In sports, disciplinary proceedings and actions aim for general and specific prevention within a specific sport and sports in general, to ensure fair play and proper competitions. The importance of disciplinary actions has increased with the commercialisation and legalisation of sports, as disciplinary sanctions increasingly have a direct impact on the professional athlete’s ability to make and earn a living in the way he or she chooses.
Sports is an exceptional legal environment where the influence of public authorities is traditionally limited. Self-regulation and autonomy in sports is largely based on tradition and the scope for autonomy and self-regulation left by public authorities. The right to fair trial is the most absolute requirement also in disciplinary proceedings.
Sports is still subject to limited legislation, and these gaps created by the absence of legislation have to be filled by various principles of fundamental rights and contract law. Discipline in some situations seriously interferes with the fundamental rights of the individual, even if such restrictions on fundamental rights do not meet the requirement of being enacted by law. Therefore, the impartiality, professionalism and fairness of disciplinary action must be respected without exception.
The article published in the Finnish Sports Law Association’s yearbook 2021 systematises and sets out the formal requirements, conditions, and practical interfaces of disciplinary rules in Finland. It also examines whether the disciplinary procedure of sports organisations, federations, and the Finnish sports arbitration board (“Board”) adequately meet the changing legal protection requirements of athletes. The increased awareness of athletes of their legal rights, the professionalisation of sports and the increased media attention on disciplinary sanctions contribute to the number of contested disciplinary cases. The decisions of the Board can, to some extent, be regarded as precedents, but even then, the case-by-case nature of previous jurisprudence and possible differences in circumstances must be considered.
As a minimum, the following conditions can be regarded as absolute requirements for disciplinary action:
Firstly, disciplinary action requires the athlete to be bound to the pre-agreed rules and regulations, either through a competition license or, for example, a contract with a sports federation or league. Almost every Finnish sports club is a member of a national sports federation and due to this bound by the (disciplinary) rules of the said federation. The athletes are usually members of these sports clubs and bound to their rules by memberships. However, there may be persons who serve in sports in different roles without proper commitment to the rules. For example, this may be the case for coaches, managers, or officials. There has been a proposition that mere participation in sports, whether in a competition or training, would be enough to bound the individual to the said rules. As from the perspective of individuals fundamental rights, this proposition and possible development is highly problematic.
Secondly, the imposition of disciplinary sanctions and, more generally, the exercise of disciplinary powers requires that the rules of the sport or competition contain provisions on discipline measures and possible sanctions. The rules must at least specify the infringements that may and/or will lead to a disciplinary procedure and the spectrum of sanctions that may be imposed on the athlete or other persons for such infringement. It shall also provide the range of possible sanctions and penalties that the disciplinary body may use in its sanctioning process. The aim of the disciplinary measures are that any person, in one way or another, involved in sports is bound by the ethical and disciplinary rules.
However, in practice, the current rules sometimes contain rather broad and unspecified descriptions of undesirable conduct, e.g. “unsportsmanlike conduct”, definitions such as “fair play” and terms such as “the ethics of sport values”. These and other similar stipulations have created a discussion on whether the specific conduct in the case should be described in the hearing proceeding of a disciplinary case or is it adequate to merely refer to “unsportsmanlike conduct”.
Absolute procedural requirements can be summarised from the subject’s perspective (not being an exhaustive list) as follow:
- the right to be informed promptly of the infringement in question
- the right to be heard by a competent, independent, and impartial panel / tribunal
- the right for the proceeding to be conducted without undue delay
- the right to be heard within a reasonable time
- the right to present evidence
- the right to legal assistance
- the right to have a reasoned decision
From the disciplinary body shall also obtain the necessary information regarding the matter form other parties that may contribute to the clarification to the matter.
In simple and most routine cases, it is typical that a disciplinary body consisting of one person, the “arbitrator”, who acts as the “police”, “prosecutor” and “judge” of the case. The arbitrator should be aware of the complexity of this role and make sure to act impartially and without prejudice, giving the person subject to disciplinary proceedings a genuine opportunity to defence.
The latest cases have revealed that disciplinary rules along with the disciplinary proceedings still need to be updated, reviewed, and professionalised to meet the needs of the sporting movement of the 2020s better. Inconsistencies with previous cases, failures to comply with procedural obligations and shortcoming in the reasoning(s) of the cases have been still detected in some proceedings by the disciplinary body.
The disciplinary procedure has evolved considerably over the years in terms of professionalism, fairness, and predictability. Nevertheless, the disciplinary process is still perceived as flawed in some cases and the disciplinary process in general is not entirely trustworthy – the race is not over yet. One concrete development could be a more precise regulation of the limitation period for disciplinary events.