The Court of Arbitration for Sport (“CAS”) decision in Dirk de Ridder v International Sailing Federation, recently published in full, has outlined six propositions to ensure that the disciplinary procedures operated by sporting governing bodies adhere to principles of procedural fairness and justice.
Mr de Ridder, a Dutch sailor and former member of Oracle Team USA, filed an appeal at CAS in June 2014 against the decisions taken by the Disciplinary Commission of the International Sailing Federation (“ISAF”) and the ISAF Review Board in relation to his alleged involvement in the manipulation of the weight distribution of AC45 yachts used in the inaugural America’s Cup World Series and the 2013 America’s Cup. The Disciplinary Commission found that Mr de Ridder had committed a gross breach of the rule which requires boats to comply with class rules, as well as of good sportsmanship, had brought the sport into disrepute and was therefore open to sanction. The ISAF Review Board concurred and imposed a period of ineligibility of three years.
In appealing to CAS, Mr de Ridder sought to overturn such decisions on the grounds that they were based on insufficient evidence, that the imposed sanction was disproportionate and that the ISAF lacked jurisdiction.
CAS, who conducted a de novo hearing (i.e. a full re-hearing) pursuant to their Rule 57, found that there was sufficient evidence to conclude that Mr de Ridder had committed the alleged offence, based on the “comfortable satisfaction” test. Whilst a slightly foreign concept for British lawyers, the standard of “comfortable satisfaction” is fast becoming the norm for corruption cases globally, sitting below the higher criminal standard of “beyond all reasonable doubt” but above the civil “balance of probabilities” standard.
Having determined his guilt, CAS decided to halve the sanction imposed against Mr de Ridder to 18 months.
The virtue of the de novo hearing meant that any actual or perceived procedural irregularities in the way ISAF had conducted Mr de Ridder’s case could be corrected by CAS. Nonetheless, the Panel chose to identify six (non-exhaustive) ways in which sporting governing bodies could improve their disciplinary procedures with the hope that this would ensure that fewer subjects of adverse decisions would be compelled to refer their disputes to CAS (or, for that matter, any other court, should the governing body’s rules not include a right of appeal to CAS):
- There should be a clear demarcation line between the roles of investigator, prosecutor and adjudicator – in short a legal separation of powers;
- There should be a full disclosure of all material in the possession of the prosecution which may be of assistance to the person charged with the disciplinary offence;
- The material on which the adjudicator is invited to base its verdict should be clearly defined to the person charged, and, as far as possible, the adjudicator should be shielded from material potentially prejudicial to the person charged but on which the prosecution does not intend to rely;
- There should be a clear demarcation between persons who sit at first instance and those who sit on any bodies to which first instance decisions may be appealed within the same disciplinary structure;
- A person charged should be informed of and given access to the procedures to be applied in his or her case; and
- No change to a disciplinary procedure should be introduced with retrospective effect unless favourable to the person charged.
Governing bodies must also abide by the twin principles of nemo judex in sua causea (i.e. no person may judge a case in which they have an interest) and audi alteram partem (i.e. that all parties have a right to be heard).
The panel stressed that the requirements are subject to established exceptions such as legal professional privilege; they also do apply as such to ‘field of play’ decisions, which CAS has historically been reluctant to overturn unless there is clear evidence that officials have acted in bad faith.
CAS typically handles around 350 cases every year. With 31 cases currently listed to be heard by the end of March, it will be interesting to see if this average is reduced in 2015 and if so, to what extent this can be attributed to CAS’ propositions in this case. However, it may be that the judgement will not produce an immediate effect on sports bodies; even if the six suggestions are not followed, this can nonetheless be remedied in circumstances where the right to a de novo appeal is available.