In early April we blogged about the difficult decisions that were being made to pause, abandon, or curtail sports competitions in response to the COVID-19 pandemic. We are now much further down the line. The Bundesliga has generated record TV ratings since its return to play in empty stadia earlier this month. And of course, the Belarus Premier League holds the position as the only top-tier football competition in Europe that carried on through the pandemic.
Other leagues and governments are still considering if, and when, to follow the German competition in returning to the field. In considering a potential resumption money, player safety, and public morale are all understandable considerations weighing on the minds of stakeholders. It seems to be a given that spectators will not be attending games in the short to medium term.
We already know that several top-tier European football leagues will not return this season. Inevitably, some teams in curtailed leagues will feel that they’ve lost out as a result. Those relegated or missing out on a push for the title when there would otherwise still be games to play may look to challenge this type of decision in the courts. Perhaps surprisingly, the tools available to aggrieved clubs would be different in Scotland compared to in England and Wales.
An option available to Scottish sports clubs who feel that they have suffered as a result of an unlawful decision by a governing body is to petition the Court of Session for judicial review. The court can review the decisions of sporting authorities – and indeed any body – where a jurisdiction, power or authority has been entrusted to a decision maker. It is not important whether the organisation is a private or a governmental one. In principle the decision to restart or abandon a sports competition could be amenable to judicial review, if there are grounds for considering that the decision is an unlawful one.
This should not be thought of as an appeals process. Instead, it means that the court can examine whether a decision was flawed because it was either unlawful, irrational, or taken in a procedurally improper way. A sport’s governing body must act within the bounds of the jurisdiction that it has been granted by its members – which will often be the various clubs within the league or association.
Decisions of the Scottish Football Association have been reviewed several times in recent years, and it is not unknown for golf clubs to find themselves the respondent in a judicial review in Scotland.
Different position in England
In contrast, judicial review is unlikely to be available in England and Wales to challenge decisions taken by a sport’s governing body. This was settled in the well-known case concerning a decision of the Jockey Club to disqualify the Aga Khan’s racehorse over claims that it had been given a banned substance.
What the court can order
Judicial review is a potentially powerful tool. If the court finds that the decision to restart or cancel a sporting competition was unlawful the decision can be “reduced”, which means it is nullified. It will often be the case that the sporting authority would then have the chance to re-take the decision in a way that is lawful.
Sports fans do not typically expect lawyers and judges to play a role in the outcome of a competition, but these are not typical times. In principle Scottish sports clubs can turn to the court if they feel that their governing body has not taken a lawful decision in curtailing a competition.x