Challenging the call: Should sports governing bodies be subject to judicial review?

Abstract

English law is settled in its view that Sports Governing Bodies (“SGBs”) are not amenable to judicial review, following the Court of Appeal decision in R v Disciplinary Committee of the Jockey Club, ex p Aga Khan. However, this article argues that, 27 years on from the leading decision, the issue merits reconsideration owing to flaws in judicial reasoning and, in particular, the subsequent growth of the government’s involvement in sport. Moreover, the availability of judicial review in other jurisdictions and against other self-regulatory organisations suggests that the position of SGBs in English law is anomalous. Since Aga Khan, the courts have developed a private law “supervisory jurisdiction” which somewhat accounts for the absence of judicial review but, building on the work of Michael Beloff QC (among others), this article considers the substantive and procedural limitations of private law in challenging SGBs, finding that judicial review may be a preferable forum for sporting litigants. The paper also provides the opportunity to reflect upon the nature of the public–private divide in English law today.