Encouraging Autonomy In Sports Decision Making

Brief Historical Background

Discuss About The Encouraging Autonomy Sports Decisionmaking.

Sport affects everyone. By it, the spirits of whole nations can either be uplifted or depressed. The passion, excellence and dedication it evokes in people is unmatched. Sporting touches sport organisations, officials, athletes and spectators lives at all spheres. The flipside to this universality of sports is that it has grown to form a substantial portion of the world economy. Accordingly, the stakes have increased for all involved parties. Disputes are necessarily inevitable and this is not surprising considering the humongous amounts of money that are at stake. In the United Kingdom, for instance, 19 million sports injuries take place annually and the cost comes to approximately £500 million in absence and treatment costs. Disputes in sporting are, however, not limited to injuries. Rather, wide-ranging claims fall under the realm of sports disputes including broadcasting arrangements, image rights, merchandising, endorsements and sports sponsorships, among others. 

In Australia and in other jurisdictions around the globe, the attitude of the courts has generally been to limit its intervention in sports disputes. This is, of course, with the exception of limited and very special circumstances. An example of instances where courts have intervened is where livelihoods are at stake and in cases of procedural irregularities. Indeed, courts have ruled that specialised sporting tribunals are better placed than courts to adjudge sports matters. In the words of Lord Denning, the Twentieth Century reformist and pioneer English judge, a good layman can dispense justice better that a bad lawyer. However, to what degree have the courts lent credence to this position? In other words, how has the larger legal system and the courts encouraged autonomy in sports decision making vis a vis granting sportspersons access to them in the resolution of their various away from the field of sport issues?

This paper discusses the extent to which courts have stricken a balance between encouraging autonomy amongst sports decision makers and allowing access to courts to solve their respective disputes. This article looks at the Court of Arbitration for Sport and domestic tribunals and courts of justice in determining the preceding question. This essay postulates that the norm is that there is reluctance by courts to intervene in the sports decision makers’ determinations. However, there are exceptions to this general rule and these include circumstances where the dictates of natural justice have been infringed or where fundamental rights are threatened and/or violated. Other avenues for courts’ interventions include matters of public interest, jurisdiction of tribunals, and fundamental administrative and procedural irregularities. This paper concludes that although the question of courts’ intervention in sports decision making bodies remains relatively undecided across the board, the courts have generally maintained and encouraged the autonomy of such bodies. Accordingly, this paper concludes that courts have courts have generally stricken the right balance in upholding the norm that they will not intervene in this autonomy except in limited and defined circumstances.

The Role of Domestic Courts in Determining Sports Disputes

The resolution of sporting disputes, historically, has been marred with inconsistency and irregularity. It is arguable that until the late 1990’s there reigned a certain level of disorder, as a convoluted morass of non-governmental, governmental, national and international institutions made attempts at resolving sports disputes while paying little heed to outcome consistency from case to case however similar the circumstances of the cases.  Due process, the principles of natural justice and athletes’ rights were ignored oftentimes. More often than not, parties, mostly athletes that went unrepresented, had to face their organisations or federations in the adversary-adjudicator twofold role. As a result, game organisers and sports federations have, in the past few years, realized that this abundance of procedures for dispute resolution has done more harm than good. Consequently, there was established, by the International Olympic Committee the Court of Arbitration for Sport (CAS), which has come out as an epitome in the development of consistent and fair processes in sports disputes. Most commonwealth jurisdictions have borrowed a leaf and in turn established municipal sports dispute resolution mechanisms (SDRM). The sole purpose of these SDRM is to provide education and dispute resolution at the municipal level.

Despite considerable argument as to whether there has been an evolution of a discernible set of rules regulating lex sportiva, literature review reveals a move towards more accessibility and consistency in sports dispute resolution both at local and international platforms. As commonwealth jurisdictions rise from a disjointed miscellany of convoluted legal intervention avenues, a move is being experienced towards unified domestic dispute resolution mechanisms, under the overarching international regime – CAS. The CAS has indeed become the bona fide international court of world sport. 

There remains a relative undecidedness in the question as to whether and to what extent courts can intervene in or interfere with the decisions, and by extension the autonomy, of arbitral or sporting bodies. Whether such postulation is appropriate has also been the subject of hot contest. Critics argue, from an international purview, that the utility of municipal law in the resolution of issues that arise out of activities of international law is not appropriate and should only happen in circumstances of violations of human rights and principles of natural justice. At the national level, the perspective is that private tribunals possess ample jurisdiction of self governance and arbitral tribunals, the authority to make decisions that are final and binding.

With respect to private tribunals, scholars argue that by according such bodies power to adjudicate on matters that touch on their members, parliaments have determined the important values served by these private tribunals. It follows, hence, that if the determinations of these panels are easily and regularly interfered with in courts, clearly those values are undermined. With regards to the finality of arbitral awards, it is judicially recognised that courts should not interfere with them except in defined circumstances such as corruption, fraud or abuse of power. Normally, courts will deny having jurisdiction and instead defer to sports organisations’ authority to use their own rules and regulations. Courts will typically adopt and enforce the determinations and rules of international and national federations and bodies, respectively. Scholars, however, argue that if cases involve issues of mandatory law, public order, natural justice and fundamental human rights, then arbitral bodies’ determinations should be subject to the courts’ review. Even in such instances, Professor Nafziger warns that jurisdictive recourse from determinations by sporting tribunals ought to be limited to instances where it is apparent that the cardinal dictates of due process were infringed upon. 

The Courts’ Recognition of the Need for Specialized Sports Decision Making Processes

There is an increasing trend throughout national court systems towards recognizing the competence and jurisdiction of specialized processes for resolution of sports law disputes at both national and international levels. CAS awards are normally enforced by domestic courts, which are usually reluctant to conduct de novo hearings and to entertain matters already arbitrated upon. Courts’ interventions are usually limited to particular exceptions where courts are of the view that an arbitral award is against public policy, has jurisdictional concerns on CAS’s competence to adjudicate on a case, or fundamental flaws in arbitral or administrative procedural law.

Current court pronouncements reveal a more cemented appreciation of CAS’s competence and jurisdiction to determine sports disputes. In 2004, for instance, during the then Olympic Games, the Greek judiciary indicated that it would respect the Ad Hoc Division of CAS as a matter of principle as well as pragmatism. As a result of the practice by CAS to publish its decisions, it has received recognition as having the status of a true arbitral forum. Therefore, its decisions warrant the dividends of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The additional effect is that domestic courts are precluded from intervening to set aside or challenge the awards by CAS with the exception of Swiss national courts. The rationale for the exception of Swiss courts is because Switzerland is the location where CAS legally seats, regardless of where a hearing actually takes place. The case of Raguz v. Sullivan clarified and buttressed the foregoing position. The question before the Australian court was whether a decision of CAS could be subject to review by domestic courts. In denying the appeal, the court held that because each competitor had waived the right to court by signing a waiver agreement designating Olympic related dispute resolution authority to CAS, the court had no jurisdiction. The court further characterized the matter as foreign by virtue of the CAS seating in Switzerland, irrespective of the fact that the arbitration was held in Australia. Without a doubt, that decision buttressed the authority and integrity of CAS and is indicative of the courts’ reluctance to interfere with CAS.

The Swiss Federal Tribunal in A & B v. IOC, made a determination on the apt independence of the CAS from international federations and that its determinations are construed as true awards. The federal tribunal held that CAS in independent of the parties and more analogous with judicial independence. The conception that can be distilled from the case of Gundel v. FEI/CAS is that only in the narrowest of circumstances is recourse to the Swiss courts available. An example includes an instance of fundamental misdirection in the law by the CAS.   

Courts in the United States do not point to the existence of a right, whether express or implied, that challenges sports associations’ decisions. As a general rule, courts in the US defer to private procedures in so far as their decisions do not result in corruption, fraud or abuse of power. That notwithstanding, claims relating to commercial interests, trademarks and property rights will be reviewed by the courts. In the case of Harding v. US Figure Skating Association, the court held that its intervention in the private association’s disciplinary hearing was only limited to the most extreme situation like in the instance that such an association breaches its rules or procedure and occasions grave injustice to a person. It is requisite, even then, that all the internal mechanisms are exhausted. Nafziger holds that in such an instance, the injunctive relief should only be for purposes of correcting the breach – the merits of the dispute should not be interfered with. The court in the case of Michels v. USOC observed that federal courts are not suitable bodies for the determination athletes’ eligibility and that there are other bodies that are better placed.  

There is a narrow parameter for court intervention in the UK. In the eyes of UK law, the rules contained within sporting organisations’ governing documents are considered as more that a contract. Instead, they are seen as representing a legislative code meant for members to adhere to. There are, however, limited circumstances that warrant the intervention of the courts: the tribunal’s decision traversed public policy or infringed upon statutory law; if the administrative tribunal of the sporting organisation exercised a function of public law; if the organisation monopolised its members; and if the dictates of natural justice were infringed. A good instance was demonstrated in Cowley v. Heatley. In that case, it was held that the constitution of the Commonwealth Games Federation was large and encompassed numerous nations’ legal systems. Accordingly, no single national law could govern the constituent members. 

Canada

The SDRCC arbitration in Canada is final and binding. However, the role of the courts cannot be ousted completely. As a matter of fact, courts have a significant role to play. The courts have jurisdiction to intervene in instances where the body addressed itself on issued beyond the scope of the dispute and where the decision was made mala fides. In Canada, the decisions of the SDRCC utilise the process of the courts in the enforcement of their awards and the rationale is that arbitral tribunals do not possess sufficient powers with respect to sanctioning non-complying parties. Therefore, in Canada, disputes progress through internal administrative procedures, followed by appellate processes lodged with national SDR programme, as well the possibility of appeal to the CAS and courts’ intervention in case a party is non-compliant.  

In summary, from the foregoing, it is clear that courts will intervene in sports disputes resolution mechanisms in limited circumstances. The ground that emerges as common for courts’ interference is natural justice violations. Indeed, the importance of natural justice can never be overstated in the determination of disputes. Also, sports organisations’ monopolistic disposition will rarely afford the members freedom of contract. Therefore, although the rule is that these organisations are responsible for making rules that govern their members, the ultimate judge as to whether these rules conform to the dictates of natural justice remains the purview of the courts.  

Conclusion

This paper has discussed the extent to which courts have gotten right the balance between encouraging sports disputes resolution mechanisms and allowing access to the courts especially in the realm of away from the play disputes. Courts in Australia and in other jurisdictions around the globe recognise and uphold the autonomy and competence of these organisations with very limited room for their intervention. Although it is clear from the discussions herein that the area of courts’ intervention in sports dispute resolution mechanisms is evolving, it is clear that courts have managed to strike an acceptable balance. Importantly, although sporting organisations decision makers are autonomous, they are not completely outside the jurisdiction of courts. Given their monopolistic nature, the intervention of the court is still of importance to the dispensation of justice. This is especially so with regard to the principles of natural justice. Whether these principles are adhered is left for the courts to act as the ultimate umpire.

References

A & B v. IOC, (2003) Swiss Fed. Trib., 1st Civil Chamber.

Angela Raguz v. Rebecca Sullivan & O.R.S (2000) NSWCA 240.

Blackshaw, Ian. “The Court of Arbitration for Sport: An international forum for settling disputes effectively within the family of sport.” Ent. L. 2 (2003)

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958, United Nations Treaty Series, vol. 330, No. 4739, p. 3, available from treaties.un.org/pages/ViewDetails.aspx?data-src=TREATY&mtdsg_no=XXII-1&chapter=22&lang=en.

Cowley v. Heatley (1986) T.L.R. 430.

Enderby Town Football Club Ltd v. Football Association Ltd [1971] Ch 591.

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Gundel v. FEI/CAS, I Civil Court, Swiss Fed. Trib. (Mar. 15, 1993).

Harding v. United States Figure Skating Association 851 Supp 1476 (D. Or. 1994).

Lee v. Showmen’s Guild of Great Britain, [1952] 2 All E.R.

Locklear, R. Jake. “Arbitration in Olympic Disputes: Should Arbitrators Review the Field of Play Decisions of Officials.” Tex. Rev. Ent. & Sports L. 4 (2003), pg. 216.

McInnes v. OnslowFane [1978] 3 All ER 211, [1978] 1 WLR 1520.

Mew, Graeme, and Mary Jane Richards. “More than just a game: Resolving disputes in modern sport.” In 14th Commonwealth Law Conference, London. 2005.

Michels v. U.S. Olympic Committee, 741 F. 2d 155, 159 (7th Cir. 1984).

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Nafziger, James AR. “Globalizing sports law.” Marq. Sports LJ9 (1998): 228.