The rights of footballers
From certain high profile decisions such as the Bosman case and the Webber case in relation to the transfer of players we can see that footballers have the same rights as any other individuals within society.
When the decisions handed down by the football authorities significantly infringe the rights that are guaranteed to all individuals by various laws then the legal world will step in and force the sporting bodies to change their rules.
As a consequence of this notion it is clear that the Human Rights Act should apply directly to the rights of individuals undertaking the sport of football as a living on a professional basis.
The Human Rights Act 1998
Section 6 of the Human Rights Act
Section 6 of the Human Rights Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention Right.
What is meant by the term public authority?
Under the Human Rights Act a public authority includes any person certain of whose functions are of a public nature.
Would a sporting governing body be viewed as a public authority?
In certain decisions sporting governing bodies have been viewed as public authorities for the purpose of the Human Rights Act, in fact when the Act was being passed the then Home Secretary expressed his feeling that the jockey club should be regarded as a public authority.
Furthermore the Olympic Charter views the practice of sport as a human right.
Accordingly it would be reasonable to assume that a sporting governing body would be regarded as a public authority and in the context of English football this would include the Football Association.
In what possible ways could the decisions of the Football Association be viewed as a possible infringement of the Human Rights Act?
There are two main aspects in which the decisions of the Football Association could be viewed as breaching the human rights of the players involved. They are as follows:
- Independence and impartiality
- Strict Liability offences
Independence and Impartiality
Article 6(1) of the Human Rights Act states that everyone is entitled to a fair and public hearing by an independent and impartial tribunal.
When will a tribunal be viewed as independent?
It has been held that a tribunal will be regarded as independent by taking the following three factors into consideration:
- The appointment process for tribunal members
- The guarantees offered against outside pressures
- Whether there is an appearance of independence
When looking at tribunals made up for the purpose of disciplinary proceedings by the Football Association it may be difficult to account for point 2 above. The media focus on football in England is currently at such a level that any form of disciplinary hearing may be difficult to avoid the pressure from the media. This is particularly relevant in relation to doping offences.
It may also be extremely difficult for Football Association tribunals to account for point 3 above especially in the case where tribunals are made up of individuals who have an active role in the Football Association. Often this will be the case.
In many cases a footballer who is charged by the Football Association may reasonably consider that there is no appearance of independence when he is charged by the association.
Strict Liability Offences
A strict liability offence is an offence which is found to have occurred regardless of the intention of the individual committing the offence. In most cases within sport the main strict liability offence occurs when an individual athlete is found to have a performance enhancing substance in their system. They will therefore face a ban regardless of their intention or knowledge of the substance.
Does the Football Association impose the same kind of penalty?
Under the doping rules of the Football Association the detection of any performance enhancing substance will result in an immediate penalty – being an offence of strict liability.
Is this fair for sporting associations to do this?
This concept of strict liability for doping offences immediately brings into light the following issues:
- Whether this could be viewed as an unreasonable restraint of trade
- Whether this would breach the right to a fair trial under the Human Rights Act
Would this breach the right of a fair trial under the Human Rights Act?
If an individual has been immediately presumed guilty without being given a chance to protest their innocence this could be viewed as a breach of their right for a fair trial. However, this is not the only legal arena that deals with a concept of strict liability.
What other areas of law impose a concept of strict liability?
Certain offences in both the criminal and civil law impose the concept of strict liability.
Is this in breach of the Human Rights Act?
In a case involving the European Convention on Human Rights (ECHR) has held that the concept of strict liability in the criminal context does not fall foul of Human Rights. However, the court went on to say that it was suitable only under certain conditions.
It may thus be reasonable to assume these conditions apply to the civil as well as criminal context but it is unclear whether this will apply to the sporting context.
Why is there this notion of strict liability?
There is the notion of strict liability in relation to these sporting offences as any presence of a banned substance regardless of intention would put that individual at a competitive advantage.
Whether or not this would be viewed as to fall within certain conditions would come under the test if a sporting individual were to claim a breach of their human rights.