SII Focus 7th July 2016

Analysis: BHA & Sport Resolutions deny conflict of interest in Best case

The British Horseracing Authority (BHA) and Sport Resolutions have denied that any conflict of interest exists, after trainer Jim Best raised objections to the use of the independent dispute resolution service at a future rehearing of his case. Best successfully appealed a four-year ban earlier this year after it emerged that the Chairman of the Disciplinary Panel, Matthew Lohn, had acted professionally for the BHA in other areas.

A statement from Best’s lawyer, Harry Stewart-Moore, argues that the BHA was ‘involved in private correspondence’ with Sport Resolutions regarding the re-hearing, and that the BHA ‘never disclosed the existence of this correspondence’. He argues that the BHA was ‘aware of who Sport Resolutions would put forward as Chairman of the re-hearing from the outset, having privately asked for that information even before the Appeal hearing took place’.

The BHA and Sport Resolutions dismissed this line of argument. “We went into the Appeal Board hearing proposing a re-hearing using an impartial panel”, said a BHA spokesperson. “It was perfectly reasonable, and indeed necessary, for the BHA to contact Sport Resolutions prior to the Appeal hearing to assess the possibility of them nominating a Chairman for the Disciplinary Panel should a rehearing be ordered. When Sport Resolutions first formally nominated William Norris QC they made it very clear to all parties that the BHA had already been informed that in the event Sport Resolutions were formally called upon to make a nomination, the individual they would nominate was William Norris QC. William Norris QC was the first and only Chairman proposed by Sport Resolutions to any of the parties.”

“Sport Resolutions does not accept the criticisms made of it by Mr Best’s lawyers”, said Richard Harry, its CEO. “When the BHA first made contact with Sport Resolutions it was to seek confirmation that we would be able to assist with a re-hearing of the Best case, and to confirm the Chair we would nominate in that event. It was made clear by Sport Resolutions that if a formal request for assistance was received, that the fact of this communication would be made known to Mr Best. I note that Mr Best accepts that it was reasonable and necessary for the BHA to make these initial enquiries. When Sport Resolutions subsequently received communication involving both parties, it was Sport Resolutions that disclosed the fact of the earlier conversation to Mr Best. The fact didn’t ‘emerge’ as is being claimed, it was properly disclosed at the outset. Equally, Sport Resolutions provided copies of correspondence between it and the BHA when asked.”

National Anti-Doping Panel

William Norris QC is also a member of the National Anti-Doping Panel (NADP), as is Matthew Lohn, who was the Disciplinary Panel Chairman in the original hearing of the Best case. Both the BHA and Sport Resolutions deny that this represents a conflict of interest.

“It is wrong to suggest that simply because he and Matthew Lohn are both members of the National Anti-Doping Panel administered by Sport Resolutions, they or Sport Resolutions have compromised their independence in any way”, said the BHA spokesperson. “Sport Resolutions does not accept that there is an issue with Mr Lohn and Mr Norris both being on the NADP and the wider Sport Resolutions panel”, said Harry. “Mr Norris’s CV was provided to Mr Best in the initial correspondence, that document clearly listing Mr Norris’s status as a member of both panels. Mr Norris was aware that his potential appointment related to a case involving Mr Lohn and his view was that this did not create a conflict or bias, nor is Mr Best suggesting that there was any. If Mr Best (or the BHA) took the view that Mr Norris was not suitable, because of perceived bias or otherwise,  then an alternative Chair could have been nominated. It is important to note the difference between a nomination and an appointment. Sport Resolutions nominates a Chair for agreement by the parties and an appointment would only be made with the consent of both sides.”

Following the Best case, the BHA announced it would be appointing ‘Christopher Quinlan QC, an independent expert in the field of sports governance and regulation, to lead the review of the structure, composition and operation of our Disciplinary Panel’. Christopher Quinlan QC is also a member of the NADP.

On 24 June last year, the BHA announced that it would be conducting an Integrity Review, which recommended that the BHA ‘review the structure, composition, and processes of its Disciplinary Panel, Licensing Committee, and Appeal Board’. Following the Best case, the BHA announced on 2 June this year that it would be accelerating the implementation of its Integrity Review.

As part of this acceleration, the BHA engaged Ian Mill QC, who has been carrying out a review of all cases in which Matthew Lohn sat as a Panel member since October 2013. Lohn has been involved in over 15 cases since then, four of which are specific integrity cases. Over the last ten years, Lohn has been involved in 15 specific integrity cases involving 31 people, all of which have had their case proven against them.

Ian Mill QC was a member of the London 2012 Olympics Pro Bono panel (PDF of panel members below), as was Greame McPherson QC, who represented the BHA at the Best appeal. This does not suggest that they worked together, as the panel was intended to provide a list of experienced lawyers who could provide legal advice to athletes of limited financial means that found themselves before a national governing body during the Games.

McPherson was not part of the Integrity Review or the NADP, however he also trains horses and brought forward a recent case in which his horse, Charlie Cook, finished second to one trained by Jamie Snowden. Snowden was critical of how the BHA handled the case in a Racing Post article.

The Integrity Review, which was published in March this year, also recommends that the BHA continue discussions with Sport Resolutions about offering pro-bono legal advice for horse trainers. The BHA has also proposed that Sport Resolutions be used as an arbitration body for any retrials that result from the Integrity Review panel’s review of Lohn’s cases.

Lohn was also Chairman of a Disciplinary Panel which is 2013 found that Mahmood Al Zarooni acted alone in doping 11 horses in the care of Moulton Paddocks in 2013. Moulton Paddocks are owned by Godolphin, a horseracing stable founded by His Highness Sheikh Mohammed bin Rashid Al Maktoum, Vice President and Prime Minister of the United Arab Emirates and Ruler of Dubai. Godolphin is also a BHA sponsor.

The BHA was heavily criticised in the media for an alleged failure to sufficiently investigate the case. After the case was concluded, Lohn was appointed as a member of the Dubai Healthcare City Regulator Appeals Board.

Conclusion

Sport Resolutions does not appear to have done anything wrong in this situation. Its role is to nominate experienced individuals for BHA disciplinary cases to enable both sides to take a view as to whether they are happy to proceed with the person Sport Resolutions recommends. Obviously, it would not recommend a person if it thought that their position represented a conflict of interest, as its business model depends on integrity and impartiality. Every individual nominated has a positive obligation to disclose any conflict, whether actual or perceived, throughout their appointment.

There does not appear to be a direct conflict of interest in any of the links outlined above, however the perception amongst jockeys and trainers is that such a conflict exists. This is partly due to the fact that the criticism received by the BHA following the Al Zarooni case created the perception amongst some trainers and jockeys, who have spoken to The Sports Integrity Initiative, that the BHA is manipulating its disciplinary processes to get results in its favour.

Questions have been asked as to why the BHA only decided to examine the structure of its disciplinary process when announcing the acceleration of its Integrity Review in June this year; not last year when it first commissioned the Review, and not directly after the Al Zarooni case in 2013. Unless the BHA actively and openly investigates these areas, it risks undermining confidence in its regulatory authority – confidence that has been eroded by a recent apparent u-turn over whether an application for a jockey licence could be concluded. As Jamie Snowden told the Racing Post: “How can anyone run a business when there’s no faith in the justice system governing it?”

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