IFA Appeals Committee’s Institute decision was vitiated by procedural impropriety- fairness demands it is quashed

The IFA Appeals Committee decision in relation to Institute v NIFL could, and should, be challenged on the grounds of procedural impropriety.

IFA Appeals Committee’s Institute decision was vitiated by procedural impropriety- fairness demands it is quashed

The decision to automatically relegate Institute, when the club were capable of avoiding relegation across their remaining games, is hardly something any right thinking person would hold up as sporting integrity.

The club were right to challenge the decision, and the manner in which it was made. There are many meritorious points in their favour, which the IFA Appeals Committee (‘AC’) either misrepresented or completely ignored.

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However, regardless of the merits of Institute’s justifiable anger about the substantive decision, there is very clear grounds to challenge it on procedural impropriety. In basic terms, regardless of whether the substantive decision was right on the merits, or not, if it was vitiated by procedural unfairness, it is open to challenge.

The common law requires procedural fairness. Indeed even more so in circumstances whereby the outcome of the decision has significant financial impact on Institute, their players and wider club and staff. The common law rules of fairness is capable of application “whenever anyone decides anything” as per Board of Education v Rice [1911] AC 179, 182, Lord Loreburn, cited in, eg, R v Secretary of State, ex p Gilmore, 10 April 1987, unreported.

The first route for Institute should be to refer the matter for Arbitration as per Article 3 of the IFA Articles of Association. The jurisdiction of the Arbitration tribunal is similar to that of a Judicial Review. As set out in Bradley v Jockey Club [2004] EWHC 2164:

“That brings me to the nature of the court’s supervisory jurisdiction over such a decision. The most important point, as it seems to me, is that it is supervisory. The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits. It is a review function, very similar to that of the court on judicial review…In each case the essential concern should be with the lawfulness of the decision of a public body: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision-maker, as so forth.” (emphasis added)

The Arbitration tribunal clearly has jurisdiction to deal with the matter given the issue of procedural impropriety. In reviewing the decision of the AC, the tribunal has to ‘look behind’ the decision to assess whether it was procedurally fair. A Arbitration referral on the substantive decision automatically places the procedural propriety of the decision within the jurisdiction of the Arbitration tribunal. Indeed, the tribunal is primarily concerned with reviewing the lawfulness of the decision, rather than the merits.

That brings us to the procedural impropriety which has vitiated the decision in Institute v NIFL. The challenge is one of apparent bias, which is different than actual bias.

In Alubankudi (appearance of bias) [2015] UKUT 542 (IAC) the UKUT described the governing legal principles in the following terms:

[6] Every litigant enjoys a common law right to a fair hearing.  This entails fairness of the procedural, rather than substantive, variety. Where a breach of this right is demonstrated, this will normally be considered a material error of law warranting the setting aside of the decision of the FtT: see AAN (Veil) Afghanistan [2014] UKUT 102 (IAC) and MM (Unfairness; E&R) Sudan [2014] UKUT 105 (IAC). The fair hearing principle may be viewed as the unification of the two common law maxims audi alteram partem and nemo judex in causa sua, which combine to form the doctrine of natural justice, as it was formerly known. These two maxims are, nowadays, frequently expressed in the terms of a right and a prohibition, namely the litigant’s right to a fair hearing and the prohibition which precludes a Judge from adjudicating in a case in which he has an interest.

 [7] Further refinements of the fair hearing principle have resulted in the development of the concepts of apparent bias and actual bias. The latter equates with the prohibition identified immediately above.  In contrast, apparent bias, where invoked, gives rise to a somewhat more sophisticated and subtle challenge.”

The principles to be applied in the case of apparent bias are set out by Lord Hope in Porter v Magill [2002] 2 AC 357. Summarised, the question for any tribunal is:

“the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

In Re Medicament & Related Classes of Goods (No.2) (2001) 1 WLR 700, bias is described in the following way:

“Bias is an attitude of mind which prevents the Judge from making an objective determination of the issues that he has to resolve. A Judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reasons to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a Judge towards a particular view of the evidence or issues before him”.

Scott Baker LJ provides a shorter definition in Flaherty v National Greyhound Racing Club [2005] EWCA 1117 at paragraph 28:

“Bias” means a predisposition or prejudice against one party’s case or evidence on an issue for reasons unconnected with the merits of the issue”

As per the wider decision in Flaherty, the initial onus is on the applicant to identify with precision the apparent bias. The test to be applied by the tribunal is a two-stage one; firstly, to identify the facts giving rise to the apparent bias, and then to apply the test set out in Porter v Magill, bearing in mind the definition of bias.

Factual basis for Apparent Bias

The Appeals Committee, including independent members, are appointed by the IFA Board, and IFA football committee; which both includes numerous members of the NIFL. The procedure for the appointment is set out at Article 14 (1) of the IFA Articles of Association:

“The Appeals Committee shall, unless the Members in a general meeting determine otherwise, consist of a panel of twelve persons: (a)Six members nominated by Council with at least one member from each of Senior, Intermediate and Junior Football. (b)Six members nominated by the Board, who shall not be members of any Club and who shall serve for such time as the Board decides, from whom the Board shall appoint the Chairman who shall have a legal background, as determined by the Board from time to time. No member of the Board shall be a member of the Appeals Committee.”

All members of the AC are bound by the IFA Code of Conduct. The conduct requirement for all IFA Committees is set out at Article 21 (1) of the IFA Articles:

“Members of Council or any Association committee (emphasis added) shall carry out their duties in accordance with the Association’s policies and procedures including any code of conduct adopted by the Board (emphasis added). Without prejudice to the foregoing, they shall be at liberty to contract with the Association, and shall not be disqualified by reason of their having so contracted and shall not be bound to account to the Association for any profit which they may derive from the Association from having so contracted, provided that at the time the contract is entered into they disclose their interest therein and do not vote on the matter.”

The IFA Code of Conduct, published pursuant to Article 21 above, under selflessness at page INSERT of the IFA handbook, places the following requirement on all members:

“(to) take decisions solely on the interests of the IFA and should not be influenced by any benefit for yourself or anyone else”. (emphasis added)

To further illuminate the linkage, the IFA’s Head of the CEO office also doubles up as the secretary to the Appeals Committee, which sits within the IFA premises.

The grounds for apparent bias

(i) The Manner by which the AC was appointed

In the case of Institute they sought to ‘appeal’ the decision of the NIFL. The reality is therefore that the applicant was appealing to a committee which had been appointed by IFA bodies (the board and football committee) which included members of the decision-making body (NIFL). Put succinctly; those who made the impugned decision were being appealed to an AC which several of the decision-makers had a role in appointing. Those charged with adjudicating in the appeal owe their positions to those who appointed them.

If, for example, the AC took a decision in favor of a club which was detrimental to the IFA Ltd, then such an AC would be in breach of their obligations under the IFA Code of Conduct, and liable to punishment, or to lose their positions. It is fair to assume that another ‘punishment’ which may weigh heavily on the mind of the AC is that if they were to take a decision detrimental to the IFA, then they may simply not be re-appointed and lose their remunerated post.

This basis alone (Ground 1 (i)) could lead any fair-minded observer, armed with all the facts, to conclude that the test for apparent bias had been met.

(ii) The requirement to take all decisions solely on the interests of the IFA

The AC are bound by the IFA Code of Conduct to “take decisions solely on the interests of the IFA”. The IFA is a Ltd company, and nowhere is their ‘interests’ quantified. It is reasonable to assume that taking decisions on the interests of the IFA amounts to ensuring that no decisions taken are detrimental to the interests of the IFA.

It is beyond dispute that NIFL are under the jurisdcition of the IFA; indeed NIFL football is only permitted under the auspices of IFA Football Regulation 36 (a).

The AC are presented by the IFA as wholly independent. To take one example, in correspondence issued to a junior club in the Newcastle District Amateur League on 19 August 2020, a senior employee of the IFA stated, inter alia:

“I would strongly refute your comments concerning the procedures governing independence of the Appeals Committee. The Appeals Committee panel are independently selected and chaired by legally qualified personnel and there are no grounds whatsoever to challenge the panel’s independence”

This illuminates the linkage between the IFA and the ‘independent’ Appeals Committee. Firstly, the person writing defending the Appeals Committee is acting in his position as Head of the IFA Chief Executive’s office. However, this person also doubles up as secretary of the Appeals Committee, which is simultaneously presented as independent of the IFA. Secondly, contrary to the position outlined by the IFA correspondence, which presumably reflects the position of the IFA, the AC are not “independently selected”. As clearly laid out at Article 14 of the IFA Articles, the AC are selected and appointed by the IFA Board and IFA Football Committee.

Whilst the aforementioned example is not specific to the Institute case, it is an overview of the IFA’s approach to the AC and their position on its independent governance. It is an instructive aid to any tribunal in understanding the context within which the AC makes its decision.

Conclusion

There are strong grounds for Institute to challenge the procedural propriety of the IFA AC decision. It can not be right that such flagrant conflicts of interest and apparent bias are permitted to exist at the heart of our accountability mechanisms within the highest level of local football.

It is also worth observing that the AC has recently ceased putting the names of the panel on decisions. This is an incredible situation; how, for example, can an appellant be sure those hearing the case have no conflict of interest?

It is simply unfair that the Appeals Committee have adopted a veil of anonymity, which allows the decision makers to hide behind the name of the committee, rather than putting their names to their decisions. An all-together ridiculous situation which flies in the face of natural justice.

 

by Jamie Bryson

@JamieBrysonCPNI


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