Judicial Supervision in Sports

Introduction

In Nagle v Fielden, the court ruled that the Jockey Club’s refusal to issue a lady jockey her jockey’s license based on her sex was against public policy. This judgment sets the supervisory role of court with relation to arbitrary, capricious, and unreasonable decisions of sports governing bodies affecting public policy.

Nagle is a precedent to be followed by sport bodies and tribunals. It not only enforces the supervisory role of the judiciary, but also recognises the right to work. In this context, this paper will critically analyse this decision in order to assess its impact on the courts or tribunal judgment in sports law.

Nagle involves the issues of right to work, enforceability of this right in absence of contractual relationship, and the extent of the right of the Jockey Club to exercise its complete monopoly over racing.

Rules of Racing, Rule 66 (B) of the Jockey Club requires all trainers to have a Jockey Club licence. It bars any horse trained by a non-licensed person from running at a race-meeting. The Jockey Club has a practice of not giving licenses to women trainers. In this case, the club was aware that Mrs. Nagle had been training race-horses since 1938 although the licence for her stables was held formally by her head-lad. When she applied for a license, she was refused. The issue in this case is whether or not the Jockey Club can exercised its complete autonomy to refuse her application and whether or not such refusal is against public policy.

Impact of the judgment

It is surprising that the Supreme Court did not find any cause of action and the counsel at the lower court sought to establish a contractual relationship between the Jockey Club and Mrs. Nagle when sex is a protected characteristic under the Equality Act 2010, Section 11. Section 38(1)(c) provides that an employer cannot discriminate against a person by not offering the person employment. Refusing Mrs. Nagle her application is against the Equality Act 2010 as it is discrimination based on sex. Mrs. Nagle is entitled to apply for her license and to work as a trainer.

The decision in Nagle does not seem to focus on the implied contract between Mrs. Nagle and the club. The club was aware that Mrs. Nagle had been training race-horses since 1938. She has submitted to the club’s rules when she applied for the license. This represents a series of contracts that link her and the club, as was seen in Modahl and Bradley, and a strong contractual relationship between her and the Jockey Club. Salmon L.J. held that the claimant must prove a contract to raise the issue of public policy. Robin Dunn Q.C, however, ruled that a contract is not necessary citing Upjohn L.J in Boulting, and held that the practice of Jockey Club is in restraint of trade. Similar ruling was in Bradley where the applicant was disqualified by the Jockey Club for eight years for providing information relating to a third party and the Court of Appeal held that the ban affected his right to work. In Modahl, the applicant athlete filed for damages when the athlete was banned by BAF on a doping offence. The Court held that there was an implied contract arising from the athlete’s submission to BAF’s rules that benefited BAF and hence, there should have been a fair procedure and an agreement between the parties to ensure a fair result.

1. Nagle v Fielden [1966] 2 QB 633.
2. Ibid.
3. James Mark, Sports law (3rd edition, Palgrave 2017) 40.
4. [Nagle v Fielden [1966] 2 QB 633, 3.
5. Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606.

The Court of Appeal, in Nagle, held the practice of refusing women licences arbitrary, capricious and contrary to public policy. Lord Denning focused on the right to work and the court can intervene to protect this right. He cited Lee, that rules of natural justice, as a matter of public policy, are implied into the rules of domestic tribunals and not as a matter of contract.

Sports are self-regulatory. The decision making, procedures of NGBs and the tribunals cannot be subjected to judicial review. However, courts have an inherent supervisory jurisdiction at common law to review them. An application under Section 31(1)(b) of the Senior Courts Act 1981 for declaration or injunction could be made. Courts’ intervention is necessary given that the autonomy of sports governing body could produce overreaching effects. Relevant international law protecting from abuse of powers could be found in Article 102 and Article 101 of Treaty on the Functioning of the European Union (TFEU) and Section 18 of the Competition Act 1998.

The decision in Nagle will impact the manner in which a person’s right to work is protected. Nagle is a precedent to be followed by sports authorities and tribunals for drafting rules and regulations and formulating basic principles. The ruling has touched upon the right to work, prohibition of discrimination, implied contract, and issue of public policy and provided the principle of supervisory jurisdiction of the court.

Conclusion

1. [1966] 2 QB 633, 3.
2. Bradley v Jockey Club [EWCA] Civ 1056.
3. Ibid.
4. Modahl v British Athletic Federation Ltd [2001] EWCA Civ 1447; [2002] 1 WLR 1192.
5. E. M Heenan, ‘Nagle v. Feilden’ (1965) (7) Western Australian Law Review 569.
6. [1966] 1 All E.R. 689, 694.
7. Lee v. Showmen's Guild [1952] 2 Q.B. 329.
8. Ian S. Blackshaw, International Sports Law: An Introductory Guide (1st ed., T.M.C. Asser Press 2017) 10.
9. James Mark, Sports law (3rd edition, Palgrave 2017) 37.
10. Antoine Duval and Ben Van Rompuy, ‘Protecting Athletes’ Right to a Fair Trial Through EU Competition Law: The Pechstein Case’ in Ben Van Rompuy, Christophe Paulussen, Tamara Takacs, Vesna Lazić (eds.), Fundamental Rights in International and European Law - Public and Private Law Perspectives (1st ed., T.M.C. Asser Press 2016).
11. Jason Haynes and J. Tyrone Marcus, Commonwealth Caribbean Sports Law Haynes (1st ed., Routledge, 2019).

To conclude, autonomy cannot go beyond the boundaries of rule of law. The current case ruling shows that protection of a person’s human right needs fair proceeding and considering of a larger public policy, which private institutions must abide. The court’s supervisory jurisdiction creates the right balance of giving autonomy to sports’ bodies as well as protecting the rights of individuals. Decisions like Nagle provide broader general principles of law that the bodies could refer and also the individuals could use to ensure adherence to relevant laws.

Take a deeper dive into Judicial Precedent and the Contempt of Court with our additional resources.

Bibliography

Cases

Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606

Bradley v Jockey Club [EWCA] Civ 1056

Lee v Showmen's Guild [1952] 2 Q.B. 329

Modahl v British Athletic Federation Ltd [2001] EWCA Civ 1447; [2002] 1 WLR 1192

Nagle v Fielden [1966] 2 QB 633

Legislation

The Equality Act 2010

The Senior Courts Act 1981

Books

Blackshaw IS, International Sports Law: An Introductory Guide (T.M.C. Asser Press 2017)

Antoine Duval and Ben Van Rompuy, ‘Protecting Athletes’ Right to a Fair Trial Through EU Competition Law: The Pechstein Case’ in Ben Van Rompuy, Christophe Paulussen, Tamara Takacs, Vesna Lazić (eds.), Fundamental Rights in International and European Law - Public and Private Law Perspectives (1st ed., T.M.C. Asser Press 2016).

Haynes J and J. Tyrone Marcus, Commonwealth Caribbean Sports Law Haynes (1st ed., Routledge, 2019)

Mark J, Sports law (3rd edition, Palgrave 2017)

Journals

Heenan EM , ‘Nagle v. Feilden’ (1965) (7) Western Australian Law Review 569