The importance of obtaining effective witness statements in sports disciplinary proceedings

Sports governing bodies (“SGBs”) play a pivotal role in protecting the integrity of their sport by enforcing its rules, investigating those who breach them and sanctioning them appropriately. From allegations of doping to allegations of misconduct on social media, SGBs are often tasked with policing and investigating on-field as well as off-field conduct. Keeping on top of everything is no mean feat, and from charge through to sanctioning, the success of an SGB’s case can often rely heavily on the effectiveness of their investigatory procedures and processes.

Central to any investigation, relating to sports disciplinary proceedings or otherwise, will be the collection of evidence, primarily in the form of witness statements. Witness statements act as a witness’s evidence in chief and a vehicle for addressing all factual issues within the witness’s knowledge. Cases will often turn on the strength of this evidence so the importance of obtaining clear and compelling witness statements should not be underestimated.

In the recent past, there have been high profile sports related disputes where the process by which a statement was obtained has been subject to scrutiny. This article considers the factors and aspects of best practice that SGBs seeking to gather evidence in sports disciplinary proceedings should bear in mind. Please note that the article is written from the SGB’s perspective, not that of the respondent/athlete (which is separate topic).¹

Specifically this article examines:

• Identification and selection of witnesses
  • Start early
  • Explain the process and establish trust
  • Let the witness speak
  • Ask carefully chosen questions
  • Clarifying issues with the witness
  • Opinions
  • Technical points
• Creating the formal document
  • Formalities
  • Exhibits
  • Revisit and refresh
  • Retention
• Author’s comments

Identification and selection of witnesses 

Witnesses should be identified quickly.

In certain cases, there may be a number of witnesses that could be called upon. In these scenarios, thoughtful selection as to the identity and number of witnesses can be an important initial stage. The decision is going to be dependent on the facts of each case, but consideration should be given as to what key issue(s) can each witness speak to? Is evidence on that issue already covered by another witness?

It is important, so far as possible, that a witness can give clear, strong and well-articulated evidence. Where a witness will be required to give their evidence orally, consideration should be given to their ability to deliver their evidence in this manner and their ability to withstand potentially fierce cross-examination by the other side. 

Start early

Memories invariably fade over time, therefore witness statements (or a proof of evidence) should be obtained as early as possible. This will lead to the most accurate recollection of events, capturing a level of detail which could be crucial to the investigation as a whole.

Obtaining witness statements early will also allow investigators to gauge the merits of a case at an early stage and allow them to make an informed decision about whether to continue to spend valuable SGB resources on continuing with the investigation or draw a line under the matter. Such decisions may be of particular importance to SGBs which do not benefit from the level of resources that SGBs of mainstream sports may have at their disposal.

Explain the process and establish trust