat Racing Association, these organisations have the responsibility of managing their specific sport, making key decisions on the ways in which that sport is played, ran and organised across the UK.

Governing Bodies therefore play a critical role in the lives of many. The determinations that they make can significantly impact upon an individual athlete’s career, as well as the interests of clubs, sponsors, fans and broadcasters. Indeed, there are occasions where a decision made by a Governing Body will result in consequences that impact upon a person (“the Claimant”) who, aggrieved, will want to challenge it. This throws up an interesting legal question: through what legal mediums can a Claimant launch that challenge?

One major body of the law – public/administrative law – governs how public power is exercised. Using a process known as judicial review, a Claimant can challenge the legality of a decision on the grounds that the decision was unfairly reached by the decision-maker, the decision-maker had no legal power to make that decision, or that the actual substance of the decision was aberrant.

The legal position of judicial review and how it should confine and regulate the power of public bodies has been discussed by legal writers since the 17th Century. Yet what was once consistently agreed was that the scope of the process was confined to decision-makers created by Parliament via a statute; Governing Bodies lay outside these boundaries and could therefore only be challenged using private law actions.

However, in the case of R v Panel on Take-overs and Mergers, ex parte Datafin plc [1986], it was decided that the decisions of a private body exercising public functions could be judicially reviewed. Here, the decision-maker in question was the Panel on Take-overs and Mergers (“the Panel”), which remains the private regulatory body in charge of ensuring fair treatment of shareholders during takeover bids between companies via application of the City Code on Takeovers and Mergers. The court held that its powers were easily comparable to that of a governmental body, meaning its decisions were amenable to judicial review. Part 54(1)(2)(a)(ii) of the Civil Procedure Rules codified this decision, holding that judicial review applies to any decision or act made ‘in relation to the exercise of a public function’.

The Datafin plc decision supports an argument that Governing Bodies are in a similar position. For instance, they have – just like the Panel – numerous regulatory functions that allow them to administer disciplinary actions upon rule breakers. They can also preside over rule changes: the FA is set to permit teams to make a fourth substitution in competitions it runs. And, because the decisions that Governing Bodies make, as discussed above, can impact upon the lives of many, there is public interest in seeing that Governing Bodies make their decision in a manner that would be expected of other governmental decision-makers.

However, the courts have consistently disagreed with this argument. In decisions such as R v Jockey Club, ex parte Aga Khan [1992], they held that Governing Bodies exercise purely private powers that do not allow for any system of governmental control of the sport; while Governing Bodies may be described in many ways as public, they are in no sense governmental and not amenable to judicial review

Instead, the court held that private powers exercised by Governing Bodies stem from private contractual agreements between Governing Bodies and those who agree to comply with the rules that Governing Bodies set down. These contractual agreements, the court concluded, gave Claimants private rights that they could enforce to thereby obtaining measures that would provide effective legal relief, such as damages and injunctions: extending judicial review to cover Governing Bodies would thus be unnecessary.


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This decision represents a contradiction of the Datafin plc principle: emphasis is placed on the source of the powers of Governing Bodies, rather than the nature of the power the Governing Bodies are exercising. And such a contradiction is not only unsustainable in the sense that a precedent has been seemingly ignored, but is also unsustainable as it leaves Governing Bodies exercising public powers and duties outside the reach of public law remedies on an assumption that effective legal relief like damages and injunctions are obtainable.

Leaving Claimants to rely solely on the private law is failure to recognise that – in the same way that not every sport is the same – not every single Governing Body is the same. Some might make it harder for Claimants to obtain relief whereas some might make it easier. Some Governing Bodies might have complete and sole control over a sport whereas others may have their decisions checked and balanced by other institutions.

It follows that a test which examines the source of the powers of Governing Bodies, rather than the nature of the powers, is thus too inflexible to account for the messy reality of life. A wrongful decision could have tragic, life-changing consequences for many potential Claimants: a more flexible, context-sensitive test is needed that can effectively ensure that the decisions of Governing Bodies – particularly those that have a monopoly over a particular sport – are fully scrutinised and held to a sufficient standard