J'ACCUSE........J'ACCUSE  ( Article by Professor Hu Chi Ku Chi )

The use of club funds for a costly and unnecessary legal defence does , in my view , warrants severe condemnation. Any club chairman who sets out to persuade the membership to back such a foolish course of action , rather than seek other far less costly options on offer , should now hang his/her head in shame.
If members knew or realised that outcomes of trials are unpredictable , and that money spent in mounting a vigorous and robust legal defence is never likely to be recovered , then such a course of action is pure insanity. What gambler would bet on an outcome where even if he backs a winner he wins nothing and loses his stake money.  
Moreover , if the chairman had been asked to pay these exorbitant legal costs from his/her own pocket , then I'm more than certain another course of action would have been chosen , such as a quick resolution through mediation , or an offer to the plaintiff to drop the action in return for getting a proportion of the damages sought after. 
Why the chairman and committee failed to undertake a cost benefit analysis of a long drawn out legal defense beggars belief. If one considers the opportunity costs involved in a club wasting over £130,000 in lawyers' fees , then one would surely end up being racked with guilt , shame and deep embarrassment : a new club house , new facilities , funds for marketing ( and promoting the game to encourage new members ) , sound a much more sensible use of such money. The secured long-term future of the club is, and always will be , of paramount importance.
Sometimes one has to choose the lesser of two evils : pay out a few thousand to a plaintiff who perhaps doesn't deserve a penny , or pay out tens of thousands to lawyers.... who then advise you to accept a hands-down offer to walk away from the dispute , indicating that the judge is far more likely to make each side pay their costs.  
I once heard of a club spending an obscene amount of money on private investigators in an attempt to unearth and track down the author of a series of poison pen letters , when the sensible option was to simply ignore them. So why in God's name spend a six-figure sum on fighting a wrongful expulsion law suit , when a simple reinstatement or begrudging pay off was all that was required. When inmates have taken over the asylum , someone has to step up to the mark and allow common sense to prevail over raw emotions if fuelled by crass stubbornness , prejudice and pride. 
Moral : if you are going to be wrong , do it after careful consideration.
Committee members should always be conscious of the conflict between their personal interests and those of the club. Moreover, they should continuously examine the proposed actions like embarking upon , and continuing with , a dogged and determined legal defence. Is such an action really meeting the club's core objectives ? These of course include (i) staying financially viable , (ii) investing funds for the future development of the game , (iii) up grading the club's facilities and (iv) putting funds aside for other capital expenditure projects.
The answer any sane man or woman would give is an emphatic " no ".
Such expenditure , which to the casual observer seems a colossal risk and a complete waste of money , is both utterly irresponsible and unacceptable , no matter honourable the motives and intentions appeared to be at the outset. Litigation is the road to financial ruin : the folly of fools.
Serving on a committee carries with it a significant legal responsibility. Common sense can take one very far in conducting club activities properly. Listening to advice from all quarters , especially from those who urge on the side of caution and prudence , can help protect one's position. Care , loyalty and fidelity in all committee actions represent the best form of financial protection for the club. The chairman must therefore strive be the guiding influence and voice of common sense and reason.
On breach of that duty I accuse.......I accuse

ZERO TOLERANCE POLICIES ARE FLAWED : WHY ISN'T
ANYONE LISTENING ?............. ( Article by Professor Hu Chi Ku Chi )

Zero tolerance simply equates to zero judgement for bridge club officers.  These rule bound , rigid , inflexible keepers of the peace only act on what is laid down as best behaviour code of conduct , imposing punishments on all who are deemed to have committed rule violations no matter how small....... and certainly never taking into account any mitigating circumstances.
This blind and blinkered approach to enforcing rules come-what-may compels me to raise that warning flag.  Indeed , whenever a club committee adheres to a one-size-fit-all policy injustice will rear its ugly head for sure. There will be a list of unresolved issues when punishment seems unjust and unfair , akin to using a sledge hammer to crack a small nut. Those who dish out unwarranted and disproportionate punishment will either look foolish or vindictive. 
Zero tolerance does in my view has an important part to play in addressing gross misconduct , but in other situations where rule violations are petty and insignificant such draconian policies are flawed. Surely to god there are other preventative measures which can be put in place to improve behaviour without using the proverbial sledge hammer. I'm all in favour of progressive fines as money tends to have a sobering effect on most people. 
What upsets me more than anything is seeing punishment handed out to the innocent for crimes committed by the guilty. Why should a player be reprimanded for showing his /her disapproval  ( with a few well chosen words ) to a slow player. This kind of villain , who one could unfortunately be following all night around the room ,  not only disrupts the play , but also likely to hold up the whole movement ,  often causing the last round of boards to be forfeited. 
ZT policies are by definition inflexible , harsh and lacking in common sense. Law enforcement officers , or should I say bridge police , need to apply both compassion and discretion when mitigating circumstances can clearly be established.
In common law the starting point is always establish a general rule , but over the years in the interests of justice wisdom has prevailed as learned judges introduce exceptions to the rule , and then where necessary exceptions to the exceptions. Everything is judged in effect on the merits of the case , where mitigating circumstances will always be explored and acknowledged. 
Therefore within the framework of ZT policies , there needs to be a measure of flexibility and movement in order to establish a reasonable and fair minded response. Bringing a knife into a club with intent to harm someone is one thing , but bringing a knife in to use in self defence is another.

CAN WE KEEP THE TROPHY PLEASE ?...... ( Article by Professor Hu Chi Ku Chi )

Imagine this scenario : a team representing their country qualify in a regional event for the world championship finals , which as it happens they go on to win. Then it transpires that in the qualifying round one pair had now been exposed as cheats , although they didn't take part in the finals. The team which did take part played with great skill , honesty and integrity and were worthy winners. Should this team be stripped of their title and be forced to return the trophy ?
The answer must be a resounding YES.
No matter how hard it appears to be for the members of the winning team to forfeit their title, imagine how hard it is for the runners up in the qualifier to know that cheating had robbed them of a place in the finals. But the harsh reality is this. If the cheating incidents had come to light before the final , the team would have been disqualified straightaway with the runners up taking their place. Indeed the discredited team  had no legitimate right to participate , because there has to be a fundamental requirement that participation for the finals was honestly earned. So even if the cheating incidents came to light after the finals , then disqualification can and must be RETROSPECTIVELY implemented. In these circumstances all the results involving the discredited team should automatically be made null and void , with new winners duly declared. 
So yes , this particular history book has to be rewritten with the trophy handed back. 
    

WHEN IT COMES TO DISCIPLINARY HEARINGS EVEN TOP ACADEMIC UNIVERSITIES GET IT ALL WRONG....
( Article by Professor Hu Chi Ku Chi )

No matter where you look ,  disciplinary processes and decisions are often flawed giving rise to well founded claims that those in the dock have been cheated of justice.

Even universities , where disciplinary panels are made up of extremely well qualified staff with access to the resources and expertise located in their law faculties , operate like amateurs making one mistake after another. 
In a recent article in the " I " newspaper , Dr Daniel Sokol , a leading barrister in this field of law , seemed  appalled at the lamentable performance of these high powered disciplinary panels. On many occasions he felt the process was a disgrace , and therefore much of his criticism was directed at the chairmen involved.

There was so many failings within  the disciplinary process  which  beggared belief , as outlined in the following extract :

The author then went on to say that in some cases the length of the initial hearing was no more than 15 minutes , even though expulsion was clearly on the cards. When certain things needed to be disclosed they were not. So when he , on behalf of the student , reminded the chair that a particular report should have been disclosed earlier  to allow time to review it , the chair's response was " We don't do that , and we find that the report just confuses students ".


















                                                
This notion that we did what we felt was right smacks of gross naivety , vanity and self-delusion. Not only should appeal panels religiously follow their own rules and regulations to the letter , but they also need to recognise and adhere to the basic rules of natural justice. Yet panels choose to give students , say accused of plagiarism , a really hard time. This is fine , as long as the questions are fair. Moreover , panels should not automatically greet evidence produced by the students with suspicion , whilst at the same time taking testimony of the academic staff making the complaint at face value as infallible evidence . Indeed , there had been instances of students being denied the opportunity to call key witnesses to give evidence on their behalf. Once when acting as counsel he pointed out to the panel  a query regarding evidence given against the student by an absent witness , since he/she was unable to confirm their evidence , or have it challenged by others. And what was the chairman's response ?  " Oh , it wouldn't make any difference anyway ". This reply sent out a clear message that guilty verdicts had already been decided upon. 
What the author knows to be true is that any person brought up before a disciplinary body has the fundamental right to expect a reasonable standard of fairness , throughout the whole process. This could only be possible if the panelists were properly trained , resourced , and supported by those in a position to offer sound legal advice and guidance. This quasi-judicial task is not one which should be carried out by ill-trained panelists with little understanding of what constitutes a " fair " hearing . No one deserves a panel who simply reach decisions on the basis that they feel what they're doing is right . Surely , the process needs to be right in order to arrive at a fair and correct outcome ?  A tainted process raises too many questions about the reliability, merit and value of the outcome. No one deserves to be cheated of justice.    

COGNITIVE ILLUSIONS ....... ( Article by Professor Hu Chi Ku Chi )

Cognitive illusions occur when the flawed , irrational thinking individuals still choose to hold onto their erroneous beliefs , even though evidence can be produced to show that the premise on which those beliefs were founded lacked any credibility whatsoever. 
Psychological experiments have shown time and time again that a belief founded on original knowledge known to be false still exerts a lingering influence on all subsequent decisions and judgements. It is impossible for the flawed , irrational individual to hit the reset button. A poisoned mind unfortunately remains poisoned, since there are no known antidotes to cure cognitive illusions. 
Jurors provide a wonderful example of people renown for succumbing to cognitive illusions. Lawyers know this human trait all too well , as they set out to plant the seeds of a false belief in the minds of such gullible people. Once the jury adopt a view or belief about the accused , then the outcome almost becomes a foregone conclusion. Objections by the opposing counsel will no doubt be lodge , and judges will ask the jury to disregard the " these last statements ", but to no avail. The poisonous seeds once planted will leave a permanent impression on the minds of the jurors. So even when compelling evidence is introduced later on by the opposing counsel , it is completely ignored. The erroneous belief is firmly in place and with it a predetermined verdict which refuses to be dislodged.
So in the context of a bridge club's disciplinary process , the committee are obliged to act as both judge and jurors. However , the fact that they all hold subjective opinions about the accused member, whether positive or negative , does not bode well for justice. If he/she has already been labelled as a " bad apple " , the incident complained of can never be looked at in an impartial and objective way. 
Committee members will come to the meeting ( or hearing ) with a set belief , and even when evidence is produced to discredit , undermine or disprove that belief , pre-judgements based on that belief have already been made. Many will have invested a significant amount of cognitive effort in making sure that belief is consistent with the psychological feelings they have towards the accused member. Therefore feelings of loathing and hatred fly in the face of fairness and justice , as the committee will be extremely persistent and resistant to change. The cognitive illusion forbids such change , and so an insidious errors of judgement will be made.
The Human Condition is such that we all to a lesser or large extent suffer from a multitude of failings and shortcomings. But the real tragedy is that each one of us remains blissfully unaware of the construction of our beliefs , and the mental processes that lead to them. Belief perseverance is in itself the reason why so much injustice occurs. People only believe what they want to believe in , and reject anything they choose not to believe in. Cognitive illusions , like optical illusions , distort what we see , or believe to be seeing . Indeed, cognitive illusions completely undermine the individual's ability to look at things with an open mind.  

LOVELL'S BIG MISTAKE : A CAUTIONARY TALE .....( Article by Professor Hu Chi Ku Chi )

If you ever have the misfortune of being slung out of your club then jumping the gun and going straight to court ( to seek a declaration that the decision should be aside as null and void ) may be a very big and costly mistake. 
The following case illustrates this point all too clearly :

Lovell v Pembrokeshire County Cricket Club

Reference [2003] ISLR, SLR-39 
Court Haverfordwest County Court

Judge Neuberger J

Date of Judgment 1 May 2002

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Summary

Sports law – Amateur sport – Rules as a contract – Incorporation of terms – Breach of natural justice – Exhaustion of domestic procedures – Declaratory relief

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Facts

Mr Lovell (‘L’) was a cricketer playing for a club affiliated to Pembrokeshire County Cricket Club (‘D’) in the Pembrokeshire County Cricket League. During a match in August 2001, L claims that he was verbally abused. At one point, when L was at the crease, he claimed that a rival player threw the ball at the stumps when the ball was plainly dead. This led to heated arguments at the time and subsequent formal complaints, lodged with the League, that L had sworn at rival players and the umpire and had manhandled a rival player. L was charged with misconduct. At the hearing L and each of the witnesses were only permitted to attend while they were giving evidence. Only the members of the Disciplinary Committee were permitted to ask questions. L was found guilty and debarred from playing for four months (including two months suspended). L did not pursue an appeal after being told that the same procedure would be used. He sought a declaration that the decision was null and void.

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Issue

(1) Did L have a right in contract (or on some other private law basis) to enforce D’s disciplinary procedures against D?
(2) If there was a contract, were its terms as regards disciplinary procedures breached? (3) If L was successful so far, should he be refused declaratory relief? (4) Should L be refused relief due to his failure to exhaust the appeal procedures?

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Held

Dismissing the action: (1) D’s disciplinary procedures were contractually enforceable. It is undesirable to interfere in amateur sport, but where a league has detailed rules, with teeth, including disciplinary procedures, and is organised under the auspices of a rule-making body (such as D) then the rules will be legally enforceable, although the Court should be careful before granting any relief. (2) D was in breach of L’s rights. The rules provided that a player charged has a right to attend the hearing, entailing a right to attend the whole hearing. D also presented L with evidence against him on the door of the court, and denied him the right to make submissions in mitigation. (3) But for the issues relating to appeal, L would have been granted the relief sought. (4) It would be inappropriate to grant relief given L’s failure to exhaust the appeal procedures, and the fact that an order for a re-hearing would place L in a worse situation than the appeal offered by D.

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Comment

The Court expressed a reluctance to “go poking its nose into amateur cricket”, but given the detail of the rules, and the sanctions they contained, held that these rules were legally enforceable. From an observer’s point of view it is difficult to ascertain what Mr Lovell thought he would gain from these proceedings: during negotiations the Defendant had offered him an appeal heard by a panel with a majority of independent members and an independent chair, meaning that, as the Judge observed, what they were offering was better than the re-hearing that the Court could offer him.

Clearly , the club committee were guilty of making procedural mistakes , which suggested that the disciplinary process was possibly flawed , and that Lovell may have been wrongfully suspended. Certainly he had good grounds to challenge the decision, but unfortunately for Lovell the committee as required by the club's Constitution did offer him a right of appeal to an independent and impartial body. This offer he chose to ignore. Not surprisingly the judge viewed his failure to accept this option as a major oversight on Lovell's part.
The courts see themselves as a final option , a last resort , when all other avenues to resolve the dispute in a fair and proper way have been explored and exhausted. Quite rightly , courts do not wish to interfere with the affairs of clubs and societies . Court time is extremely valuable and too precious to waste on matters , which often come down to personal feuds and vendettas. Nevertheless , if a real injustice has taken place despite the best efforts of both parties to settle the dispute out of court , then judges may well feel obliged to make a ruling.
And so the moral of this case can be summed up as follows : woe betide the party who comes to court having flatly refused to consider a sensible and available option , which could  (and should have ) resolved the dispute in a quick , fair , expedient and cost effective way.       

GETTING INVESTIGATIONS RIGHT ......... ( Article by Professor Hu Chi Ku Chi )

Procedural fairness in a club's disciplinary process involves , amongst other things , ensuring that a proper investigation of alleged misconduct occurs, and that all parties are heard and relevant submissions considered. It is not enough to say " we carried out an initial investigation as required under the Constitution " : it has to be done in a manner and way which satisfies the requirements of natural justice.
What is established as a point of law is that clubs are not bound by strict rules of evidence. Nevertheless, investigating officers must recognise there are certain guidelines which need to be followed.
Firstly , no investigating body should employ or resort to methods of inquiry , which favour the complainant and in doing so disadvantage the member accused of misconduct. In such circumstances there is a grave danger of an injustice being committed. In other words every attempt must be made to administer " substantive justice ". Therefore investigations must not accept gossip or hearsay. Nor must they attach weight to evidence provided by the complainant , simply because that person believes that their evidence should carry more weight.
Moreover , given that the standard of proof for investigations in not-for-profit organisations is " on the balance of probabilities , it would be far more prudent for investigators to attach an extra dimension where the offence under consideration is considered as serious. If certainty can not be established for a more serious offence , then a lesser offence must be substituted accordingly in any published findings.
Any allegation of misconduct , where the gravity of the consequences are serious indeed , then the case against the accused member must be proved to a reasonable satisfaction.  In such instances reasonable satisfaction should not be produced by inexact proofs , indefinite testimony or indirect references. To report back with a statement that the misconduct was inappropriate at best and aggressive and offensive at worst is wholly unsatisfactory. If the latter cannot be established or proved , then the former view is the only conclusion which can be safely arrived at. 
It is also very important for all available witness evidence to be obtained. So if a key witness , especially an impartial and objective observer , refuses to make a statement , then this huge absence of evidence seriously compromises the investigation. To proceed without his/her neutral evidence is dangerous , given that evidence submitted by the complainant and the accused are likely to be tainted with subjectivity and personal bias. For example , in one Australian case an investigator was criticised because she failed to interview any of the witnesses , who could have given a contrary view of events to that put forward by those making the allegations.
Finally, the investigators themselves should be neutral , as with the decision makers . This means that they have to be , and also seen to be , objective and impartial. So if either one , or both , have declared their intent and desire to see the accused member slung out of the club , long before the alleged misconduct took place , then serious questions about their objectivity and impartiality are bound to be raised. The duty to remain impartial is a basic requirement in any disciplinary process , and those who harbour bias and prejudice need to step down ......or otherwise be accused of having a conflict of interests. Such unfortunate circumstances might just convince a court that natural justice  has been cruelly denied to the accused member.


Postscript : An illustrative case from the world of sport :

Carter v New South Wales Netball Association 2004

When a complaint is made about the conduct of a coach, spectator, player or official, the sporting body must follow a proper process in handling the matter. Otherwise the decision arrived at may be held to be null and void.

Ultimately, those involved in sport need to behave in an appropriate manner and in accordance with these policies. However, as the following case will illustrate, there can be a fine line between what constitutes “abuse” and what does not, such as “excessively enthusiastic coaching”.

This case involved the conduct of a volunteer junior netball coach and life member of the Mount Druitt Netball Association, Sandra Carter. Dissatisfied parents who formed the group “No Excuse for Abuse Committee” wrote to the New South Wales Netball Association (NSWNA) and alleged that Ms Carter was guilty of “physical and psychological (abuse), gross neglect of duty of care, medical mismanagement, deprivation of prescribed medicine and basic human rights, deception and cheating”. This letter was forwarded to Ms Carter for a response. The letter did not particularise any person alleged to have been abused and was therefore hard to refute in any detail.

The NSWNA appointed an Investigator to investigate the allegations and conclude whether or not Ms Carter had breached the NSWNA’s Anti Harassment Policy (the Policy). After what was a poorly conducted investigation, the Investigator concluded that Ms Carter had breached the Policy. The NSWNA’s Disciplinary Committee then proceeded to ban Ms Carter as a member of Netball NSW for a period of five years. As per the Policy, the NSWNA then notified the Commissioner under section 39 of the Commission for Children and Young People Act 1998 (NSW) of this finding of guilt.

The Court overturned the decision and noted that the Disciplinary Committee was required to afford Ms Carter procedural fairness. Further, the Court held that the Disciplinary Committee should have amongst other things:

• Informed Ms Carter with sufficient particularity of what she was accused and by whom;
• Given Ms Carter a reasonable opportunity to consider the specific accusations in advance of her interview with the investigator, so that she could consider her position and obtain legal advice if she thought it necessary;
• Afforded Ms Carter an unbiased, fair and reasoned decision on the part of the Disciplinary Committee of NSWNA, after conducting a fair hearing and impartially considering the evidence on both sides.

The community rightly demands serious penalties for those who breach policies designed for the protection of children. However, club officials must not give in to community pressures at the expense of the rights of individuals. “Officials responsible for the application of these policies should exercise caution to ensure that legitimate concerns do not manifest themselves in a blinkered and zealous crusade, where natural justice and the rights of the individual are sacrificed in order to achieve an expedient Machiavellian outcome”.

We have seen in Carter that innocent parties can be wrongly found guilty if officials do not conduct a fair investigation or unbiased hearing. In the case of Carter, the conduct which was construed by some as “child abuse” was construed by the Court to be “excessively enthusiastic coaching”.

WHAT IS A TRAGEDY ?........ ( Article by Professor Hu Chi Ku Chi as a tribute to the Chesterfield watchers )

A disaster waiting to happen ?  A sad and painful ending to a story , which was both unnecessary and avoidable ? An event causing great suffering and distress. ? A series of interconnecting events which as they unfold lead to an unhappy ending.
It seems there are as many definitions of tragedy as there are different kinds of tragedy , some personal and others affecting large numbers.Yet whatever type the tragedy unfolds , observers are left experiencing  fear and pity. They fear for the worst possible outcome , and they pity those who are the tragic victims of such unfortunate consequences. Bigger tragedies can involve a huge range of emotions , such as anger , indignation , nostalgia , desire and anticipation. Often this complicated mixture of emotions matches the unfolding sequence of events.
When tragedies are the consequence of people's shortcomings and failings , their ignorance , moral weaknesses , lack of foresight and/or personality defects , the finger blame is immediately pointed at those responsible. Yet the beginnings often appear as harmless , innocuous ,  small and insignificant events , but once the die has been irretrievably cast the tragedies can not be averted.
At present I am helplessly watching a tragedy unfold , which has been brought about by human folly. A fleeting almost theatrical act of petulant behaviour triggered an avalanche of prejudice and mistakes as severe and unwarranted reprisals were doggedly pursued. What started off as an insignificant incident at a bridge table has developed into a bitter legal battle , where there will be no winners ......only losers. 
The tragedy is that hindsight can never make up for lack of foresight , and that whatever disasters befall the two parties concerned ,  the fact remains they were both predictable and avoidable. Common sense was never allowed to prevail over prejudice , pride , self-denial and anger. 
Indeed , while the sheer scale of human folly increases ever more in a seriously insane world, tragedies will never cease to occur. People , despite best advice , continue to ignore history , the mistakes of others  and , of course , their own.   

      

TRUSTEES : THEIR ROLES AND RESPONSIBILITIES.....
( Article by Professor Hu Chi Ku Chi )


Many private , unincorporated social clubs have a set up which empowers the committee to manage and run the club, with trustees reassuringly there in the background with an crucial , overseeing guardianship role. 
Ideally , the trustees should diligently monitor the committee's capital and revenue expenditure,
ensuring that financial risks are kept to a minimum ,  as well as ensuring that the organisation has the necessary funding and reserves to carry out its intended activities.
Their primary focus must always be the long term survival of the club , and to advise the committee against taking any decisions, which could put the organisation's financial assets in jeopardy. In addition to that the trustees have a legal responsibility to ensure that the club is managed in accordance with the law , and its own governing documents , such as the Constitution and other binding policy statements. Moreover , they must always act in the best interests of the organisation and its wider membership , avoiding any conflicts of interest which could potentially arise. For instance awkward questions might be asked if a trustee had a close relative who was a committee member or officer , since the collusion and the exercise of undue influence could easily arise.
Trustees of an incorporated association, such as a private social club , do run a risk in respect to incurring personal liability should something go wrong. Club committees might for instance enter into very costly building contracts , and should these go belly up resulting in significant losses or pay outs , then the trustees in certain situations may find themselves personally accountable. Much depends of course on the precise wording of the Constitution with regards to their defined roles and responsibilities. Nevertheless , it makes good sense for clubs to obtain some form of Directors' and Officers ' Liability Insurance cover , which will provide protection against incurring personal liability.
Often clubs will have within their Constitution a rule, which enables trustees to be indemnified out of club funds , and this should hopefully provide another safeguard against incurring personal liability. If however a situation arises where the liability incurred by the club is not adequately covered by any insurance policy , and/or their total assets , there is still the threat that the trustees , along with the management committee and its officers , will be seriously out of pocket.
In conclusion , trustees have a fundamental duty to protect the club from serious financial risk . Caution and prudence are the two golden rules they must follow. They are entrusted to guarantee the club's long term future by making sure costly or risky ventures are never undertaken. Would any trustee of sound mind and intelligence sanction the decision of a committee to stake £60,000 on an evens favourite horse, or stake the same amount of money in some other kind of lottery ? Not a chance !. So what would anyone make of trusties who failed to stop a committee opting to fight a case in court , where the costs can frighteningly run into tens of thousands with the outcome being scarily uncertain ( especially when cheaper , damage limitation options were readily available earlier on ) ?      

DISCIPLINARY HEARINGS : AN INTERESTING POINT OF LAW...........( Article by Professor Hu Chi Ku Chi )

When social and sports club committees get involved with disciplinary hearings , they are put into a position to make quasi-judicial decisions , albeit with little or no legal expertise.
Firstly , they are asked to make a judgement call on whether or not an alleged offence has taken place. Secondly , they are then obliged , if the complaint is upheld , to determine a proportionate punishment in keeping with the nature and degree of the offence committed.
However , what the courts expect of committees is that they attempt to the best of their ability to remove all prejudice and bias they might harbour against the accused member. Indeed , they must strive to be " fair-minded and informed observers ".
But how does one define a fair-minded and informed observer ?  From my review of some relevant case law on the subject , it would seem that each and every committee member should display the following attributes ;
1. Those involved at a disciplinary hearing need to approach the task in hand with an open mind , and without any pre-judgements in relation to the key decisions that lie ahead. 
2. Judgement need to be reserved on every issue until all relevant evidence has been reviewed and all arguments and issues raised by both sides have been fully understood
3. Minority or dissenting views should be allowed and listened to carefully , so that objective assessments can be made regarding their possible validity and merit. 
4. Before taking a balance approach on any information which is contentious or perhaps irrelevant, committee members need to focus solely on the information which is not in dispute , but clearly relevant to the process of responsible decision making. Hearsay information therefore should never be considered in any discussions. , or allowed to influence the making of decisions.
Although a fair-minded and informed observer is not expected by a court to possess the skills and legal know-how a lawyer, he or she will be expected to appreciate and recognise how the legal process works in practice. How basic rules of natural justice need to be applied. How the accused member is entitled to be presumed innocent as opposed to being presumed guilty. In small clubs, where legal expertise is in short supply but personal feelings , emotions and animosities often run high , there is always the risk that prejudice and pre-judgements have already become unhealthy bedfellows.
So , in summary , if bias can be established by an accused member who is alleging wrongful suspension or expulsion , the court might well instruct the committee to change its decision. Even apparent bias is sufficient to convince the court of possible wrongdoing by the committee or any of its influential members . But what is certain is that the judge will put himself in the position of a fair-minded and informed observer , being the reasonable man who will act in both an objective and impartial way.. If he believes there is enough evidence to establish the possibility of apparent bias  at the time of the hearing , or within the disciplinary procedure leading up to the hearing , then he will certainly find against the club. 

THE UNCERTAINTY OF LEGAL DISPUTES AND THEIR OUTCOMES : BUT SOME ARE A LITTLE MORE PREDICTABLE THAN OTHERS.........( Article by Professor Hu Chi Ku Chi )

Common law which is made up of judges' decisions , many of which go on to become binding precedents , sets out to balance rigidity with flexibility. Although the doctrine of judicial precedent requires precedents to be followed , there is tremendous scope for judges to decide on issues purely on the given set of circumstances , and the merits of each individual case. Therefore what we end up with are authoritative precedents which lay down the general rules , with a whole raft of exceptions , and exceptions to the exceptions. A legal minefield in fact.

In matters relating to disciplinary hearings held by private clubs , rules regarding natural justice

cannot be ignored. Every committee member involved in the hearing is under a duty to act in good faith and fairly listen to both sides before making any decisions as to whether the alleged wrongdoing can be established , and what , if any , sanctions or punishment would be both appropriate and proportional. Certainly,  the basic bottom-line requirements include notice and the opportunity for the accused to be heard in order to respond to allegations made against them. Nevertheless the requirements of natural justice and the standards of fairness are flexible , depending on the nature of the power being exercised, and the effect of the decision on personal interests.

Indeed , in determining the presence and level of natural justice , one must start with the body's own rules themselves. Subject to anything in the rules , other relevant factors will include the nature of the interest at stake , whether an adverse decision would amount to a finding of misconduct and the severity of the sanction which the body is empowered to impose. 

Those criteria , by no means exhaustive , will be important when deciding what the parties intended or implied in their contract. In one form or another they are all concerned with the seriousness of the proceedings. The greater the extent to which a disciplinary committee sets out to operate in a quasi-judicial fashion , the greater the expectation the courts will place on them to adhere to the minimum requirements of natural justice. 

What reported cases tell us is that members may not be expelled without full knowledge of all the charges , adequate notice and a hearing , with committee members needing to approach the task ahead with open minds , displaying no personal animosity or bias against the accused. Clearly , the committee need to assiduously follow their own written procedures and not act in an arbitrary fashion, such as declaring " there was no point in having a hearing because we had already decided that the life ban was the right decision to take " .  

  

DOROSHOW'S HORROR SHOW FINALLY CAME TO A HAPPY ENDING......( Legal report by Professor Hu Chi Ku Chi ) 


James Doroshow joined a very exclusive private golf club in 2006, whereby he agreed to abide by the Club's by-laws, rules and regulations.
The club's by-laws authorise the rules committee to " investigate written complaints concerning the conduct of any member , and to take action thereon, and to report to the board of directors its findings and recommendations as to disciplinary action ". If a member disagrees with the committee's decision to impose a sanction , the member has the right to appeal the matter to the board of directors. In such cases , the club's by laws require the board to conduct " a full hearing de novo to all relevant matters " after providing at least 10 days written notice to the member. 
Grounds for expulsion include " a material violation of the by-laws , house rules and policies of the club " or " any conduct which is detrimental to the welfare , interest , character or reputation of the club ". The ultimate catch all statement , by all accounts ! 
Doroshow was alleged to have committed 3 rule violations prior to an incident in July, which involved him having an altercation with another member on the golf course. This heated exchange of words resurfaced a few hours later in the club house bar,  where Doroshow was dining with his guests. In this instance , he was certainly the victim , being subjected to a torrent of abuse which provoked a response of pinning his aggressor up against a wall. Not surprising a written complaint came in concerning the alleged physical assault. 
Initially, each party received a 90 day suspension for the incident , but then the defendants took a secret vote as to whether or not the plaintiff should be expelled from the club. At this stage common sense prevailed, and the conspirators were thwarted by the lack of sufficient paper record to obtain the desired outcome. But these conspirators were not to be denied as they quickly seized upon a written complaint about Doroshow's conduct six months later , following another incident on the golf course. 
The plaintiff was alleged to have hit a ball in the direction of another player intentionally ,   thereby endangering his personal safety. Yet , despite the fact that witness statements claimed that Doroshow simply made an errant shot , which caused his ball to fly off the 4th fairway and cross over onto the fifth , where the complainant was playing. On receiving a copy of the complaint letter , the plaintiff was told the hearing would only concern the latest incident , but the rules committee also questioned him over another alleged violation regarding the use of cell phones.
Doroshow tried to explain that because of the untimely death of his wife , the club's general manager had given him permission to use in cell phone in emergencies to speak to his children. The conspirators were clearly not of a mind to have to show mercy over this matter.
After this meeting , which resulted in the plaintiff receiving another suspension to last 120 days , the rules committee then decided to recommend to the board his expulsion from the club. A scheduled hearing took place and the expulsion was approved by an 11-0 vote , with one abstention. This was a horror show which surely beggared belief.
But when Doroshow decided to sue the club , the trial judge seemed only concerned with two issues : (i) whether the procedure followed by the association was fair , and (ii) whether the expulsion rested upon a rule which was substantially capricious or contrary to natural justice. Unbelievably he found in favour of the club , concluding that " the process does not have to be perfect : it has to be fair and that this court finds that it was ". Moreover , he believed " the court was not required to evaluate the merits of a member's expulsion " , which to my way of thinking would provide clubs with the absolute power and freedom to expel members on any whimsical pretext , so long as they correctly follow laid down procedures.
Well, thankfully on appeal the  State Supreme Court shared my concerns and took a different view of the matter. First off , the judges felt that Doroshow's legal rights and protections had been overlooked and denied during the disciplinary process. But more importantly , they took the view that the disciplinary process was in error, which raised serious questions with regards to its impartiality. " It was the duty of this court , and any other court,  to determine whether the association acted within its powers in good faith , in accordance with its laws , and the law of the land ". Indeed , there are  two fundamental requirements of good faith : (i) decisions need to be substantively rational , and (ii) disciplinary procedures are not conducted in a climate full of prejudice and animosity. 
Doroshow was without doubt the victim of deferential treatment , which demonstrated the club's lack of good faith . It seemed the club adopted a callous, dismissive attitude towards the plaintiff in respects of the reasonable explanations he offered , when defending the last two allegations of misconduct. Clearly , there were certain individuals out to get him, utterly hell bent on seeing him expelled from the club. Nothing demonstrated their prejudice and bias against him than the fact that Doroshow had initially paid the club $100,000 for a " full equity membership ", only to receive 10% of that money on expulsion , following the club's decision to sell his membership at a reduced price. Somebody I guess really benefited from that but it wasn't the plaintiff.
Not surprisingly , the appeal court judges had no hesitation in reversing the trial court's judgement , awarding Doroshow damages along side a full entitlement to all his costs. Now that's what I call justice... and a happy ending to a rather disturbing story.

  

THE PROBLEM WITH INTERNAL DISCIPLINARY APPEAL PANELS............... ( Article By Professor HU Chi Ku Chi )

The usual selection process involves the chairman of the committee exercising his/her power to nominate " the candidates from which the appeal panel will be chosen " , the proviso being that they are experienced , well respected , long serving club members . The appellant of course is able to lodge objections against certain individuals , and so replacement names should be substituted to make up the final list from which the panelists will be randomly chosen.
However this power provides the chairman with an extraordinary and often insuperable advantage. By having the knowledge about certain club members,  and where their loyalties lie , this blessed insight can't help but influence the chairman's choice of names put forward for selection. If the chairman considers some members to be committee supporters , the likelihood of them being nominated is very high indeed. If on the other hand certain members are known to be sympathetic towards the appellant , these undesirables might well be overlooked and omitted from the candidate list. This is the obvious way by which the committee can secure a crucial edge even before the appeal hearing takes place.
Moreover , restricting the list to experienced , well respected , long serving club members often excludes those who are new to the club and far more likely to be impartial, along with those who possess the necessary legal skills to understand the nature of their judicial function, involving complex and difficult legal issues. If a panel has such shortcomings, major problems will arise. Will they have a real understanding of what amounts to alleged breaches of natural justice , procedural flaws in the initial stages of the disciplinary process , and whether or not the club has acted in an ultra vires way ( this requires of course a full grasp and correct interpretation of the club's by-laws and regulations ) ? Clearly , this is a tall order but one which needs to be met if the appeal is to be properly carried out. Distinctions also need to be made by the panel as to determine what is admissible and inadmissible evidence.  
Although usually well-intentioned , the panelists are often unsure of themselves ( or their role ) in such unfamiliar settings. For instance , if one of them was to state in writing , weeks before the scheduled hearing , that " I agree with the committee's decision to ban you " , then such an unfortunate remark smacks of real incompetence and  lack of integrity on his/her part.
However , the biggest problem regarding panel selection involves finding candidates who not only know their role , but who can carry it out with the required degree of impartiality and fairness. Given that impartiality is a principle of justice , whereby decisions should be based on objective criteria , to what extent is this possible when the human condition is prone to succumb to personal bias , prejudice or the desire to benefit one person over another for improper reasons ?
The quest to ensure a measure of impartiality surely requires the scrutinising of relationships the panelist are known to have with existing committee members and/or the appellant. All too often the panelists are not strangers to the individuals involved , and therefore must have established personal opinions about them. Members should not be nominated for panel selection if close relationships , friendships and existing feuds come to light. Indeed , members approached for selection should be asked to declare any known bias or prejudices held against committee members or the appellant. Indeed , it is an undeniable fact that any degree of bias can lead to panelists rejecting the strong evidence and weighty arguments introduced by one side , choosing instead to favour the flimsy evidence and shallow arguments introduced by the other side. Old prejudices which always lurk in the background of people's minds will often surface to distort their ability to be impartial and fair. 
So it seems to me the sensible way forward when dealing with the thorny problems of disciplinary appeals is to call in " outsiders with the necessary legal expertise " and pay the costs involved. Impartiality is more than likely going to be achieved , and the decisions made will then be based on an objective analysis of the facts in relation to established principles of law.    

  

" WE DID NOTHING WRONG " : THE MANTRA OF ALL COMMITTEES............ ( Article by Professor Hu Chi Ku Chi )

Albert Einstein once said " it is easier to denature plutonium than to denature the evil from the spirit of man ". Indeed , the main problem in life is not one of physics but of ethics. If no one can overcome his/her inner demons, instincts and feelings when making decisions , how can anyone expect committees to behave any differently. Decisions are imperfect because they are shaped by imperfect human beings.
Put together a group of people into a world of inflated egos ,  domineering personalities and petty politics , then we have a recipe for disaster. Decisions become the product of " collective failings ", which always exceed the sum of the individuals' failings. Negative synergy for want of a better term. 
Sir Barnett Cocks had a rather amusing but perceptive of a committee , being nothing more than a " cul-de-sac down which common sense and rational thinking are lured and then quietly strangled ", such is the dominance of those in control to maintain control over the others. For me the real weakness of a committee becomes savagely exposed , when it is required to take on a quasi-judicial function over disciplinary matters ,  combining the roles of  prosecutor, judge and jury in the process. The likelihood of getting things wrong becomes all too inevitable. 
Because let's face the facts here. Committees are made up of amateurs , non-experts in the field of law. Legal issues involved in contentious suspensions and/or expulsions in the realm of unincorporated associations and small private social clubs are never clear cut. Nothing is ever black and white. In short , the topic area of law is a legal minefield , where legal certainties are few and far between. So how a committee could ever say " well , we did nothing wrong " beggars belief , when a more sensible approach needs to be adopted , such as asking " Well did we do anything wrong  ? " .
Arrogance and ignorance are two notorious bedfellows who all too often climb into bed with committee members . Once committee members believe that they know best , well intended warnings and advice fall on deaf ears. Over the years , countless articles have been written on the failings of committees , and my research has come up with a list of 10 classic mistakes that disciplinary committees have been known to make.

1. Solving problems with a gung-ho approach . Failing to recognise that there are no perfect solutions and that cost-benefit analysis is a useful technique to find the best way forward.. 

2. Lack of proper research on the financial , economic and legal implications following a particular decision. Knock-on effects can be endless. Long-term implications need to be into account alongside the more obvious short-term consequences . 

3. Not fully understanding the nature, roles and responsibility of the job they are being asked to do. The first and foremost duty a committee member is under is to ensure the long-term financial viability of the club, and therefore not to invite potential law suits and costly litigation.  

4. Blindness to personal prejudices. It's all too easy to see bias in others while failing to see bias within themselves. 

5. A tendency to focus on their own interests and agendas , often to the exclusion of what's best for the members of the club. Committee's develop an introverted view that they are the " club " , and that their vision for the club's future represents the membership as a whole. 

6. Choosing to put gut feeling and instinct ahead of cold logic and rational thinking

7. Avoiding the difficult questions. Also known as the elephant in the room. Choosing to step or skirt around a crucial issue just because it might cause an unpalatable change in direction is not the way to go about decision making. 

8. Taking themselves too seriously and perceiving themselves as " masters " rather than the " servants " of those who elected them into office.

9. Believing that they know best. 

10. No training or natural orientation to do the job in question. Acting in a quasi-judicial capacity requires a certain skill set. When it becomes evident that the task might well be beyond their level of competence , then now is the time to seek advice or all in outside expertise. 

In conclusion , I would like to leave you with the words of Paul Valery , who had this to say about those who sit on judgement upon others : " Our judgements judge us , and nothing reveals us , exposes our weaknesses more ingeniously than the attitude of pronouncing upon our fellows. "    
   

LEGAL MINEFIELDS : THEY ARE EVERYWHERE....... ( A revisited topic by Professor Hu Chi Ku Chi )


The law relating to small private social clubs remains sketchy at best. The impact of a member being suspended or expelled is not quite so devastating as a dismissed employee , who suffers as an immediate consequence serious economic or financial loss. Courts would prefer to wash their hands of the affairs of small private clubs, leaving the parties in dispute to resolve their disputes by any other available alternative.
Nevertheless , when a real injustice has been done,  courts have been prepared to intervene.
The bottom line for the courts is club members , who are subject to disciplinary proceedings , are entitled to be treated in a fundamentally fair way. The two key elements to this fundamental fairness is ( i )  the member gets a hearing and ( ii) the committee members involved in the decision making are not biased.
Straightforward you would think ?  But no. Nothing is ever that black and white.
The audi alteram partem rule holds that a man shall not be condemned without being given a chance to be heard in his own defence. The rule is so basic to jurisprudence that it is often termed a rule of natural justice. Fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard. 
So what would an observer make of a situation where a member was expelled without a hearing , with the ban taking immediate effect. Should a decision made in violation of natural justice be set aside , especially if it is to be implemented immediately ?
Moreover , once a decision has been reached in violation of natural justice , even if it has not been implemented , can a subsequent hearing rescue the situation as a meaningful substitute ?
At this point we enter the legal minefield. 
The starting point is to assume that the prejudicial decision will be set aside as procedurally invalid. Yet there are , quite rightly , some limited situations where a subsequent hearing or appeal will constitute compliance with natural justice , but only if , in all the circumstances , it was sufficiently fair to have the effect of curing the failure to hold a hearing before.
Previous cases suggest real difficulty in resolving this question. 
Any failure of natural justice at the initial hearing ( if there was one at all ) cannot be cured by a sufficiency of natural justice at the appeal appears to be the starting point, but there are of course obvious exceptions. Clubs must be allowed to correct their mistakes , even the gravest ones. However , the Privy Council were keen to point out that if the effect of whatever it was that vitiated the initial decision is perpetrated so as to taint the appeal process , there can be no question of the latter curing the former.
Moreover , even if the appeal process were not intrinsically tainted by the earlier proceedings , the circumstances may be such that consideration of fairness demands that both the initial decision and the appeal process , judged separately , be lawful and procedurally fair. As Lord Wilberforce correctly stated " naturally there may be instances when the defect is so flagrant , the consequences so severe , that the most perfect of appeals or rehearings will not be sufficient to produce a just and fair result . Rules are now in place which anticipate such a situation ,  giving power to the courts to remit for a new hearing. " 
As to whether a court will entertain the proposition that damages may be awarded for wrongful expulsion of a member from a private club , there are very few authoritative precedents to go on.  Nevertheless courts around the world have been moving in the direction of comparing benefits and obligations of the club's by-laws to a contractual relationship between the member and the club. In one South African  case the court reached the conclusion that such an analogy was appropriate. Other commonwealth common law cases were cited where damages were awarded for breach of contract , regarding members who were expelled in a manner not in accordance with the clubs' rules. Thus , it appears theoretically possible to claim damages for breach of contract upon wrongful expulsion from a private club.
As I said before it's a legal minefield.

   




   

JUDICIAL WORDS OF WISDOM FOR COMMITTEES WHO SET OUT ON THAT ROCKY  LEGAL PATH OF DISCIPLINING ERRANT MEMBERS...... ( By McGarry J )

" The path of the law is strewn with examples of open and shut cases which , somehow, were not : of unanswered charges , which , in the event, were completely answered : of inexplicable conduct which was fully explained : of fixed and unalterable determinants that , by discussion , suffered a change . "

Yes , far too many club committees foolishly fall into the trap of treating complaints about members' misconduct as nothing more than simple , open and shut cases. Yet the road they embark upon is a quasi-judicial one with potentially dangerous legal consequences and law suits. This means that each step of the process has to be made with open eyes and minds, exercising extreme caution at all times to find that essential solid ground on which to move confidently and safely forward.   

IS THERE ANY POINT AT ALL TO HAVING A DISCIPLINARY HEARING ?................ ( Article by Professor Hu Chi Ku Chi )

Not when the committee believe the outcome is a foregone conclusion , it seems.
If say a person viciously attacks and injuries another member in front of dozens of witnesses , it would seem that under any rules of unacceptable conduct , this one-off unprovoked violent act warrants immediate expulsion and permanent loss of membership. So why afford the member the right to a hearing, when the obvious outcome is going to be a life ban ? 
Yet the answer is this : a hearing is an absolute requirement given that the committee is under a legal obligation to do so under its own regulations and/or the law of the land. To say " we didn't hold a hearing because there was no point " contradicts logic , commonsense , fairness, equity and justice , which all subscribe to the creed there is always a point to having a hearing. Justice in order to be done has to be seen to be done.
In one highly instructive case from America , La Gorce County Club v. Cerami , the judges were appalled to discover that the expelled member was denied a hearing : to present his version of events, raise counter-arguments , challenge his accusers , and/or make  pleas in mitigation.
The following pronouncements reflected the judges' determination to restrain club committees from subjecting members to disciplinary proceedings more in keeping with a kangaroo court  .  
" From the authorities before us , it appears to be the majority , and we think the better reasoned view , that if expulsion of a club member is accomplished without notice and hearing , the denial of these minimum safeguards is violative of the principles of natural justice , and judicial intervention is indicated. " 
" To accept this ingenious argument would result in usurpation of the prerogatives  which the club by-laws , and legal precedents , have delegated to its own governing body. And since this body is the final arbiter of the sufficiency of causes for expulsion , we cannot presume , under any circumstances which we are able to foresee at this moment , that a hearing before it would be vain and useless ." 
Moreover , these appeal court judges were quick to support the trial judge's ruling that Cerami was entitled to an opportunity to be heard ,  in order to give the hearing both credibility and value. Cerami should have been given notice of all the charges laid against him. This procedure need not have been formal, or in any way ponderous , but it was INDISPENSABLE as a matter of law. 
Although the club tried to argue that Cerami's petition was defective for failure to allege a demand for hearing , the court held the onus fell upon the committee to schedule a hearing date and give notice to Cerami of his right to attend. The club's responsibility-shirking argument was of course rejected out of hand in that the duty rests with the committee " to afford the member an opportunity to be heard , of which he may or may not avail himself , and to impose no requirement that the member must demand a hearing ".

And so for all club committees desperate to conduct disciplinary hearings within the law , I have one piece of advice. Make sure you go to great lengths to be over-accommodating , providing the member perhaps with more rights , benefits of doubt , and concessions that he/she is entitled to .  That way , should the outcome be a decision to expel the member, he or she will have no justifiable grounds whatsoever to challenge that decision ,  or the manner and way in which it came about.
Rules on natural justice apply worldwide. 

  

THE INVINCIBILITY AND INEVITABILITY OF BIAS IN DECISION MAKING... ( Article by Professor Hu Chi Ku Chi )

When club committees embark on the difficult task of disciplining alleged wrongdoers , the spectre of bias looms long and large. Personal agendas , emotions , motives and vendettas can quickly replace objectivity , impartiality and fairness. 
Can disciplinary committees ever be free from bias ?    The answer I'm afraid is an emphatic " No ". Bias is the natural result of every person's self-centrism . Unless a committee member is completely incapacitated by self-doubt , then all those in attendance will be utterly convinced that their beliefs, actions and opinions are absolutely correct at the time. 
The caveat " at the time " is an essential part , because all the committee members ( except for those who are pathologically incapable of acknowledging error ) may well come to realise that they have made a mistake , and that their beliefs , actions and/or opinions were wrong. For instance , is sneezing in front of another member a deliberate biological assault or is it an unfortunate instinctive consequence of having a cold ? 
What is certain is that our human tendency is to believe the other person is biased , but not to believe that we ourselves are biased. With regards to disciplinary matters , it comes as no surprise to see committee members failing to perceive their own biases , and this regrettably warps their perceptions , judgements and decisions.  If the member who sneezed has a track record of being rude and ill-mannered , then his action must be deliberate. 
Bias is a sort of " blind spot " in a peoples' thinking : a place where their assurance of being right makes them vulnerable to imagining the world to be different from how it it truly is. As truth has it the sneeze was a reflex response to the cat hair /dust on the victim's clothing. But the thing about blind spots is that we are not aware of them. Our reality is made up of our thinking, assumed beliefs , our own self-awareness and introspection. If a committee member sees things in a jaundiced and particular way , then he/she might well form the view that the alleged member's explanation was without any validity or substance whatsoever , or was nothing more than a woefully limp , insufficient excuse. And should another committee member take a minority view of believing the accused , then he/she " can't see straight " or is just plain unintelligent. By denying our bias we delude ourselves and fail to recognise our susceptibility to deception and self-deception. 
It was Mark twain who once said : " It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so. " And so it is those cursed blind spots of bias which get people into trouble. Ignorance is merely a need for information or education : error , especially when it is believed wholeheartedly , is a calamity waiting to happen. 
Even when evidence of an allergy to cats is presented , which suggests the accused's explanation has both validity and merit , committee members might already have deluded themselves by crediting their motives , intentions , feelings and emotions to fully justify their decision to treat the incident as a biological assault. " We meant well.....our motives were good , and so arrived at a good decision to suspend the member so often guilty of gross misconduct ".
In any disciplinary hearing when contradictory evidence is presented , committee members have a choice to either consider it or ignore it. If the evidence is ignored simply because it conflicts with their pre-formed ( and self-corroborated ) view , then the spectre of bias is clearly present  for all objective onlookers to see. Indeed , it is laughable in the extreme to hear people state that they are " not biased " when they clearly are. Yes, everyone is biased to some extent , but when the boundaries have been pushed out by personal prejudices , their particular view of reality will be severely distorted. It's obvious the accused deliberately set out to transfer his snivelling cold onto the person he/she was known to dislike  .
Bias influences , shades and slants conscious decisions in ways that we are not aware of at the time. Looking back , some of us can be made aware of how our assurance of correctness can lead to a disaster , but we didn't , or couldn't , see it . Biased thinking , even when others have given out warnings of impending trouble , cannot be altered. Bias tends to be permanently ingrained. Many commentators have talked about " normalcy bias " which causes people to underestimate the possibility of decision leading to a disaster or catastrophe. The consequence of not heeding warnings is of course the failure to prepare for worst case scenarios. The threat of legal action being taken against us ? It wont happen. It'll all blow over "  is a classic response , yet again illustrating yet another blind spot. The consequence of underestimating is of course the failure to prepare any contingency plans , or to re-examine their decisions.
Such is the invincibility and inevitability of bias , it never goes away and can never be removed.
Such is the invincibility of bias , ignorance of it and denial become inevitable. And even when people are confronted and made aware of their bias , they inevitably pull out all the stops to rationalize their actions and decisions................ 
" We were not biased against the member who sneezed but we were biased towards the  complainant who was sneezed upon  "
"The sneeze may have been innocent but the suspension was justified based on the member's appalling track record of rudeness and inappropriate behaviour. "
" We invested so much time, effort and energy on this matter to admit we were wrong."
"The majority of members backed our decision , which clearly shows we made the right decision."
" I voted for suspension along with committee members who I really trust. They can't all be wrong."
" For the sake of the club , drastic action was called for. Members would have been upset if we had done nothing."
Dreaming up these counter-reality thoughts is without doubt hard work. Consequently, critics who challenge these rationalisations are not appreciated or liked. If one is allowed to trash this counter-reality , the likelihood of destroying their snug, safe sanctuary becomes becomes ever more apparent  . Biased people will therefore lash out at those who have the temerity to disagree with them. The Human Condition demands it.