We advised the British Equestrian Federation in their successful appeal to the Court of Arbitration for Sport against a decision by the FEI to relegate the Great Britain show jumping team from the Top Level of the Nations Cup.
The background to the case is that in August 2009, the end of the 2009 Top Level Nations Cup Season, the FEI published the Final Standings which placed Great Britain in 8
th place with 22 points, Belgium in 9
th place with 22 points and Italy in 10
th place with 14 points. The relegation provisions within the FEI Nations Cup Series (2009 and 2010) Rules (‘the Rules’) provided that the two last placed teams should be relegated. However, the Rules were ambiguous and arguably
totally irreconcilable as to which teams were the “two last placed teams” in light of Great Britain's and Belgium’s tie on points. As a result of the ambiguity, the Rules produced two different interpretations as to whether or should be relegated.
The FEI Bureau decided that in the interests of fair play that, in light of the ambiguity in the Rules, both Great Britain and Belgium should be allowed to compete in the 2010 Nations Cup Top League, with only being relegated.
Less than a month later the FEI Bureau, reversed its decision and relegated Great Britain, Belgium and Italy on the basis that in the interests of the sport generally, it would be preferable not to have more than 8 teams competing in the Top Level Nations Cup for 2010. This was contrary to the Nations Cup Rules (which provided for only 2 teams to be relegated).
BEF appealed to the FEI Tribunal which dismissed the Appeal and so the only recourse was to make an application to the Court of Arbitration for Sport (CAS).
CAS gave its decision in April and allowed the Appeal.
In giving its decision, the CAS confirmed that a sporting body should remedy any ambiguity in its rules where ever possible. The rules in this case provided that two teams be relegated. The main consideration of the CAS panel was whether the first decision only to relegate one team and to allow Great Britain and Belgium to remain in the Top Level Nations Cup was a valid decision in accordance with the Rules. The panel decided that it was. Whilst the rules provided that two teams be relegated, the decision to relegate only one team was held to be a valid decision because the FEI was empowered to resolve the ambiguity in the Rules in a way which did not disadvantage the affected parties, namely Great Britain and Belgium.
CAS considered the issue of whether or not the first decision could legitimately be reversed. It found that the FEI Bureau did not have the power to reverse an earlier valid decision unless special circumstances applied, on the basis of the general legal principle founded on considerations of legal certainty and finality. Special circumstances were considered to be: illegality of a decision, lack of power to make the decision, or if new circumstances had arisen which would have entitled the body to refrain from issuing the original decision, or if the first decision is not final at the time the second decision is to be made.
In this case there were no new circumstances which entitled the FEI Bureau to reverse the first decision. The panel confirmed that a sporting body cannot reverse an initial decision made on the same matter, with the same parties, relying on the same facts and based on the same cause of action.
CAS annulled the decision of the FEI Tribunal leaving the Great Britain Team able to compete in the Top Level Nations Cup for 2010.
It is interesting to note that the CAS panel did not consider it appropriate to delve into the interpretation of the specific rules. It stated that it was not for it to pronounce on whether the interests of the sport are best served by any particular limits on the numbers of participants in the sport, nor on the nature of the provision which determined the relegation procedure. However, CAS did state that, had the first Decision relegated three teams, it would have undertaken an analysis of the proper interpretation of the Rules for relegation because it would have been an adverse decision, outside the scope of the Rules. The panel would, in these circumstances, look to determine whether that adverse decision was justified.
The CAS decision confirms that a sporting body must interpret sporting rules in a way which is, as far as possible, within the parameters of their rules and so as not to disadvantage an adversely affected party unfairly. We would say that this is obvious and would support the principle that in sport there is a far greater persuasive argument in favour of allowing competitors to compete than preventing competition.
The case sends an important message to sporting bodies to ensure that their decision-making process is (a) robust, and (b) that the interests of parties adversely affected by a decision are taken into consideration. Of course, this process has to operate within the competition rules. If these rules are ambiguous, as they were in this case, then it places the sporting body AND the competitors in a very difficult position.
This was an important victory for the GB show jumping team, particularly as GB is the host nation for the 2012 Olympics. If the GB team had been relegated, preparation for the Olympics would have been severely undermined. In the 5 August edition of Horse and Hound, Graham Fletcher underlined the importance of the case by commenting: “In all the euphoria, let's not forget that Britain wouldn't even be in the super league this season but for the belief of our association's international committee to engage the best lawyers and fight the FEI's decision to relegate us.”
For more information or advice on any of the issues raised here or matters affecting sports governing bodies generally, please contact Richard Lane.
