Bad faith may also be used as a ground to challenge the decisions of governing bodies. This involves insufficiency of facts to support the decision, to the extent that bad faith in making the decision may be inferred. Bad faith may also arise where the decision is seen to be totally arbitrary or unreasonable. In Calvin, bad faith would only be inferred from a domestic tribunal where it was shown by the insufficiency. However, with natural justice and bias often being used to challenge decisions which may come under bad faith, case law is lacking in examples of when this may occur within a sporting context.
Natural justice has developed through common law to impose a number of requirements on procedures of administrative bodies or those with a duty to act judicially. In Thorburn v All Nations Club, the duty arises where the proprietary rights or livelihood of an individual is effected by the decisions of such bodies. The courts though have remained flexible and judged each case on its merits. Firstly, natural justice involves the right to notice of charges, as seen in St Johnstone.
In this case, the plaintiffs were fined without notice of charges, the court finding this to be a breach of natural justice and thus void. Natural justice also requires that there is a right to a hearing, albeit not necessarily oral. In Keighley RFC v Cunningham, a player representing the plaintiff club was sent off, then subsequently suspended without notice of or opportunity to attend the hearing. The court held this to be contrary to natural justice, imposing a duty on the disciplinary committee to notify and hear the player at the proceedings.
The hearing must also satisfy the requirements of fairness, involving control of proceedings, right of cross-examination, right to representation, giving of reasons and right to plea in mitigation. These factors are not absolute perquisites in ensuring a fair trial but are used by the court in its decision. In Enderby Town v FA, the plaintiff was fined by the county FA, and subsequently appealed to the FA, who under their rules prohibited the use of legal representation. The Court of Appeal judged this not to be contrary to natural justice, with there being no absolute right to legal representation.
Instead the right was left to the discretion of the tribunal, Lord Denning took the view that in tribunals ' justice was better served by a good layman than a bad lawyer. ' This was more significant in areas such as sport where difficult points of law rarely arose, and the regulations of the sport were sufficient to ensure fairness. In an earlier case, Pett v Greyhound Racing Association(no. 1), the right to legal representation was allowed, with the charge reflecting on one's reputation and livelihood.
This was distinguished in Enderby Town though, for the association's rules failed to provide for exclusion of the right, refusal being based on the fact that the issue of representation had never previously been raised. Hence this was a fetter of the association's discretion in deciding whether to allow representation. Lyell J. though in Pett v Greyhound Racing Association(no. 2), prohibited the right to legal representation, finding no breach of natural justice. Resolving that only in societies that had achieved a certain degree of sophistication would this become an absolute right.
It being sufficient that the domestic tribunal was held fairly, the effect to livelihood being overlooked here. It is likely now though, that in many sports such as football, with substantial commercial interests and juridification, that such societies have achieved the level of sophistication required. Once again, the courts have suggested that the best arbiters of sport are those exercising the interests of the sport within the internal structure. Only where there are sufficiently difficult points of law or vital interests such as livelihood involved should the courts be referred to.
No body therefore, has the power to exclude legal representation absolutely, although the courts will give effect to the intentions in the agreement where possible. The right for the decision-making body to give reasons is also left to the judges discretion. Once again though the courts will attempt to give effect to the terms of the contract i. e. the relevant rules. McInnes v Onslow-Fane, involved the refusal of the British Boxing Board of Control to refuse an application for a license without giving reasons.
Megarry V. C. held that where no suggestion of bias or impropriety existed, there was no requirement to give reasons. There is also a requirement for an unbiased tribunal under natural justice, hence conflicts of interest or presence of non-members on the tribunal can render the decision void. In Revie v FA, the decision of the tribunal was held void, due to members of the panel having previously criticised the actions of the accused prior to the hearing. Consequently, this was construed as bias based on a prejudgement.
Therefore, whilst natural justice can be used to challenge the decisions of the governing bodies under law, the courts have taken a narrow interpretation of the rules of natural justice. This being explained by the traditional perception of sport by the judges as a private activity, in which judicial interference should be minimised. This is highlighted in Machin v FA, where the court felt that tribunals should not be subject to the same strict procedural requirements as imposed on the courts of law. Whilst in McInnes, Megarry V. C. stated that in areas such as sport, obligations to act fairly should not be imposed on 'honest bodies' .
This acting as an unfair burden upon the good work of the body, who were best placed to protect the interests of the sport. A duty to act fairly, has recently been suggested as a rule of natural justice. Despite the uncertainty over this claim though, the duty and natural justice are inextricably linked, and offers a further ground of challenge against the governing bodies of sport in the future, McInnes though, indicates that any such challenge is likely to be unsuccessful. Law can also be used to challenge the decisions of governing bodies for breaches of public policy and restraint of trade.
In Nagle v Feilden, the refusal of the Jockey Club to grant a license on the grounds of sex was found not only contrary to statute but public policy and restraint of trade. Restraint of trade has also been employed successfully on other occasions where the governing bodies have been seen to unfairly restrict the ability of its members to earn a living. The extent to which law is able to challenge the decisions of the governing bodies is perhaps a reflection of the present government's attitude towards greater deregulation and non-intervention.
For unless livelihood or complex issues of law arise, the courts seem reluctant to interfere, despite the public interest involved. With a common theme that the governing bodies are more capable of protecting the interests of the sport. Natural justice though, has imposed legal burdens on the governing bodies to ensure that procedural fairness is maintained, albeit on a strict construction of the rules abided by. With the juridification of sport, and increasing use of specialist sporting tribunals, it is likely that judicial intervention in sport, in the future, will become even less frequent, despite the increasing financial interests.