San Ġiljan waterpolo player Ben Plumpton, disciplined for biting two Sliema players during a match, sought an injunction to block his 12-match ban in so far as it was tripled on appeal, arguing that the decision was “defective and highly prejudicial.”
Lawyers for the player filed an application for a warrant of prohibitory injunction to be provisionally upheld, arguing that this was “crucial” and that unless the court intervened “a great injustice” would be committed.
Plumpton did not target the original four-match ban handed down by the Aquatic Sports Association Disciplinary Commissioner but the rest of the matches from which he was suspended.
His lawyers’ arguments ran along the lines that the Board of Appeal had acted beyond its powers by deciding upon and overturning the Commissioner’s decision over two out of three of the original charges in respect of which Plumpton had been acquitted.
Since no appeal was filed over that acquittal, the Commissioner’s decision was final in that regard and the Board’s decision was thus “gravely defective, procedurally irregular and causing enormous prejudice to the player.”
It all started after July 17 match
The issue stemmed from a “miscellaneous report” filed by the Sliema club after their league match against San Giljan.
No incident was flagged during that match but later, Sliema filed a report claiming that Plumpton had bitten two of their players.
The matter landed before the ASA’s Disciplinary Commissioner who cleared Plumpton over two of the grievances and disciplined him on the basis of the third by imposing a four-match ban.
Sliema did not appeal that decision.
Plumpton filed an appeal based on the grievance over which he had been found guilty, related to his right of self defence.
That meant that in respect of the other two grievances, the Commissioner’s decision was final.
However, the Board of Appeal did not only confirm guilt on the ground appealed but changed the Commissioner’s decision and found guilt over the other two grievances too, although no one had appealed on those two grounds.
The Board tripled the ban to twelve matches.
“Highly irregular, procedurally defective and most prejudicial”
According to the ASA’s terms of reference, the Board of Appeal “shall only decide upon the grievance/s raised in the appeal,” pointed out Plumpton’s lawyers.
The 12-match ban meant that Plumpton would miss out on the whole league.
The Board tried to “hide” behind a word in its terms of reference stating that the Board could “increase” the sanction. But that argument was defective, rebutted Plumpton’s lawyers.
The Board did not increase the sanction but it changed an acquittal into a conviction in respect of the two grievances which had been definitively decided.
Through its actions, the Board placed the appellant in a worse position and it also breached the basic principle of natural justice whereby it was to hear both sides (audi alteram partem).
During the appeal hearing, the Board “expressly” stated that it would not consider those grievances over which there had been no appeal.
Thus Plumpton’s defence did not make any submissions in that regard.
So when the Board pronounced its decision, it came as a “surprise” to all, “pulling the rug out from under Plumpton’s feet.”
Since the Board had declared that it would not decide upon those grievances which had already been settled, Plumpton was not given the chance to defend himself on those two issues.
The Board thus breached its own regulations, acting with impunity, argued Plumpton’s lawyers.
No entity should act with impunity or stand above the court.
Injunction is “crucial”
Unless this injunction was upheld, the player would be suspended throughout twelve matches, rendering an eventual judicial remedy useless because he would have served punishment by the time court proceedings ran their course.
The player had tried to find some amicable solution with the Association and was told that the matter was to be discussed during a council meeting on July 25.
But no solution was forthcoming.
With the league scheduled to end on August 24, Plumpton sought recourse before the civil courts.
On Monday, Madam Justice Josette Demicoli ordered that a copy of Plumpton’s application was to be served upon ASA which had a right to file a reply.
The court turned down Plumpton’s request to issue the precautionary warrant since it would need to examine more closely whether the court had the power to stop the execution of the Board’s decision.
However the court reserved the right to uphold the applicant’s request after it hears the parties’ submissions, decreed the judge, appointing the case for hearing on August 12.
Lawyers Charles Mercieca and Carlos Bugeja are assisting Plumpton.
