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An Accident of History: Why the Decisions of Sports Governing Bodies are Not Amenable to Judicial Review

The English courts have held that the boundaries of public law should not extend to include judicial review of the competency of sports bodies. The justification for the continuing treatment of the administrative authority of sports bodies as being domestic in nature is that the required level of governmental involvement and/or linkage to a scheme of statutory regulation cannot be identified. Given the contractual relationship between the parties involved, the English courts have long preferred to decide sporting disputes on a private law basis upon which effective actions for a declaration, an injunction or damages can be based without resort to judicial review. The apparent firmness of the English courts on this point is at odds with a number of other comparable jurisdictions. Moreover, and in line with recent developments in the general area of public law, consideration is given as to whether the decisions of sports bodies might be exposed to judicial review on the basis that it is sufficiently within the ‘public interest’ that they are held accountable in this fashion. This argument is predicated on a court being convinced that certain sports bodies are necessarily governmental in operation because: they have power over a not unsubstantial area of economic activity, they have private power that affects the livelihoods of many individuals, and they receive significant levels of public funding. In conclusion, the practical implications of a finding that sports bodies are hybrid public authorities pursuant to section 6 of the Human Rights Act 1998 are examined.