Time is not on our Side. Navigating Delay Challenges in Sporting Appeals and Disciplinary Decisions

Time is an integral part of sport. From the countdown to the siren or a world record, time is everything and often the test of champions. It’s where the rubber hits the road.

One aspect of time that is critical in sport but underestimated for its far-reaching impact is delay associated with disciplinary hearings, appeals and decision making.

The Rolling Stones may have been wrong. Time is not on our side in sport. Reminders of the clock are omnipresent throughout all sports, whether it be the countdown to the final siren, the stopwatch, halftime, substitution, and the final minute in a match, time is one of the big tests. One of the tests of time that some athletes also face is delay in investigations, decisions, and appeals.

As Martin Luther King stated, “justice too long is justice denied,” and in sport, delay in anti-doping, selection and disciplinary decisions and relevant appeals can be costly. When delay is also inconsistently observed across different jurisdictions and cases the unpredictability threatens the very integrity of sport and athletes’ livelihoods and reputations. Delay can be compounded by a media cycle that operates faster than the justice cycle, augmenting the adverse impacts upon the athlete, the sport and the team.

In an Olympic and Paralympic Games year, athletes face intensity of selection, and some will appeal. There is a long history of cases of athletes challenging selection on grounds of bias or extenuating circumstances such as injury, but when selection is often so close to the event, any delay in securing legal representation and evidence, and perhaps an appeal can be costly.

Just ask the Ohio Buckeyes and the Michigan Wolverines in the wake of one of the most controversial collegiate seasons during which Michigan coach Harbaugh was accused of cheating via sign stealing, spying and advanced scouting breaches. While Harbaugh served a three-week internal university suspension at the commencement of the 2023 season, the NCAA investigation has been fraught with delays and is still ongoing. The uncertainty caused to the Big Ten competition, Harbough, his team and opposing collegiate teams like Ohio is detrimental to all.

What does the extended NCAA investigation mean for the LA Chargers who have recently signed Harbaugh? There is also scrutiny upon the entire Michigan team, who come under this cloud of uncertainty fuelled by the delay. If the investigation and any resulting sanctioning were decided efficiently, it may be that the playoffs would have followed a very different trajectory. In an open letter to Michigan and the NCAA, referring to the gravity of the alleged cheating, Big Ten representatives called it a “watershed moment of action for the NCAA” in a letter to Michigan officials. Yet the investigation continues without resolution with both the full hearing and sanctions running well into 2024.

In defence of the NCAA, National Disciplinary tribunals, the Court of Arbitration in Sport, and the courts, ensuring justice is time consuming and requires balancing tension between efficiency in decision making and eliciting sufficient evidence and procedural fairness for all concerned. The caseload of many tribunals and courts must also be considered. Time to resolution is critical and wrapped into perceptions of fairness of the system.

What delay means to an athlete

Time is not on side for cases of “inadvertent doping,” a term used for non-negligent, non-deliberate ingestion of a banned substance and returns a positive drug test. While the message is loud and clear to athletes that a doctrine of strict liability- “guilty until proven innocent”, applies in all circumstances, there are some defences. The problem is that challenging a finding of doping can be delayed due to the complexity of the evidence required, examination of the chain of custody of the samples, accessing legal representation, linguistic and cultural challenges and locating witnesses. This uncertainty and delay in a context of an upcoming Olympics, Paralympics or World Championships is the making or breaking of a lifetime commitment, livelihood, and dream for a young person.

Shanya Jack and Michael Bol are recent examples of athletes suffering exponential reputational damage through a trial by media running in parallel to an extenuated anti-doping case and defence. For Shanya the consequences meant a 2-year sanction from competition at the top of her game and exclusion from the Tokyo Games. For Bol, an error in the testing meant immense reputational damage for a leader on and off the track, representation of his country, ability to train with his coaches and group and his leadership in his refugee community in Australia. Questions remain as to why knowledge of inconsistent A and B test results were kept from Bol for a year but were released to the media before him being notified.

The question is how to reconcile adequate time needed to administer justice and the urgency inherent in elite sport. Delay in civil proceedings might have the advantage of enhancing likelihood of settlement and expertly testing and weighing evidence, but in elite sport, delay carries impacts requiring mitigation.

The concepts of delay and timeliness are distinct and dependent on the perspectives of different stakeholders including the courts, the public, the athletes, and the lawyers. While time is subjective, it is often the reasonableness of delay that is considered by the law, and whether it is proportionate and unavoidable.

In civil litigation delay is universally viewed as detrimental and a philosophy of procedural rules embeds expedition to minimise expense. While there are inherent delays in civil and criminal matters caused by disclosure requirements, preparation of evidence and court availability, these requirements are less onerous in sport. Delay in sporting decisions is therefore even more unacceptable. Delay for an athlete is costly in terms of their dream, their livelihood, health, finances, and their reputation. The ripple effects in reputational damage extend to their team, their coach, their family, and their country. Time is not on the side of elite athletes who typically have a brief sporting career and window in which to compete at their best.

What delay means for the integrity of sport?

The WADA code is premised around harmonisation and fairness in world sport and timeliness is noted in the code as a key tenet of fairness. WADA’s Results Management, Hearings and Decisions Guidelines state that, “any process delay is potentially harmful to the sport and the fight against doping.”  But what about the impacts of delay upon the athlete? Undue delay applies to disproportionate sanctions such as when an athlete serves a lengthy suspension which is then reduced upon appeal and exceeds the revised sanction. It also applies to the time taken to notify an athlete of an investigation being undertaken about them, as was the case with Bol. It applies to decisions and appeals that precede imminent elite competitions. And it applies to delays in team selection appeals that disadvantage athletes and bring into question the very integrity in sport. Why should athletes carry more of an onus of proof than criminals? Overlaid with this significant burden is the fact that most athletes are young, inexperienced with media scrutiny and without resources to hire legal representation.

While mitigation of delay is a complex balancing act, there needs to be some more flexibility to ensure that a level playing field exists for athletes when it comes to decisions in sport through timely resolution. Trust in sport is critical, and fairness in its systems underpins trust.

Do you have any experiences with delay in decision making in sport? Has the delay been reasonable? What are your thoughts on how the impacts of delay and unreasonable delay can be redressed whilst balancing the needs of justice and fairness?

#Sport #SportsLaw #Fairness #Governance #Integrity

About the Author

Professor Sarah Kelly, renowned for her global academic, leadership and governance expertise across education and sports management, drives forward-thinking initiatives to the world stage. A distinguished ‘prac-academic’, commercial lawyer and champion for inclusivity, Sarah leads with innovation and insight. For exclusive updates on the latest in sport, management, leadership, education, innovation, and research, subscribe at DrSarahKelly.com.au