Player Bans in Sport
By Vidya Narayanaswamy
A player ban is a form of sanction imposed on a player for breaching sporting rules or regulations or any other general code of conduct or ethics applicable to the player. The length of the ban varies based on the seriousness of the breach, but the most extreme form of player ban is one that prevents the player from taking part in any kind of sport-related activity (including administrative activity) at the national and international level, for life. Bans may be imposed on not just players, but also support staff and administrators.
Player bans become contentious for two reasons. First, because they impose a restraint on players’ ability to practice their profession and deprive them of an important means of making their living; and second, because players often allege that disciplinary proceedings conducted by commissions appointed by sports bodies violate basic principles of natural justice by not providing players a fair hearing and denying them access to documents/ reports requested by them, thereby jeopardizing their careers without giving them a fair opportunity to defend themselves.
This module discusses the law in relation to player bans as laid down by various sports federations – national and international, anti-doping agencies. It also discusses the role of the Court of Arbitration of Sport (CAS), which through its arbitration appeals procedure has the ability to rule on decisions of certain national and international sports bodies imposing player bans.
Player ban sanctions under various regulations
Player bans may derive from national and international sporting federation rules on discipline, conduct and rules of a game, national and international anti-doping regulation, national and international regulations on the standard of ethics in sport. A few illustrations are provided below:
- Article 54 of the UEFA Statute details the disciplinary measures that may be imposed against individuals. It includes a suspension for a specified number of matches or for a specified or unspecified period, suspension from carrying out a function for a specified number of matches or for a specified or unspecified period and a ban on exercising any football-related activity. These disciplinary measures may be combined with a community football service order.
- Article 45 of the FIFA Anti-Doping Regulations imposes a two year ineligibility period for presence of prohibited substance and use, attempted use or possession of prohibited substance.
- Article 6 of the ICC Anti-Corruption Code prescribes bans for anywhere between 6 months and a life-ban for offences made out under the Code, such as corruption, betting and misuse of inside information, based on the grievousness of the offence and the presence of aggravating and mitigating factors (if any).
- The ICC Code of Conduct for players and team officials categorises offences in four levels with a Level 1 offence being a relatively mild offence and a Level 4 offence being a serious offence. Once the offence is established, the adjudicator prescribes an appropriate sanction. For a Level 1 offence, up to 50% of the cricketer’s match fees may be imposed as fine. For a Level 2 offence, the cricketer may be banned for up to 2 ODIs or 1 Test Match. For a Level 3 offence, the cricketer may be banned for between 2-4 Test Matches or 4-8 ODIs. For a Level 4 offence, the cricketer may be banned for between 5 Test Matches or 10 ODI matches and in extreme cases, handed a life ban.
Player Ban Procedure
When a player contests a ban, the matter is usually referred to a committee/tribunal constituted by the body imposing the ban. For instance, in the case of the ICC, if the ICC alleges that a player/support personnel has committed an offence under the ICC Anti- Corruption Code and the player/support personnel involved contests such allegation, the matter is referred to the ICC Code of Conduct Commission which constitutes the Anti- Corruption Tribunal to hear the case. The procedure followed by the Tribunal will be at its discretion provided that it affords the players/support personnel a fair and reasonable opportunity to present their case.
Recently, Pakistani cricketers Salman Butt, Mohammad Asif and Mohammad Amir were banned for 10, 7 and 5 years respectively after a Tribunal constituted by the ICC found them guilty of spot-fixing during the Lord’s Test against England in 2010. Prior to the commencement of proceedings, Tribunal Chairman Michael Beloff, QC, outlined the procedure that would be adopted. The hearing was to begin with the ICC making an opening statement, presenting its case against each of the three players, and then the players would each be entitled to respond. Thereafter, the ICC was to present the evidence collected by it in support of the charges brought. This was to include hearing from witnesses in-person and over the telephone. Players were then entitled to dispute any witness evidence by cross-examining each witness. Members of the Tribunal were also permitted to ask questions. Players could then present their defense and closing statements on the issue of whether the charges were to be upheld. Following that, the Tribunal would pronounce its judgment on whether the charges were to be upheld. If the charges against any player are upheld, the players and the ICC would then address the Tribunal on the issue of sanctions that should be imposed.
In 2000, cricketers Mohammad Azharuddin and Ajay Jadeja were suspended after certain inquiries were conducted by the BCCI into match-fixing allegations and Disciplinary Committee hearings were conducted. Azharuddin was handed a life-ban. Jadeja were banned for a period of five years on the charge of fraternising with bookies. Jadeja challenged the order in the Delhi High Court. After a few hearings in the High Court, the matter was referred to arbitration. In 2003, the arbitral award was rendered – the five year ban was set aside, on the ground that the probe into the match-fixing allegations was one-sided and Jadeja was not given a chance to prove his innocence. One of Jadeja’s main contentions was that the procedures adopted by the BCCI-appointed Disciplinary Committee were arbitrary, unjust and unfair. Azharuddin’s ban was lifted by the BCCI in 2006.
Appeal to CAS
The Court of Arbitration for Sport (CAS) is an independent body governed by the International Council for the Arbitration of Sport. Prior to 1994, CAS was used by only a few international sporting federations, but after its independence was enhanced in 1994, many sporting federations have amended their rules and regulations to allow for appeal from decisions of the sporting federations’ tribunals, by way of arbitration, to CAS. CAS consists of two divisions: an ordinary division that deals with commercial disputes and an appeals division that deals with the law and facts pertaining to sports disputes such as corruption, doping, etc. The appeals division constitutes panels, the mission of which is to resolve disputes concerning the decisions of disciplinary tribunals or similar bodies of federations, associations or other sports bodies provided that the statutes or regulations of the said sports bodies or the agreement between the athlete and the sports body provide for the same. Usually, there is no right of appeal to the courts from a decision of CAS. A decision of CAS is final and binding and can be enforced by domestic courts through the rules of Private International Law.
In case of UEFA, the jurisdiction of CAS derives from article 62 of the UEFA Statutes, article 66 of the UEFA Disciplinary Regulations and article R47 of the CAS Code. Any decision taken by a UEFA organ can be disputed exclusively before CAS in its appeals division, to the exclusion of any other ordinary court or any other court of arbitration. However, an appeal before the CAS may only be brought once the UEFA’s internal procedures and remedies have been exhausted. In practice, an appeal to the CAS may be lodged within ten days of the dispatch of the reasoned decision of the UEFA Appeals Body.
One of the most high profile appeals to CAS in recent times has been in relation to a life ban imposed on referee Oleg Oriekhov by UEFA. Oriekhov officiated at a match between FC Basel and CSKA Sofia in the 2009-2010 UEFA Europa League. FC Basel won the match with the score line 3-1. Pursuant to investigations conducted, it was found that Oriekhov was offered EUR 50,000 to manipulate the result of the match by a criminal group involved in betting fraud. The UEFA Appeals Body held that Oriekhov had violated his duty to disclose illicit approaches as laid down in the UEFA Regulations by failing to immediately report to UEFA that he had been approached to participate in a match-fixing plot.
The Appeals Body imposed a life ban on Oriekhov which prevented him from participating in any football related activity. Oriekhov filed an appeal with CAS against the decision of the Appeals Body (CAS 2010/A/2172 Mr Oleg Oriekhov v/ UEFA). The CAS Panel upheld the decision of the Appeals Body. It held that it had been proved beyond reasonable doubt that there were numerous instances of contact between Oriekhov and members of the criminal group. In particular, it has been convincingly established that Oriekhov had been contacted before and after the match under scrutiny by persons who offered him money to manipulate the results of the match. The CAS Panel held that Oriekhov had deliberately violated the principles of conduct laid down by the UEFA Disciplinary Regulations as he did not inform UEFA immediately of the efforts to contact him. Oriekhov attempted to argue that he did not report the efforts to contact him due to his inadequate command of English and because he was not aware of whom he was supposed to report such contact to. CAS held that a life ban from all forms of football related activity was justified.
Article 7 of the ICC Anti-Corruption Code grants a player who is the subject of a decision of the ICC Disciplinary Tribunal, the right to challenge such decision solely by appeal to CAS. Recently, the Pakistani cricketers found guilty of spot fixing have appealed to CAS against the decision of ICC Disciplinary Committee Tribunal. CAS confirmed that it had registered the appeals against the ICC Anti- Corruption Tribunal’s decision of 5 February 2011. While registering this appeal was a relatively uncomplicated decision as CAS has been conferred jurisdiction by the ICC Anti- Corruption Code, there have been other cases where the CAS has reached the conclusion that it has no jurisdiction to preside over a given matter.
In 2006, Shoaib Akhtar and Mohammad Asif tested positive for the banned performance- enhancing steroid nandrolone, during a random drug test conducted by the Pakistan Cricket Board (PCB) immediately before the Champions Trophy. An Anti-Doping Commission appointed by the PCB imposed a two-year ban on Akhtar and a one-year ban on Asif under the PCB Anti-Doping Regulations. Akhtar and Asif appealed the Commission’s decision to the Anti-Doping Appeals Committee which reversed the decision of the Commission. This prompted the World Anti-Doping Agency (WADA) to file a case in CAS against the decision of the Appeals Committee (CAS 2006/A/1190 WADA v/Pakistan Cricket Board & Akhtar & Asif).
Since the PCB Anti-Doping Regulations did not have an express provision granting a right to appeal to CAS, CAS asked both parties to submit arguments on the issue of jurisdiction. In reaching its decision the CAS Panel hearing the arguments on jurisdiction relied on article 47 of the CAS Code which states that in order for the CAS to have jurisdiction to preside over an appeal, the statutes or regulations of the sports-related body from whose decision the appeal is being made must expressly recognize CAS an arbitral body of appeal. Since the PCB Regulations did not contain any reference to a right of appeal to CAS, and in fact stated that the decision of the PCB Appeals Committee will be final and binding on the parties to the appeal, it was held that the CAS could not derive jurisdiction to hear an appeal from the decision of the PCB Appeals Committee.
In the Indian context, the controversy is most often not as much about the player ban as it is about the manner in which it is handed. There is often a fundamental denial of natural justice in the procedure followed by disciplinary committee hearings. Members of disciplinary committees are often persons with little or no background in legal and judicial procedures. For a decision to stand up to legal scrutiny it must provide the charged player a fair opportunity to defend himself/herself and not merely a semblance of a hearing. A fair opportunity of defense includes prior notice of the decision and the disciplinary charge(s), consultation and written representation, an oral hearing, the right to call and cross-examine witnesses, legal representation and a requirement to give reasons.
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