- 19th January 2018
- Posted by: Laura Graham
- Category: Disciplinary, Professional, Anti-Doping and Sport
Forms of Appeal
Many sporting organisations and professional bodies have rules which provide for an appeal against decisions that may affect a member’s rights or obligations. However, such an appeals process can take many varied forms. Prior to embarking on an appeals process, it is important to understand the type of appeal available to the member. Considered below are four main types of appeal.
De Novo Appeal
A de novo appeal means that the appeals body re-hears the case. The decision made by the first instance body, against whose decision the appeal has been made, is largely irrelevant, except in limited circumstances.
The appeal body is required to come to its own conclusions on the evidence and materials before it. It is for the parties to re-present to the appeal body whatever evidence or materials it considers necessary for its case. Where the proceedings involve oral evidence for example, witnesses will need to be called again.
Appeal on the Record
An appeal on the record means that the appeals body considers the record of evidence and materials which were before the first instance body, but comes to its own independent decision.
Similarly to a de novo appeal, the appeals body does not have regard to the decision made by the body at first instance. However, in contrast to a de novo appeal, the appeals body looks at the same evidence and materials which were before the first instance body. Effectively, the appeals body considers the record of the evidence and materials which were before the first instance body and makes it own decision.
An appeal on the record has limitations and may not be appropriate in certain circumstances. For example, in disciplinary procedures where fair procedures require an oral hearing with cross examination at first instance, an appeal on the record may not be appropriate. The record simply records the evidence given together with responses of witnesses to questioning. The appeals body will not have the benefit of seeing and hearing the witnesses who gave evidence at the first instance hearing. Accordingly, it will not be in a position to come to an entirely independent judgement as to where the truth of the matter lies.
Appeal against error
In an appeal against error, the appellate body has regard to the decision of the first instance body. In order to allow such an appeal, the appellate body must be satisfied that the first instance body made an error in its decision.
Usually, in an appeal against error, the appellate body considers the record of the first instance hearing to establish whether the first instance body came to a correct or sustainable decision on the basis of the record. The appellate body may give such weight as it considers appropriate to the determination of the first instance body.
Generally, the appellate body does not re-hear the witnesses. Accordingly, the appellate body looks at the record to establish whether it discloses a sufficient basis to support the findings of fact made at first instance on the basis of the evidence given by witnesses. The appellate body should not interfere with findings of fact unless there was no sustainable basis for the finding in question or the finding was clearly in error.
Appeal on a point of law
An appeal on a point of law is commonly provided for in the rules of an organisation.
The applicable principles to an appeal on a point of law were helpfully summarised in Deely v Information Commissioner  3 I.R 439 at 452. The appellate body:-
“(a) cannot set aside findings of primary fact unless there is no evidence to support such a finding;
(b) it ought not to set aside inferences drawn from the facts unless such inferences were ones which no reasonable decision making body could draw;
(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;
(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that is also a ground for setting aside a resulting decision…”
Word of Warning!
Between these forms of appeal are many variations which may be further limited or defined by the particular rules of an organisation. Accordingly, the general headings above have to be considered in conjunction with the appeals provisions of the particular organisation to establish what type of appeal is available to the member, which could include a hybrid of the forms of appeal above. Clearly, the type of appeal available may impact on a member’s decision whether to embark on the process.
For further information on this topic please contact Laura Graham at firstname.lastname@example.org