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18 ESLJ 1 (2020)

handle is hein.journals/entersport18 and id is 1 raw text is: Livings, B and Wlodarczak, K. 2020. Procedural Fairness in the International SPNRTSi NT LA `UNAL Tennis Federation's Disciplinary Regime. Entertainment and Sports Law Journal, 18: 1, pp.1-12. DOI: https://doi.org/10.16997/esl<242 ARTICLE Procedural Fairness in the International Tennis Federation's Disciplinary Regime Ben Livings' and Karolina Wlodarczak2 1 University of South Australia, AU 2 Professional Tennis Player/Judge's Associate, AU Corresponding author: Ben Livings (ben.livings@unisa.edu.au) This article examines the International Tennis Federation's disciplinary regime as it applies to on- and off-court indiscipline, in order to assess the extent to which it complies with well-accepted requirements of procedural fairness. In so doing, it draws on two recent appellate decisions of the ITF-appointed Inde- pendent Tribunal in the cases of Ilie Nastase and Marcelo Rios, both former elite professional players who were at the time of their respective transgressions appointed to positions within the Romanian Fed Cup and Chilean Davis Cup teams, respectively. Keywords: tennis; discipline; procedural fairness; transparency; code of conduct Introduction Examples of on- and off-court indiscipline are not difficult to find in professional tennis, with recent high-profile instances including verbal abuse of the umpire (Mitchell 2017), unauthorised on-court coaching (Smale 2018), inap- propriate racial and sexual remarks (Nastase v ITF Appeal, Independent Tribunal SR, Andrew de Lotbiniere McDougall, Susan Ahern and Despina Mavromati, Case No 913 of 2017, 6 February 2018) and verbal abuse of members of the media (Federacion de Tenis de Chile & Rios v ITFAppeal, Independent Tribunal SR, David Casement QC, Case No 48 of 2018, 28 March 2018). Depending on the nature of the offence, tennis authorities have used their disciplinary powers to impose a range of punishments for this behaviour, extending from in-match 'point penalties', to fines and participation bans. The imposition of such penalties has itself proven controversial recently, with punishments imposed as a result of a well-publicised incident involving player Serena Williams and chair umpire Carlos Ramos during the final of the 2018 US Open, leading to accusations of partiality and even sexism and racism (van Pelt 2018). This article examines the International Tennis Federation's disciplinary regime as it applies to on- and off-court indis- cipline (excluding doping and corruption, which are beyond the scope of the present piece), in order to assess the extent to which it complies with well-accepted requirements of procedural fairness ('procedural fairness' is preferred to the older and arguably broader, term 'natural justice'). The ITF's disciplinary process in these matters is similar to many other sports, in that actions are usually commenced by way of an internal hearing. From here, it is possible to appeal to a purportedly independent tribunal and ultimately to the Court of Arbitration for Sport (CAS); the putative 'world supreme court of sport' (McClaren 2010). The article draws on two recent appellate decisions of the ITF-appointed Independent Tribunal in the cases of Ilie Nastase and Marcelo Rios, both former elite professional tennis players who were at the time of their respective trans- gressions appointed to positions within the Romanian Fed Cup and Chilean Davis Cup teams, respectively (ITF v Ndstase paragraph [1.1]; Rios v ITF paragraph [1]). An examination of these cases and the applicable rules and processes raises questions that are reminiscent of those asked of the CAS, regarding structural independence and secrecy (Vaitiekunas 2014, Duval 2017). As a result, the ITF's disciplinary regime is susceptible to criticisms around the safeguarding of pro- cedural fairness, but whether these concerns are justified is difficult to assess because of the attendant confidentiality and lack of transparency. It is therefore suggested that the disciplinary process would benefit from the public scrutiny that would result from increased transparency. The ITF and the Code The registered office of ITF Limited is situated in the Bahamas, but the International Tennis Federation (ITF) is governed by the law of England and Wales. Its role in tennis comprises the organisation of international competitions and the structuring, development and promotion of the sport (ITF 2018b). Although the governance of tennis is complicated by the existence and significance of other national and international governing bodies (principally the Association of

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