ARBITRATION IN SPORTS: RESOLVING DISPUTES IN THE WORLD OF ATHLETICS

This article is written by Kushal of BA.LLB of Chanderprabhu Jain College of Higher Studies and School of Law, New Delhi, an intern under Legal Vidhiya

ABSTRACT

Nowadays, sports play a huge role in both our daily lives and society. From ancient times to the present, people have participated in sports for a variety of reasons, including self-entertainment, physical and mental health, careers, administration and management, supporters, fans, clubs, associations, print and digital media employees, coaching, and training. The scope of the Court of Arbitration for Sports (CAS) in handling sports disputes in all sports, the extent to which the Indian Court of Arbitration of Sports and SACI can support sports arbitration and dispute resolution in India, and other relevant details will all be able to be determined by reading this article.

KEYWORDS

Arbitration, Court of Arbitration for Sports, International Olympic Committee, CAS, Jurisdiction, Award, SACI.

INTRODUCTION

A significant amount of liberty has been granted to sport both domestically and globally. Sport organisations themselves have the authority to choose which rules should be followed in the realm of sport and to set up committees to handle rule infractions and disputes pertaining to sports, provided that they work within predetermined parameters. Sports arbitration tribunals may handle contract disputes pertaining to sports, such as those involving player contracts, sponsorship agreements, or media rights. The parties must agree that the disagreement will be settled by arbitration, either through a clause in the original agreement or upon agreement after a dispute has begun, in order for the sports arbitration tribunal to hear certain cases.

ARBITRATION IN SPORTS

One type of alternative dispute resolution is arbitration, in which disagreements are settled out of court. One or more arbitrators will resolve the dispute in sports arbitration. An arbitration award is enforceable and legally binding on both parties. Sports arbitration is favoured above traditional judicial procedures for a number of reasons. First, by permitting the parties to fill the court with individuals who possess unique professional qualifications, the parties themselves can have an impact on the composition of the court. This means that, in the context of sports, the parties may be adjudicated by sports arbitrators who possess specialised knowledge in sports, rather than merely law.

In addition, the use of sports arbitration will expedite the process in comparison to that of regular courts. Sports arbitration will typically have less expensive fees than regular court cases.

HISTORY

The International Olympic Committee president in 1981, H.E. Juan Antonio Samaranch, came up with the notion to create a court just for sports. The 1982 International Olympic Committee session took place in Rome, a working group led by H.E. Judge Keba Mbyae, the then-judge of the International Court of Justice in The Hague, was established during this meeting.

This meeting’s primary goal was to draft the laws necessary to create the court currently known as the Court of Arbitration for Sport (CAS)—a court dedicated solely to sports. In addition to the growing number of sports disputes, the establishment of the CAS was motivated by the need for a body with specialised knowledge in sports disputes and the competence to arbitrate international sports conflicts.

The CAS was formally established in 1983, and on June 30, 1984, the statute was confirmed. The court possesses both executive and judicial authority. The International Olympic Committee (“IOC”) oversaw the court’s finances and operations for ten years, from 1984 to 1994.

In the case of G v. Federation Equestere Internationale and Court of Arbitration[1], the Swiss Federal Tribunal questioned the court’s reliance on the IOC. The International Council of Arbitration for Sports, a new division that disregarded the court’s judicial duty, was created as a result, and the Swiss Tribunal confirmed and acknowledged this in the case of Lazuntina Danilovav v. International Olympic Committee[2].

With the passing of H.E. KebaMbaye, the court’s first president, the CAS’s credibility came under scrutiny once more. Prior to the 2010 revision, which eliminated the requirement to pick the president nominated by the IOC, the regulations required the IOC’s proposed candidates to choose the next president.  Consultation with the IOC committees was still necessary, though.

Through the addition of clauses to the laws, they refer to in dispute resolution, the Olympic federation and national committee have acknowledged the court’s jurisdiction. The court has two branches, one in Australia and one in the United States of America, with its main office located in Lausanne, Switzerland. In cases concerning doping-related disputes, the Court of Arbitration for Sport (CAS) serves as an appellate court under the World Anti-Doping Code and the United Nations Educational, Scientific, and Cultural Organisation. The fact that the court has been acknowledged as a court of appeals is evidence of its importance and acceptance in relation to conflicts involving sports.

COMPOSITION

The twenty members of the committee of arbitrators are appointed in accordance with the CAS Code, with objectivity and independence being the primary qualifications for these members. The National Olympic Committee, the International Olympic Committee, and the International Federation make up the twenty members.

These members are appointed for a four-year term that can be extended. The arbitrators must sign an undertaking upon appointment committing them to acting independently and in their individual capacity as required by the code. For the Olympic Games, adjudicative divisions were also established in order to expedite problems pertaining to a time-sensitive nature. In addition to the Olympic Games, these Ad hoc Divisions are also used for football competitions such as FIFA and UEFA. Under CAS, disputes must be resolved within six to twelve months.

The ICAS meets in accordance with the Court of Arbitration’s directives, but it must convene at least once a year. To make decisions at these sessions, half of the total membership must be present. The president would have the last say in the matter.

JURISDICTION

The CAS is vested with jurisdiction over private disputes pertaining to sports. The secretary general of the court remarked that the “Court has never found it did not have jurisdiction simply because a dispute was unrelated to sport.” However, the only restriction on these courts’ jurisdiction is that the conflicts must arise from sports.

The court deals with cases that are typically related to eligibility, doping, discipline, breaches, and selection. It excludes disagreements over calls made by the field referee. Nonetheless, there are ongoing initiatives to expand the court’s authority beyond doping.

An arbitration clause in their agreement serves as the basis for the majority of the disputes that this court handles. As per the Olympic Charter, every athlete who wishes to compete in the Olympics must sign a document granting the CAS exclusive jurisdiction.

Many federations, including FIFA and the International Amateur Athletic Federation, had  established their own body for adjudication. However, as time went on, FIFA began to admit its disputes to the Court of Arbitration for Sports. It has been a long-running dispute for many years regarding jurisdiction between the domestic courts and the CAS.

This topic was covered in the case of Raguz v. Sullivan[3], in which the dispute was initially admitted to the New South Wales Court of Appeal, a domestic court. The court rejected the appeal on the grounds that the particular court lacked jurisdiction to hear the case because, according to their agreement, they had designated the “Court of Arbitration for Sports” as the forum for disputes, and that CAS would therefore have exclusive jurisdiction.

The exclusive jurisdiction clause forced the ad hoc tribunal to dismiss the case even though it had the authority to handle the disagreement.

The Ordinary Division and the Appeal Division comprise the two parts of the court’s jurisdiction.  While disagreements over the judgements made by associations, sporting bodies, or federations are handled by the Appeal Division, arguments over the method are handled by the Ordinary Division.

FUNCTIONS

The Court of Arbitration for Sport (CAS) is a body that oversees both ordinary and appeals arbitration. Due to a provision in their agreement, the conflicts from both heads are brought before this court. In addition to arbitration, CAS offers mediation services and provides advisory opinions. It has previously provided advice on conflicts involving swimwear during the Sydney Olympics. The primary distinction between an advisory opinion and arbitration is that the former is non-binding on the individual.

INDIAN CONTEXT

On an international level, the Court of Arbitration for Sport is regarded as the principal authority when it comes to cases involving athletic conflicts. It is frequently referred to as the highest court in sports-related cases. The core ideas of CAS have been put on a global stage so that many countries can adapt and develop; nevertheless, India has not made full use of this.

Nonetheless, the well-known IAAF v. Athletics Federation of India & Ors[4]. The case serves as a crucial illustration of how the applicability of CAS as a global forum for sports dispute resolution was acknowledged in India. In this instance, the National Anti-Doping Disciplinary Panel suspended four Indian athletes for doping offences. This case demonstrated the significance of the CAS since, in the appeal before the NAADP, the World Anti-Doping Agency cited multiple CAS decisions and made the case for harsher penalties.

Nevertheless, the repercussions of the historic Venture Global Case[5] negatively impacted India’s still-developing sports arbitration industry. This is due to the Supreme Court’s decision in this case, which held that Indian courts may, depending on the circumstances of the case, overturn arbitral awards made by foreign arbitration organisations. The Arbitration and Conciliation Act, 1996 was created with the intention of reducing litigation, but this ratio of the Supreme Court sets a national precedent that international arbitral awards may be subjected to greater judicial examination in India.

ENFORCEMENT OF AWARDS

The enforcement of the CAS award in India is analogous to that of any other international award. The New York Convention enforces arbitral decisions made by the CAS, which are essentially Swiss-seated arbitration awards. India has notified Switzerland that it recognises Switzerland as a reciprocating territory because Switzerland is also a signatory. In certain cases, the Supreme Court of India has ruled that the decisions made by the arbitration panel that was seated abroad are significant and had to be followed in the particular circumstances.

The CAS does not give out commercial awards. They are linked to particular facets of sports, such as the disciplinary or managerial aspects of the games. The primary distinction between the CAS award and any other commercial award is its unique characteristics, as it cannot be deemed to have originated from a connection with a solely business intent.

However, the process for enforcing any foreign award in India, whether it originates from the Court of Arbitration for Sport or another commercial award, remains the same. In the case of Vijay Karia v. Prysmian[6], the Supreme Court recently addressed the enforcement of foreign awards in India. The court emphasised that it would only get involved with a ruling that recognised and enforced a foreign award in the most dire circumstances.

SPORTS ARBITRATION CENTRE OF INDIA (SACI)

In 2021, Kiren Rijiju, the Union Law Minister, opened India’s first Sports Arbitration Centre of India.  This autonomous entity will act as a Fastrack redressal system and be only committed to resolving disputes involving sports and related events. This will undoubtedly have a significant positive impact on the growth of sports arbitration in India, as the SACI will hold significant influence and the Union Law Ministry will provide legal support.

But this isn’t the first stone in this field; over ten years ago, the Indian Olympic Committee established the “Indian Court of Arbitration for Sports,” an eight-member body that will arbitrate conflicts pertaining to sports. This action, however, proved to be a step in the wrong direction because it is unknown whether the previously mentioned body is still in operation, whether any procedures have taken place, whether any particular provisions have been enforced, or whether any decisions have been rendered by such a board in the last ten years. It is generally accepted that since news originally leaked out in 2011 that this board would be constituted, not much has been done to actually establish it.

Therefore, the creation of the SACI also calls into doubt the organization’s legitimacy and effectiveness. Still, after five or six years, a more comprehensive assessment of its success will be accessible. As a result, it can be concluded that this move will undoubtedly mark a turning point for Indian sports arbitration.

RELATED CASES

International Skating Union v. Pechstein[7]

The International Skating Union (“ISU”) suspended German speed skater Claudia Pechstein in this case, which was determined in 2016. Pechstein challenged the legality of the ISU’s arbitration clause, which obliged her to settle conflicts before the CAS, and appealed the ban to the CAS. The arbitration clause was maintained by the CAS, which found that Pechstein had freely consented to it when she joined the ISU and that it was not inconsistent with public policy. This case clarified the enforceability of arbitration clauses in sports contracts and upheld the CAS’s jurisdiction as the final arbiter of disputes pertaining to sports.

World Anti-Doping Agency (WADA) v. Sun Yang[8]

 The International Swimming Federation (FINA) suspended Chinese swimmer Sun Yang for doping, and this issue was resolved in 2020. Sun Yang challenged the authority and objectivity of the CAS panel that considered his case when he appealed the ban to the CAS. Although the CAS panel’s decision to ban Sun Yang for eight years was upheld, the case brought up important questions about the CAS’s involvement in doping matters and the impartiality of its arbitrators. The case brought to light the difficulties of maintaining objectivity and fairness in sports arbitration as well as the complexities of doping issues.

FIFA v. Chelsea[9]

The English football team Chelsea FC was barred by FIFA from signing new players for two transfer windows as a result of alleged infractions of the organization’s minor transfer policy. This dispute was resolved in 2020. Chelsea FC contested the harshness of the FIFA penalty by appealing the ban to the CAS. The CAS panel acknowledged the FIFA regulation infringement but only partially upheld the punishment, limiting it to one transfer window. The case brought to light the necessity of abiding by FIFA’s regulations on the movement of minors and the repercussions of non-compliance in the football sector.

CONCLUSION

In conclusion, arbitration has earned the respect and trust of the sports community due to its exceptional track record of success in settling conflicts involving sports. Unavoidably, this achievement has resulted in a sharp rise in the quantity of sports arbitrations that have occurred recently. The need to put mechanisms in place to make sure that the rise in arbitrations does not result in a fall in the calibre of awards given out is arguably the biggest problem facing the sports arbitration community today.

REFERENCES

1. Easportslaw https://www.easportslaw.com/news/sports-arbitration (last visited on 24th Feb 2024)
2. Ccadr.cnlu.ac.in https://ccadr.cnlu.ac.in/blog/arbitration/arbitration-in-the-realm-of-sports-in-india-an-analysis/ (last visited on 24th Feb 2024)
3. Amlegals.com https://amlegals.com/the-court-of-arbitration-for-sport-resolving-disputes-in-the-world-of-sports/# (last visited on 24th Feb 2024)
4. Globalarbitrationreview.com https://globalarbitrationreview.com/review/the-middle-eastern-and-african-arbitration-review/2017/article/international-sports-arbitration (last visited on 24th Feb 2024)
5. http://www.jespnet.com/journals/Vol_4_No_1_March_2017/2.pdf (last visited on 24th Feb 2024)
6. Linked.in https://www.linkedin.com/pulse/arbitration-sports-why-so-popular-among-indian-athletes-technical  (last visited on 24th Feb 2024)

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[1] G v. Federation Equestere Internationale and Court of Arbitration, 1992,CAS 92/A/63

[2] Lazuntina Danilovav v. International Olympic Committee, 2002, CAS 2002/A/370

[3] Raguz v. Sullivan, 2000, NSWCA 240

[4] International Association of Athletics Federations (IAAF) v. Athletics Federation of India (AFI) & Ors., CAS 2012/A/2763.

[5] Venture Global Engineering v. Satyam Computer Services Ltd. and Anr., (2010) 8 SCC 660

[6] Vijay Karia v. Prysmian,2020, SCC OnLine 177

[7] International Skating Union v. Pechstein, CAS 2009/A/1912

[8] World Anti-Doping Agency (WADA) v. Sun Yang – CAS 2019/A/6148

[9] FIFA v. Chelsea FC CAS 2019/A/6301

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