LEMAN LEGAL UPDATE

Cork City FC owner and chairman, Tom Coughlan found out the hard way yesterday that disciplinary decisions of FAI were not reviewable by the Courts because the FAI was not a public body.

Decisions of public bodies, for example semi state bodies or government departments are reviewable by the High Court to test the legality of such decisions by way of a process known as “Judicial Review”.

 

An FAI disciplinary Committee had imposed a 12 month ban on Tom Coughlan from participating in any football related activities together with a €5,000.00 fine for bringing the FAI into disrepute. 

 

The FAI disciplinary Committee had previously heard evidence that Coughlan had  failed to pay employees on time, failed to meet his obligations to revenue, failed to pay insurance premiums on time, failed to pay ESB resulting in supply being cut off, bounced cheques to referees and revenue, failed to pay transport costs and was involved in two high profile winding up proceedings.

Coughlan primarily challenged the decision before the High Court claiming that he had not been afforded fair procedures because the FAI disciplinary Committee had not agreed to adjourn the case and heard the case in his absence. He also questioned the jurisdiction of the FAI Disciplinary Committee to impose a sanction in circumstances where he had not formally signed up to the jurisdiction of the Disciplinary Committee.

 

The case raises a number of issues which directly affect all NGBs: -

 

(i)            Are decisions of sport NGBs judicially reviewable before the High

Court?

The High Court determined clearly that decisions of sporting bodies like the FAI are not amenable to judicial review since the FAI is not a public body, even though it has a public function

(ii)           Does an aggrieved party have a right to go before the High Court where all internal avenues of appeal have not been exhausted?

 

The High Court emphasised that the Courts should only be used as a last resort and in the rarest of cases after all internal avenues of appeal had been exhausted. The High Court acknowledged that there was an internal right of appeal which Coughlan had not exercised before coming to the High Court.

 

The Judge noted from the FAI rules that bound aggrieved parties to take their claims to arbitration after all internal remedies were exhausted.

 

Therefore  if the NGB’s and members agree to refer any disputes (after the exhaustion of internal remedies) to arbitration, such as JSI arbitration then the parties are bound to refer their dispute to arbitration and not to Court.

 

(iii)          Are Disciplinary Committees breaching fair procedures in refusing to adjourn a hearing?

 

In this case the Disciplinary Committee had previously agreed to two prior adjournments, sought by Coughlan.

 

Coughlan appeared at the hearing but left before the hearing got underway, having cited “other business” to attend to.   He refused to return to attend the hearing after being requested by the Chairman of the Disciplinary Committee. The Judge held that no breach of fair procedures had occurred in the circumstances.

 

 

(iv)          Should NGB’s ensure that members actually sign up to the jurisdiction of disciplinary committees for decisions of such committee to be enforceable?

 

Coughlan claimed that he had never formally taken up membership of the FAI and therefore did not come within the umbrella of the FAI disciplinary committees.   Hedigan J  disagreed indicating that because of the role he assumed as chair of Cork City FC he was deemed to be a member of the FAI and accordingly was susceptible to disciplinary sanctions of the FAI committees.

 

Judge Hedigan’s decision was significant as it clarifies once and for all that disciplinary decisions of NGB’s are not judicially reviewable and that a party may only bring an NGB to Court after all internal remedies have been appealed.

 

It is therefore critical for NGB’s to have adequate internal remedies available to members and also to ensure that the Rules contain an arbitration clause.

 

For further information please contact Larry Fenelon at Leman Solicitors.

www.lemansolicitors.com and (01) 639 3000

 

Leman Solicitors are the official legal partner to the Federation of Irish Sport.