In Bruce Baker v The British Boxing Board of Control, the High Court held that the British Boxing Board of Control’s appeal procedure is properly categorised as an “arbitration” and therefore final and binding, challengeable in limited circumstances only.
Mr Baker was a licensed boxing promoter. In 2013, following his involvement in a boxing promotion to which the Board had refused to give its consent, the British Boxing Board of Control (“Board”) charged Mr Baker with misconduct under its Rules. As a result, Mr Baker’s licence was withdrawn, a decision which he appealed to the Stewards of Appeal. The Stewards dismissed the appeal and upheld the Board’s sanction. When Mr Baker applied to the Court to quash this decision, rather than filing a defence the Board issued an application to strike out the claim on the basis that, as the appeal constituted an arbitration under the Arbitration Act 1996 (“Act”), Mr Baker could only challenge the decision under very limited circumstances, none of which existed.
The criteria to determine whether the appeal was an arbitration
In determining whether the Board’s appeal process amounts to an arbitration, Master Matthews considered the factors set out by Mr Justice Cooke in The England and Wales Cricket Board Ltd v Kaneria:
1. Do the parties have a proper opportunity to present their case?
Here, the appeal took the form of a complete rehearing. Mr Baker was represented throughout, and was allowed to put forward all of his evidence and arguments. He was also able to question the Board’s evidence in cross examination.
2. Do the arbitrators disclose all communications with one party to the other party?
No unilateral commutations were received by the Stewards of Appeal, and all relevant communications were disclosed to both parties.
3. Are proportionate procedures in place for the provision and receipt of evidence?
Both Mr Baker and the Board had a right to call witnesses and to be represented. As mentioned above, there was a complete rehearing which involved the provision of evidence and relevant documents.
4. Does the agreement under which the process is conducted contemplate that the tribunal will make a binding decision?
The Board’s Articles and Regulations do not provide the right to appeal decisions of the Stewards of Appeal. The parties had accepted the jurisdiction of the Stewards of Appeal – and as Mr Baker had instigated the appeal, it was he who had triggered their jurisdiction. Master Matthews held that there was no suggestion that the Stewards’ decisions would not be binding.
5. Does the agreement under which the process is conducted contemplate that the process will be carried on between those persons whose substantive rights are determined by the tribunal?
Here, the appeal clearly represented the determination of Mr Baker’s substantive rights as against the Board.
6. Does the jurisdiction of the tribunal derive from: (i) the consent of the parties; (ii) a court Order; or (iii) statute, which makes clear that the process is to be an arbitration?
Master Matthews also stressed that no express wording to that effect is required for the consent, Order or statute to “make it clear that the process is to be an arbitration“, nor is it necessary to use the word “arbitration”.
The jurisdiction of the Stewards of Appeal stemmed from the Board’s Articles and Regulations. Master Matthews held that Mr Baker had accepted those Articles and Regulations (and therefore the Stewards’ jurisdiction) by virtue of being a licence holder. In any event, Mr Baker had instigated the appeal and thus consented to the jurisdiction of the Stewards.
7. Does the agreement under which the process is conducted contemplate that the tribunal will determine the rights of the parties in an impartial manner?
The Stewards of Appeal are experienced lawyers, each of whom is independent of the Board. In any event, Mr Baker did not allege procedural unfairness.
8. Was the agreement of the parties to refer their disputes to the decision of the tribunal intended to be enforceable in law?
The Board’s Regulations provide that the decision of the Stewards of Appeal is final and binding on the Board. This was held to have contractual effect (by virtue of Mr Baker’s position as a licence holder) and was therefore enforceable in law.
9. Does the agreement under which the process is conducted contemplate a process whereby the tribunal will make a decision upon a dispute which has already been formulated at the time when the tribunal is appointed?
Master Matthews held that this was the case in the current proceedings as Mr Baker had brought an appeal against the Board’s first instance decision.
As Master Matthews held that the Board’s appeal procedure was an arbitration, it followed that Mr Baker could not appeal the Stewards’ decision through the court system. Although the Act provides limited circumstances in which an arbitral decision can be challenged, none existed in the current case. On this basis, Mr Baker’s claim was struck out.
Whilst Master Matthews stressed that the dicta in Kaneria should not be treated as if it were a statutory definition, it helped to “focus on the characteristics which make up the concept of arbitration“.
There are a number of advantages for sports bodies if their disciplinary procedures are categorised as arbitrations, including:
- first, decisions can only be challenged through the court system in a limited set of circumstances, therefore giving more finality to proceedings (note however that parties to can still seek court orders to support the arbitral process
- for example to obtain witness statements, decide preliminary points of law or to enforce awards. This can be especially useful in relation to any costs orders made by the sport’s disciplinary body); and
- second, confidentiality: arbitral proceedings are not public.
As was stressed in Dirk de Rider v International Sailing Federation (see our previous blog piece, here) a clear demarcation between the persons who sit at first instance and those who sit on any appeal bodies, as well as ensuring transparency at every stage of the disciplinary process, can help avoid challenges to sporting bodies independence. This latest boxing decision may well prove to be another useful tool in a governing body’s arsenal to dispense with court claims which seek to dispute their authority and/or jurisdiction.