Sports Law Group Newsletter
Welcome to the Winter edition of the Sports Law Group Newsletter.
Christopher Coltart QC
A note from the editor
Happy New Year and welcome to 2020!
2 Hare Court has a burgeoning sports law practice, with members instructed in disciplinary cases involving football, rugby, athletics, horseracing and other sports. This has led to appearances before both national and international panels, including the Anti Doping Panel and the Court of Arbitration for Sport.
In this winter edition of our newsletter, members of chambers tackle a range of interesting and challenging topics.
Jonathan Laidlaw QC and Lewis MacDonald review a recent case before the British Horseracing Authority (in which Jonathan acted for the respondent trainer). The authors consider the height of the bar which has to be crossed to prove that all reasonable steps have been taken to avoid horses being unintentionally administered with a prohibited substance.
Chris Gillespie and Helen Lavery consider the damaging psychological effects of racist abuse on sportsmen and women and consider what potential liability their clubs may have if all reasonable steps to prevent such abuse have not been taken.
Brian O’Neill QC and Julia Faure Walker write of their recent experiences in prosecuting corrupt football agents at Southwark Crown Court. The case, which lasted for several weeks, involved a close forensic analysis of The FA’s rules and regulations in this murky field.
Finally, Jonathan Kinnear QC and Nikita McNeill review the recent case of Robert Howley, the Welsh assistant rugby coach who had to return home from the World Cup after allegations of improper betting were made against him. The panel which later sanctioned him was obviously sympathetic to the very sad circumstances in which he had turned to betting but also made clear the seriousness of the events concerned.
We hope very much that you will enjoy reading these pieces. If you have any queries about them, or if you would like to discuss them further, by all means contact the authors directly. If you have any queries about the 2 Hare Court Sports Law Group generally, or would like to instruct one of its members, please contact our Director of Clerking, Julian Campbell.
The strict test of the reasonable precautions defence where a prohibited substance is administered unintentionally
Where a horse tests positive for a prohibited substance it of course follows that it is disqualified. However, a Responsible Person can avoid a personal penalty if they can establish on the balance of probabilities that the substance was not administered intentionally (limb 1) and they had taken all reasonable precautions to avoid violating the rule against prohibited substances (limb 2).
Ismail Mohammed sought to do so when the horse he was registered as trainer for, Amazour, tested positive for very low concentrations of ketamine after winning a race at Doncaster in September 2017. The case is notable for its sensible approach to limb 1, but also as a warning to Responsible Persons for the strictness of the test at limb 2.
Although a Responsible Person must provide “substantial, cogent and persuasive” evidence that the substance was not administered intentionally, the Panel once again rejected the BHA submission, as in the case of Philip Hobbs and Marco Botti, that a Trainer could not….
Football and Racism
It is only relatively recently that the psychological effects of racism and homophobia, such as anger, humiliation, loss of self-confidence and depression, have become the subject of focused research and inquiry. This issue is as relevant in the sporting context as it is in any other. Certainly, in the past BAME football players were expected to put up with racism as part of the game or as harmless banter. Homophobia was not even recognised as a concept.
There was perhaps a complacent view that, with the advent of the Premier League, all-seater stadia and the perceived gentrification of football, racism in football had been, if not eradicated, then massively diminished since the days of racist songs, monkey chants and banana throwing. Even so certain clubs, supporters and players were still targeted for invective, for example, because of links to the Jewish community. Individuals who did not fit stereotypical ideas of what a footballer should look like or what newspapers a footballer should read experienced homophobic abuse. If you’re in any doubt about this, you might recall the appalling treatment dished out to….
Breaches & Bungs
Brian O’Neill QC and Julia Faure Walker, who secured the convictions of two football agents and a former assistant head coach, consider the inter-relationship between the FA Regulations and the Bribery Act 2010.
In December 2019, following a two months’ trial at Southwark Crown Court, two football agents, Giuseppe Pagliara and Dax Price, and the former assistant head coach of Championship side Barnsley FC, Tommy Wright, were convicted of offences under the Bribery Act 2010. The prosecution’s case was that the agents had arranged a payment of cash, and encouraged further payments to be made, in order to induce Wright to do one or more of the following improper acts:
- To encourage football players at Barnsley FC to engage or retain Giuseppe Pagliara and Dax Price as their agents.
- To place football players who Giuseppe Pagliara and Dax Price represented either as third party owned players or otherwise into Barnsley FC.
- To ensure that football players who Giuseppe Pagliara and Dax Price represented either as third party owned players or otherwise….
WRU v Robert Howley – preserving the integrity of the game
On 11 December 2019 Robert Howley, the former Wales rugby team’s assistant coach, was banned from rugby for 18 months by a Judicial Committee of the Welsh Rugby Union (WRU), chaired by Sir Wyn Williams, after falling foul of the World Rugby rules on gambling.
The investigation into Mr Howley commenced when an employee of Betway contacted the WRU. Mr Howley was confronted with the investigation in September 2019, at the Welsh rugby team’s Japanese base, on the eve of the Rugby World Cup. He immediately admitted that he had been betting in breach of the regulations. The very next day he was on a flight back from Japan.
Mr Howley admitted making 363 prohibited bets on rugby between 14 November 2015 – 7 September 2019. This included betting on 24 games involving Wales or Welsh players and on 2 occasions betting on specific Welsh players to score.
Regulation 6 of the World Rugby’s rules governing gambling and anti-corruption are expressly incorporated into the WRU’s own Code of Conduct. Its primary aim was…
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