What is Sports Law?
Sports has evolved from a hobby into a huge industry as people today
not only embody its ideals but view sports as a thriving business. Like any
other industry, rules and regulations are essential. People in the industry
need to know and understand what they can or cannot do.
In sports, the need for clear and precise ruling is as pronounced as
the need for clear and precise judgment from a court of law. We often read of
complaints of unfairness in sports and more often than not, the search for the
accurate decision in sports is as important as the sport itself.
Over the last few decades, dispute resolution in sports has developed,
evolved and expanded to not only disputes during the game but outside the game
as well. Over and above disciplinary board or committee of respective sports
associations, many sports disputes spill into the court rooms and is also heard
at arbitrations. An independent and new regime of sports law has also evolved
at the same time.
Sports Law is largely
an amalgamation of inter-related legal disciplines which blends normal rules
procedures with sports activity involving areas such as general Contract and Tort
Law, Employment Law, Competition (Anti-Trust) Law and so on and so forth.
According to James A.R. Nafziger and Stephen F. Ross in their book Handbook on International Sports Law, Sports
Law involves multiple regimes of law which is influenced by culture, history
and practical. With this unique feature of an area of law, Sports Law has been
recognised in public international law. Generally, international Sports Law
refers to a process which comprises a more or less distinctive body of rules,
principles, and procedures to govern the conduct and consequences of
transnational sports activity.
Establishment of the Court of
Arbitration for Sport (CAS)
The Court of
Arbitration for Sport or commonly known by its acronym “CAS”, is an arbitration
body created by the International Olympic Committee (IOC) in 1983. In the early
years, questions have been raised with regard to the independence and
impartiality of CAS which led to a concern for the parties to the proceedings
heard by CAS. This stems from the fact that IOC not only played a major role in
the governance of CAS where it financed CAS entirely, it also has a proxy to
modify CAS’ statutes and the President of the IOC has the power to appoint the
members of CAS. This issue, in fact, was brought to the attention of the Swiss
Federal Tribunal in the case of G. v.
Fédération Equestre Internationale
and Court of Arbitration for Sport (CAS) (1993), Swiss Federal Tribunal 1st
Civil Division, 15 March 1993, as an appeal against a decision made by CAS,
which ruled in favour of the International Equestrian Federation (FEI) in
relation to a horse-doping case.
In that case, the
Swiss Federal Tribunal made comments that strong links between CAS and IOC will
give rise to the questionable independence of CAS. Eventually, CAS was
restructured into the formation of the International Court of Arbitration for
Sports (ICAS) through the 1994 Paris Agreement.
Pursuant to the said
Paris Agreement, the IOC created the ICAS with the aim to oversee CAS and to
separate entirely the IOC from CAS. Nonetheless, the procedural rules for both
ICAS and CAS remain the same. The major change in CAS after the creation of
ICAS is that it is now separated into two divisions: the Ordinary Appeals
Division (OAD) and the Appeals Arbitration Division (AAD). The OAD has the
jurisdiction over private disputes arising from the practice and development of
sport such as contractual or commercial disputes which span from image rights
to appearance fees, whereas AAD only has the power to arbitrate over appeals
against decisions made by sporting organisations provided the statutes or
regulations of those sporting organisations permit such an appeal. It is a
well- known fact that CAS is recognised to be the final court of appeal for
sporting disputes and is called the “Supreme Court for Sports”. However, this
position has been challenged in recent cases which will be discussed in the
later part of this article.
Procedures and Jurisdictions of CAS
CAS is governed by
the Code of Sports-related Arbitration (the Code) which provides for the rules
in the organisation and arbitration procedures of CAS. It is also important to
note that the Code is divided into two parts: the Statutes of the bodies
working for the settlement of sports-related disputes (Articles S1 to S26), and
the Procedural Rules (R27 to R69).
As mentioned above,
there are two sorts of disputes which may arise between parties. Before we
delve into that, it is pertinent to note that disputes can only be heard by CAS
if and only if both parties to the dispute agree to do so, as per S12 of the
Code. Firstly; for disputes arising from legal relations between parties such
as pursuant to a contractual agreement, the contractual clause must provide for
an independent arbitration agreement known as an arbitration clause which gives
jurisdiction to CAS to hear the matter. Parties are then bound by the said arbitration
clause and similarly bound by the arbitral award decided by CAS. Secondly; for
disputes relating to decisions made by sport bodies, an arbitration clause may
be inserted in its statutes or regulations. For the arbitration clause in this
instance to be enforceable, the athlete must show his adherence, in writing,
for the dispute to be brought to arbitration.
As the nature of CAS
is arbitration, it possesses similar features of an ordinary arbitration in
that CAS is not bound by the common law principle of stare decisis (binding legal principle). On another note, CAS also
offers non-binding ‘Advisory Opinion’ on potential disputes or on any legal
issues with respect to the practice of development of sport or any activity
related to sports (R60-62 of the Code). Bodies such as the International
Olympic Committee (IOC), the International Federation (IF), the National
Olympic Committee (NOC) or any other organisations recognised by IOC which has
the intention to request for an Advisory Opinion from CAS may do so simply by an
application to CAS. When the application is accepted, the relevant party may
put forward their questions to the President of CAS for him to formulate the
questions and submit them to a designated Panel of three arbitrators for
examination. An advisory opinion is not
to be constituted as an arbitral award and is not binding on the parties.
It is established
that the seat of arbitration for CAS is in Lausanne (Switzerland). It was
submitted by Adam Beach in his article entitled ‘The Court of Arbitration for
Sport – a Supreme Court for the Sports World?’, that CAS needs to take a more
practical approach by opening or creating more forums for arbitration proceedings
besides the one in Sydney, New York and the official seat of Lausanne. He
suggested London, Rio de Janeiro and Beijing to be the additional seats. In furtherance
to this, the available Guidelines to CAS states that in particular
circumstances, the arbitration hearings can be held elsewhere provided both
parties agree to do so.
The great news for
Malaysia is that pursuant to a Memorandum of Understanding signed between CAS
and the Kuala Lumpur Regional Centre for Arbitration (KLRCA) on 8th
May 2012, KLRCA is able to serve as the official host of an alternative hearing
centre for CAS in Kuala Lumpur, Malaysia.
Applicable Law and Enforcement of
Awards
Generally, the
applicable law for the Ordinary Division of CAS is Swiss law due to the fact
that its original seat of arbitration is in Switzerland, as per R45 of the Code.
However, parties to a dispute may agree on a particular applicable law to
govern the proceedings. If it is not specified in the arbitration agreement,
the law governing the proceedings depends on the seat of the arbitration of
that particular dispute. For example; if a dispute is heard in Sydney, the
applicable law ought to be Australian law. Apart from the governing law,
parties may also agree that the panel decides ex aequo et bono i.e. considering equitable remedies regardless of
the law.
As for the Appeals
Division, Art 17 of the CAS Arbitration Rules provides that for the Olympic
Games (established under the Ad Hoc Division at the Olympic Games), the
governing law, if not provided in the sports agreement i.e a contract between the
National Sports Organisation and the athlete, will be the law where the
federation, sports body, or association is domiciled, or the law that the CAS
panel deems appropriate.
Once CAS has made its
decision, the award is final and binding on the parties and it is enforceable
internationally through the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards. This shows that the sports federations
are recognising CAS as an arbitral body thereby acknowledging the
enforceability of the arbitral award rendered by CAS.
Independence of CAS from the National
System
CAS is known to be an
independent international body on arbitration for sports. This is because, most
of the time, it comprises of non-government agents such as an individual
athlete, National Sports Organisations (NSO), and the IFs. It is therefore independent
from the national government of the individual athlete of which he or she is a
citizen/resident of. This, however, differs with matters related to doping. In
doping cases, the matter may still be heard before an arbitrator in CAS but the
national rules of that athlete’s country of citizenship/residence may still
apply. For example; a Malaysian athlete alleged to be on drugs or sports
stimulation drugs may be adjudged not only based on international law but also
on the Malaysian law on drugs. Over and above that, the World Anti-Doping Code
(WADC) is an applicable rule in such cases.
Issues Relating to CAS’s Position as the
“Supreme Court for Sports”
As mentioned above,
CAS is regarded as the “Supreme Court for Sports” where parties to a dispute
can apply for the matter to be heard by CAS, whether in Lausanne or any other
forums available. We also discussed above that the CAS’ arbitral award is
binding on the parties and final. This is illustrated by the case of WADA & Carmona Alvarez CAS 2006/a/1149
which involved a Mexican footballer by the name of Jose Salvador Carmona
Alvarez. Carmona had tested positive for a second time for usage of illegal
substance of which previously he was suspended for one year. It was submitted
that FIFA regulations provide that a player will be banned for a lifetime from
sport if he commits a second doping violation. The Mexican Football Association
(FMF) however, failed to enforce this ban. The decision was later appealed to
an agency governed by the Mexican Ministry of Public Education (CAAD) and the
appeal was rejected. FIFA then requested that WADA exercise its rights under
Article 13.1.1 of the WADC which allows an appeal for all issues pleaded before
the initial decision maker, to appeal to CAS against FMF decision. It was then
decided by CAS that Carmona is to be treated as an international athlete thus
FIFA regulations are applicable on Carmona. CAS concluded by upholding the
lifetime ban imposed against Carmona. This case clearly illustrates the
supremacy of CAS.
However, this
position has been challenged in recent times. Earlier this year, on 15 January
2015, the Munich Court of Appeals (the highest court in Germany) decided
against the CAS arbitral award in a case between a German speed skater, Claudia
Pechstein and the International Skating Union (ISU) on the grounds of violation
of Germany’s public policy. Ms. Pechstein challenged the partiality and
independence of CAS, in particular the composition of its arbitrators, on the
basis that sports organisations have influenced the selection and appointment
of the arbitrators in CAS. Besides this point, the German Court also refused to
recognise the CAS’ arbitral award on grounds that the athletes were forced to
sign an arbitration agreement with the ISU, a dominant company and the sole
organiser of the speed skating World Championship, which is in favour of a
dependent and partial tribunal. It was held that this is a violation of Germany’s
anti-trust law.
Similarly, in the
case of SV Wilhelmshaven, the Court
of Appeal in Bremen, on 30th December 2014, decided that the
decision made by CAS which ordered the German Club to pay ‘training
compensation’ is in violation of the German ordre
policy due to the fact that it was a non-compliance with the mandatory European
Union law. The German court further held that sports associations have a duty
to review the awards granted by CAS with regards to its compatibility with
Germany’s public policy.
What
then is the future for CAS? Will CAS still be recognised as the “Supreme Court
for Sports” when local courts are starting to overturn the decisions made by
it?
In
absence of any improvements to CAS, this trend of an appeal to local courts can
be damaging to the status of CAS. CAS may soon become irrelevant if this trend
continues mainly because athletes will not want to submit their case to CAS and
they will lose trust in CAS based on similar grounds, as seen in the above
cases.
However,
it is important to note that in both cases of Pechstein and SV Wilhelmshaven,
the Court did not question the validity or status of CAS but merely overturned
CAS’ decision on grounds of policy and natural justice. It is submitted that
CAS is very much still, the Supreme Court for sports.
Improvements
Michael Lenard, in
his journal entitled ‘The Future of Sport Dispute Resolution’, suggested a
change to the system of CAS and they are; (1) the quality of arbitrators, and (2)
access to the lex sportiva – the
precedent of CAS.
For his first
suggestion, Michael Lenard opined that there is a need for the arbitrators who
are appointed to have a full knowledge on sports cases, even though a dispute
may not be a doping matter. Michael also proposed that arbitrators undergo a
mandatory training which will harness a continuing learning and leadership
development. In addition to this, there is a need for the existence and
implementation of a standard code of ethics and role for arbitrators.
Adam Beach in his
article believed that CAS should establish a permanent court which brings along
with it, a permanent set of arbitrators. As we all know, arbitrators can be
appointed by the parties in dispute to arbitrate their proceedings. This seems
to have contributed to the inconsistencies in the way CAS adjudicates upon
matters and the difficulty in identifying a consistent pattern in CAS’ awards.
There is also a suggestion to have a ‘permanent sitting International Court of
Justice for Sport’ which would mirror the International Court of Justice.
The latter suggestion
i.e the introduction of lex sportiva
would assist in ensuring consistency and standards in CAS’ decisions. Michael
Lenard suggested for a more effective medium to access records of CAS’
decisions, which is now being practiced by CAS through publications of its
decisions on the official website.
Conclusion
It is established that in the world of
sports, CAS plays an important role in ensuring that dispute resolution in
sports are properly ventilated and adjudicated. However, the recent decisions
in Court overturning CAS’ awards is a cause for concern though its position as
the Paramount Court for all matters in sports is very much still entrenched.
Perhaps in time, like any other dispute resolution body, CAS may have to look
inwards and review and revolve itself especially in matters related to
appointment of arbitrators, application of legal principles and continued
trainings for its arbitrators. In the meantime, at Malaysia notwithstanding
these purported issues against CAS, the sports and legal fraternity look
forward to have CAS’ hearings here in Malaysia.
Written
by Richard Wee
Assisted
by Lesley
Lim
Marlysa
Razak
List of Sources
Rules
1.
Court of
Arbitration for Sport Code (CAS Code)
Guidelines
1.
Court of
Arbitration for Sport; Guide to Arbitration
Book
1.
Nafziger, J., & Ross, S. (Eds.). (2011). Handbook on International Sports
Law. Cheltenham: Edward Elgar Publishing Limited.
Journals/
Articles
1.
Ho Mun Wai, Framework
for Alternative Dispute Resolution for Sports [2012] Asian JM 77.
2.
Richard H.McLaren, Twenty-Five Years of the Court of Arbitration for Sport: A Look in the
Rear-View Mirror, 20 Marq. Sports L. Rev. 305 (2010).
3.
Ian Blackshaw, The Court of Arbitration for Sport: An International Forum for
Settling Disputes Effectively ‘Within the Family of Sport’, Entertainment
Law, Vol.2, No.2, Summer 2003, pp.61-83.
4.
Mark Mangan, The Court of Arbitration for Sport: Current Practice, Emerging Trends
and Future Hurdles, Arbitration International, Vol.25, No. 4, LCIA, 2009
5.
Timothy Davis, What is Sports Law?, 11Marq. Sports L. Rev. 211 (2001)
6.
Michael
Lenard, The Future of Sports Dispute
Resolution, 10 Pepp. Disp. Resol. L.J. Iss 1 (2010) available at
http://digitalcommons.pepperdine.edu/drlj/vol10/issl/8)
Online
Articles
1.
Adam
Beach, The Court of Arbitration for Sport
– a Supreme Court for the Sports World?, The Student Journal of Law.
2.
Thalia
Diathesopoulou, The Aftermath of the
Pechstein ruling: Can the Swiss Federal Tribunal save CAS arbitration?, The
Asser International Sports Law Centre Blog, March 3, 2015.
3.
World
Sports Law Report, Swiss to rule on
‘substance of abuse’ clause omission from final WADC draft, Volume 11,
Issue 11 (November 2013)
4.
Matt
Slater, Claudia Pechstein Puts Sport’s Supreme Court on Trial, BBC
Sport, February 19, 2015.
