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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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