Judicial review of sports governing bodies

George McLellan, Jack Trevella and Oliver Dickie consider whether sports governing bodies should be amenable to judicial review.

In 1993, the Court of Appeal rejected a claim for judicial review against the Disciplinary Committee of the Jockey Club on the basis that the Jockey Club was not amenable to judicial review.[1] Sir Thomas Bingham MR provided the following justification for this decision:

‘While the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental […] the powers which the Jockey Club exercises over those who (like the applicant) agree to be bound by the Rules of Racing derive from the agreement of the parties and give rise to private rights on which effective action for a declaration, an injunction and damages can be based without resort to judicial review.’

The impact of this judgment has been significant. It has precluded sports governing bodies from being subjected to judicial review, including English football’s principal governing bodies: the Football Association (FA), Premier League Limited (Premier League) and the English Football League (EFL).

The justification for sports governing bodies being immune from judicial review is dubious. This article contends that R v Disciplinary Committee of the Jockey Club is ripe for re-examination. It is written in light of the EFL’s decision to eject Southampton Football Club from the playoffs for spying on Middlesborough prior to their semi-final against them.

Changing context for sports

Sport has changed immeasurably since 1993, the year in which R v Disciplinary Committee of the Jockey Club was decided. The English premier league had only been founded one year earlier in 1992. Now, it is the richest league by revenue in the world, with an estimated annual revenue of £6.2 billion and domestic and global broadcasting rights topping £5 billion. The riches available to sides who win promotion to the premier league has caused commentators to dub the playoff final the ‘richest game in football’. This is principally due to the over £100m in revenues it guarantees member clubs, along with the comfort of hefty ‘parachute payments’ member clubs receive if relegated to the Championship.

The financial sums at stake have also led to a proliferation in football litigation, generally via arbitration. Claims usually relate to alleged breaches of financial fair play rules.

The increase in the foreign ownership of English football clubs and increasing concerns around the financial sustainability of clubs in England’s lower tiers has led the government to pass the Football Governance Act 2025. Under the Act, the Independent Football Regulator has been established, whose amended rules and guidance take effect from 5 May 2026.[2]  The creation of an independent football regulator clearly indicates that the government considers English football as a matter of acute public interest. Indeed, football is woven into the fabric of British society.

Public interest

The leading case establishing whether a private body is amenable to judicial review is R v Panel on Take-overs and Mergers, ex parte Datafin.[3] In this case, Lloyd LJ held that bodies performing ‘public law functions’ ought to be amenable to judicial review. He explained that ‘if the body is exercising a public law function, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.’

The boundary between private and public ‘functions’ and ‘consequences’ is nebulous. The murky distinction between the two has led to numerous decisions on amenability which are contradictory and conceptually incoherent.

As it is argued above, the public interest in decisions taken by football governing bodies is immense and is explicitly recognised as such by the government. Further, it is worth emphasising the practical impact that football clubs have on their local communities. Promotion to the premier league has significant, far-reaching consequences on the local economy and infrastructure of the area the promoted club is situated in. For example, following their historic promotion to the premier league via the playoffs in 2023, Luton Town was able to start constructing a modern new stadium along with a wider urban renewal project.[4] The impact of Wrexham’s successive promotions under celebrity owners Rob McElhennay and Ryan Reynolds on Wrexham’s local economy has been similarly influential.

Sporting Bodies and Judicial Review

It is also worth noting that the UK stands apart from other similar jurisdictions in immunising sporting bodies from the reach of judicial review. For example, in Finnigan v New Zealand Rugby Football Union, the New Zealand Court of Appeal held that the decision of the New Zealand Rugby Football Council to accept an invitation for the All Blacks to tour apartheid South Africa was amenable to judicial review.[5] Writing for the Court, Cooke J said that:

The decision affects the New Zealand community as a whole and so relations between the community and those, like the plaintiffs, specifically and legally associated with the sport. Indeed judicial notice can be taken of the obvious fact that in the view of a significant number of people, but no doubt contrary to the view of another significant number, the decision affects the international relations or standing of New Zealand

Significantly, the Court in Finnigan noted that while the New Zealand Rugby Football Union was a private and voluntary sporting association, it was, in relation to this decision, “in a position of major national importance”. It further added that unless persons such as the plaintiffs — who were two members of local rugby clubs — were granted standing they would have no “effective way of establishing whether or not the Union is acting within its lawful powers”.

Impact

Given the impact Southampton’s expulsion from the playoff final has both on Southampton and its competitors (notably Middlesborough, its competitor; Hull City, the other playoff finalist; Millwall, the other playoff semi-finalist; and Wrexham, who finished in seventh one side outside the playoff places), there is arguably a significant public interest in any decision by the EFL having been correctly taken, irrespective of the ultimate outcome.

And there appear to be, at least on first glance, multiple identifiable defects with the decision-making process undertaken by the EFL. First, the punishment appears to be grossly disproportionate to the impugned actions. Southampton have been deprived of the opportunity of participating in the richest game in football. However, there appears to be no evidence to suggest that the spying misdemeanours were instigated or known about except for Tonda Eckert and his coaching staff. They were not, in other words, known by the players or the wider club and its fanbase. In such circumstances, the punishment surely ought to be focused against the wrongdoers themselves. It should not operate as a form of collective punishment. Indeed, it is noteworthy that when Leeds United manager Marco Bielsa committed a similar offence in January 2019, he paid the £200,000 fine himself.

In addition to the direct financial impact on Southampton for not being able to compete for promotion, they are also likely to suffer further economic loss due from a class action reportedly being considered by its players for loss of earnings. Overall, the disproportionality of Southampton’s punishment is arguably irrational, and might be legally challenged on that basis.

Second, the EFL’s decision making process has not been transparent. The EFL convened a hearing panel for Tuesday 19 May and appellate panel the following day on 20 May. The EFL’s findings of fact in the initial hearing were that “there was a contrived and determined plan from the top down to gain a competitive advantage in competitions of real significance”; and that “the evidence demonstrates that the output of the observations fed into analysis conducted by the team”.[6]

However, the EFL failed to properly explain the evidence it relied on. It merely stated that it had heard from “several witnesses” and did not refer at all to written evidence. In light of the consequences for Southampton, the absence of transparency and rapid appeal process is likely to have breached the requirement of public decision making to be transparent and fair (Bank Mellat v HM Treasury (No 2) [2013] UKSC 39).

Finally, there is a question of whether either Southampton, or individuals at the club, have recourse to rights under the Human Rights Act 1998. For example, it is questionable whether they have had a fair hearing pursuant to their right under Article 6 of the European Convention on Human Rights (ECHR) or whether the EFL’s decision implicates their rights to property under Article 1 of Protocol No.1.

Conclusion

Irrespective of these arguments, the public interest in football is so significant that decisions by its governing bodies ought to be amenable to judicial review. The consequences any decisions taken by football governing bodies are capable of having far ranging and harmful impacts on football clubs and, perhaps most importantly, their fans. It is essential therefore that such decisions should be taken properly and in compliance with public law principles.

George McLellan is a Partner, Jack Trevella is an Associate and Oliver Dickie is a Trainee Solicitor at Sharpe Pritchard LLP.

---

For further insight and resources on local government legal issues from Sharpe Pritchard, please visit the SharpeEdge page by clicking on the banner below.

 

 

Visit Sharpe Pritchard's new Building Safety Hub, focusing on The Building Safety Act 2022 and its wide-ranging impact.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] R v Disciplinary Committee of the Jockey Club, ex parte Aga Kahn [1993] 2 All ER 853.

[2] Owners, Directors, and Senior Executives | Independent Football Regulator (accessed on 22.05.2026).

[3] R v Panel on Take-overs and Mergers, ex parte Datafin [1987] QB 815.

[4] Power Court – all you need to know – Luton Town FC (accessed 22.05.2026).

[5] Finnigan v New Zealand Rugby Football Union (No 1) [1985] 2 NZLR 159.

[6] In The Matter Of Proceedings Before An Independent Disciplinary Commission Of The EFL Under Section 8 Of The EFL Regulations [2026], SR/187/2026, para 31.