AN OVERVIEW OF DISPUTE RESOLUTION IN SPORTS

PREAMBLE??

The world of sports is governed uniquely. Unlike in other social and economic dimensions of society, sports-related disputes are not typically referred to civil or (criminal) courts. This is due to the uniqueness of sporting disputes, the need for swiftness, and a technical understanding of the complexities of the sports world. It was the vision of the long-time president of the IOC (International Olympic Committee), Juan Antonio Samaranch, a specialized body that should handle sports-related disputes. Over time, that dream became a reality as the sports world developed its unique dispute resolution apparatus and specialized courts.??

Within sports, there is an overwhelming aversiveness and reluctance towards relying on civil courts. There exists a universal preference for the unique dispute resolution mechanisms developed, and even if those mechanisms and apparatuses have their issues, it is indisputable that they will continue to be front and center of the sports world. Regardless of the overwhelming support, the sports-specific dispute resolution mechanisms have enjoyed, there have been a few instances where civil courts have been relied upon, and I briefly evaluate a few notable cases. This article is in no way intended to be exhaustive but merely gives a birds-eye view into the process of dispute resolution in sports, from doping violations to contractual disputes, and an insight into the bodies and structures within sports responsible for keeping the legal order.??

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SPORTING DISPUTES

Just as in all dimensions and levels of society, disputes frequently occur within sports. Whether it be an athlete being accused of doping violations by the Worlds Anti-Doping Agency (WADA), a club being charged with breaching their contract with a player, a sports association being denied entry into an international federation, a player seeking legal remedy for an unfairly harsh sanction from an association, or a disagreement between the player association of a league like the NBA, legal disputes arise in the day-to-day operation of sports and are as vast and dynamic as disputes everywhere else.??

Within the sports ecosystem, there exists an implied consent to resolve disputes without the involvement of ordinary civil courts. Finding legal remedies is slightly technical but not necessarily more tedious than finding legal remedies in other areas of life. Various competent bodies in sports exist to deal with various disputes. Within football, FIFA has its Dispute Resolution apparatus from which appeals can lie to the Court of Arbitration for Sport. In the Basketball World, the Basketball Arbitral Tribunal oversees commercial disputes, especially bordering European Basketball. The NBA has its own intricate dispute resolution apparatus established by the NBA Constitution. ???????????

The most critical factor to note is that in operating an Arbitrative system, consent is required for the jurisdiction of the sports dispute resolution systems to be triggered. Unlike civil courts, which have the overriding constitutional power to which citizens must submit, the power of the sports courts only exists to the extent to which parties consent. The consent of sports stakeholders is two-fold, it could come in the form of arbitration clauses in contracts between parties, it could be outrightly stipulated in the statutes or regulations of federations, or it could be expressly agreed upon in collective bargaining agreements. While the consent of stakeholders is required, it must be said that such consent is not always freely given by players and other actors. Most times, athletes have no choice but to consent, given that statutes of federations and national associations stipulate that resorting to arbitration is mandatory. Standard athlete contracts, licenses, and competition entry forms often require outright consent as a baseline requirement. This is not to in any way suggest that athletes suffer in any way. These systems exist to their advantage, and if they could give unequivocal and unconditional consent, I think most athletes would do that anyway.?

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DISPUTE RESOLUTION MECHANISMS???????????????????????

Within the sports ecosystem, national associations and international federations primarily oversee dispute resolution within the sports they govern. Alliances, either national or international and confederations make decisions all the time that affect actors they manage within the purview of the tournaments they organize. For instance, UEFA might place a transfer ban on a club for the breach of its financial fair play regulations or fine a club handsomely for fan hooliganism. FIFA can ban a player from its tournaments for overt acts of violent conduct or ban officials involved in malpractices for extended periods. WADA can proscribe athletes from competing in future Olympic games for drug violations. When FIFA and UEFA make such decisions, they typically have appeal bodies where aggrieved parties can take their appeals. If the findings are upheld, they can resort to the Court of Arbitration for Sport. It is not only the case that FIFA issues first-hand disciplinary decisions. FIFA has its Dispute resolution chamber, which hears specific appeals. I will briefly discuss the most popular dispute resolution systems in sports, the FIFA DRC, the CAS (COURT OF ARBITRATION FOR SPORT), BAT and the NBA’s apparatus.??

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FIFA DISPUTE RESOLUTION CHAMBERS?

FIFA has four main dispute resolution apparatuses. They are as follows.??

1.?????Dispute Resolution Chamber?(DRC)

2.????Player Status Committee?

3.???Disciplinary Committee?

4.???Ethics Committee?

The Ethics committee and Disciplinary committee primarily handle disciplinary and good governance issues. The Disciplinary Committee functions through the instrumentality of the FIFA Disciplinary Code and is empowered to deal with breaches of FIFA’s regulations contained in the Disciplinary Code. The Ethics Committee is governed by the FIFA Code of Ethics and functions through two chambers, the Investigatory Chamber, which investigates violations of the Code of Ethics, and the Adjudicatory chamber, which reviews reports from the investigatory chamber to prosecute breaches of the code.?

The Player Status Committee monitors compliance with the FIFA Regulations on the Status and Transfer of Players. According to Article 46 of the FIFA Statutes, “It shall also be responsible for the work of the Dispute Resolution Chamber…”.??

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?THE DRC?

?The DRC was set up in September 2001 to hear four types of disputes as contained in Article 22(a), (b), (d), and (e). Those cases are summarily cases involving International Transfer Certificate disputes, employment-related disputes of an international dimension, i.e., applying a foreign player/coach and a club, training compensation, and solidarity mechanisms disputes.??

Article 22 of the RSTP permits parties to a contract to waive the competence of the DRC and opt into the jurisdiction of “an independent arbitration tribunal that has been established at the national level within the framework of the national association and collective bargaining agreement”, i.e., a National Dispute Resolution Chamber. To be legitimate, the RSTP in Article 22 requires that such NDRCs “must guarantee fair proceedings and respect the principle of equal representation of players and clubs”. ?

The DRC comprises 26 members, 13 club representatives, and 13 player representatives, as well as a chairperson and a deputy chairperson. Decisions of the FIFA DRC and NDRCs are appealable to the CAS. Lastly, according to Article 24bis, being a competent FIFA deciding body, the DRC is empowered to impose sporting sanctions on players and clubs who fail to comply with its decisions.??

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THE COURT OF ARBITRATION FOR SPORT (CAS)?

The court of arbitration for Sports is commonly referred to as the “supreme court of sports,” and rightly so. The CAS was set up in Lausanne, Switzerland, in 1984 to adjudicate sports-related disputes through arbitration and mediation. Whilst set up with the outright intention of being the premier sports dispute resolution body, its trajectory was rather bumpy and a roller coaster. It took around two years to hear its first case and over a decade before being granted outright jurisdiction by top sporting federations through their statutes.??

In 1993, the initial administrative overreliance by CAS on the IOC caught up with them when the CAS partially upheld a ban by the FEI on Elmar Gundel. This Equestrian rider then appealed to the Swiss Federal Tribunal, questioning the autonomy of the CAS from the FEI. The Swiss Federal Tribunal held that the CAS was independent of the FEI but, in an obiter, questioned its independence from the IOC. This obiter snowballed and became the catalyst for the 1994 reforms to CAS, which saw the introduction of the ICAS, the body responsible for overseeing the administration and financing of CAS and ensuring its independence.??

The CAS has four internal divisions; the Ordinary Division is competent to handle both ordinary cases in their first instance if the parties to a contract outrightly through an arbitration clause cede power to it. These disputes could be contractual or in any form if they are sporting. The Appeals Division hears appeal cases if the federations or associations from which the appeals emanate have explicit provisions in their statutes that grant jurisdiction to the CAS. The recently set up Anti-Doping Division is a first-instance division to handle anti-doping cases. Lastly, the Ad-hoc Division exists and, as the name suggests, operates on a short-term basis at specific competitions and events to quickly resolve disputes.?

?Decisions of the CAS can be enforced through the potency of the 1958 New York Convention on the ‘Recognition and Enforcement of Foreign Arbitral Awards. Federations like FIFA and the FEI typically penalize and sanction parties that fail to enforce and implement the decisions of CAS, which guarantees its efficiency and respect.??

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BASKETBALL ARBITRAL TRIBUNAL?

The Basketball Arbitral Tribunal (BAT) is an independent body officially recognized by the International Basketball Federation (FIBA). It was set up in 2006 and facilitated the settlement of all Basketball-related disputes. It functions similarly to the CAS, and its jurisdiction can only be invoked if the parties to a dispute consent in an arbitration clause. BAT’s mission is to provide rapid and inexpensive dispute resolution, and it is one of the biggest sports tribunals globally. The BAT’s creation was necessitated by the rudderlessness that existed in the Basketball world and the phenomenon of parties breaching their contracts due to the absence of a dispute resolution body that held them accountable. BAT is recognized by the Swiss Federal Tribunal (SFT) as a proper court of arbitration within the meaning of Articles 176et seq. of the Swiss Private International Law Act, which presupposes the independence of parties in a dispute. In this case, the autonomy of BAT is guaranteed by the fact that FIBA and its divisions cannot be parties to or be involved in any Arbitration. Parties are primarily athletes, clubs, and agents from whom the BAT is independent.??

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SWISS FEDERAL TRIBUNAL??

The CAS, as earlier stated, is the ‘supreme court’ of sports, and under the relevant provisions of the Swiss PILA, arbitral awards are final upon their notification. They can only be challenged on a few grounds before the Swiss Federal Tribunal (SFT).?

These Limited grounds for appeal are contained in (Art. 190 para. 2 PILA) and are as follows:??

1.??????A sole arbitrator was not correctly appointed, or the arbitral tribunal was not properly constituted.??

2.?????The arbitral tribunal wrongly accepted or declined jurisdiction.?

3.??????The arbitral tribunal ruled ultra petita / infra petita;?

4.??????The arbitral tribunal violated the principle of equal treatment or the right to be heard.??

5.?????The award is incompatible with public policy.?

The SFT only hears arguments substantiated in the appeal and not arguments of appellatory nature and bases its judgment on the facts as the CAS has established.??

The Swiss Federal Tribunal has been quite influential in shaping the sports dispute resolution apparatuses. The case of Elmar Gundel perfectly embodies this. Gundel, a German horse rider, had filed a motion to the SFT against a doping-related CAS award in 1992, holding that CAS did not meet the conditions of impartiality and independence to qualify as a proper Court of Arbitration. The SFT recognized the CAS as an appropriate court of arbitration but also drew the attention of CAS to the numerous links which existed at the time between the CAS and the IOC, mainly in terms of financing and modification of the CAS Statutes by the IOC; this necessitated the creation of the International Council for Arbitration of Sports (ICAS) which is an independent body responsible for the administration of the Court of Arbitration for Sport.??

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?ORDINARY COURTS??

There have been a few cases where Ordinary Courts have been called upon to counteract the decisions of the CAS. This is risky and can alienate the athlete from the sports community. Athletes are bound by the rules and structures of international federations; in a previous article, I extensively explained precisely how Athletes, directly and indirectly, consent to the exclusive power of the CAS to settle sports-related disputes. However, athletes sometimes disregard this agreement when the chips are down. An excellent example of such an instance is Claudia Pechstein . She appealed the decision of CAS to ban her for doping violations in the Local Court of Munich and, subsequently, the Higher Regional Court. The crux of the tale is that she got a favourable judgement from the Higher Regional Court in Germany. The court found it contrary to public policy to recognize the CAS award. The court also found the CAS structure imbalanced and disproportionately favouring international federations.??

Many believed the Pechstein case heralded the?beginning of the end for the CAS; however, somehow, the CAS has managed to persevere and can be said to be stronger than ever. ?

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DISPUTE RESOLUTION IN THE NBA??

In a previous article , I discussed the many differences between European and American sports. In the USA, leagues sign Collective Bargaining Agreements (CBAs) with their Player Unions or Associations. These CBAs, alongside the various leagues' constitutions, define and guide the parties' relationships and specify the dispute resolution apparatus. There are several separate places where the NBA gets to litigate its disputes. Those forums come from the NBA Constitution, the NBA's collective bargaining agreement with the players, the NBA's collective bargaining agreement with the referees, and from international arbitration agreements that the NBA has with FIBA (the International Basketball Federation).??

The NBA Constitution is the governing document that sets forth how the league will be governed, creates the Board of Governors, and establishes the powers of the Commissioner. The Commissioner is vital to the dispute resolution process, and one of their core powers is to decide disputes -any disputes -among NBA teams. Conflicts between groups are few and far between and mostly border on tampering (the act of a team beginning talks or negotiations to lure a player or coach of another team before being permitted to).??

Much more common, day-to-day litigation occurs under the NBA's collective bargaining agreement with the Players' Association. This collective bargaining agreement is lengthy and governs every aspect of the NBA's relationship with the players. It includes the very elaborate salary cap system in the NBA, the rules about free agency, how the salary cap works, how the salary cap is calculated, and a myriad of rules and regulations that are the product of tough negotiations and adversary draftsmanship. A document of that length and that complexity is so fertile with disputes that it is a cornucopia for lawyers.?

The Impartial Arbitrator is the second vital component of the dispute resolution structure of the NBA. The arbitrator usually gets the more routine cases, for example, the cases of alleged nonpayment of obligations under player contracts, bonuses, clauses requiring players to maintain a certain weight, etc.?

The third is called the System Arbitrator. He is called the system arbitrator because the questions he gets relate to the overall economic system that was put in place in the collective bargaining agreement, including anything about how the salary cap operates and is calculated.?

Due to the NBA’s broad reach and international audience, there is an overriding need for International Arbitration, which is the final component of the dispute resolution structure. The NBA participates in the global market and gets players from various leagues worldwide, most of whom might be under contract; thus, conflicts are bound to arise. The NBA years ago, in a bid to reduce the number of disputes bound to happen when their teams target players from international markets, decided to agree with FIBA to seek their clearance before getting a player from the diaspora; part of this agreement allows the NBA to refer the case to an independent arbitrator if any conflict arises.??

CONCLUDING THOUGHTS??

?I hope that this article has given a birds-eye view into the dispute resolution front in sports. More nuances and technicalities are involved, and they cannot all be exhaustively discussed in one article; however, the most crucial and consistent pillars of the European and American sports systems have been discussed. Amongst the American leagues, I chose to discuss the NBA because it is the most popular American sports league overseas and has the most progressive dispute-resolution system of the American leagues. At the end of the day, the key takeout is that Arbitration is rife throughout the sports world and will continue to be so. The benefits of the application of Arbitration in sports are immense. To name a few, there is speed, efficiency, and of course, the fact that arbitrators who make decisions have specialized knowledge of the sports world and its intricacies.