Challenging Sanctions In Sport Arbitration How Fair Play Is It

Challenging sanctions in sport arbitration: how fair play is it?

Challenging sanctions in sport arbitration: how fair play is it?

INTRODUCTION

I have chosen this specific subject taking into consideration the economic implications (the sports industry as a whole brings roughly $14.3 billion in earnings a year in the US alone, and in the EU it accounts for 1% of its total economy), the social affection that sports gain from individuals worldwide and the fact that the highest court in sport is an arbitral tribunal.

For this particular paper I intend to analyze the fairness/due process of the arbitral process involved in sport sanctions in the context of national rulings conflicting with sport international arbitral awards and with athletes having no choice than to adhere to federations’ rules in order to compete.

The research method that I will use to achieve this purpose will be based on a qualitative analysis. The paper will try to explain the process involved in sport sanctions, to show the jurisdiction of the Court of Arbitration for Sport and the International Olympic Committee, and the way that it actually stems from the noble Olympic principles and the Olympic Charter.

Further on I will put the spot light on landmark cases that put fairness into question such as: Gatlin v. U.S. Anti-Doping Agency where judges used wording like “courts have no power to right the wrong perpetrated upon one of its citizens.”, or Nagra v. Canadian Amateur Boxing Association were although the courts granted him the right to box, an international federation simply refused to obey it, and even cases that might bring new developments to this area such as German Olympic speed skater Claudia Pechstein’s case against the CAS whose appeal at the German Federal Court is one of the most highly anticipated cases of the year not only in sport arbitration, but for arbitration in general.

INTERNATIONAL SPORT DISPUTE RESOLUTION SYSTEM AND PROCESS IS SHORT

Arbitration is an alternative dispute resolution system through which the parties submit their case to an arbitrator or arbitrators. The decision given through arbitration has a binding effect upon the parties and it is used as an alternative to the courts system as it has been proved for some instances to be more efficient. The confidentiality aspects of the process and its fast dispute settlement mechanism are among the key factors which determine the parties to resort to arbitration. In addition, the decisions are rendered by expert panels, placing arbitration as an efficient and reliable alternative.

Sport arbitration is a niche of arbitration that takes on matters and cases related to all sports. The parties in such arbitrations are usually athletes, the clubs, federations, etc. To give a few examples sport arbitration settles cases that, among others, involve doping, disputes between sport clubs and federations, conflicts between athletes and federations such as suspensions, and between athletes and their clubs (they might decide on issues of a breach of contract).

When addressing the issue of sports arbitration one must look at the corner stone of the sport industry and that is the professional athlete. For the athlete not to be just a mere sport practitioner he has to compete. In order to compete nationally at a professional level the athlete has to be a member of a club or association, that they themselves are members of a national federation or a similar form of organization. To be able to send athletes to compete internationally, the national federation has to adhere to an international federation or similar international body. The condition for a national federation to be a member of an international federation is to agree with the international counterpart’s rules and regulations, the same applies to when clubs want to be a part of a federation, they agree that the national federation’s rules, and implicitly the rules of the international federation, will apply to them. At the other end of the wire is the athlete or player that, in order to take part in the best competitions, has to agree and consent that the aforementioned rules will apply to him and that he will respect them fully. This was important to explain because at all levels parties have to agree that they will submit their eventual disputes to arbitration, specifically to arbitration at Court of Arbitration for Sport (CAS) or Tribunal Arbitral du Sport (TAS) in French. The seat of arbitration of CAS is Switzerland and so are the legal headquarters of 47 international federations.

EXAMPLE OF FIFA

For the purpose of this essay I will briefly explain the arbitration procedure for football (soccer) under the International Federation of Football Associations’, or more commonly mentioned as FIFA, rules and regulations. For instance, if a conflict arises between a player and a club the national federations consist of bodies (commissions or committees for first instance and appeals), that can act in a tribunal-like manner and apply the rules and regulations that the above mentioned parties agreed to, the powers of such bodies derive from the same rules and regulations since they establish the legal basis for the organization to exercise its authority, as well as the rights and obligations of membership. These regulations also establish an appeal procedure for its members. This usually is done through the international federation which in this case is FIFA that has two bodies (Disciplinary Committee and the Ethics Committee) that can give rulings in accordance with its rules, each for specific situation, and the Appeal Committee that handles appeals on the decisions of both of the previous committees. There is also the possibility for the parties to go directly at CAS if the rules of the federation that they agreed to allow it for that specific matter. A decision rendered by CAS is final and binding and can only be appealed at the Swiss Federal Tribunal for a limited number of reasons that do not include the merits of the case(the award may only be annulled under the following circumstances: a. if the sole arbitrator was not properly appointed or if the arbitral tribunal was not properly constituted; b. if the arbitral tribunal wrongly accepted or declined jurisdiction; c. if the arbitral tribunal's decision went beyond the claims submitted to it, or failed to decide one of the items of the claim; d. if the principle of equal treatment of the parties or the right of the parties to be heard was violated; e. if the award is incompatible with public policy.). All of these rules and procedures can differ from sport to sport according to its specificities, and even from nation to nation (however to a lesser degree from nation to nation since they have to fall within the framework imposed by the international governing organization of the sport).

THE COURT OF ARBITRATION FOR SPORT / CAS

OLYMPISM AND THE OLYMPIC MOVEMENT

In order to understand why CAS has such a great value, one must understand the role of the Olympic Movement and the organization of the sport industry. The organisation of sports as we know them today was started by Pierre de Coubertin in 1894 by reviving Olympism and the Olympic Games and creating the Olympic Movement. “Olympism is a philosophy of life which places sport at the service of humanity. This philosophy is based on the interaction of the qualities of the body, will and mind.” . The Olympic Movement is founded through the  Olympic Charter. In Article 1.1 of the Charter it is stated that under the supreme authority and leadership of the International Olympic Committee, the Olympic Movement encompasses organisations, athletes and other persons who agree to be guided by the Olympic Charter. Paragraph 4 of Article 1 concludes that any person or organisation belonging in any capacity whatsoever to the Olympic Movement is bound by the provisions of the Olympic Charter and shall abide by the decisions of the IOC. The Olympic Charter regulates the legal status of the International Olympic Committee or IOC, which is of an international non-governmental not-for-profit organisation, of unlimited duration, in the form of an association with the status of a legal person, recognised by the Swiss Federal Council. It also specifies the role of the International Federations and the National Olympic Committees, the World Anti-Doping Code, as well as the Olympic flag, etc. .

I have presented the international sports system because it is important to know that since it is the IOC that has created the CAS, and the fact that the IOC has to be abided by all other sport federations involved in the Olympic movement, this makes the CAS to have a very wide reach.

Seeing that the sport phenomenon has started to generate a substantial economic and commercial footprint worldwide in the early 1980 and that national courts were involved more and more into the disputes involving sport, the IOC considered that there was a need for an independent authority focused only of sport related matters and that could give a binding resolution and as such in 1984 the Court of Arbitration for Sport was created.

GUNDEL CASE IMPLICATIONS IN THE CAS’S HISTORY AND REFORM

In 1994 the CAS went under a reform process following the case of a horse rider named Elmar Gundel who’s horse was found to have a banned substance (isoxsuprine) in its blood, and as such the rider received a 3 months suspension from the Federation Equestre Internationale (FEI), after which he filled an appeal to the CAS. Even if the CAS reduced the 3 months suspension to 1 month, the horse rider filed an appeal to the Swiss Federal Tribunal arguing that it recognized the CAS as an arbitral tribunal, however it questioned it’s impartiality since it was fully funded by the IOC and FEI was part of the IOC. The Swiss Federal Tribunal rejected the claimant’s appeal and considered the CAS to be independent from FEI since it was not an organ of the FEI, it was not under the supervision of FEI or under its authority, and FEI nominated only 3 arbitrators out of the total list of 60 arbitrators of the CAS. Although it upheld the CAS’s impartiality in this case the Federal Tribunal noted in its decision that it would have been more problematic if the IOC would have been one of the parties in the dispute since there are strong ties between the IOC such as the fact that CAS was almost entirely funded by the IOC, that the IOC had the prerogatives to change the CAS Statute, and that the IOC could appoint members of the CAS.

After this decision the CAS took notice of the Federal tribunal’s objections and went under a reorganization process. This consisted, among others, in three major changes to the CAS’s system. The first change was the creation of the ICAS or the International Council for Sport Arbitration, that would act as a governing or supervisory body of the CAS. The ICAS consists of 20 experienced jurists and is mainly in charge of overseeing the manner in which the CAS is financed and administered, it can also change and make amendments to the CAS Code, and it also decides on challenges of the arbitrators. The following change was the way the CAS was financed, which now included the financial contribution of international federations and of the national Olympic committees, alongside with the IOC. The third main reform consisted in the fact that now the CAS split its cases into two categories, ordinary cases that dealt with contract disputes that arise out of an arbitration clause or an arbitration agreement, and appeal cases where the CAS handled challenges against decisions of federations or other sport related bodies that have in their rules the possibility of an appeal to CAS.

The entire reform process was put to a test 9 years later in the Lazutina case that involved 2 cross country skiers, Larisa Lazutina and Olga Danilova, who were disqualified from the 2002 Olympic Winter Games in Salt Lake City. They appealed a CAS decision to the Swiss Federal Tribunal and invoked that the CAS still did not have independence from the IOC as to make it impartial. The decision of the Federal Tribunal concluded that “the CAS is not a vassal of the IOC” and as such maintained the CAS’s decision. Since then the Lazutina case is regarded as a landmark case for the CAS and its independence and impartiality.

CONFLICTS BETWEEN NATIONAL COURTS AND INTERNATIONAL SPORT GOVERNING BODIES

THE GATLIN CASE

The case of runner Justin Gatlin revolves around the Americans With Disabilities Act conflicting with the regulations of the International Association of Athletics Federations, or IAAF, that is the world governing body for the sport of track and field athletics.

In 2001 Gatlin was found positive of using amphetamines and an arbitration panel rendered “what appears to be an interim, non-final decision pending disposition of a petition for reinstatement by the IAAF” and suspended the athlete for 2 years. At the time, the IAAF rule provided that for “exceptional circumstances” the IAAF could reinstate the athlete before the passing of his suspension time. Taking into consideration that Gatlin proved that he took the amphetamines as a medication (Adderall) for his Attention Deficit Disorder, a condition he was diagnosed as a child, and stopped 3 days previously to the competition, coupled with the fact that did not obtain any competitive advantage, the IAAF considered that Gatlin did not cheat, nor he intended to cheat, so they reinstated the athlete in 2002, however the doping violation found by the arbitration panel remained “on the books” and the IAAF did not address it in respect to Gatlin’s fault or negligence.

In 2006 the athlete was again found positive, this time with an excess of the substance testosterone or its precursors, which are prohibited as an androgenic anabolic agent under the applicable rules, WADA Code and IAAF Rules. If an athlete is found positive for the first time the suspension is of 2 years, but for the second time the suspension can be a lifetime ban. As such it was paramount if the 2006 doping result was a first time offence or if Gatlin reoffended. He actually was suspended for only 4 years. In his appeal to the CAS Gatlin relied on the fact that according to the Americans With Disabilities Act it would be discriminatory to take into consideration his first positive result as to be diagnosed to have Attention Deficit Disorder is considered a disability. The CAS dismissed this argument and kept Gatlin’s initial 4 years suspension considering that the 2006 doping was his second time, however one of the arbitrators made a 22 page dissenting opinion using strong phrases like “Increasing Mr. Gatlin’s sanction for his first violation because of his disability is blatant discrimination in violation of the Americans with Disabilities Act.” or such as “By imposing sanctions on athletes like Mr. Gatlin who take medication for their legitimate disability, the Anti-Doping Organizations are willfully violating the law— behaving as if they are above the law. In these circumstances, they are nothing more than bullies preying on the vulnerable. The federal government should take a serious look at this practice.”. Gatlin not only lost the chance to participate in competition, but also had a world record in the 100 meters race (9.77 seconds) nullified because he obtained it after the test was positive.

In this context, instead of going to the Swiss Federal Court with an appeal, Gatlin filed for a permanent injunction in the Northern District of Florida to allow him to compete in the trials for the 2008 Olympiad and was granted one allowing him to participate in the competition. Unfortunately for Gatlin the Court of Appeals went back on the decision, declined the jurisdiction of United States courts and maintained the CAS ruling. However, the court stated that “Nonetheless, the result of this determination is quite troubling because Mr. Gatlin is being wronged, and the United States Courts have no power to right the wrong perpetrated upon one of its citizens.".

THE NAGRA CASE

The case of Pardeep Nagra involves a boxer of Sikh religious faith that was not allowed to compete due to his religious beliefs. The facts of the case are that Nagra who wanted to compete at the national boxing championships was stopped from going to the weigh in before the matches due to the fact that he had a beard that he kept because of his religion. Sikhs perceive their beard as a symbol of the nobility and dignity of their manhood, they do not cut their hair and beards out of respect for the God-given form. As such uncut hair, is one five compulsory articles of faith for a baptized Sikh. However, the matches that were about to take place were under the rules of the Association Internationale de Boxe Amateur (AIBA) or otherwise known as the International Amateur Boxing Association. These rules state that a boxer must be clean-shaven before the weigh in and the reasoning for this is that it is better for the boxers’ safety due to the fact that a hair strand can go into the eye, however Nagra argued that he would wear a net over his beard. After not being allowed to do the weigh in before the match, that can only be done in a 2h window, the boxer called his coach and lawyer and they urgently took the case to court and filed for an injunction to allow Nagra to fight at the national championship which the judge granted. The judge based it’s ruling on the fact that such a provision that would prohibit Nagra from boxing based on his faith is in violation of Canadian Human Rights Law. Upon receiving the judge’s order, the Canadian Amateur Boxing Association cancelled the matches for that weight class for that day. The Canadian Amateur Boxing Association was faced with a tough choice of either breaking national law by ignoring the court’s order or face sanctions from the International Amateur Boxing Association for not complying with their boxing rules. In the end, CABA managed to negotiate with the AIBA an exception for Nagra’s case, but only at a national level and as such he was still not allowed to fight with a beard in an international competition, if he would have qualified.

The boxer did not qualify for the international stages of the competition and as such the case was not taken any further, but the court’s order still applies and Sikh boxers can box unshaven in Canada.

THE PECHSTEIN CASE

The case of Claudia Pechstein, a five-time German skating Olympic champion, started when she was deemed as doping through a biological passport test, a test that detects changes from the ordinary in an athlete’s blood, rather than a certain substance. The skater was suspended in 2009 by the International Skating Union or ISU for 2 years, she then appealed the decision at the CAS and when the CAS maintained her suspension she appealed to the Swiss Federal Tribunal that also rejected her request stating that there was no breach of public policy. She also has a case pending in front of the European Court of Human Rights. Nonetheless she has filed a suit against the ISU for 4 million euros in damages at the local court of Munich. Surprisingly the court decided that the arbitration clause was invalid and considered that the athlete did not enter into the clause voluntarily because there was a structural imbalance between her and the skating union that had a monopoly position and Pechstein did not have a real choice. However since the athlete did not object to the jurisdiction at the beginning of the arbitration at CAS and continued with the process, thus implicitly agreeing with the CAS’s jurisdiction on the doping ban, now it was a valid arbitral award with the power of res judicata, and thus even though he admitted the claim, the judge could not offer damages on the merits. Pechstein, afterwards, appealed this decision at the higher court of Munich and here the court rejected the claim that the athlete did not enter the agreement voluntarily, but kept the claim that it violated German anti-trust law, and as such German public policy, so it refused to recognize its validity in Germany pursuant to Article V (2) (b) New York Convention of 1958. The higher court took this stance not by just looking at the fact that there was an imposed arbitration clause and considered this on its own to not be enough for an anti-trust violation. It also considered that the added fact of the way the CAS was organized as an institution at that time where 3/5 of its closed list of arbitrators were appointed at the proposal of sport governing bodies put the governing bodies at a structural advantage when it comes to the arbitration panels’ composition, and in practice the athletes were forced to accept this unevenness. The ISU filed an appeal to the highest civil court in Germany, the Federal Court of Justice of Germany and the case is set for the 7th of June 2016. After the last decision Pechstein received financial support for the legal aspects of the appeal from the FIFPro, an organization with no previous connection to Pechstein, representing 65000 football players, and from other donors which should be a strong message for the CAS. Since 2009 the CAS has made changes to its system of nominating arbitrators on the arbitration list by removing the sport governing bodies’ quota system that was previously in place, but some argue that it still is not enough.

If the Gundel case meant that the CAS had to sever its links with the IOC, the Pechstein case might mean that the court has to weaken its ties with the sport governing bodies and strengthen them with the athletes and athletes’ unions.

CONCLUSION

In analyzing the fair play/due process conducted in challenges to sport arbitral awards I have focused in this paper on three different cases and on one almost all-encompassing sports’ court for arbitration. I have shown that the power of the CAS stems from its link with the IOC which has authority virtually over almost all sports, and that with this power it can put national federations at any time in a position where they either break their national law or their athletes do not compete anymore. The cases I chose are from 2 continents, from different legal systems and different sports so as to reveal instances where the national courts (and even strongly dissenting arbitrators) clearly stated that they would reach a different decision if they were to have jurisdiction. However, national courts most often do not have jurisdiction in sports matters and often end up being bystanders to their citizens being discriminated against by foreign courts or regulations, as seen in all three cases. Yet the situation of sport arbitration is not so black and white because on the other side there is an athlete consenting to the arbitration and through his own choice is depriving his state courts of jurisdiction. But is there really, in practice, a choice to be made? If the only way you can compete is to denounce your national rights and jurisdiction. Nonetheless, what if the opposite would be true, and national courts did have jurisdiction? One must admit that there is a reasonable chance that even if confronted with the same rules and regulations and similar facts courts from different countries, from different parts of the world, could reach to different outcomes, not only because of the difference in legal systems, but there is also the added pressure of punishing national famous record breaker, or as some sports men and women are viewed as local “heroes” or maybe the decision might also impact and create a disadvantage for the country’s national team.

Through my research for this paper I have reached the conclusion that the choice is either for athletes to keep the jurisdiction of their national courts or to defer it to the CAS, and I find the latter to be the better and fairer option. When weighing in, on the one hand, the high risk of a large number of court interpretations of the same rules for different athletes thus creating a de facto system where athletes could compete against each other but by different rules and, on the other hand, one specialized body that sometimes deprives athletes of some of their national rights, but maintaining the same scale as for other athletes, I find it more beneficial for sport and for true performance that all athletes be submitted to the same set of rules and rights, even if not as many as they would enjoy in their own country. However, this is not to say that the CAS system could not be improved as to not put athletes in a situation where they are judged by arbitrators proposed on its lists by the same sport governing bodies they are fighting against.

Bibliography