SJFA v SFA Disciplinary Procedures

[semper laboure]

Morning All,

I am currently undertaking a distance learning LLB at Aberdeen University and I have just had approved my dissertation topic being organisations and sub organisations operating varying disciplinary codes of conduct and process. As you may be aware the SJFA and SFA disciplinary processes vary significantly and there may be an argument that the process of the SJFA is flawed and contravenes the ECHR.

As you may be aware there have been several occasions where professional players at SFL and SPL level have taken counsel into hearings and due to procedural deficiency have had the case against their clients dismissed. This is not something that is open to SJFA players/managers/officials which may breech their rights to representation at any quasi disciplinary legal process. Whilst balancing and understanding that the SJFA does not have the money to operate a system involving counsel for the SJFA and most clubs will not have the money to have counsel represent them or their players/officials. It would appear that their may be suggestions that the process and the hearing process is distinctly different and fundamentally flawed.

I intend on examining the differences between the SJFA process and the SFA process in the context of the players rights to an appeal process following the player falling foul (sorry for the pun) of the referee during the course of a game. The application of the European convention on Human rights, namely article 6 (the right to a fair trial), examination of the evidence permitted at an SJFA hearing versus SFA, the process of evidence and rules of evidence and subsequent appeals process.

It would appear to me that a player, firstly appeals to the SJFA and is still unsatisfied with that outcome that they can appeal to the SFA, which operates under two separate procedural processes.

I have the two processes under examination at present and I am cross referencing the differences and the implied impacts of this. Please be assured this is not an attempt to slander or nit pick at the SJFA, infact I intend contacting the secretary of the SJFA to interview him/her for these works or any member of the disciplinary panel.

I am also interested in hearing from any player/official who has been through the process and has been unable to submit evidence, witness statements, video evidence, photographic evidence or due to a disability has been unable to personally speak at the hearing and this has caused him/her difficulty.

[gaz5]

Bit of a can of worms this one I suspect!

FWIW, having only had to go through the SJFA process once in my 10+ years I would summarise my experience (in the mid noughties) as follows:

• The report submitted by the match official, regardless of how improbable or (being generous with my wording) "innacurate", is accepted as being correct.
• No well presented, accurate alternative to that report, regardless of how much more probable, will be accepted when it is simply a players word against the match official (with no evidence - which the process made it near impossible to present)

Fortunately, I was only in a position I had to go through it once. If I had ever been in that position again following that experience I wouldn't have bothered as it was a waste of time and money.

I could (and perhaps should) have taken the matter through the SFA process as you mention, but having had what most would have considered an open and shut case thrown out at the first hurdle I didn't see the point in wasting my time taking it further so just saw out my games as the lesser of 2 evils.

I would imagine that may be fairly common: people not botehring with the SFA route after being through the SJFA process as they dont see the point - may be another decent question for your study.

I should add that I understand why the process does (and has to) back officials "more often than not", for a multitude of reasons, but pragmatism I found lacking in my case. I left feeling as if it was pre-determined that the match official's account was gospel at all times, which is my main gripe with it. I'm sure in most cases it is, but it shouldn't be considered absolute.

[semper laboure]

Gaz, Thanks for this - you state that you could not submit evidence to the SJFA region concerned. Having scoured the SJFA site there is no document published which states the allowance or otherwise of evidence at an appeals hearing or indeed the process of selection of the persons on the disciplinary panel. The SFA rules on evidence are as follows:

General Powers in respect of evidence

8.5.1 All Parties must take all reasonable measures to assist the Tribunal in the collection of evidence. Where the Tribunal Directs the production of evidence from any Party, that Party shall (subject to considerations of legal privilege) be under an obligation to provide it.

8.5.2 The Tribunal shall be entitled to call upon, receive and consider such evidence as it thinks appropriate (including evidence in writing; audio/visual; and/or photograph(s)) including expert evidence in any form (including opinion) and from any source and on any topic, including law, save as expressly provided in this Protocol.

8.5.3 If audio/visual evidence is available, it should be viewed/heard in such manner as the Tribunal considers to be appropriate.

8.5.4 The Tribunal may Direct a Party:

8.5.4.1 To allow the Tribunal or another Party: (i) To inspect, photograph, preserve or take custody of any property or other evidence which that Party owns, possesses or is under their control or influence, which is relevant to proceedings (or as to which any question arises in proceedings); and/or (ii) To take samples from, or conduct an experiment on, any such property or evidence.

8.5.4.2 To preserve, or order such steps as it considers appropriate to ensure the preservation of, any document Live: 26786988 v 1 or other evidence which the Party possesses or controls.

8.5.5 Where misconduct at a match is concerned, the Tribunal, or the Scottish FA, may request that a member and/or any Associated Person deliver or procure the delivery of video, DVD evidence and/or other electronically recorded evidence ("Electronic Evidence") to it to assist it or the Parties in investigations or the Tribunal’s consideration of the Case(s). For the avoidance of doubt, such delivery may be effected by email, where email delivery is effective in transmitting the Electronic Evidence to the Tribunal and/or the Scottish FA. Members and/or Associated Persons must deliver such Electronic Evidence to the Tribunal or the Scottish FA as soon as reasonably practicable and in any event by no later than 12 noon on the next Working Day following the Tribunal’s or the Scottish FA’s request. A Tribunal shall have the power to determine that a member and/or any Associated Person is in breach of this Paragraph 8.5.5 and to impose such sanction as is provided for in the Disciplinary Rules.

8.5.6 All participants in Association Football in Scotland submitting to the Articles and Disciplinary Rules shall deliver any such evidence as is reasonably requested by a Tribunal and/or the Scottish FA to them within such time as is reasonably requested. A Tribunal shall have the power to determine that a Party and/or such participant is in breach of this Paragraph

8.5.6 (and may in the exercise of that power consider whether it is satisfied that the failure to comply was a result of exceptional circumstances) and may impose such sanction in respect of such breach as is provided in the Disciplinary Rules.

8.5.7 Tribunals appointed from the Judicial Panel are authorised to compel any member and/or Associated Person and/or Player’s Agents to appear before it as a witness and/or to assist the Tribunal in its enquiries. A Tribunal shall have the power to determine that a member and/or Associated Person is in breach of this Paragraph

8.5.7 (and may in the exercise of that power consider whether it is satisfied that the failure to comply was a result of exceptional circumstances) and may impose such sanction in respect of such breach as is provided in the Disciplinary Rules.

8.5.8 Where for whatever reason, evidence to which the Tribunal is entitled, is not provided to the Tribunal, or is provided late, this shall not prevent the Tribunal from proceeding at its sole discretion, and making such orders and Determination as it considers appropriate.

8.5.9 The Tribunal shall be empowered to take the evidence of any witness in any form it considers to be appropriate.

Could someone direct me towards the rules of evidence for the SJFA regions or the SJFA as a whole? The SFA clearly allows full representation of any player/official called before them, be it an agent, solicitor, counsel or an associate of the player/official, again there seems to be no written document online which outlines these procedures. Can anyone help with this?

[gaz5]

I haven't looked, but I'd expect you should be able to find all of that information in the constitution:

http://www.scottishfa.co.uk/resources/documents/SJFAFiles/DocumentsandDownloads/Constitution&Rules/SJFA%20Constitution%20&%20Rules%202014-15.pdf

In my case the inability to present evidence was perhaps outside of the norm in fairness: I wanted to use vocal evidence from a member of the disciplinary committee itself, who had been present at the game (and told me at the time in front of our club secretary that they thought the official had got it wrong).

As it turned out, even though that person could have cleared the case in seconds (and arguably without me even travelling) by confirming the official report was innacurate, they were not allowed in the room because as well as being on the disciplinary committee they were a representitive of the opposing club and that was seen as a conflict of interest.

I understood but expressed that as, presumably, the issue with that conflict was that I could argue his presence was descriminatory towards me and my hearing I was willing to waive that issue officially, as I knew if they said then what they had at the time (giving an accurate reflection of events) it would have debunked the official report.

Alas, as these processes go, that was not accepted.

That scenario, where someone officially on the panel had to stand outside fully knowing what happened but unable to ensure that information was available to his peers is what made the whole thing farcical (to me - I should stress this is only a single instance for myself, I have no knowledge of how these things go for others).

Thats not a criticism of the guys on the panel at the time, who were probably volunteering their time. They can only work to the process defined, which they did.

[semper laboure]

Gaz,

Thanks for this - there is no mention of the appeals processes format, structure, rules of evidence or any basis of juris prudence being involved. I would need to see a document that lays out who/what/where/when and how of the disciplinary process and the rules of evidence and representation for players officials to enable me to take this subject forward. It may be the case that this appeals process and procedure is not formed in a document and is just based on "how its been done before" which has no evidence or basis in a quasi legal process, which for me would be great as it could lead to a very interesting dissertation!

The fundamental concern for Junior players/officials here is that if there is no similarity between the SFA process and the SJFA process that there is a possibility that the human rights of players and officials are being contravened by the appeals/disciplinary process and the SFA are allowing a member organisation to run a process which is outwith the scope of the SFA's own judicial disciplinary process, and thereby could lead to challenges from players/officals which go to the SFA and a different process is applied.

For example: Should the SJFA impose a financial penalty against a member club or player due to a flawed process is true justice being applied.

For Example: Who and how are people selected to sit on the disciplinary panel and are their rules of conflict written down which would mean officials from clubs in the same league or with a pending fixture against a club are unable to participate in a disciplinary process against a fellow club/player or official.

The SFA's process has been found before to be defective (Paul McBride QC in Lennon versus SFA) and lead to the SFA having to re-write the whole process, there seems to be anecdotal evidence that the sames tests and processes have not been applied by the SJFA

[gaz5]

To be fair, I dont think legality (in any sense - process or otherwise) is or should be of particular concern for the Juniors in a disciplinary sense, certainly no more so than at youth level where there are similar processes. Introducing that kind of formality in those environments raises issues such as funding, representation and finding volunteers willing to sit on panels. Personally I think that would have an adverse affect on the game.

As long as there is the right of appeal to the SFA (as there is) which offers individuals who seek it a more formal process in that regard, I think keeping legal process out of the lower level committees where most things can be dealt with without it is absolutely appropriate.

In my case, I had that option and chose not to pursue it. But vitally, I had the option.

I think the Paul McBride reference is tenious. By definition the SFA are the governing body of which the SJFA (and SYFA etc) are a part. If the SFA processes are improved, by extension access to those processes for any of the individuals in the affiliates is improved. Seeking to carry out a similar root and branch type examination of every low level process in the affiliates is, in my opinion, more likely to have a detrimental impact than a positive one.

And for the most part, the affiliates handle their affairs very well given the vast majority of those involved also have day jobs.

For better or worse, Junior football isn't perfect. but the people who are involved (from a playing and organisation perspective) do it purely for the love of the game at that level, which is completely disanalogous to the senior ranks where people are often involved for career, not always hobby. It holds a "special" appeal. We know its not perfect but we all (mostly) love it that way.

ETA: Doing a study into the differences between the two associations processes might provide you some interesting information, but you shouldn't really be doing it in the expectation that they should be identical or with any aims to make them so. These are not comparable entities, one is a top level organisation and the other a lower level (for want of a better phrase) affiliate. There will (and likely should be) differences between the two in order to make the processes at affiliate level easier and more manageable for those involved.

[semper laboure]

Gaz,

Thanks for that - Hopefully the study should examine the limitations and expectations of a system within a frame work which is workable, but ultimately test the fairness and respects of the right of an individual, e.g. a player who is not paid during suspension, may face financial hardship as a direct result of a quasi judical process which is ultimately untested and may prove to be unfair. As my current understanding that it is the full SJFA committee that here processes, then the lack of bodies should not be a concern. once completed and redacted I will publish!.

[PRICEY]

Think it might be worth you having a look at the case of Shotts B.A. v The Central League in the early 90's.Dont think its directly what your looking for,but I think you would find it interesting.

[semper laboure]

Pricey - Thanks for the info - is this published anywhere?

[gaz5]

...test the fairness and respects of the right of an individual, e.g. a player who is not paid during suspension, may face financial hardship as a direct result of a quasi judical process which is ultimately untested and may prove to be unfair....

I'm not sure what experience you have in the Juniors, but for your average Junior player (and I know because I was distinctly average at best!) financial hardship is a stretch. In my experience all but the top Junior players play for very little recompense, if anything. What they do get tends to go back into the club and is paid on a per session basis, rather than per week (i.e missing a game suspended/injured but still being there and being at both training sessions you'd still get your expenses).

I realise that this isn't uniform, some Junior players are paid fairly handsomely the higher the level, but you'll find more paid petrol money or less.

I can see what you are getting at, but ultimately as players we sign contracts with our clubs on a yearly basis, not the SJFA. That contract ties us to the rules of the association and will contain (sometimes verbally rather than in writing) the offer and any stipulations of payment/expenses that the club will honour/enforce. Being suspended may well be defined but at that stage is up for negotiation on your behalf.

Ultimately that contract is with the club, not the SJFA. If you sign it, thats a risk you have accepted and the perceived fairness of the processes applied by the governing body is irrelevant. In short, if the club are backing your appeal (which they would normally be doing if you are raising one) it is within their power to waive that "non payment" clause - they will be aware of the "unfair" nature of the suspension in your individual context.

In that scenario, were payment withheld, I would argue that the club was culpable of enforcing the very processes you are arguing are unfair, themselves becoming complicit in any perceived unfairness.

[semper laboure]

very interesting point Gaz

[semper laboure]

Thank you to the many people who have been in touch with me regarding the first post here.

For obvious reasons I will not be sharing the contents of the private messages and they will remain so.

Having now completed a review of the SFA documentation versus the available/published documentation from the SJFA. Does anyone have an email address for Tom Johnstone? I would like to make contact with him and arrange a chat/request information.

However should anyone have any of the information could they possibly send it to me via PM or post a link to it?

• Format of the Appeals hearing at regional level (SJFA) - Need the document that outlines this process not this is what happened when I was up etc
• admissible evidence, rules for regional hearing (SJFA) - Again need the written document as not in the SJFA published rules or constitution.
• Rules on acceptable representation - regional hearing (SJFA)
• Rules on Players with disabilities (speach, phobia of public speaking etc) regarding personal appearances and measures to be taken to assist regional hearing (SJFA)
• Dealing with Conflicts of Interest during Disciplinary hearings Full SJFA Hearing (SJFA) - Should be in a written document
• Format of the Appeals hearing at Full SJFA Hearing (SJFA) - Need the document not this is what happened when I was up etc
• admissible evidence, rules for Full SJFA Hearing (SJFA) - Again need the written document not in the SJFA published rules or constitution.
• Dealing with Conflicts of Interest during Disciplinary hearings regional level (SJFA) - Should be in a written document
• Rules on acceptable representation - Full SJFA hearing(SJFA)
• Rules on Players with disabilities regarding personal appearances and measures to be taken to assist at full SJFA hearing (SJFA)
• SJFA definition of frivolous appeal
• Rules when SJFA full hearing is appealled to the SFA: There is nothing to say that it is the same process and rules of evidence as is operated by the SFA at SFL and SPL level, although the presumption would be that this would be the case.

Again thank you to everyone for sending your information and you have my assurances that this will be treated in the utmost confidence. Whilst this is not a conclusion and will not prejudice my works,

• it would seem to be the case at the Junior level that players, management and officials have little or no confidence in the regional SJFA process and the majority do not bother to appeal to the SJFA full hearing as they just want to be playing football.
• There appears to be inconsistencies from anecdotal evidence of some players being allowed to submit photographs, videos, witness statements and others not being allowed to submit said evidence.
• It would appear that it is nearly impossible to mount a case for the appellant to the SJFA regional board due to inconsistencies on what is admissible evidence.
• It would appear that the regional SJFA boards do not ask for witness statements independently of the appellant to attempt to establish the case against the appellant.
• It would appear that in the SJFA no-one presents the case against the appellant and only a limited referees statement is given against the appellant.

It would appear that this represents a fundamentally flawed system which dis-credits the game in Scotland and also the SFA for allowing a member association to operate inherently flawed policies.

I would be grateful if anyone has access to the documents required above that they could send them to me, in order to advance this thesis.

Kind Regards,

[semper laboure]

Again thanks to the people for the further PMs but it would appear that these documents do not exist? How does an appellant know what evidence is then admissible in an appeal process and how does the SJFA deal with the matters and differences listed above?

[santheman]

Would you like the job as Secretary of the West Region???

[semper laboure]

eh - no thanks!

What I want is a good topic for my dissertation and it would appear in law that the differences between the systems, lack of process within the SJFA and from a number of private messages on here that there are fundamental flaws in the SJFA regional and SJFA appeals processes, (whilst being cautious of the first hand accounts of personal experiences). Sooner or later someone is going to go to town with these processes.

I would not imagine that any person involved in Junior football would want to become engaged in a legal battle which could possibly leave us without a junior game due to the costs that the SJFA region or SJFA would incur in trying to defend any action. All it would take would be a player who is a solicitor or determined enough and has the financial ability. The SJFA needs to improve its image as a professional organisation.

Whilst not wishing to presume that anyone from the SJFA reads this forum, it would be prudent of the SJFA to carry out a full review of their processes and procedures in relation to suspensions and appeals. The fundamental flaws would appear as follows:

• No Written procedure on how an appeal is conducted by either the appellant or the representative from the SJFA
• No written procedure on how to avoid conflicts from those hearing the appeal
• No written process or procedure on rule of evidence (Photographs, Videos, witness statements, countering a referee statement)
• The nature and conduct of an appeals hearing
• Process for dealing with a player with a disability making an appeal
• Persons allowed to conduct or advise a player during the course of an appeal
• There needs to be a bringing into line of all of these processes to a broad framework of the SFA to ensure that the disciplinary processes and procedures match and are consistent throughout, or you have a situation where a club/player who can afford to pay the three appeal fees would have the ability to submit evidence that another player without this would not. Thereby access to justice could be solely down to financial capabilities which fundamentally undermines the rule of law. All be it in this case it is a quasi judicial process.

I would be interested to hear from any current solicitor involved in the junior game or a player with an LLB or in practice that has any further thoughts on this?