Where now for the Judicial Panel Protocol? (2)


In our second article on the JPP, we look at how our system of football ‘justice’ should be reformed in the wake of the Court of Session’s decision in the Rangers case.

Lord Glennie’s judgment revealed two important problems with the Judicial Panel Protocol that need to be addressed:

  • the inability of Tribunals to impose any sanctions other than those listed as being available for breaches of the relevant disciplinary rule; and
  • uncertainty over whether Tribunal decisions may be appealed to the Court of Arbitration for Sport (CAS), or reviewed by the Scottish Courts.

This article will explore these problems in turn, and propose a solution for each of them.

Sanctions

The power of the Judicial Panel (“JP”) to impose sanctions on clubs, players and others involved in Scottish football derives from the SFA’s Articles of Association. In particular:

  • Article 94.1 empowers the JP to impose certain specified sanctions or “such other sanction as is provided for in the Judicial Panel Protocol” on any person who brings the game into disrepute “or on any other grounds it considers sufficient”; and
  • Article 95 gives the JP the jurisdiction “to deal with any alleged infringement of any provision of these Articles” and to impose certain specified sanctions “or such other penalty, condition or sanction” as the JP considers appropriate “in order to deal justly with the case in question.”

Reading those Articles, one might therefore think that the JP has very general powers to impose whatever sanctions it thinks fit to deal with rule-breaking in the game. However, for charges falling under Article 94 (bringing the game into disrepute etc.) – though not for those dealt with by Article 95 (breaches of the SFA’s Articles) – there is no general power to impose any just sanction. Rather, the only sanctions that can be imposed are those specifically listed in Article 94.1 (fine, suspension, explusion, or ejection from the Scottish Cup) or those “provided for in the Judicial Panel Protocol”.

The JPP itself purports to set out a general power for its Tribunals to impose sanctions:

“8.1.1 A Tribunal may consider and determine any alleged breach of the Disciplinary Rules and/or the Articles, and may impose such sanction(s) or other Determination as are provided for in respect of such Disciplinary Rules and/or Articles, or as may otherwise be appropriate in the circumstances.”

The closing words of section 8.1.1 – “or as may otherwise be appropriate in the circumstances” – appear to give the Tribunals all the flexibility they need. However, the SFA’s Disciplinary Rules (“the Rules”), set out in Annex A of the JPP, adopt a highly prescriptive approach to sanctions. This enormous Annex (146 pages long) sets out every single SFA rule that could possibly be breached and then specifies, for each such rule, what sanctions are available to the Tribunal for that breach.

In the Rangers case, Lord Glennie decided that (despite the general words of section 8.1.1) would render the incredibly detailed listing of sanctions in Annex A utterly pointless. The only way to make sense of the JPP as a whole was to read it as NOT including a general power for Tribunals to impose whatever sanction it considered to be appropriate in the circumstances. And this seems to be clearly right. So the Disciplinary Tribunal’s creativity in imposing a 12-month registration embargo, rather than a sanction which was either too lenient or too severe, was unlawful.

How should the JPP be amended to correct this unsatisfactory situation? One option would be to rip up Annex A and simply grant the Tribunals a general power to impose any sanction that they consider to be just. However, that runs straight into a perennial tension in legal theory – between justice and certainty. Justice requires that bodies empowered to impose punishments are given a certain level of discretion, to allow them to deal with different cases appropriately according to their circumstances. The principle of legal certainty, on the other hand, requires that the law be clear and certain in its application – particularly where the rights of individuals may be adversely affected.

So a general power of sanction would be just, but uncertain; whereas the current system has a great deal of certainty, but also lots of potential to be unjust. Which is better? Well, thankfully we don’t need Harry Hill in order to resolve that one – as this choice is something that we’ve seen a great deal of over the course of the Rangers crisis: a false dilemma. We do not need to choose between these two approaches – we can incorporate elements of both into a single system.

How can this be done? By retaining the specificity of Annex A, but including an overriding power to impose any other just sanction “in exceptional circumstances”. This preserves most of the valuable certainty that Annex A brings whilst giving Tribunals the flexibility to deal with unexpected or unprecedented situations, like the Rangers crisis, in a just and proportionate manner. Of course, the question of which circumstances count as “exceptional” introduces a little more uncertainty than we have at present, but this is a price worth paying to avoid the utter mess that resulted from the Tribunals’ attempts to achieve a just outcome in the Rangers case.

Jurisdiction and appeals

As mentioned in our first article, the JPP provides anyone found to have breached the Rules by a Disciplinary Tribunal (“DT”) to appeal that decision to an Appellate Tribunal (“AT”) – from whose decision “there shall be no further right of appeal” (15.8.3.6).

However, in the Rangers case, the SFA sought to persuade the Court of Session had it no jurisdiction to review the AT’s decision – because Rangers was entitled to appeal the AT’s decision to the Court of Arbitration for Sport (“CAS”). The SFA argued that, despite the clear wording of section 15.8.3.6 of the JPP, there is a right to appeal to CAS in Article 5.1 (c) of the SFA Articles of Association, which says that all members shall:

“recognise and submit to the jurisdiction of the Court of Arbitration for Sport as specified in the relevant provisions of the FIFA statutes”

Lord Glennie was (again, correctly) unimpressed with that argument. He held that Article 5.1(c) only required SFA members, like Rangers, to submit to the jurisdiction of CAS insofar as that is required by the FIFA statutes; and that the FIFA statutes do not require members of national associations to submit their disputes to CAS. And the SFA clearly had not allowed its members to use CAS, but had set up its own binding judicial system instead. The Court of Session did, therefore, have jurisdiction to review the AT’s decision.

The SFA was, of course, keen to ensure that the Court of Session case did not proceed – given that the FIFA Statutes oblige the SFA, on pain of very serious sanctions, to prevent any footballing disputes from being dealt with by the Scottish courts of law. And this is completely understandable. What needs to change here is not the SFA’s Articles or the JPP, but the FIFA Statutes themselves.

The idea that the Scottish Court of Session should have absolutely no role to play in a dispute between the Scottish Football Association and a Scottish football club (or a player of a Scottish club, playing in Scotland) is preposterous. The SFA’s disciplinary Tribunals should not be above the law of the land, and should not be able to impose illegal sanctions on Scottish businesses with impugnity. However, it is easy to see the rationale for FIFA’s rule. FIFA is the global governing body for football, regulating 209 national associations across the world – including many countries with far less well-developed and respected legal systems than Scotland.

How do we solve this problem? Again, by recognising that the choice between the two approaches is a false dilemma. FIFA already operates a licensing system for national associations which could be expanded into a new area – the law. Where a country meets certain minimum legal standards (broadly, a mature legal system with healthy respect for the rule of law) then FIFA should not require the national association to prohibit clubs from obtaining the protection of their own legal systems. On the other hand, where those standards are not met, the national association must ensure that disputes are dealt with outside the law courts (where possible).

Conclusion

In this article, we’ve argued that the Judicial Panel Protocol should be amended to allow Tribunals the flexibility to be creative in its approach to sanctions – in order to deal with exceptional cases in a just manner; and that the FIFA Statutes should be amended to recognise national legal systems as being sufficiently well-developed to supervise the legality of decision in football disputes. The key to solving these problems has been to recognise certain choices as being false dilemmas – and to think creatively about alternative solutions.

The final piece in this series will examine the independence of the JPP system from the SFA; and the controversy raised by Ally McCoist’s claim that the identities of the Tribunal members should be public information – rather than being confidential.

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One Response to Where now for the Judicial Panel Protocol? (2)

  1. Pingback: Where now for the Judicial Panel Protocol? (3) | Glasnost (and a Pair of strikers)

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