Barry v Ginnity
Circuit Court
Judge McMahon
13/04/2005 2004
No. EQ 038/04
[No. of pages 30]
[FL10538]
Contract law
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Contract – Oral contract – Sporting organisation – GAA club – Terms no clear –
Manager and selector of football club – Rules of association forming part of
contracts – Selection of players to panel – Some selected players not eligible –
Incident in dressing room prior to game – Disciplinary procedures of GAA –
Special investigation committee established to ascertain what happened in dressing
room incident – Enquiry – Suspensions – Whether procedures adopted were fair –
Whether procedures breached contractual terms – Whether GAA disciplinary
hearings are of acceptable standard – Test for courts to intervene in sporting
bodies decisions
Facts The plaintiffs were county manager and a selector/physical therapist
respectively to the Meath Junior Football team for the season 2002 – 2003. While
there was no written contract it was acknowledged that a contract was in place. A
dispute arose of the adding of players to the panel who were not eligible. On the
day of a match an incident occurred in the players dressing room leading to the
chairman being pushed which became the subject of an enquiry under GAA by the
setting up of a Special Investigations Committee. The plaintiffs in the twin
proceedings sued for breach of contract and a determination that decisions of the
Meath County Board were contrary to the principles of natural and constitutional
justice and basic fairness.
Held by Judge McMahon sitting at Naas Circuit Court in dismissing the plaintiffs’
cases:
1. The procedures implimented by the Meath County Board were properly observed
in accordance with the GAA Rules for disciplinary matters in that: (a) the plaintiffs
were adequately informed of the charges against them (b) plaintiff Barry was
present when the defendants gave evidence and had the opportunity to challenge
them; (c) plaintiff Rogers did not give evidence due to his own unreasonable
conduct and (d) that in bringing their solicitor to the adjourned meeting, the
plaintiffs were in breach of rule 140 (a) and it was the solicitor’s insistence on
participating that caused the adjournment on that occasion.
2. In plaintiff Barry‘s case it transpired that he was not a member of any GAA club
and therefore could not, in effect, be suspended. He therefore supplied a service, as
a third party to the County Board. The football season was over and he had been
paid his expenses and therefore, his contract was completed and he had no legal
relationship with the club. The club was not obliged to show fair procedures to a
stranger. However, as he was not a member of a GAA club the court made a
declaration that the County Board’s attempt to suspend him had no effect.
3. Plaintiff Rogers case was different as he was a member of a GAA club and as
such he was entitled to fair procedures. Plaintiff Rogers failure to give evidence or
call witnesses was largely due to his own fault. However the court has ruled that
fair procedures were not breached and accordingly his case failed as there was no
breach of contract.
Reporter: BDD.
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THE CIRCUIT COURT
EASTERN CICUIT
COUNTY OF MEATH
Record No: 2004 No. EQ 038/04
EQUITY CIVIL BILL
BETWEEN
MARTIN BARRY
PLAINTIFF
AND
FINTAN GINNITY, BERNARD ALLEN AND NICHOLAS BRENNAN
DEFENDANT
AND
BETWEEN
DESMOND ROGERS
PLAINTIFF
AND
FINTAN GINMTY, BERNARD ALLEN AND NICHOLAS BRENNAN
DEFENDANT
Judgment of His Honour Judge Bryan McMahon delivered on 13th of April,
2005 at Naas Circuit Court.
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I. Introduction.
Few spectators who gathered on the 19& of July, 2003, at Nenagh to watch the AllIreland Junior Football Semi-final realized the small drama that was being played
out in the Meath dressing-room moments before the throw-in. As a result of what
happened on that occasion the plaintiffs here have brought these proceedings.
By letter dated 6th November, 2003, the plaintiffs were officially notified that they
were suspended by the Meath County Board, for 48 and 96 weeks respectively. The
decision followed an investigation and a recommendation by a Special
Investigation Committee into allegations regarding incidents which came to a head
in the players’ dressing-room immediately before the All-Ireland Junior Football
championship in Nenagh, on Saturday 19th July, 2003. The suspensions, they were
informed, were made under Rule 140 of the Official Guide, 2001.
An appeal by the plaintiffs to the Leinster Council under rule 151 of the Official
Guide of the Association was unsuccessful.
The plaintiffs commenced the present proceedings by way of separate Equity Civil
Bills both dated 19th May, 2004. The defendants in both actions were the Chairman
and Secretary of the Meath County Board and the Chairman of the Leinster County
Board sued in their official capacities. A full defence was filed in both cases.
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The plaintiffs alleged that the defendants acted in breach of express or implied
terms of contract, in failing to conduct the disciplinary proceedings in a manner that
was fair and in compliance with the requirements of natural and constitutional
justice. They specified particulars where they alleged the proceedings were
deficient and further claimed that the proceedings were also in breach of the
Association’s own rules and by-laws.
The plaintiffs claimed damages for breach of contract and various declarations and
other orders.
The case was heard over two days in March 2005, in Trim, County Meath.
II. The facts.
Background.
It was accepted by the defendants that Mr. Barry was appointed manager and that
Mr. Rogers was appointed selector and physical therapist of the Meath Junior
Football team for the season 2002- 2003. Mr. Rogers was to receive Eur60 for
every team training session he attended. Mr. Barry alleged that he was to receive
Eurl,400 for his role, but the defendants denied this, alleging that Mr. Barry was to
be paid his expenses only, which in the event amounted Eur1400 for the season.
These agreements were not in writing, but the appointments were not denied by the
defendants. Although all the exact terms may not have been established I accept
that there were agreements between the plaintiffs and
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defendants relating to the training of the Meath County Junior Team for that season
and that in so far as the plaintiffs were members of their respective clubs, the rules
of the Association formed part of the terms of these agreements.
As the season progressed a problem arose when some players, including one Gary
Rogers, a son of one of the plaintiffs, were named in the panel, when according to
the County Board he was ineligible under the rules of the Association as not having
played for his club. To be eligible to be selected for the county team, a player had
to be registered and available in the first instance for his club. The decision of the
County Board was made known to the plaintiffs in their capacities as manager and
selector. It was alleged by the defendants that an undertaking was given by the
plaintiffs that Gary Rodgers would not be named on the panel for the All-Ireland
Semi-Final in Nenagh, on 19th July, and that his name would not appear on the
official programme. It appears that Gary Rodgers was also a talented soccer prayer
and played for Dundalk United, a commitment that made it impossible for him to
play for his Gaelic football club at the same time, but left him with sufficient time
to participate in the County Junior Team’s training programme.
To ensure that only players eligible would take the field in Nenagh on 19th July,
the first and second named defendants attended in the dressing-room with the
official jerseys shortly before the game was due to commence. They proceeded to
distribute the jerseys, refusing to give jerseys to players who were ineligible in their
view as not having played for their clubs, including Gary Rogers. It was very close
to kick-off and the manager was
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trying to prepare his team. For him and his selectors the distraction was unhelpful.
Tension began to mount. Voices were raised and abusive language was directed
towards the first and second named defendants. A bag of jerseys was pulled from
the first defendant’s hand and he fell to the ground. The first and second defendants
alleged that Mr. Rogers had pushed him; Mr. Rogers denied this; Mr. Barry said he
did not see who pushed the Chairman to the ground as he had his back turned at the
time, but he did admit directing abusive language towards the first defendant
claiming, however, it was not used with malice. There were, of course, several
other witnesses in the dressing room at the time.
It was to investigate these allegations that the Special Investigations Committee
was set up. A letter was sent to the plaintiffs on the 26th of August, 2003 and the
plaintiffs were asked to attend a meeting on 1st September. This was rescheduled
for 4th September. The plaintiffs requested a further postponement and to
accommodate them the defendants fixed the first meeting for 15th September. This
meeting had to be adjourned and it re-convened on the 29th of September when due
to circumstances which will be clarified later, it was adjourned once more to the
later date of October 4th. The Special Investigation Committee made its
recommendation on that day and this report eventually led to the suspensions by the
County Board.
This court is not concerned with revisiting the factual findings in this regard. The
plaintiffs claim that the procedures were unfair and were not properly applied and
that this was in breach of their contractual terms. The Court, therefore, is only
concerned with
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examining the procedures established by the G.A.A. in respect of disciplinary
hearings to see if they represent an acceptable standard and to see if the rules and
regulations were followed and properly applied in this case.
III. The law
The plaintiffs in these proceedings are suing for breach of contract and for
determinations that decisions of the Meath County Board were made contrary to the
principles of natural and constitutional justice and basic fairness of procedures.
The defendants acknowledge that an agreement existed in these cases, and that the
rules contained in the Official Guide of the Association applied to the agreement.
These rules contain provisions relating to disciplinary procedures and these, on the
face of it, govern the situation, provided, that is, that they possess minimum
fairness.
At the very outset, it should be noted that the law is willing to allow sporting bodies
a good deal of autonomy in regulating their own affairs. Respecting the principle of
freedom of contract, and for good social policy reasons, the courts recognise that
governing bodies of such associations are in a better position to determine how
their affairs are to be run and how their disciplinary matters are to be conducted.
The learned authors of the recent Irish textbook Sport and the Law (N.Cox and A.
Schuster, First Law Ltd., Dublin, 2004.) put the matter this way:
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“As an introductory point it should again be noted that the courts in
Ireland and England are highly reluctant to strike down decisions of
sporting bodies, for want of fair procedures, essentially on the basis that
governing bodies are reckoned to be expert in the governance of their
sports and also that it makes sense as a matter of social policy to allow
sport to be self-regulating.”(At p. 57. Footnote omitted).
There are occasions, however, where the law will intervene to ensure that justice is
done, and that minimum standards of fair procedures are observed. If the decision,
for example, would have serious consequences for the player or member of the
association, the courts are prepared to intervene to prevent an injustice, and to insist
that an appropriate standard of fair procedures is observed. (Cox and Schuster,
op.cit. pp.57/58) This statement of the law raises two questions: (i) how serious
must the consequences be for the court to intervene? (ii) If the court decides to
intervene what level or standard of fair procedures will it demand of the sporting
body?
Clearly, if a player’s livelihood is at stake, or if he/she, is deprived of the
opportunity of competing for a high honour which opportunity may not present
itself again or will only be available at some distant date, the court might well be
moved to entertain a complaint. Further, it should not be thought that the court’s
vigilance will be activated only when the member’s right to earn a livelihood or
other economic interest is threatened. “Significant” or “serious”, should not be
defined only in terms of economic values. It must be noted that there are many
people involved in the management and administration of sporting organisations
throughout the country who are not motivated by economic gain, but who
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are inspired by other ideals and by a sense of community good. Such persons may
spend many years of their lives as treasurers or as secretaries of their local clubs,
devoting their energies and talents to acquiring playing fields, building community
halls in their localities and, generally, dedicating themselves to generation after
generation of the young people in their communities. Their contribution to society
is enormous, doing community work of inestimable value and contributing not only
to the health of our young people, but also, in a very real sense, discouraging
criminal and anti-social behaviour. Such persons may have dedicated substantial
parts of their lives to these commendable endeavours, and expulsion from the
association or organisation to which they belong, in such circumstances, might well
have a sufficiently serious effect on the person’s reputation and standing in the
community, and his own self-esteem, to move the courts to intervene. It would be
regrettable indeed, if the courts confined its concern only to those situations where
economic interests were threatened. In determining the occasions when the courts
will exercise its role in this regard little more can be usefully be said at this
juncture.
Similarly, when the courts insist that a level of fair procedures is warranted the
standard it will insist on is not defined with any great precision in the jurisprudence.
McCutcheon states that “where serious disciplinary matters are involved the
fundamental dictates of justice demands scrupulous adherence to the highest
standard of procedural and substantive fairness” (in Greenfield and Osborn, Law
and Sport in Contemporary Society, Frank Cass Publishers, 2000, at pp.1 16-117 as
quoted in Cox and Schuster, op.cit. at 58). This may well be the required standard
where, for example, an Olympic champion is
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being stripped of his gold medal for alleged doping offences. In other cases, the
standard may or may not be so high. “There is no set level of fair procedures to
which all athletes are entitled. Rather it will vary from case to case depending on
the impact of the impugned decision on the person affected thereby” (see Cox and
Schuster op cit. at 58 citing Flanagan v. UCD [1988] I.R. 724 and Griffith Jones,
Law and the Business of Sport, Butterworths, London, 1997).
The truth is that the law will demand a level of fair procedures which is sufficient
in all the circumstances to ensure justice for the player or member affected by
decision. The more serious the consequences the higher the standard that will be
required. One cannot be more specific than that from the case law.
Where an association makes provision for fair procedures and has rules and
regulations governing disciplinary action, one can assume that that association
acknowledges, ab initio, the seriousness of its disciplinary exercises and the
importance of ensuring fair procedures. In this case the association, of course, will
be expected to adhere to its own procedural standards in making disciplinary
decisions. Indeed, failure to do so would clearly be a breach of contract, where a
contract exists between a member and the association to which he/she belongs.
In the present case, I am satisfied on the facts that the decision of the Meath County
Board is made in a contractual context and is a serious one for the plaintiffs. The
court, accordingly, should examine the relevant rules of the Official Guide relating
to discipline
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to see whether they provide an adequate level of protection in the circumstances of
this case and, if it is concluded that they do possess the minimum protection, the
court should examine the evidence to see whether the established procedures were
observed in this case, and that there was no breach of contract as alleged by
plaintiffs.
Before doing so, however, two general features of this case should be noted: the
G.A.A. is more than a sporting organisation; it is also a strictly amateur association.
IV. The distinctive features of the G.A.A..
Ethos, Aims and Objectives.
Although the Gaelic Athletic Association is identified in the public mind through
its games of hurling and football, and as a sporting organisation, the G.A.A. is
much more than that. The introduction to its Official Guide clearly indicates other
purposes of a political and cultural nature:
“The Gaelic Athletic Association today is an organisation which reaches
into every corner of the land and has its roots in every Irish parish.
Throughout the Country, legions of voluntary workers willingly make
sacrifices to promote its ideals and carry its daily burdens. Why does the
Association receive this unselfish support?
Those who play its games, those who organise its activities and those who
control its destinies see in the G.A.A. a means of consolidating our Irish
identity. The games to them are more than games – they have a national
significance – and the promotion of native pastimes becomes a pan of the
full national ideal, which envisages the speaking of our own language,
music and dances. The primary purpose of the G.A.A. is the organisation
of native pastimes and the promotion of athletic fitness as a means to
create a disciplined self reliant national-minded manhood. The overall
result is the expression of a people’s preference for native ways as
opposed to imported ones.
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Since she has no control over all the national territory, Ireland’s claim to
nationhood is impaired. It would be still more impaired if she were to lose
her language, if she failed to provide a decent livelihood for her people at
home, or if she were to forsake her own games and customs in favour of
the games and customs of another nation. If pride in the attributes of
nationhood dies, something good and distinctive in our race dies with it.
Each national quality that is lost makes us so much poorer as a Nation.
Today, the native games take on a new significance when it is realised that
they have been a part and still are a part, of the Nation’s desire to live her
own life, to govern her own affairs”
The basic aim of the Association is set out in rule 2:
“The Association is a national organisation which has as its basic aim the
strengthening of the National Identity in a 32 County Ireland through the
preservation and promotion of Gaelic Games and past times.”
These games include hurling, Gaelic football and handball. As an additional aim
“the Association shall actively support the Irish language... through its clubs” (Rule
4a). It also claims to be democratic and non-party political/non-sectarian. (Rules 6
and 8).
These additional aims, and its identification with the ideology associated with the
foundation of the State, distinguishes it from typical sporting organisations which
do not have agendas wider than the promotion and organisation of a particular
sport.
Amateur status.
The second important feature of the G.A.A. is that it is strictly an amateur
Association. This means not only that the players are not paid for participation, but
that the administration of the clubs throughout the country is in the hands of unpaid
volunteers.
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The people, who wash jerseys, line the pitches and man the turnstiles, do so on a
voluntary basis. The same is true, in general, of the officers of the clubs and of the
County Boards. There are a few exceptions, but the general picture is one where the
local administration is done by unpaid volunteers who do so for the love of the
games and out of a sense of social duty. This means, of course, that they are not
normally lawyers or persons of legal training. Rather are they characterised as
persons who are committed to the games and the ideals of the Association, and as
persons who in their decision-making roles display large measures of pragmatism
and common sense. For the most part, they are not trained professional
administrators, but enthusiastic amateurs. It would appear to me that provided the
basic rules are not inherently unfair on their face, the process is not flawed because
it relies on commonsense and a layman’s pragmatism, even if, on occasion, it is a
somewhat robust process. In such a situation one cannot demand a level of
sophistication in the administration that one might expect of a lawyer or of a
professional administrator. Further, to demand such a level of professionalism in
the administration might well undermine the very success of the organisation to the
detriment not only of the Association itself, but to the detriment of society in
general.
Neither are the players paid to play, which means, in turn, that decisions by the
disciplinary bodies within the G.A.A. can rarely threaten directly the livelihoods or
the income of the players. In this respect the G.A.A. differs from sporting
associations where members are paid to play. In these latter cases, because of the
economic consequences of an adverse determination for the player, greater
safeguards may be warranted both in the definition of the safeguards and in the
application and administration of the rules.
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That G.A.A. players are not paid directly for playing, however, does not mean that
disciplinary decisions are always trivial or of little consequence. In many
communities throughout the country, winning a county championship, a provincial
title or an All-Ireland medal, is a matter of great consequence and has serious social
significance. Many of the players on such teams are heroes in their own localities
and secure for themselves enormous kudos and status in their communities. They
are toasted by the media and are frequently recruited to assist in public and
charitable events, particularly of a fund-raising nature. It is not surprising that they
should prove to be attractive targets for political parties seeking local candidates at
election time. Moreover, it should be recognised that, even though a player does not
benefit economically in a direct sense, the prominence and fame which they earn in
playing the game, and the network of friends and admirers they build up during
their playing careers, has an indirect economic benefit for them.
The consequences of a disciplinary hearing even for an amateur player in this
context can be significant and should not be trivialized. What is said here of players
is equally true, especially in recent times, of managers and trainers who, of late, are
also recognised and lauded for their efforts in bringing success to their counties and
clubs.
V. Disciplinary Jurisdiction and Rules of the GAA.
Disciplinary matters are dealt with in the Official Guide in Rules 137 to 155
inclusive. The rules especially relevant to these proceedings are reproduced here:
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Rule 140: Disciplinary Jurisdiction:
“Central Council, including its Management and Games’ Administration
Committees, Provincial Councils and County Committees shall within
their respective jurisdictions have the power to investigate irregularities
and to suspend, warn, fine, disqualify or expel Councils, Committees,
Clubs, Teams, and Members for breaches of the Rules of the Association
or any Bye Law made thereunder, for any breach of discipline, for conduct
considered to have discredited the Association, or for breaches of the
Association’s Guidelines or Directives....
Any penalty imposed shall be operative throughout the Association.”
Rule 142: Procedures:
(a) Whenever the relevant Council or Committee proposes to adjudicate on
any disciplinary matter (that may involve any penalty, other then those
specified in Exceptions below) it shall give the Council, Committee, Club,
or Member alleged to have offended notice in writing of the alleged
offence. The body or member shall have three days from the date of
receipt of the notice to make written representations or to seek, in writing,
an oral hearing in relation to the alleged offence, which hearing shall be
granted on request.
Written representations shall in the case of a Body be made by the
Secretary of that Body, and in the case of a member by the individual
personally. At an oral hearing, a Body shall be represented by a maximum
of two of its full members, and a member shall appear personally, and may
be accompanied only by a full member of his Club/Unit....
(b) All motions for disciplinary action shall be moved and seconded. In the
event of a motion not being moved or not being in order, or when moved
the voting is equal, the Chairman of the meeting shall impose an
appropriate penalty. In no instance shall a term of suspension or other
penalty be less than the minimum specified by Rule.
(c) When a penalty is imposed, other than in cases covered by the
Exceptions in (a) above, the Council, Committee, Club or Member shall be
informed, in writing, of the decision and the Rule(s) under which the
decision was taken.”
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Rule 151: Appeal Procedure:
(a) County Committees in all cases shall have the right of appeal to the
Central Council.
(b) Subject to two hearings on the point at issue, an aggrieved Club or
individual shall have the right of appeal against the decision of a
Divisional Committee to the County Committee, against the decision of a
County Committee to a Provincial Council, or against the decision of a
Provincial Council or the Games Administration Committee to the Central
Council. An appeal by a third party (not directly involved), is not
allowed....
(d) In the case of an individual penalised or aggrieved, a Club or other unit
may not make an Appeal on his behalf. The aggrieved individual shall sign
the Appeal.
(e) An appellant must appear at the hearing. A Club/Unit shall be
represented by a maximum of two of its members. An individual appellant
shall appeal personally and may be accompanied only by a member of his
Club/Unit.
(f) There shall be no appeal except as provided in these Rules, and in
particular there shall be no appeal to any Court of Law or to any outside
body, on any matter.
(g) Points not made in the original case which are relevant may be
considered, but only witnesses heard in the first instance may be called.
(h) An appeal shall not be upheld unless there is clear infringement or
misapplication of a rule.
It should be noted that the defendants did not rely on para. (f) above in these
proceedings. Rule 152: Investigation Procedures:
(a) A motion to carry out an investigation into any matter must be
proposed, seconded and have the relevant Committee present and voting.
(b) The Committee in Charge shall decide the composition and terms of
reference of the Investigation Committee.
(c) The Investigation Committee shall decide the date, time, and venue of
an initial hearing and the names of those required to attend.
(d) The Investigation Committee shall give at least three clear days notice
in writing to all bodies or individuals summoned to the hearing.
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(e) The parties involved in an investigation shall be entitled to have in
attendance two representatives, (who shall be full members of the
Club/Unit involved), who may present their case and call relevant
witnesses.
(f) The evidence of match officials may be heard privately by the
Investigation Committee, but such evidence shall subsequently be
conveyed to the parties involved in the investigation.
(g) While evidence is being given witnesses, other than match officials
already heard, shall remain at the hearing.
(h) Where it is established that a prima facie case has been made that a
Member or Unit has a charge to answer, the procedures outlined in Rule
142 (a) shall apply, or being present, the Member or Unit may waive
his/its rights under this Rule.
(i) The Investigation Committee shall report its findings and recommended
penalties, if any, to the parent Committee, unless Bye Law provides
otherwise.
(j) Where a penalty is imposed, the Council, Committee, Club or Member
shall be informed in writing of the decision and the Rule(s) under which
the decision was taken.
Given the nature of the Association and the issues that have to be determined it
appears to me that the rules and regulations and governing disciplinary procedures
are adequate and satisfactory. There is no inherent deficiency which renders them
so inadequate that they are unacceptable as a scheme, and in my opinion they
satisfy any contractual term that may be implied that the Association will apply fair
procedures in dealing with disciplinary matters relating to members. They provide
for adequate and sufficient notice of the alleged offences to the parties affected and
for an oral hearing where the parties may give and call evidence and confront their
detractors. The procedures may not be as strict as the rules which prevail in a court
of law, but given what is at stake and the nature and function of the G.A.A., it
would be wrong to pronounce them inadequate. That the procedure is more
inquisitorial than adversarial is not to suggest it is unsatisfactory for the job it is
designed to do. Fair procedures is a relative concept and must be assessed in the
context in which it operates. Trivial and urgent matters in such situations may
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warrant less formality. The important thing to bear in mind is that the member is
not materially short-changed in all the circumstances of the case.
The rules are certainly not so deficient as to exercise a court of law to such an
extent that it should feel motivated to intervene on the basis of manifest unfairness.
The twin concepts of (i) nemo iudex in causa sua and (ii) audi alterum partem are
clearly recognised and catered for in rules and as a system it could not be
condemned as one incapable of guaranteeing fair procedures to any member in
dispute with the Association. That the only internal appeal is more a review process
than a full rehearing does not alter my view of the situation. Moreover, given the
peculiar features of the G.A.A., its wide objectives and its amateur status, more
demanding requirements might prove detrimental to its smooth operation and
threaten its continued success.
VI. Did the Defendants observe and apply these rules in the present case?
In the present case I must first examine whether and the procedural rules were
observed by the County Board, by the Special Investigation Committee and by the
Provincial Council. If the procedures were not properly observed, the plaintiffs
would be entitled to a decision in their favour. If, on the other hand, the procedures
were observed, no further enquiry is warranted by this court.
From the evidence before the court I am satisfied that the procedural requirements
were properly observed in this case. In accordance with rule 152, the initiating
motion to carry
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out an investigation was properly proposed and passed by the relevant committee;
(See minutes 21st July, 2003). At the first meeting of the Special Investigation
Committee, the first and second defendants, who were ex-officio member of that
committee, indicated, that they could not participate because of by-law 32(b). This
was clearly a recognition of the principle of nemo iudex in causa sua. They
withdrew and a chairman and secretary were properly appointed from the
remaining members. Notice was then sent in a timely fashion on 26~ of August,
2003 to the plaintiffs indicating that they should attend a meeting scheduled for the
1st September, 2003 at 8.30 pm. The Special Investigating Committee finally gave
a unanimous decision in favour of suspending both plaintiffs and this was
forwarded to the Meath County Board for adoption by the County Committee in
accordance with Meath –law 32(a). The plaintiffs availed of the appeal process
provided for in Rule 151 without success.
The plaintiffs advanced the argument that they were unaware of the nature of the
charges levelled against them. The first letter of notice was sent to them on the 26th
of August, 2003 and is reproduced here:
“Re: Leinster and All Ireland Junior Football Championship 2003
A Chara, Mhairtin,
Arising from the decision of Executive Committee of Coiste na Mí C.L.G.
on 7th July 2003, which was ratified at a Coiste Contae meeting of 21st
July 2003 and instructions given by Cathaoirleach Coiste na Mí C.L.G.
and the Executive Committee to the Meath Junior Football Team
Management and Selectors:1. That Gary Rogers cannot be included on the Meath Junior Football
Panel (1-24) for 2003.
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2. Also incidents in the dressing room before An Mhí v. Ciarraí All Ireland SFinal in Nenagh on Saturday, l9~ July 2003.
These matters were discussed at a Coiste Chontae meeting on 2lst
July 2003 and it was proposed and seconded that this matter be
referred to the Special Investigation Committee. This decision
was unanimously approved
3. Issuing of changes to the official list, switching of substitutes jerseys
and giving No.20 to Gary Rogers who was not on the Panel before the
match.
I am to inform you that you are summoned to attend a Special
Investigation Committee meeting to be held on Monday, 1st September
2003 at 8.30 p.m. under Rule 140 T.O. 2001.
Mise le meas,
Bernard O’hAilpín
Rúnaí.”
Although somewhat clumsily formulated the letter indicated three matters of
concern: numbers 1 and 3 related to the background to the dressing room incident
and number 2 specifically identifies the dressing room incident as being of concern.
As written it would appear that the Special Investigation Committee was at least
going to be concerned with the dressing room incident and it is arguable that this
was to be its only concern.
Furthermore, Rule 140 of the Official Guide, 2001 was specifically mentioned in
the letter and as can be seen from a reading of this rule it covers “any breach of
discipline, for conduct considered to have discredited the Association, or for
breaches of the Association’s guidelines or directives.” Clearly what was at issue
was, the plaintiffs’ refusal to obey the County Board’s directives relating to
including two players considered ineligible in the panel, failing (allegedly) to
honour undertakings given in that regard, and, confronting two of the more senior
officials of the County Board in a physical and abusive way in the dressing room.
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I am of the view that this was sufficient specificity in the circumstances. It should
be noted that the Special Investigation Committee had originally scheduled the
meeting for the 1st September and then for 4th September, and finally agreed to
meet on the 15th of September. All of these postponements were made at the
request of the plaintiffs. In their request for these adjournments the plaintiffs
expressed no concern relating to the specificity, or lack of it, of the matters to be
investigated. Moreover, if there was some uncertainty in their minds on receipt of
the letter, they can have been little ambiguity after the first meeting was held on the
15th September, at which Mr. Barry gave evidence. This meeting was then
adjourned to facilitate Mr. Rogers, and we know from the evidence that both
plaintiffs were in communication with each other after this and, indeed, jointly
consulted a solicitor on the matter. In these circumstances, Mr. Rogers, being fully
apprised by Mr. Barry of what transpired at the first meeting on the 15th, can have
had no doubt about the nature of the charges being levelled against him when he
attended the adjourned meeting on the 29th of September. The plaintiffs also
brought with them on that occasion, as witnesses on their behalf, some players who
were also in the dressing room on the day in question, which indicated that on the
29th September both plaintiffs clearly appreciated that the dressing room incidents
were of major concern to the Special Investigation Committee.
When the Special Investigating Committee eventually convened on the 15th
September, 2003, two postponements having been granted to the plaintiffs, Mr.
Rogers left at approximately at 9:15pm as he alleged he had other commitments.
Mr. Barry remained and gave his evidence.
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21
There was a dispute on other factual matters and I will deal with these now.
On 15th September when the first meeting of the Special Investigation Committee
was held, Mr. Barry gave evidence that when the plaintiffs entered the meeting
room the first and second defendants were already inside in the room where the
Special Investigation Committee convened. The suggestion advanced was that they
were already speaking to the members of the Committee. The first and second
defendants and the chairman of the Committee denied this. Mr. Rogers could give
no evidence to support Mr. Barry in this regard since on the 15th, he had left before
the parties were called in. In relation to the meeting convened on 29th September,
however, Mr. Rogers confirmed that all parties entered together, commenting that
Mr. Ginnity, the first defendant, “ran [into the meeting room] before them”. From
the evidence, I find that the first and second defendants were not inside
communicating in any significant way with the Committee before the meeting
began on the 15th. The two defendants were in fact waiting in another, larger room
which led into the committee room at that time. The committee in fact was in
private session between 8.30 pm and 9.lOpm and the first and second defendants
were not present but were also outside waiting to be called, but in a different room
and out of sight of the plaintiffs.
Mr. Barry has also alleged that he was not present when the first and second
defendants gave their evidence on the 15th of September but, in contrast, he was
obliged to give his evidence in the presence of the defendants, who according to
Mr. Barry heckled him.
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Again I find, having heard the evidence, that on the balance of probability all
parties were present at the same time when the evidence was given. It is true that
Mr. Barry was not specifically asked whether he wished to cross-examine the
defendants, but in the context of the hearing, where there was a certain amount of
crossfire and interaction on both sides, there was little need to put that formally to
the plaintiff. The inquisitorial nature of the meeting should again be emphasised at
this juncture. From the evidence given I find that the hearing although characterised
by some interruption and conducted, perhaps, in a somewhat robust fashion, was
one where all parties were given the opportunity to contribute and where all parties
were heard. Moreover, it should be noted again that the matter was not finished on
the 15th September; the meeting was merely adjourned. The parties were to have
another opportunity to address any perceived imbalances on the 29th September.
Mr. Rogers also complained that when he attended the first meeting on the 15
September, which was scheduled to commence at 8.30 pm, he was not called by
9.10 pm and he left without giving his evidence. It was unreasonable, in my view,
of Mr. Rogers to expect that he might have been finished by 9.15 on that evening.
The meeting was scheduled to commence at 8.30 and since there clearly were many
witnesses there was every possibility that the meeting would not be finished by
9.15. Moreover, if Mr. Rogers had time constraints why did he not signal his
difficulty when requesting postponements from the 1st and 4th September to the
l5th September, requests which were readily granted? Similarly, when he arrived at
8.20pm on 15th September he might have let the Chairman know that he had a time
difficulty, and offered to give his evidence first.
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There is no reason to suspect that such a request would have been refused. The
Chairman was entitled to be somewhat sceptical of Mr. Rogers’ intentions at that
stage.
The plaintiffs also complained that when they attended on the next occasion, that is
29th September, 2003, their solicitor was not given a fair hearing. It is clear from
the rules that members who attend the hearings of the Special Investigating
Committee are entitled “to be accompanied only by a full member of his club!
Unit”. (Rule 142(a)). The rules do not permit legal representation as such at these
hearings, and the plaintiffs’ solicitor did not qualify as “a full member” of the
relevant club. This was the reason the meeting broke up on that occasion, and why
the Chairman was obliged to adjourn once more. In both of these cases, Mr. Rogers
has only himself to blame for his failure to give his evidence or to tender as
witnesses other players who where in the dressing room on the day in question.
Notice of the third meeting scheduled for the 13th of October was served on the
plaintiffs on the 3rd October, 2003. Mr. Rogers said he sent a letter on the 10th of
October seeking a further adjournment on the basis that the date was unsuitable.
The Chairman said he saw it for the first time at the meeting on the 13th. Mr.
Rogers in his letter excused himself on the basis that he was working on night shift
at the time at Tara mines. He gave no alternative dates, but he said he would attend
when a suitable date could be found. He further said he would be on holidays for
two weeks commencing the 18th October, 2003.
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The Chairman said in evidence that he felt the plaintiff, Mr. Rogers, was playing
games with and was trying to disrupt the work of the committee. In the
circumstances the chairman went ahead and the committee unanimously agreed to
recommend the suspensions. Given the history of Mr. Roger’s conduct up to that
point it was not an unreasonable conclusion for the Chairman to come to. If Mr.
Rogers worked on three-week shift cycles, he must have been aware as early as the
4th October, that the 13th was unsuitable. Why then did he have to wait until the
10th to forward his own letter declaring that the 13th was once more unsuitable? If
the committee went ahead with its decision in the absence of Mr. Roger’s evidence,
he has no-one to blame but himself.
Mr. Rogers further alleged that he was not given an opportunity on the 29th to
tender as witnesses other players who were in the dressing room on the day in
question. This also has a hollow ring to it. The fact was that two players, called by
the defendants, gave evidence on the 15th and Mr. Rogers must have known this as
Mr. Barry stayed on at that meeting. Clearly, there was no reluctance to take
evidence from anyone who was in the dressing-room on the relevant date.
Furthermore, when asked why he brought his solicitor to the second meeting, in
contravention of the rules, he said he did so because he saw the County Board’s
solicitor in the vicinity of the meeting on the first night, and he wished to “even
things up”. There was no evidence that Mr. Keane, the County Board’s solicitor,
was present that night at the invitation of the defendants or of the County Board,
and as an active member of the G.A.A. Mr. Keane might have been there for other
reasons. In any event, Mr. Keane, even if in the vicinity, did not go into the meeting
or participate in its deliberations on the first night.
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The plaintiffs’ solicitor, however, went into the meeting and interacted, very
stridently according to the defendants and the chairman, with the Chair and refused
to leave the meeting. The plaintiffs’ solicitor was not entitled to be there and the
Chairman, because of the disruption, had no option but to adjourn the meeting. The
plaintiffs on that occasion had brought other players from the dressing room with
them to give evidence, but because of the disruption caused by the unauthorised
attendance of the plaintiffs’ solicitor, Mr. Rogers lost his opportunity to give his
own evidence and have his witnesses heard. The missed opportunity was Mr.
Roger’s own fault. Mr. Rogers was never refused the opportunity of calling
witnesses on his own behalf.
I have already found as facts, from the evidence presented to the court that (1) the
plaintiffs were adequately informed of the charges against them; (2) that Mr. Barry
was present when the defendants gave their evidence and had a reasonable
opportunity to challenge them; (3) that Mr. Rogers if he did not give evidence on
the 15th and 29th of September, it was because of his own unreasonable conduct on
both occasions; (4) that in bringing their solicitor to the adjourned meeting of the
29th September, the plaintiffs were in clear breach of Rule 140 (a), and it was the
solicitor’s insistence on participating that caused the adjournment on that occasion.
In the circumstances I find that the rules of procedure set out in the Official Guide,
governing such disciplinary hearings, were properly applied in respect of the
investigation and suspension of the plaintiffs.
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As a final word in this matter I should say that one must expect that laymen
applying the disciplinary rules will occasionally do so in a somewhat robust
manner. Provided those administering the rules, however, do so in a bona fide
manner, giving each side a fair opportunity of participating, the onus on members
who wish to challenge the findings and decisions is a heavy one.
One must be careful that the heavy hand of the law does not weaken the operation
of such voluntary bodies or undermine the considerable benefits they bring to
society.
VII. Conclusion.
I will deal with Mr. Barry’s case first.
Towards the end of his evidence Mr. Barry, to the surprise, not only of counsel for
the defence, but also, I suspect, of his own counsel, when asked about his
familiarity with the rules of the G.A.A. responded that he was not a member of any
club. He then went on to ask, rhetorically, “How could I be suspended when I’m
not even a member?”
In this, of course, Mr. Barry is right: The G.A.A. cannot suspend a person who is
not a member of a club or of the Association, and if it purported to do so in the case
of Mr. Barry, it did so under a mistake of fact.
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It follows from this that the rules of the G.A.A. and the provisions relating to
disciplinary proceedings in particular, are of no relevance to Mr. Barry. There was
no legal relationship between Mr. Barry and the defendants. Mr. Barry’s contract,
that he would manage the Meath Junior Football team was merely entered into as a
third party to provide a service to the Meath County Board for the season 20022003 in return for reasonably incurred expenses. The season, a very successful one,
was over and the contract terminated by the passage of time when he issued the
present proceedings in May 2004. By this time he had already been paid and the
term of the contract was finished. His whole claim in these proceedings is premised
on the assumption that he was a member of the G.A.A., or a club within the
Association and as such has the additional protection of its rules relating to
disciplinary matters. When he was summoned by the Special Investigating
Committee he could have answered that he was attending only as an outside
witness to give evidence as to what went on in the dressing room on the relevant
day. When he appeared at the appeal he could likewise have made it clear that he
was not a member and that the County Board could not in the circumstances have
suspended him from the Association since he was not a member.
In the circumstances, Mr. Barry’s claim must fail. The only contract he had was
completed, and he had been paid. Since he was not a member he had no other legal
relationship with the defendants and there is no question of the defendants having
been obliged to show fair procedures to a stranger.
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Further, there is no question of damage in being suspended from an Association he
choose not to be a member of. Even if he were to argue that as a result of the
“suspension”, he cannot now train other teams, he will be faced with the same
argument, namely, that this opportunity is closed off to him, not because he is
suspended, but because he has not a member. In fact, since he is not suspended,
there is no obstacle to him applying for membership of a club now, if that is what
he wishes. Further, Mr. Barry gave evidence that his services were in demand by
other units of the Association, even when he was “suspended”, which testifies to
the fact that his reputation as a trainer has not been diminished even by the
purported suspension of the Meath County Board.
In reaching this conclusion I am conscious that it is not uncommon in sporting
organisations throughout this jurisdiction, including the G.A.A., for the question of
membership to be a thorny one when players may not have paid up their annual
subscriptions. Different considerations can arise in these situations when the
question of membership arises in the context of insurance cover, for example, or
when issues of vicarious liability arise. In Mr. Barry’s case, however, no such
ambiguity arises. He clearly recognises and admitted that he was not a member of
any club and apparently he had never sought membership of any club.
I will, however, make a declaration that the County Board’s attempt at suspension
has no effect since Mr. Barry was not a member in the first instance, as the Board
mistakenly assumed.
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Mr.Roger’s Case.
Mr. Rodger’s case is different: as well as having an agreement to act as a physical
therapist for the season 2002- 2003, Mr. Rodgers was also a member of the G.A.A.
in good standing with his club. In his capacity as a member he is entitled to claim
that in contemplating disciplinary proceedings fair procedures must be observed
and that, at the very least, the defendants must apply its own disciplinary rules.
I have already indicated that it is my view that the disciplinary rules of the G.A.A.
are adequate and sufficient for that organisation and that in the present case the
defendants observed and followed the procedures set out in the Official Guidebook
and in its By-
laws.
If Mr. Rogers failed to give evidence or call witnesses it was largely due to his own
fault. The defendants tried to accommodate him in this regard, by agreeing to
several adjournments, but Mr. Rogers, unreasonably passed up the opportunity on
15th September, and by bringing his solicitor in breach of the rules to the meeting
on 29th September, caused the meeting to be further adjourned, again missing the
opportunity to give evidence and call witnesses. Mr. Rogers was fully aware of the
issues being alleged against him and the reason why he was suspended. It is
disingenuous of him to say otherwise.
In the circumstances there was no breach of contract by the defendants in this case.
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I would dismiss Mr. Roger’s claim for these reasons.
Bryan M.E.McMahon.
Judge of the Circuit Court.