Last year's disciplinary case brought by the British Horseracing Authority ("BHA") against Jim Best generated significant media attention, not only because of the seriousness of Mr Best's misconduct, but also because of deficiencies in the initial disciplinary process. These deficiencies provide a reminder to governing bodies, clubs and other sporting organisations about the importance of conducting their internal procedures in accordance with their rules and, more generally, principles of procedural fairness and natural justice.
Summary of the Jim Best case
The disciplinary proceedings against Mr Best arose out of two races on 14 December 2015 at Plumpton and 17 December 2015 at Towcester. Paul John, a conditional licensed jockey working at Mr Best's yard, rode horses trained by Mr Best at both races (Echo Brava at Plumpton and Missile Man at Towcester). Following the Plumpton race, the stewards concluded that Mr John had acted in breach of Rule (B) 59.4 of the Rules of Racing and had "failed to take all reasonable and permissible measures to ensure his horse is run on its merits". The stewards at Towcester then found that Mr John had committed the more serious offence, under Rule (B) 59.2, of "intentionally failing to ensure that his horse is run on its merits". The matter was referred to the BHA for consideration by its Disciplinary Panel.
After denying the charges when he spoke to the stewards, Mr John later indicated to the BHA that he intended to plead guilty to the charges but that he had acted on Mr Best's instructions. Following the BHA's initial review of the matter, Mr Best was charged with offences under Rules (C) 45 (which addresses the trainer's duty "to secure the best possible placing" for his/her horse and to "give, or cause to be given, to the Rider of any horse trained by him such instructions as are necessary to ensure the horse runs on its merits") and (A) 30 (which regulates conduct that is "prejudicial to the integrity, proper conduct or good reputation of horseracing in Great Britain").
Unlike Mr John, Jim Best denied the allegations against him and rejected the claim that the horses had not been run on their merits, as well as the suggestion that this had been on his instructions. Following an initial hearing before a three-person BHA Disciplinary Panel in February and March 2016, the charges against Mr Best were upheld and he was disqualified for four years, while Mr John (who had admitted the charges) was declared ineligible to apply for a jockey's licence for 150 days. Discussions had taken place between Mr John and the BHA before the hearing about the impact his testimony against Mr Best might have on sanction. These discussions suggested that the BHA would seek a more lenient sanction if Mr John gave evidence which implicated Mr Best, albeit this was still ultimately a matter for the Panel.
Mr Best appealed against the decision on five grounds and his appeal was upheld on the following two:
(a) the reasons given in the Panel's published reasons were insufficient to support the decision (Schedule (A) 7, paragraph 14.1 of the Rules); and
(b) the initial hearing had been conducted in a way that was substantially unfair and prejudicial to Mr Best (Schedule (A) 7, paragraph 14.2 of the Rules), because of the apparent bias of the Chairman of the Disciplinary Panel ("the Chair").
Exercising its powers under paragraph 30.2 of Schedule (A) 7, the Appeal Board ordered the case to be reheard by a differently constituted Disciplinary Panel. At the re-hearing in November 2016, Mr Best was again found guilty, although the penalty imposed on him was a significantly shorter six month suspension of his trainer's licence with effect from 20 December 2016. It is worth noting that the Panel made no findings as to Mr Best's motive, although they discussed possible motives that might cause a trainer to behave in this way, such as seeking to lower artificially a horse's handicap mark.
Lessons from the successful appeal
Much of the media scrutiny of Mr Best's case has focussed on ground (b) above and it is this which we focus on in more detail here.
Ground (a) – insufficient reasons
Nevertheless, it is worth commenting briefly on ground (a). The Disciplinary Panel was required to provide reasons sufficient to support the decision and for the parties (and specifically Mr Best) to understand it. The Appeal Board concluded that this requirement had not been met due to the Panel's failure to provide sufficient detail of why it preferred Mr John's account. Unlike the second reasoned decision, the reasons issued by the first Panel did not assess the significance of the pre-hearing discussions that took place between Mr John and the BHA. As it happened, the second Panel did not accept that the "deal" (as it was characterised) with Mr John necessarily undermined his testimony. This was because his admission of guilt was of itself "profoundly harmful" to his reputation and exposed him to serious consequences. It was therefore deemed "extremely unlikely that he would admit 'stopping horses' if he had not in fact done so".
The failings found by the Appeal Board in the first Panel's reasoning are instructive for other sports organisations. While there is no requirement to publish the findings of internal disciplinary or procedures outside of the organisation (although this may, if appropriate, be beneficial for purposes of transparency), it is integral that those who are involved in the dispute understand the findings that have been reached. The reasons given should be proportionate when taking into consideration issues such as the extent and nature of evidence considered, whether or not there has been a formal hearing and the seriousness of the matter being adjudicated.
Ground (b) – apparent bias
The issue of apparent bias arose because, after the initial hearing, it transpired that between February 2014 and October 2015, the Chair and the firm of solicitors where he was employed had provided in excess of £50,000 of legal advice to the BHA. The BHA eventually conceded that the Chair's position gave rise to an appearance of bias (there is absolutely no suggestion of any actual bias on his part). At the appeal hearing, counsel for the BHA stated that "this situation had come about because the BHA had, over time, lost sight of the critical distinction between, on the one hand, its executive functions, and, on the other, its quasi-judicial disciplinary functions".
The test for appearance of bias, as approved in Porter v Magill  UKHL 67, is whether "a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". In Jim Best's case, it is impossible to disagree (and in fairness the BHA conceded the position) with the assertion that the Chair's involvement would have led a fair-minded observer to decide that there was a real possibility of bias.
While there is no suggestion whatsoever that the oversight by the BHA was made in bad faith, it has led to much unwanted publicity and added significantly to the amount of time Mr Best had to wait for a final hearing of his case. Indeed, the second Disciplinary Panel specifically stated that, in imposing a six month sanction on Mr Best, "we also took account of the fact that the matter should have been resolved 8 months ago is not his responsibility (apart from the obvious point that matters would have been resolved even sooner had he promptly admitted his guilt)". Clearly, everything should be done to try and avoid such situations arising.
Internal procedures are a vital element of the workings of any sports organisation, whether it is a disciplinary case against an individual, a grievance brought by an athlete, or appeals against non-selection. Such procedures need to be, and need to be seen to be, procedurally fair. Key to this is ensuring an independent consideration of the facts. In Mr Best's case, the presence of the Chair on the first panel amounted to a fairly obvious oversight on the part of the BHA, as they rightly acknowledged. However, there are more subtle cases where a proper assessment nevertheless needs to be undertaken to ensure that apparent bias is not present. The complexity of sport is that the adjudication of disputes will often benefit from specific expertise. But this must always balanced against the requirement that panels are, and can legitimately be seen to be, independent of the incident in question.
One option for sports organisations is to refer internal matters to an external independent dispute resolution tribunal. However, this may not always be practical, because of cost, timing and/or the need for a highly specialised panel. Where a sports organisation chooses to appoint its own panel, the position of each individual in the context of the dispute should be carefully assessed. Individuals involved in the incident to which the dispute relates should not be involved in adjudicating it nor should anyone with an interest in its outcome. There should be a process for potential conflicts of interest to be declared so as to avoid unnecessary delay and costs in the form of appeal proceedings. Similarly, organisations should exclude anyone from a panel who has previously expressed a view on the merits of a dispute.
More complex is the presence on panels of individuals who are involved with the organisation, whether, for instance, as members or as responsible for its governance. While there is nothing in principle to prevent members from being independent of a dispute, the position can be more problematic where someone closely involved in the day to day running or governance of the organisation is selected on a panel to hear a dispute. In those cases, very detailed analysis of the apparent bias test should be undertaken; in many instances it may in effect (as in the Jim Best case) be a dispute between the organisation as a whole and the other party. In such cases, there are likely to be questions around whether or not someone actively involved in the organisation is tinged by apparent bias.
Finally, where objections to a panel member are raised, they will need to be considered carefully. While on the one hand totally unsubstantiated objections need not necessarily be acceded to, a properly explained objection should be analysed and action taken if appropriate.
There are a number of recent high profile issues that have seen sports organisations become the subject of headlines questioning their integrity. It is therefore vital that internal procedures stand up to scrutiny. This is likely to be brought into even sharper focus when UK Sport's Code for Sports Governance comes into effect in April 2017. For organisations in receipt of significant funding from UK Sport for medium to long term activity (i.e. those which will find themselves subject to the Tier 3 mandatory requirements), the requirement to "comply with all applicable laws and regulations, undertake responsible financial strategic planning, and have appropriate controls and risk management procedures" is codified. The Code also specifies that national governing bodies should have in place clear, legally compliant athlete disciplinary and grievance procedures.
In reality, the Code is likely to bring all sports organisations further under the microscope. Now is therefore the time to undertake any necessary reviews of internal processes so as to ensure they are procedurally fair and avoid the kind of pitfalls usefully demonstrated by the case involving the BHA and Jim Best.
If you require further information on anything covered in this briefing please contact Tom Rudkin ([email protected]>; 020 3375 7586) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Sports Governance page on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, January 2017