Modahl v British Athletic Federation Ltd
Reference: CA unreported
Court: Court of Appeal
Judge: Lord Woolf MR, Morritt, Pill LJJ
Date of judgment: 28 Jul 1997
Summary: Sport - doping - disciplinary tribunal - athlete banned - bias of tribunal - successful appeal - ban revoked - claim for damages for losses suffered meanwhile - - claim against regulatory body - application to strike out - whether contractual duties - what terms would be implied - test for court to apply - application partly successful
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Instructing Solicitors: Mishcon de Reya for C; Farrer & Co for D
An athlete, M, was accused of a doping offence and found guilty by a disciplinary committee appointed by the defendant (BAF). An appeal to an independent appeal body was successful and the ban was lifted. M claimed damages against BAF for the losses suffered between the two decisions, alleging (a) that the drug testing had been carried out by an unaccredited laboratory, in breach of the D’s rules, and was hence invalid as a basis for the action taken (b) that M had not had a fair hearing as members of the committee had suffered from actual or apparent bias and (c) that in both respects the BAF was in breach contractual duties owed to M .
D applied to strike out the claim. For this purpose the contention that there was a contract between M and D was assumed to be correct. D argued that the contention as to invalidity of drug testing was unarguable, having regard to the scheme of the relevant rules; that if there had been bias it was cured by the appeal, and the contract required no more; and that M had in any case waived any right to rely on bias.
Popplewell J dismissed the application. D appealed.
(1) Was M’s attack on the validity of the drug testing arguable?
(2) Did M have an arguable case that bias on the part of the first instance tribunal gave rise to a claim in damages, even if cured by the appeal, or was bound to succeed on its contention that the court would not imply any contractual guarantee that the procees would be free of bias, but only a term that the process as a whole would be fair?
(3) Was D bound to succeed in its contention that M had waived any right to complain of bias?
(1) M’s case that the laboratory had not been accredited in accordance with the D’s rules was arguable, but her further contention that this flaw was one went to the root of the jurisdiction of the disciplinary tribunal was bad. The scheme of the rules made clear that accreditation was not a condition precedent to jurisdiction, as M alleged, and M did not allege that the non-accreditation had any causal effect on the laboratory findings. This allegation of breach of contract in this respect would therefore be struck out.
(2) The bias complaint was however arguable. D was not in error in inviting the court to imply a term akin to the test in public law. In areas such as this, where it was often difficult to determine whether public law applied or not, the approach of the court should be to assimilate the principles applicable. However, the court was unable to say that it was clear beyond doubt that D was right to submit that the courts will not imply a term which goes beyond requiring the disciplinary process to be fair as a whole.
(3) M had an arguable answer to the contention that she had waived the bias complaint.
Accordingly, the matter would go to trial on the bias issues.
The case is important for what it had to say about the approach to review of disciplinary decisions made by private bodies, and the assimilation of the principles that apply in that context with judicial review principles. The point was taken further in Bradley v The Jockey Club, some years later. The Modahl case went to trial where the claim was dismissed. The Court of Appeal dismissed her appeal in an important judgment which upheld her contention that there was a contractual relationship but resolved against her the question of what terms the court will imply into a disciplinary scheme of this kind.