Introduction
The UN has officially acknowledged sport as a method for advancing health, education and development by adopting the resolution ‘Sport as an enabler of sustainable development’ in the 73rd session of General Assembly.[1] Sport is not only a form of entertainment which enables us to have good mental health but also an important element to keep our lifestyles healthy and balanced. With the increasing number of sports played in the world, it is crucial to understand and evaluate the existing dispute mechanism processes in sports. Sports law is a mixture of private law and public law that transgresses into the already established body of labour law, competition law, trademark law, and so on. The foundation of sports law ensures that all the players are treated in a fair manner and disputes are resolved equitably.
Various kinds of disputes may arise between the players, associations, coaches or owners of the team from a local to an international level. The institutions like the United Nations (UN), International Olympic Committee (IOC), World Anti- Doping Agency (WADA) and Court of Arbitration for Sport (CAS) are the cornerstones of international sports law. These may include disputes between the adjudicating body and the players, contract between the players and the leagues or quasi-criminal acts like betting, gambling, match-fixing, etc.
They may also be related to biased selection procedure, disciplinary issues, bans due to age fraud and/or use of prohibited substances, gender inequality, operational rule violation, misappropriation of property etc. We shall analyze the procedure of resolving such disputes and determine whether there is any need to restructure the prevailing system. The governance of sport is all about the rules and without a mechanism for enforcing them, sports cannot exist. They are solve by three ways which are internal dispute resolution mechanism within the federations, writ petition, civil or criminal case in the court of law and through Alternative Dispute Mechanisms.
National Sports Federations
In India, the National Sports Federations (NSFs) are set up to advance the training of amateur players and provide them with adequate training to develop their acuity. Currently, there are 56 autonomous associations of the NSF which include the Athletic Federation of India, Badminton Association of India, All India Chess Federation and so on. Apart from these organizations, the Indian Olympic Association (IOA) is also set up to promote successful participation in the Olympics. While rules of the game set up by the governing body tell about how a sport is to be play. There is another set of rules and regulations that govern how the participants should conduct themselves on the field.[2]The primary laws are the various rules and regulations formulated by the governing bodies regulating the conduct of the players, officials, coaches, agents or any other person involved.
A federation can also stipulate rules and regulations saying that the players can only approach the court of law when he/she has gone through all the levels of internal mechanisms and remains dissatisfied. Additionally, if the disputes arise but are outside the disciplinary context, the federation board submits it to some form of ADR.Although these bodies have their in-built dispute resolution mechanisms, it becomes difficult for the players to negotiate with the authorities or seek appropriate action if any type of injustice is meted out to them. The players are usually place in a very vulnerable position and they are not able to obtain the deserving reward. When there is an internal dispute mechanism set up by their board, it can be undoubtedly assum that the decisions may come out bias and inclin to serve particular authorities and officials.
The players will always be on a receiving end of a rigged system. The authorities are always in a better position to dominate or coerce the players to give up their claims. Moreover, due to age restrictions, the players have a restricted amount of time to flourish in their careers and would not want to waste most of it by getting involved in such disputes. Such proceedings against a player may lead to his ban and may have a huge financial impact on his career, the performance of the team and his image in the public.
Former Olympic wrestler, Sushil Kumar filed a writ petition against the arbitrary selection procedure adopted by the Wrestling Federation of India (“WFI”) for India’s representation at the 2016 Olympics. In response to this, the Ministry of Youth Affairs and Sports (MYAS) issued a new set of guidelines to establish an effective, transparent and fair grievance redressal system and to include within their constitution the right for aggrieved sportspersons to appeal their case to CAS. Therefore, a recent trend of incorporating external elements into the disciplinary process has been evolve to ensure that the panel is mann by people who are independent of the governing body or event organizer itself.[3]
This helps in conducting the proceedings in a non-partisan manner. The fundamental principles of natural justice which are Nemo judex in sua causa and Audi alteram partim can be abided by in such circumstances. The decisions are also reason and not arbitrary. The Reynolds case is a portrayal of how the athletes would have to bear the brunt of cumbersome proceedings without any fault on their part if the ADR methods are not resort to. It involved nine decisions before the player was acquit and the case was dismiss.[4]
Court of Arbitration for Sport
The Court of Arbitration for Sport (CAS) or Tribunal arbitral du sport (TAS) is an independent quasi-judicial body established in 1984 and is placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS). The inception of ICAS provided independence to the CAS from IOC pursuant to the Paris Agreement. It also led to the diversification of jurisdiction with the creation of the Original Arbitration Division and Appellate Arbitration Division. International Sports Law is more than a static set of rules and regulations. It is better described as a way of avoiding and resolving disputes.[5] Hence, the Alternative Dispute Resolution Mechanism plays a pivotal role in this arena.
The CAS resolves legal disputes through arbitration based on principles like lex ludica, good governance, procedural fairness, harmonization of standards between international sporting federations and equitable treatment. This court can also refer certain cases for mediation to solve them amicably. Standard procedures for avoiding disputes have also been materialized within the process of international sports law. A good example is the anti-doping resolution adopted by the International Olympic Committee (IOC) and the Association of Summer Olympic International Federations (ASOIF).[6]
The CAS contributes to formulating principles of Lex-Sportiva thus galvanizing the transnational process arising out of international arbitration. It also has well-documented mediation rules and procedures.[7] Settling disputes through ADR ensures a speedy and cost-effective process. The CAS Ad Hoc Division is a body which is activated only during specific events like FIFA World Cup, Commonwealth Games and so on. It corroborates the issuance of arbitral awards within 24 hours of application. Effective provisional and conservatory measures are applied before the commencement of substantive arbitration to expedite the resolution even further.CAS has established a list of pro bono counsels to assist parties without financial means. Rules 64 and 65 of the CAS Code ensure that the reasonableness of the costs involved.
The awards achieved by ADR are considered to be compliable by the sports bodies. The domestic laws of various countries modelled on the UNICTRAL law tend to facilitate this process.[8] However, it is permissible to set aside a foreign award in India by applying the provisions of section 34 of Part I of the Arbitration and Reconciliation Act, 1996 if the judgment debtor invokes the public policy of India.[9] The Supreme Court of India also upheld in the case of ONGC v. Saw Pipes[10] that the test of public policy means an award that is patently illegal and violates the statutory provisions of Indian law or terms of the contract.
CAS arbitrators refrain from reviewing the determinations made on the playing field by judges, referees, umpires, or other officials who are charged with applying what are sometimes called ‘rules of the game’[11] The match officials have the autonomy to decide over technical issues on the field and their decisions are not subject to appeals. This concept of Lex-Ludica implies that certain matters are not suitable for legal intervention by the CAS and the expert opinions shall be respected in technical matters.
The CAS & Fédération Internationale de Football Association (FIFA)
The Court of Arbitration for sports is regarded as the apex court of appeal according to the FIFA statutes. FIFA statues form the constitution or the book of regulation for FIFA. FIFA (Fédération Internationale de Football Association) was founded in1904 to supervise and govern, international football competitions among the national associations of Spain, Germany, France, Netherlands, Sweden, Belgium, and Switzerland, Denmark. Today, its headquarters is located in Zürich, Switzerland and its membership now comprises 211 national affiliated associations.[12]
FIFA has three core judicial bodies, the Disciplinary, Appeal, and Ethics Committee. Article 52[13] of the FIFA Statutes gives detailed information about the constitution of those three bodies. Decisions are given by these judicial bodies depending upon the FIFA disciplinary code and FIFA code of ethics respectively. The Appeals Committee is liable for hearing appeals against decisions from the Disciplinary Committee and the Ethics Committee. According to Article 55[14] of the FIFA statutes, the decisions pronounced by the Appeal Committee is irrevocable and binding on all the parties, but parties can appeal against the decision in the Court of Arbitration for Sport (CAS). Under Article 58[15] of the FIFA statutes, aggrieved parties can lodge an appeal against the decision within 21 days of the receipt of the decision by the parties.
This infers that FIFA considers the Court of Arbitration of Sport as the supreme dispute resolving authority. Article 59[16] of the FIFA statutes deal with obligations relating to dispute resolution, it mentions that CAS, an independent judicial authority should be recognized by all members and whatever decisions it makes shall be irrevocable and mandatory to follow.
In 2002, FIFA and the International Council of Arbitration of Sport entered into an agreement which gave Court of Arbitration of Sport the upper hand for resolving disputes arising in the organization.[17] According to the agreement the CAS will sit as a tribunal of the last instance if attempts to solve the dispute internally through dispute resolution bodies at FIFA or the confederations prove unsuccessful. Another organization known as the IAAF i.e. International Amateur Athletic Federation, now known as World Athletics which is the international governing body for the sport of athletics, covering track, and field, cross country running, mountain running and ultra-running has also recognized the CAS as the superior dispute resolving authority.
Having a superior, independent, impartial, authority is very necessary because it allows the judgements to be unbiased which ultimately leads to justice. Court of Arbitration of Sport (CAS) is that independent superior body that can deliver an unbiased decision and hence international associations like FIFA and IAAF have trusted it by proclaiming the CAS as the apex court of appeal.
When there is no such superior body to appeal to, the decisions can turn out to be biased and distorted. Such bias decisions can have adverse effects on the players, team, club, nation, etc., and to circumvent such decisions, a body like CAS is much needed. From the year 2014, reports have come out disclosing that FIFA’s administrators were linked with corruption, bribery, vote-rigging. Even the organization’s decision to host the 2018 and 2022 World Cups in Russia and Qatar were challenged.
Many officials were suspended by FIFA’s ethics committee including Sepp Blatter and Michel Platini, many were arrested by Swiss authorities by launching a separate criminal investigation. The focus of these allegations was ex-president Sepp Blatter. Sepp Blatter resigned from the post of president amidst all the pressure from an alleged ongoing corruption scandal.[18] FIFA’s example makes us re-think the structure of some of the associations, their election process, justice mechanisms, etc.
In 2016, the CAS upheld the ban against Sepp Blatter. The matter that was ongoing for several years came to an end when the issue was presented to the CAS through the means of appeals. The CAS upheld the decision of six years ban on Sepp Blatter and backed it by saying, former FIFA president Sepp Blatter has lost his appeal against a six-year ban for ethics violations, imposed amid the biggest corruption scandal that had shaken the world soccer body (FIFA).[19]
The CAS & The International Cricket Council (ICC)
The International Cricket Council (ICC), just like FIFA has its own Dispute Resolution body which is called the Dispute Resolution Committee (DRC).[20]But, unlike FIFA, the ICC does not consider CAS as an apex court having jurisdiction and final decision over the judgements passed by their organization’s dispute resolution body. In 2018, the Pakistan Cricket Board (PCB) had claimed losses of up to USD 60 million after two series weren’t played between India and Pakistan between November 2014 and December 2015. An MoU was signed between the two boards, according to which India and Pakistan were supposed to play six bilateral series between 2015 and 2023, which the BCCI failed to honour.[21] The Board of Control for Cricket in India (BCCI) made it clear that they are not liable for any compensation to the PCB. The PCB then sent a dispute notice to the International Cricket Council (ICC).[22]
After hearing the dispute between the parties, the Dispute Panel determined that the PCB has to pay 60% (USD 1.6 million) of the BCCI’s claimed costs and the administrative costs and expenses of the panel. The dispute panel formed under the terms of reference of the ICC Disputes Resolutions Committee (DRC), announced that the panel had dismissed the PCB’s claim against the BCCI and the PCB has to pay compensation to BCCI. The judgement pronounced by the dispute resolution body of the ICC was binding on both the parties. No party was allowed to appeal against the decision.
This means the parties cannot approach the CAS by filing an appeal for relief against the decisions of the DRC. Under Section 2 (2.3) Arbitral Proceedings in the Terms of Reference[23] (2016) of the DRC, it is mentioned that any decision issued by a Dispute Panel shall be final and binding on the parties and no party will have a right to appeal against the decision. In a 2010 spot-fixing case[24] involved Pakistani payers including their captain Salman Butt, Mohammad Asif and Mohammad Amir. They appeared before the ICC Tribunal on the account of breaching Article 2 of the ICC Code. The Tribunal considered the “News of the World” recordings to be authentic, noting that the success of the fix could not be ensured without Salman Butt’s collaboration. Butt’s appeal before the CAS was based on the length of the sanction, rather than a liability.
It was submitted by him that CAS can also modify a minimum sanction which is impose irrationally; on the basis that such a situation would also be exceptional.[25] The CAS Panel noted that life bans had been impose as the appropriate penalty for corruption in many sports; which is why Butt and Asif’s bans were consider to be lenient. They faced a criminal trial in the UK as a result of which Butt received a two-year sentence. Asif, 12 months, while Amir received a six-month sentence at the Feltham Young Offenders Institute. The risk management strategies implemented by ICC. A guaranteed minimum wage for international players. It could ensure that such stalwarts do not become vulnerable to offences like match-fixing.[26]
Conclusion
Certain structural changes are needed to improve the functioning of the governing bodies of sport in India. There should be a unified framework to implement a Sports Development Policy on a national level. The Sports Federations should be regulated and supervised by a separate independent body. The athletes should be involved in its governance and act as administrators for this purpose. The designation of members to official posts of the federations should be streamlined and an election process should be well-established for the same. This will improve the transparency and accountability within Indian sport to combat integrity and corruption to ensure long-term change.
Now, concerning international disputes, the jurisdiction of the CAS should be broadened. No dispute resolution court should bar any party from approaching the CAS for dispute resolution. The panels and committees set up by the Federations tend to incline towards one of the parties. Due to numerous financial and political reasons. In the BCCI and PCB case, the BCCI is more of a dominant cricket body as compared to the PCB. This is because of the views, leagues and money that the organization brings in. Most of the revenue that ICC gets, is generated from India (BCCI).[27]The ICC may favour the country which pleases a large percentage of spectators and brings a lot of revenue. The panel/ committee set up by respective federations has great possibilities of tilting towards a particular country. In furtherance of their interests and motives.
There is a need to bring the dispute before an unbiased panel which would function without any fear or favour. Therefore, no party should be barred from approaching the CAS. Such courts should function only for the aggrieved parties effectuating fair administration of justice. The functioning of FIFA is much better than that of ICC as it considers CAS as an apex court. Though improvements are required in both organizations to deliver justice. FIFA has a relatively slower system in place to deliver justice and the ICC has a system that can be highly biased. The fundamental values of justice, equity and good conscience. It should be upheld by the courts while pronouncing a judgement, keeping ulterior motives aside.
References:
[1] United Nations General Assembly, resolution adopted in 73rd session, agenda item 12, 3 December 2018.
[2]Qc, A. L., & Qc, J. T. (2014). Sport: Law and Practice (3rd ed.). UK: Bloomsbury Professional..
[3]Mudgal, M. (2016). Law & sports in India: Developments, issues and challenges (2nd ed.). Lexis Nexis
[4] Reynolds v. International Amateur Athletic Fed. 23 F.3d 1110 (6th Cir. 1994), cert. denied, 115 S.Ct. 423 (1994) (reversing No.C-2-92-452 slip. op. (S.D. Ohio, 3 Dec. 1992), as modified, No.C-2-92-452 slip. op. (S.D. Ohio, 13 July 1993)). See also prior proceedings in 1992 U.S. Dist. LEXIS 8625, at *1, stay of preliminary injunction granted, 968 F.2d 1216 (6th Cir. 1992) (Table), application for emergency stay granted, 112 S.Ct. 2512 (1992); No.C-2 91-003, 1991 WL 179760 (S.D. Ohio, 19 Mar. 1991), vacated and remanded, sub nom. Rey nolds v. Athletics Congress of the USA 935 F.2d 270 (6t
[5]James A. R. Nafziger. (1996). International Sports Law as a Process for Resolving Disputes. The International and Comparative Law Quarterly, 45(1), 130-149. Retrieved February 29, 2020, from www.jstor.org/stable/761071
[6] Olympic Review, July-Aug. 1993, pp.298
[7] CAS Mediation Rules. Available at: https://www.tas-cas.org/en/mediation/rules.html Accessed on 1 March 2019.
[8] UNICTRAL Model Law on International Commercial Arbitration, 1958. Available at: http://www.unictral.orf/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf Accessed on 1 March 2020.
[9] Venture Global Engineering v. Satyam Computer Services Ltd and Anr, AIR 2008 SC 1061
[10] ONGC v. Saw Pipes, (2003) 5 SCC 705
[11]Segura v International Amateur Athletic Federation (IAAF) (CAS OG Sydney 2000/13: Digest Vol.2 p. 680)
[12]FIFA – Associations and Confederations – FIFA.com. Retrieved May 12, 2020, from https://www.fifa.com/associations/
[13]FIFA statutes, June 2019, Art. 52.
[14]FIFA statutes, June 2019, Art. 55.
[15]FIFA statutes, June 2019, Art. 58.
[16]FIFA statutes, June 2019, Art. 59.
[17]F. (2002, December 12). FIFA – FIFA.com. Retrieved May 12, 2020, from https://www.fifa.com/who-we-are/news/court-arbitration-for-sport-+cas-settle-football-related-legal-disputes-87198
[18]Fifa corruption crisis: Key questions answered (2015, December 21). BBC news. Retrieved on May 10, 2020 from https://www.bbc.com/news/world-europe-32897066
[19]Sen, A. (2016, December 5). Court of Arbitration For Sport Upholds Sepp Blatter Ban, News18.com. Retrieved on May 10, 2020 from https://www.news18.com/news/football/court-of-arbitration-for-sport-upholds-sepp-blatter-ban-1319583.html
[20]Sethna, R. (2018, January 29). How the International Cricket Council’s Dispute Resolution Committee works, LawinSports.com. Retrieved on May 10, 2020, from https://www.lawinsport.com/topics/item/how-the-international-cricket-council-s-dispute-resolution-committee-works
[21]PCB pays compensation to BCCI after losing case in the ICC’s Dispute Resolution Committee (2019, March 19). HindustanTimes. Retrieved on May 10, 2020, from https://www.hindustantimes.com/cricket/pcb-pays-compensation-to-bcci-after-losing-case-in-the-icc-s-dispute-resolution-committee/story-LBQ4hpy8nMdEoux5jLlTgI.html
[22]ICC, Media release, 19 Dec, 2018, https://www.icc-cricket.com/media-releases/948149
[23]ICC Dispute Resolution Committee Terms of Reference, 2016, Art. 2(2.3).
[24]CAS 2011/A/2364 Salman Butt v. International Cricket Council
[25]Citing CAS 2008/A/1574 which, it was noted, had in turn cited Associated Provincial Picture House Ltd v Wednesday Corporation [1948] 1 KB 223
[26]Chris Davies, Match and spot fixing: Challenges for the International Cricket Council, Bond University ePublications@bon (11-12-2015) Available at www.austlii.edu.au/au/journals/SportsLeJ/2015/9.pdf
[27]Careem, N. (2018, August 11). India is holding back world cricket – it’s time to kick them out of the ICC and start again, SouthChinaMorningPost. Retrieved on May 10, 2020, from https://www.scmp.com/sport/other-sport/article/2159278/india-holding-back-world-cricket-its-time-kick-them-out-icc-and
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