The decisions of referees or sports judges, whatever the sport concerned, are often criticised. Who has never complained about a referee’s decision as being wrong or unfair?
What happens on the field, stays on the field?
While these decisions are often the subject of comments, particularly in the media, the law has chosen its side by granting an immunity, defined as “qualified immunity“ (see the award in “CAS 2015/A/4208 Horse Sport Ireland (HSI) & Cian O’Connor v. Fédération Equestre Internationale) to referees’ decisions, and therefore a sort of “untouchable” status.
This immunity is materialised through the doctrine of the “field of play“, which is one of the concepts enshrined in the broad concept of lex sportiva.
During the years the jurisprudence of the Court of Arbitration for Sport (“CAS”) has developed and specified this principle.
The Doctrine of the “Field of Play”
This doctrine is based on the principle of the self-restraint of appeals and is intended – as one would expect – to ensure the authority of referees and officials as well as to protect their autonomy, the completion of events without disruption and the certainty of results (and the subsequent difficulty of rewriting records and results) as stated by the Panel in the case “CAS 2010/A/2090 Aino-Kaisa Saarinen & Finnish Ski Association v. Fédération Internationale de Ski”.
According to this doctrine, referees’ decisions are in principle not subject to appeal outside the “field of play”, therefore after the match or event is over.
As recalled during the Rio Olympic Games, it also avoids constant interruptions of the game or competitions by calling the intervention of external judges or arbitrators, who are not specifically trained on the rules of the concerned sport and do not have the advantage of being present to observe the events whilst occurring (“CAS ad hoc Division (OG Rio) 16/028 Behdad Salimi & National Olympic Committee of the Islamic Republic of Iran (NOCIRI) v. International Weightlifting Federation (IWF)”.
The Swiss Federal Tribunal (“SFT”) was able to confirm such approach, and its adherence to Swiss law, by confirming that the use of the field of play doctrine is useful as “the game must not be constantly interrupted by appeals to the judge” (decision of the SFT n. 118 II 12).
Conditions for the Application of the Field of Play Doctrine
For this doctrine to apply, two cumulative conditions must be met (“CAS 2017/A/5373 Japan Triathlon Union (JTU) v. International Triathlon Union (ITU)”):
- On the one hand, the decision at stake was made on the playing field by judges, referees, umpires and other officials, who are responsible for applying the rules of a particular game; and;
- On the other hand, the effects of the decision are limited to the field of play. However, the field of play doctrine permits (full) review of field of play decisions “in so far as the rules of the game themselves provide” and where the rules provide for the possibility of review of the decision “immediately after, or even proximate to the competition” after the match.
This means, for example, that a referee’s decision regarding the determination of the first athlete to cross the line (“CAS ad hoc Division (OG London) 12/010 Swedish National Olympic Committee (SNOC) & Swedish Triathlon Federation (STF) v. International Triathlon Union (ITU)” or even the disqualification of an athlete (“CAS 2008/A/1697 Deutscher Behindertensportverband e.V. v. International Paralympic Committee (IPC)”) constitute a field of play decision.
Conversely, the CAS has ruled that a decision rendered after the completion of a competition (e.g. a sanction imposed on an athlete after a competition is concluded or a three match-day suspension imposed on a football player, as opposed to a decision of a referee during a competition, for instance a red card shown by a referee to a player during a match) and which does not have any direct effect on the on-going competition does not appear to be a quintessential field of play decision, i.e. one which should not be open to review (“CAS 2018/A/5916 Lucas Mahias v. Fédération Internationale de Motocyclisme (FIM)”).
Incidentally, it is worth noting that this analysis, namely the legal qualification of a decision as being a decision relating to the field of play – which may or may not be appealed to CAS – will not be a question of admissibility but a question of the merits of the appeal.
Finally, the scope of this doctrine applies to the reviewing of the merits of the decision but equally to the procedural aspects that led to it.
In the light of the above, it will be understood that this doctrine constitutes an exception to article R57 of the CAS Code which provides that “the Panel has full power to review the facts and the law” (“CAS 2018/A/5808 AC Milan v. UEFA”).
Exceptions to the field of play Doctrine
A field of play decision can be challenged in some exceptional circumstances, i.e., in case of proof that such decision is vitiated by bias, malice, bad faith, arbitrariness or mistake of law as clarified in the case “CAS 2012/A/2731 Brazilian Olympic Committee (BOC), Brazilian Taekwondo Confederation (BTC) & Márcio Wenceslau Ferreira v. World Taekwondo Federation (WTF), Comité Olímpico Mexicano (COM), Federación Mexicana de Taekwondo (FMT) & Damian Alejandro Villa Valadez”.
Therefore, limits exists to the field of play doctrine: immunity is not absolute.
This is the case, for instance, if the rules of the game were applied in bad faith as a result of corruption (“CAS ad hoc Division (O.G. Sydney) 00/013 Bernardo Segura / International Amateur Athletic Federation (IAAF)”).
Therefore, it follows that a possibility of significant referee’s errors is not sufficient (“TAS JO 20/14 Mourad Aliev & Fédération Française de Boxe (FFB) & Comité National Olympique et Sportif Français (CNOSF) c. IOC Boxing Task Force & Frazer Clarke & British Olympic Association (BOA)”) even if it is supported by press articles or statement from some technicians as coaches (“CAS OG 20/15 Yuberjen Martínez & Colombian Olympic Committee & Colombian Boxing Federation v. IOC Boxing Task Force”).
These two cases related to boxing are indicative on how the field of play doctrine works in practice.
In particular, the first matter concerned the quarter final boxing match of the Olympic Boxing Tournament of Tokyo Olympics between Frenchman Mourad Aliev (FRA) and British Frazer Clarke.
On this occasion, the referee disqualified the French boxer after a blow that injured his opponent’s eyebrow. Following this disqualification, Mourad Aliev lodged a request for arbitration with the CAS, claiming that the referee’s decision was erroneous, as he had already been warned for the same incident, so that he could not be sanctioned twice for the same behaviour. Probably aware of the playing field doctrine, the French boxer tried to demonstrate that this was not a “refereeing error”, on which a court cannot make an assessment since it concerns an area where the referee has a margin of appreciation, but in fact a “technical refereeing fault” (i.e. a lack of proper implementation of the rules of the game) which is reviewable by a court because the referee would have no margin of appreciation. Nevertheless, CAS did not follow this distinction and the reasoning of the claimant, even if it did not exclude the possibility of significant refereeing errors.
As to the second above-mentioned case, still regarding a boxing match, at the end of the bout, the judges ruled that the Japanese boxer won it 4-1. However, Yuberjen Martínez, the Colombian Olympic Committee and the Colombian Boxing Federation appealed this decision to the CAS Ad Hoc Division arguing that, according to the AIBA Technical & Competition Rules, the Colombian boxer should have won as he landed more quality punches and that the Japanese opponent needed a wheelchair to leave the arena. The Colombian team, claiming the bad faith and arbitrariness of the judges’ decision, asked for the nullity of the bout and its reply or to authorise the Colombian boxer to play the semi-final in case the Japanese boxer was not able to participate due to the suffered injuries.
In the Martinez Case, the CAS rejected the appeal deeming the expertise brought by the Colombian appellants not sufficient: the mere statement of opinions about the bout was not admissible evidence. Additionally, the fact that the Japanese boxer left the arena in wheelchair was an event occurred after the bout and therefore irrelevant for the analysis of the performance during the bout itself.
Interestingly, the CAS also ruled that in case the Japanese boxer was not able to face his opponent in the next round due to a persistent injury, the regulations provided that the next opponent – and not the defeated Colombian – could progress automatically. The CAS therefore added that where a rule is clear in determining the legal consequences it is not the duty of a Panel to rewrite the applicable provisions, but simply to apply it.
This example shows that the evidentiary requirements to demonstrate that a bad faith or arbitrary decision is made are relatively high and rigorous for any party trying to go against the field of play doctrine, which is logical in view of the consequences that a review could have (i.e. the annulment of the match). To make matters worse, as per the case law, this rigour also requires a sufficient proof of prejudice for or against a competitor.
In view of all the above, the general lesson is that judges have no vocation and are reluctant, correctly, to substitute themselves for sport referees.
Conclusion
The field of play doctrine represents a cornerstone of sports law, aiming to protect the autonomy and authority of referees and officials while maintaining the integrity and consistency of the results.
While it limits the scope of review for field of play decisions, this doctrine is not absolute and can be challenged in exceptional circumstances. Ultimately, this doctrine allows sports to remain the vibrant and dynamic field that it is, with its human element, its triumphs, and its failures.
If you are a sports organization or athlete facing legal issues related to referees’ decisions or sports judges, our law firm has the expertise you need to navigate the complex field of lex sportiva. Our team has a deep understanding if the doctrine of the field of play applies to your case and the nuances of referees’ immunity in sports and we can help you develop the best legal strategy to protect your rights and interests.
