Abstract
The question posed in the title of this article deserves the description of a hardy perennial. Whether there is such a coherent entity as sports law, or whether sports law is only a mosaic randomly aggregated from a variety of what are accepted to be discrete legal areas—contract, tort, intellectual property, administrative—is the subject of constant debate. The question is not purely academic, an epithet which cynics tend to apply to an issue of no practical significance. Those who contend for the former proposition do so partly out of a desire to enhance the status of the subject, which is not to say that those who contend for the latter proposition have any motive to diminish it. But the proponents clearly adopt the Latin phraseology to endow the subject with a spurious antiquity—sometimes using the alternative term lex ludica—although that carries with it in mistranslation unhappy overtones of ludicrousness. The question is “not of huge importance” but not of no importance. The answer is probably, and it may be a little disappointingly, a bit of both.
Previously published in: Sweet and Maxwell’s International Sports Law Review (2005), Issue 3, pp. 49–60.
Judge of the Court of Appeal of Jersey and Guernsey, Member of the Court of Arbitration for Sport, President.
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Notes
- 1.
Cox and Schuster 2005, at p. 5.
- 2.
Nafziger 2004, p. 50.
- 3.
- 4.
In England, the Sports Dispute Resolution 2 Panel, in Japan the Sports Arbitration Agency, as to which see Goganchi 2005.
- 5.
With outposts in Sydney (1996) and Denver (1996) [transferred to New York (1999)]. The reasons for fixing the seat in Lausanne (which is the seat of the devolved bureaus too) were articulated in the decision which the President of the Division issued in July 1996 when determining that the seat of the CAS ad hoc Division at the Atlanta Games would also be there: “2. The determination of the seat of an arbitral tribunal creates a link between the arbitration and a set of municipal rules governing arbitrations. The seat of the arbitration is also relevant when deciding the origin of an arbitral award for purposes of later enforcement.” Whenever the seat of an arbitration is in Switzerland and at least one party is not a Swiss domiciliary, Ch. 12 of the Swiss Private International Law Act of December 18, 1987 (PIL Act), which entered into force on January 1, 1989, will apply (Art.176 PIL Act). It contains rules specifically framed to respond to the needs of international arbitration. These rules are in line with the general trends of present day international arbitration, as they are expressed in other recent legislation.
Chapter 12 PIL Act in particular requires the arbitrators to grant due process. Art.182, para.3 PIL Act reads as follows: “Whatever procedure is chosen, the arbitral tribunal shall ensure equal treatment of the parties and their right to be heard in adversary procedure.”
Chapter 12 PIL Act also affords the parties remedies against the award. A party may bring an action for vacation of an arbitral award on the grounds that the arbitral tribunal was not properly constituted, had no jurisdiction, ruled beyond the claims submitted to it, failed to grant due process, or rendered an award irreconcilable with public policy (Art. 190 PIL Act). Unless the parties agree otherwise, this action for vacation of the award must he brought before the Swiss Federal Supreme Court (Art 191 PIL Act).
Chapter 12 of the Swiss Private International Law Act provides for the jurisdiction of the Swiss Supreme Court to set aside arbitral awards. Chapter 12 also provides for supervisory jurisdiction of the courts at the seat of the arbitration to aid the arbitration process while it is in progress.
- 6.
Latterly the IAAF in 2001 and FIFA in 2002.
- 7.
AB v IOC Swiss Federal Tribunal, 1st Council Chamber Judgment, May 27, 2003. McLaren 1998; McLaren 2001; Beloff 1996; Beloff 2001; Leaver 2002; McLaren and Clement 2001; Beloff 2005; Pinna 2005. Arbitrators sign declarations of independence and can be challenged for cause: McLaren and Clement 2005. C. Rochefoucault, ‘‘Twenty Years of the CAS” CAS Newsletter No.2, p. 13. For the reported jurisprudence see three volumes edited by M. Reeb 1982–1996, 1996–2000, 2000–2004 (hereinafter “Reeb 1”; “Reeb 2”; “Reeb 3”) (Kluwer Law International, 1998, 2002, 2004). Reeb 3 contains a succinct description of the history and operation of CAS, pp. xxxii-xxii.
- 8.
N et al. v FINA, Reeb 2, p. 775. CAS’s status as an independent tribunal was acknowledged in Gundel v FIA, Official Digest of Federal Tribunal Judgments 1993, Reeb 1, 566. AB v IOC cit sup. The substantial autonomy of CAS was further confirmed by a decision of the Court of Appeal of New South Wales on September 1, 2000 in the matter of Angela Raguz v Rebecca Sullivan (2000) NSWA Reeb 2, 783, relating to a dispute about which of two judokas should be nominated as the Australian representative for the Olympic Games in the women’s under 52 kg category. The dispute had been resolved against Ms Raguz and in favour of Ms Sullivan by an award of the Sydney Panel of CAS. Ms Raguz sought to challenge the award by seeking leave to appeal on a question of law arising out of it. It was decided that the court’s jurisdiction was precluded by the existence of an exclusion agreement to which Ms Raguz had subscribed, within s. 40 of the domestic Commercial Arbitration Act 1984. CAS is rigorous to avoid being affected by prejudice or discrimination. NJYW v FINA, CAS 98/208, Reeb 2, 234 [8]: or by rumour: B v FINA, CAS 98/211 [57].
- 9.
AK v IOC, Reeb 3, 674.
- 10.
The judicial responses are not constant. In actions. arising from collisions between racing horses, the New York courts have applied a standard of reckless disregard, the Australian courts a standard of ordinary duty of care, and the courts of England and Wales the latter standard while holding that the behaviour necessary to breach that standard was one of the reckless disregard. See Charlish (unpublished).
- 11.
For a recent statement recognising this fact, in a criminal assault case, see R v Barnes (Court of Appeal (Criminal Divisions) England), Case No. 2003/063.14/35 at [15]. Interestingly a CAS Panel has said: “The notion of assault in the World of Sport is a broad one, covering any act likely to infringe the physical integrity of a person, even if the victim was not physically injured.” See Cissé v UEFA, CAS 2004 A/SS. Also see Anderson 2005.
- 12.
R v Brown [1994] 2 A.C. 212 at p. 268.
- 13.
- 14.
Beloff 1976, Ch.3, para. 21.
- 15.
- 16.
“The Female of the Species.” The poet’s observation appears to have been based on he-and she-bears.
- 17.
See, generally, Beloff 1999, at xi; and for a recent restatement see the European Court of Justice decision in Case T-303/02 Mecca v Medina and Madjen v Commission, which spoke of “the purely sporting nature of anti-doping legislation.” See also: AEK Athens v UEFA, CAS 98/200, Reeb 2, 38 [79]-[84]).
- 18.
UEFA’s statutes used to confine CAS’s jurisdiction is “civil disputes” as distinct from “disputes of a sporting nature,” so drawing another boundary, Real Madrid v UEFA, CAS 98, Reeb 2, 490.
- 19.
[1981] W.L.R. 1126.
- 20.
CAS 98/201, Reeb 2, 106. It was held that the concept of “nation” or “country” have different meanings than that in the usual language, it being understood that those concepts-within the context of football—do not correspond systematically and/or strictly to the existing political borders of the concerned territories.
- 21.
CAS OG SYD 2000/005, Reeb 2, 625.
- 22.
CAS 2004/A/594.
- 23.
T.L.R., July 26, 1986.
- 24.
IBA, CAS 98/215, Reeb 2, 698 at [27].
- 25.
Most of the star track athletes of the Gulf States are ethnic Kenyans.
- 26.
OWG, Salt Lake City, 2002, Reeb 007, 3.523. Sports Tribunals are sensitive to hierarchies. In Prusis and the Latvian Olympic Committee v International Olympic Committee, the AHD at Salt Lake City had to decide whether the IOC was entitled to withdraw Prusis’ accreditation. The International Bobsleigh and Tobogganing Federation (the FIBT), whose regulations provided for a mandatory two-year penalty for a first offence, nonetheless decided to suspend Prusis from competition for three months only and retroactively so as to enable him to compete in the Winter Olympics. The IOC Executive Board objected to this contrived clemency. The Panel ruled the IOC could not take any action in regard to a specific sport which could be regarded as prejudicial to the independence and autonomy of the International Federation administering that sport. It referred to the well-known CAS Advisory Opinion, UCICONI, CAS 94/128, Reeb 2,477, in which the CAS Panel stated: “At all events, the IFs possess the principal competence with regard to establishing rules in the fight against doping, which appears to be the best solution, given the necessity of ensuring the application of identical standards wherever the competitions relating to a specific sport are taking place. Uncertainty concerning the applicable rules with regard to doping is harmful to judicial security. For all that the Panel, like the IOC itself, does not lose sight of the importance of respecting the independence and autonomy of the IFs in the administration of their sport.”
Equally the Panel will be slow to interfere with the application of a well-publicised policy of a federation, V v FCS, CAS 2001/A/318 at [16]; Bassani-Antiravi v IOC, OWG Salt Lake City 2003 003, Reeb 3.585. Only NOCs, not the IOC, can enter competitions in the Olympic Games: N v FEl, CAS 98/129; UCI v DCUs, Reeb 2, 205: lFs doping rules have precedence over NOCs, AEK Athens v UEFA, CAS 98/200, Reeb 2 38 ([18]): national federations over leagues.
- 27.
Pound 2002.
- 28.
Beloff et al. 1999, at pp. 9–13.
- 29.
In COC & Kibunde v IOC, OG Sydney 2000/004, Reeb 2, p. 617, the Panel said: “Il est exact qu’un règlement sport, doit respecter non seulement la loi mais également les principles généraux du droit.” (“A sporting regulator must respect not only the law but also the principle of justice”).
- 30.
Id.
- 31.
Id.
- 32.
Id.
- 33.
Id.
- 34.
Id.
- 35.
IAAF v USTAF, CAS 2002/0/401. The IAAF’s failure to identify and enforce a rule requiring disclosure by a member federation of all positive dope tests was held to be estopped in fairness to athletes who had relied on non-disclosure from relying on the rule belatedly ([74]). For a sequel, see IAAF v USTAF No.2, (2004) SLR 1, also GFA v UEFA, CAS 2002/0/4/0 at [36]-[37]; Perez No.3, CAS OG SYD 2000/009, Reeb 2, 651, [13]; NZOC v SLOC, OWG Salt Lake City 2006 006 Reeb 3, 604, [18] (SLOC bound by their acceptance of entries of two athletes for both slalom and giant slalom). See also Pietro 2004.
- 36.
CAS 2003 C/45 (Advisory Opinion). IBF had failed to comply with its own rules in changing the scoring in certain events.
- 37.
Prusis v IOC (“Prusis”), OWG Salt Lake City 2002001, Reeb 3, 573 legitimate expectation ([15]): “A decision that impacts upon the legitimate expectation of an athlete that his entry would he accepted is much more than a. purely administrative decision” ([18]).
- 38.
Quigley v UK, CAS 94/129; A v FINA 2000/A/37 at [8].
- 39.
Tsagaev v lWF, CAS OG SYD, Reeb 2, 658.
- 40.
UCI v FFC, CAS 2000/A/289, Reeb 2, 724.
- 41.
C v FINA, CAS 96/149, Reeb 1.25 ([27]).
- 42.
See Prusis, supra n. 37, [15].
- 43.
Nabokov v IIHF, CAS 2001/A/357 (ice-hockey rules: eligibility to compete for a national team), Reeb 3, 503 [9], [26].
- 44.
C v FINA, CAS 95/116, Reeb 2, 205.
- 45.
Purposive construction C v FINA, CAS 96/149, Reeb 1.25 [20]-[22].
- 46.
This will avoid the oddity by which, e.g., parties disputes over a contract of employment itself governed by the law of another jurisdiction should be resolved by CAS according to Swiss law: See observation in Ortega v Fenerbahce, CAS 2003/O/48 at [14].
- 47.
Shamil Bank v Beximer Pharmaceutica/s Ltd [2(03) EWHC 218; [2003] All E.R. (Comm) 849.
- 48.
Coppé-Lavalini SAN v Ken-Ren Chemicals [1994] 2 All ER. 449.
- 49.
See Nafziger 2004, at pp. 48–49.
- 50.
AEK Athens v UEFA, CAS 98/200, Reeb 2, [156].
- 51.
Balfour v Balfour [1919] 2 K.B. at p. 919.
- 52.
Upon review, the author considers that it would be more logical (if complete abstention were the true position) to say that the contract was that the player would accept the referee’s decision, right or wrong, honest or dishonest.
- 53.
CAS ex; 00/013, Reeb 2, 680.
- 54.
KOC v ISU, OWG Salt Lake City 2002 007, Reeb 3, 611.
- 55.
In CAS 2004/A/704, in favour of Hamm, the Panel noted: “The event was not a single apparatus event, but an all round one. After the parallel bars there was one more apparatus on which the competitors had to perform i.e. the high bar. We have no means of knowing how Yang would have reacted had he concluded the competition in this apparatus as the points leader rather than in third position. He might have risen to the occasion; he might have frozen (his marks on the high bar were in fact below expectation and speculation is inappropriate.”
- 56.
CAS OG SYD, 2000, IR Reeb 2, 674.
- 57.
The qualified immunity of the so-called “game rule” or “field of play” was reiterated in a number of cases at the Athens Olympics: the interim application in CAS OG/OO5, (2) and OG/04/007 [8.6] (rowing: trespass into another’s lane).
- 58.
The Panel noted in KOC v ISU, supra n. 54: “5.1 The jurisprudence of CAS in regard to the issue raised by this application is clear, although the language used to explain that jurisprudence is not always consistent and can be confusing. Thus, different phrases, such as ‘arbitrary,’ ‘bad faith,’ ‘breach of duty,’ ‘malicious intent,’ ‘committed a wrong’ and ‘other actionable wrongs’ are used, apparently interchangeably, to express the same lest (M. v/AIBA CAS DG 96/006 and Segura v IAAF. CAS OG 00/013).”
- 59.
See discussion in Nafziger 2004, at pp. 56–57.
- 60.
Riesman 1999.
- 61.
IRF v LHF, CAS 2001/A/354 at [7]; CAS 2003/A/461 at [4711].
- 62.
CPC v PC, CAS 2000/A/305, Reeb 2, 567.
- 63.
WCM-GP Ltd v FIM CAS 2003/A/461, Reeb 3, 4.3.
- 64.
McInnes v Onslow Fane (1978) 1 W.L.R. 1520, at p. 1535.
- 65.
Cowley v Heatley T.L.R, July 24, 1986.
- 66.
See also Gasser v IAAF unreported, CCD, Scott J., June 15,1988; Stevenage Be v Football League Ltd, July 23, 1996 per Camwath J. See also on judicial self-restraint, CAS 23000/C/26-7, Advisory opinion, IOC, Reeb 2, 725, [38]; Watt v ACE, CAS 96/153, Reeb 1.335, [8].
- 67.
Parkin v Thoruld (1852) 16 Beav. 59, at p. 65.
- 68.
Lock v Bell [1931] 1 Ch. 35, at p. 43.
- 69.
Ulker v Euroleague, CAS 2002/A/388, Reeb 3, 516. See also Glasgow RangersFC v UEFA, CAS 2001/A/341, Reeb 3, 559.
- 70.
Addo v UEFA, CAS 2001 A/323, Reeb 3, 628.
- 71.
In the matter of Soura Ganguly, decision of Appeals Commission. T.J. Castle of November 26, 2004 at [49]-[50].
- 72.
OG/04/001, at [8.4] and [8.6].
- 73.
OG/SYD No.4, Reeb 2 617.
- 74.
Fairness was identified as part of an “enlarging lex sportive” in COC v IOC, CAS 2002/0/73 at [14].
- 75.
AEK Athens v UEFA, CAS 98/200, Reeb 2, [158].
- 76.
Id., [159].
- 77.
CAS OG Atlanta: 005, Reeb 2, 397, at p. 400 was Cap Verde. A v NOC CV, CAS OG Atlanta 002, Reeb 1.389 005.
- 78.
CAS OG/04/009, [6.8].
- 79.
In CAS OG/002, [65] and [66], it was held that Mr Slavkov had an adequate opportunity to state his defence to the charges. In CAS OG/04/009, it was held no violation of due process at the hearing of the appeal by the Protest Committee the exclusion of HOC qua observers from its meeting.
- 80.
CAS CG Manchester 2002, 02/001, Reeb 3, 617.
- 81.
Id., para. 23.
- 82.
COC v IOC, CAS 2002/0/373, [23].
- 83.
CAS OG/04/008, [7.7]; COC v lOC, CAS 2002/O/373 at [23].
- 84.
CAS OG/04/001, [4.9].
- 85.
Tsagaer v IWF, CAS OG SYD 00, Reeb 2, 658.
- 86.
Olympic Charter, r. 46, para 50.
- 87.
CAS Syd 005, [44]; see another example Berchtold v SAL, CAS 2002/A/361. Reeb 3, 511. In favour of athletes competing: Tray Billington v FIBT, OWG Salt Lake City 2002 005, Reeb 3, 595 (commenting on restrictions on appellate rights under the draft of Art.1 of CAS Ad Hoc Rules) para. 24/25. Prima facie, in circumstances where an athlete has dual nationality, the choice of NOC for which the athlete wishes to compete is a matter for election by the athlete: PRABF v USAB, CAS 94/132 Reeb, 1.53. However, the period of waiting in the event of a change of nationality is proportionate: Bv FIBA, CAS 92/80 Reeb, 1.497.
- 88.
CAS OG Atlanta 001 Reeb 1, 377, para.15.
- 89.
CAS 2000/A/278 Chifa v JASF Reeb 2, 534, [10].
- 90.
CAS 2000/A/284 Reeb 2, 542.
- 91.
CAS 96/153 Reeb 1, 335.
- 92.
Reeb 2, 103 at [157].
- 93.
CAS 98/200.
- 94.
Apollon Kalamaria v Morais (CAS 2004/A/678); Wv FEI, CAS 90/A/246, Reeb 2, 505, [31]. “The Panel notes that it is and is duly accepted general principles of sports law that the severity of a penalty must be in proportion with the seriousness of the infringement,” at p. 381. CAS can intervene in a sanction imposed only if rules adopted by the federation concerned are contrary to the general principles of law if their application is arbitrary or if the sanctions provided by the rules may be deemed excessive or unfair: FIN v FINA, CAS 96/157, Reeb 1.351, [22].
- 95.
M v AIBA, CAS CG 96/006, p. 415, [15]; V v FLS, CAS 2001/A/318, [16] where, however, a life ban for a doping offence was upheld.
- 96.
Millar v UCI, CAS 2004/A/707.
- 97.
The strict liability was described as part of the emerging lex sportiva in COC v IOC, CAS 2002/0/373, [14]. There is aluminous analysis of the main ingredients of the rule in L v IOC, CAS 2000/A/310, [21]–[26]; N v FEI, CAS 94/126, Reeb 2, 137. The strict liability rule applies to horses as well as humans: cf., H v FINA, CAS 98/218, Reeb 2, 325. The strict liability rule also applies to coaches: V v FINA, CAS 95/150, Reeb 1.265.
- 98.
- 99.
D v FEl, CAS 2002/A/432, at [44].
- 100.
CAS 94/129, [14]-[15].
- 101.
Salabiaku v France, decision of October 7, 1998, para. 27 A114-A.
- 102.
Case T-313/02 Mecca-Medina v Madjcen v FINA.
- 103.
Tarasti 2000.
- 104.
Baxter v IOC, CAS 2002/A/376, [7]-[9].
- 105.
CAS 98/184, Reeb 2, 197, [19]. But where a person charged with doping a horse did not ask for confirmatory analysis of a positive urine sample, but was kept in ignorance of a negative blood test (itself not necessarily inconsistent with a positive urine test), she was held not to have waived her right to ask for such analysis because she was not given the material on which to make an informed choice, P v FEI, CAS 98/184, Reeb 2,197, [23]–[24].
- 106.
CAS 2000/A 1281 Reeb 2, 410, [16]. There is, however, a defence of act of ill-will of third party, FEI, CAS 91/56, Reeb 1.93, [4].
- 107.
Quigley, supra n. 38, [34]. There is also “a duty of all those sporting bodies involved in the important fight against drugs in sport to likewise keep up to date and to ensure the steady dissemination to athlete and their coaches … of information which is unambiguously correct.” See AOC v ABUA, CAS 2/99, [29].
- 108.
CAS OG/2 Nagano. Obligations on regulators to make clear rules C v FINA, CAS 96/149, Reeb 1.25, [34]-R v IOC, CAS OG Nagano 002, Reeb 1.419.
- 109.
COC v IOC, CAS 2002/0/373, [51]. See also B v IJF, CAS 99/A/230, Reeb 2 39.
- 110.
C v FINA, CAS 96/149, Reeb 1.25, [32].
- 111.
CB v FEI, CAS 2001/A/337, at [26]; KIG v IOC, CAS 98/208 the fons et origo of the phrase.
- 112.
CAS OG (Syd No.11), Reeb 2, 665. See, generally, McLaren 2002.
- 113.
For distinction between disqualification and sanction in doping offences, see C v FINA, CAS 94/141, Reeb 1.25. For an example of mitigating circumstances being called into play, see L v FIFA, CAS 2003/A/312 (a nandrolone case), [44]–[47]. See also H v FIMA, CAS 2000/A/281, Reeb 2, 410; AOC v AHF, CAS A3, A4, 99, Reeb 2, 587; N.J.Y.W v FINA, CAS 98/208, Reeb 2, p. 24. Lack of intent goes to mitigation ([24]), ditto if persons responsible for team management have analysed a particular food product and cIeared it ([43]).
- 114.
CAS 2000/A/317. See also T v FIG, Case 2002/A/385, [8].
- 115.
See CAS 2000/A/317 [5]-[37].
- 116.
IAAF v CAR, CAS 2003/A/48 [11]-[12].
- 117.
Rigozzi et al. 2003.
- 118.
AEK Athens v UEFA, CAS 98/200, Reeb 2, 38, [24]-[25].
- 119.
Advisory Opinion CAS 98/215 (IBA) Reeb 2, 698 and the rule prohibiting multi-ownership of a club in a single competition.
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Beloff, M.J. (2012). Is There A Lex Sportiva?. In: Siekmann, R., Soek, J. (eds) Lex Sportiva: What is Sports Law?. ASSER International Sports Law Series. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-829-3_4
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