Arbitration in the Realm of Sports Law

  1. Introduction

The internationalisation of sports has resulted in making it a huge industry and has also, owing to globalisation and commercialisation of sports in general, led to the integration of sports and law. The sports industry has witnessed huge growth in a short span of time, which has completely transformed the nature of the industry as a whole and has led it to become a more commercialised set-up rather than being considered only a leisure activity, especially owing to the exorbitant amounts of monies involved in a few of the major sports. As a result, it is no surprise that the industry produces a large number of legal disputes which require speedy adjudication and well-settled bodies to deal with the specificity of the subject-matter. Like any other sector depending largely on arbitrations as a means of resolving disputes, sports arbitrations entail a method of resolving sports-related disputes by submitting them before a person/tribunal for final and binding decisions. The only difference between sports arbitrations and any other arbitrations is merely the subject-matter of the former. Although procedurally all arbitrations are the same, sports arbitrations do have their unique set of challenges that make them different from other forms of arbitrations. While sports arbitrations offer the same advantages as arbitrations in commercial disputes like a neutral setting, flexible procedures and specialised arbitrators; however, sports arbitrations do not conform to the New York Convention since the governing bodies have their internal rules and regulations in place to deal with the disputes that arise in the industry. Hence, the enforcement of awards through sports arbitrations is different from those arising through commercial or investment arbitrations.

The following paragraphs would trace the history of the development of jurisprudence for sports arbitration and the creation of the Court of Arbitration for Sports (CAS) in Switzerland for adjudication of sports-related disputes. Additionally, the focus would also be given to the development of mechanisms of sports arbitrations in India and its ratification of foreign principles in its municipal jurisdiction.

Development of Court of Arbitration for Sports and significance of Switzerland in sports arbitration

Switzerland is home to a number of international sports organisations. International Olympic Committee (IOC), the International Council of Arbitration for Sport (ICAS) and the CAS are all headquartered in Lausanne, Switzerland. The presence of such important sports organisations/authorities has led to Switzerland becoming the hub for adjudication of sports arbitration globally. Once read in detail, Swiss law is extremely flexible, which ultimately allows potential litigants a significant level of control and flexibility in the entire process of dispute resolution.[1]

The CAS was a result of the efforts of the President of IOC in 1981, Juan Antonio Samaranch, who recognised the requirement of such an independent adjudicating body, which would be understood to take up the role of “the Supreme Court of world sport”. In 1982, at an IOC meeting, late Judge Kéba Mbaye, who was acting as a Judge in the International Court of Justice was asked to chair a working party with the aim to create statutes of a sports dispute resolution body which would be known as the “Court of Arbitration for Sports”. It was in 1983 that IOC officially ratified the statutes of the CAS which came into force on 30-6-1984 and CAS began its operation.[2]

The CAS witnessed several reforms and revisions in its functioning in 1994. Since the institution of the body, the IOC has held a great degree of control in the working of CAS. In order to allow the CAS to work distinctively from the IOC, the International Council of Arbitration for Sports (ICAS) was established solely to deal with the management and operation of CAS. One of the primary functions of the ICAS was to ensure that CAS functions as an independent body and overlooks its administration, financing and overall running of the organisation.[3]

Working of Court of Arbitration for Sports

Arbitration, as a dispute resolution process, has been developed to tackle the unnecessarily long and stretched court proceedings and provide for a quicker and more efficient mode of dispute resolution. Even though all forms of arbitrations are inherently supposed to be a quicker means of dispute resolution, in sports arbitrations, this requirement is proliferated. Given the nature of the industry involved, it becomes essential that the decision to the disputed point of question is provided at the earliest opportunity to ensure that the even runs as per schedule. In order to ensure that decisions are pronounced in a timely manner, ICAS established an ad hoc division in 1996 which was given the responsibility to resolve disputes arising from the Olympic Games in Atlanta within twenty-four hours. Since the ad hoc division proved to be a huge success, similar divisions were set up for all succeeding Olympic events thereafter.[4] Furthermore, to help aid and quicken the entire resolution process in sports arbitrations, arbitrators hold a more active function in the entire procedure as compared to commercial and investment arbitrations. However, there are certain rules and regulations that the parties cannot circumvent. This includes the strict liability rule under the anti-doping regulations wherein the sports persons are instantly disqualified and abstained from getting any medals or prizes through the event concerned. In Alain Baxter v. International Olympic Committee,[5] a British skier was disqualified from the Alpine Skiing Slalom even at the Salt Lake City Olympics for having tested positive for a prohibited substance under the Olympic Movement Anti-Doping Code. Appellant suffered from chronic nasal congestion for which he used a non-prescription Vicks vapour inhaler to manage his symptoms. However, the version of the drug present in the US contained certain prohibited substances which the appellant was unaware about. The panel found, in line with the previous CAS rulings, that the appellant is strictly responsible for the substances they place in their body, and for the purposes of disqualification neither intent nor negligence needs to be proven. Another rule that the parties cannot derogate from includes that all the arbitrations before CAS are seated in Lausanne, Switzerland, including the cases coming through ad hoc divisions. In a way, this adds to the swift nature of the entire process since it eliminates any scope of debate between the parties over the question of competent jurisdiction presiding in an arbitration.[6]

To guarantee expertise on the panels adjudicating upon the disputes, CAS maintains a closed list of a group of arbitrators from which the parties are required to appoint arbitrators for their disputes. CAS arbitrators are required to undergo appropriate legal training which involves proficiency with respect to sports law and/or international arbitrations and a good knowledge of sports in general. In 2003, this rule was challenged before the Swiss Federal Tribunal where it was contented that the parties’ freedom to choose their arbitrator is curtailed and they should not be bound by CAS’s closed list of arbitrators. However, the Tribunal rejected this challenge establishing that the rule was justified by the need for sports-specific legal expertise for timely resolution of disputes and to ensure consistency arising through the decisions given by CAS.[7]

 

Another important feature of arbitrations before the CAS includes the transparent nature of the proceedings. In comparison to other forms of arbitrations, CAS is comparatively more transparent when it comes to releasing their awards. Despite a certain level of transparency in their proceedings, CAS arbitrators are bound by a duty of confidentiality which refrains them from disclosing any facts to a third party. If the arbitrator fails to abide by this duty, it may lead to cancellation of their empanelment.[8] Other than the responsibility of the arbitrator, rules for publication of awards are different depending upon whether the proceedings are initiated in the ordinary or appeals division. While ordinary proceedings are confidential and none of the stakeholders are allowed to disclose any information to the non-concerned party without prior permission from CAS and an agreement between the parties to disclose the award publicly, the appeals division works very differently and has the opposite principles attached to it. As a rule, the awards passed from the appeals division are published for the general public, unless otherwise agreed by the parties.[9]

Authority of awards passed by the Court of Arbitration for Sports

CAS awards do not carry a binding authority with them, and the arbitrators are free to deviate from the rulings previously given while they adjudicate upon a dispute. However, CAS panels often refer to previous decisions for persuasive guidance or to make a different ruling by distinguishing cases upon facts. This has led to the harmonisation of the rulings given by CAS even though there is no binding authority that the awards carry. Nevertheless, given that the closed list of arbitrators that CAS consists of arbitrators that belong to different legal backgrounds, coupled with a lack of institutional scrutiny of the awards being passed, there is always a certain degree of uncertainty present before the award is rendered by the Tribunal.

Thus, while CAS has created an organised structure for sports industry, there are certain aspects that still need to be developed better in order to ensure that the rulings remain consistent, and the participants are provided with a fair platform for the resolution of disputes.

Sports Arbitration in India

The sporting industry and the horizon of sports entertainment have had a significant boom in the past decade with a surge in viewership and investment thanks to multiple sporting leagues. With this surge has come a rising demand for a conducive infrastructure for dispute resolution for resolving sports disputes. Sports competitions and tournaments have acted as a platform for national recognition on the horizon of global politics alongside acting as a source of income for the economy. The need for utilising the same was realised by India years after independence. This led to a mirage of developments towards developing an organised structure for the sports community. Parallel to the developments happening globally, India also witnessed their initial developments in the field of sports.

Matters relating to sports, development or otherwise, come under the purview of the State Government as per Entry 33 of the State List under the Constitution of India. However, with respect to issues of international sports, it is the Union Government that has the responsibility of enacting laws as per Entry 10 of List 1 of the Constitution. Despite the State and Central Government having the responsibility to control the developments happening in the country with respect the sports industry, there are many private bodies that take up this responsibility in practice. The concern arises when there exists ambiguity in accountability of functioning of bodies that work independently of the Governments i.e. when the bodies that hold the primary power to regulate and sway the events that may take place in the sports community are privately functioning bodies,  for e.g. the Board of Control for Cricket in India (BCCI), which is the self-governing body in nature and would not fall under the definition of the State, thus escaping the statutory accountability that comes with the same, for example, the enforcement of Article 12 of the Constitution. Thus, having an entity created by the State, specifically catering to the intricacies of the needs of an effective dispute resolution in the field of sports, is integral. This drawback is overcome by the establishment of the Sports Arbitration Centre of India (SACI), which has been further elaborated on in the following paragraphs.

Following the events of the Asian Games in 1982, a need for development in the field of sports and education was realised. The year 1984 has been marked as the year of the creation of the Sports Authority of India (SAI), which is an autonomous registered society. This was followed by the creation of a National Sports Policy in 1984, the first milestone in the development being aimed for in the country. It was an amalgamation of all aspirations and ideals in furthering the Indian Sports Community. It could be observed in the trends that there did not exist an active inclination and interest within the nation towards developing and pursuing sports activities as a skill. Thus, the policy largely focused on promoting sports infrastructure and situating physical education as a part of school curriculums.[10] However, the policy did not focus enough to create a more organised and equipped environment with a formal set of rules, along with institutional bodies to enforce the same.

Upon the lack of success of the National Sports Policy of 1984, a new National Sports Policy was envisaged and created in 2001. It was a joint effort initiated by the State and Central Government in consonance with the Olympic Association and National Sports Federation and their primary objective of the policy was to further excellence in sports events internationally along with the “broad-basing of sports”.[11] It still retained a focus on amalgamating physical education within the existing academic curriculum. The policy placed the responsibility of enforcement on the Central and State Governments to provide them with appropriate powers to institute legislation,  which constituted a hurdle for effective implementation of the rules.

In furtherance to these efforts, the Indian Court of Arbitration for Sports (ICAS) was set up in 2011 with Dr A.R. Lakshmanan at the helm as Chairman.[12] ICAS was one of India’s first concrete steps toward laying the groundwork for having a robust dispute resolution mechanism specifically catering to the nuances of issues involved in sport. The court was centred around the principle of effective and speedy resolution of sports disputes keeping in mind the limited time span that a sportsperson enjoys during their career in sport.

Another major step in the evolution of sports regulations guidelines concerning safeguarding the interests of sportspersons and provision of effective grievance redressal system in the Constitution of National Sports Federations were brought forth. In the aftermath of Sushil Kumar v. Union of India,[13] before the High Court of Delhi in 2016, the Youth Affairs and Sports Ministry issued a notification through which they laid down guidelines with respect to dispute resolution in the area of sports. The guidelines titled, “Safeguarding the Interests of Sportspersons and Provision of Effective Grievance Redressal System in the Constitution of National Sports Federations”, emphasised two major points that are:

  1. The establishment of a transparent, free and fair grievance redressal system aimed to protect the interests of the persons involved in sports.
  2. Directed all sports federations to include a clause for appealing to the Court of Arbitration of Sports in their contracts and their Constitutions to address those cases where the sportsperson is unhappy with the ruling made by the sports association/federation. Directing the Sports Federations to include within their Constitution and their contracts a clause to appeal to the Court of Arbitration of Sports in case they are aggrieved by any decision or ruling of the federation/association.[14]

 

At present most sporting disputes in India are attempted to be resolved through the constitution of an internal commission typically appointed by the Sports Authority/Federation incharge of the sport in India or the State in question.  Failing the commission route, disputes usually go through litigation in either the  Supreme Court or the respective High Court.[15] There is a salient need for a specialised dispute resolution mechanism for disputes in sports and the sporting industry. To tackle these issues head-on there have been a plethora of suggestions made by the Law Commission of India primarily centred around the prospective setting up of a practice-friendly and modern law to govern the settlement of disputes in the field and the set up of a specialised body for Sports Arbitration in India.

To address this lacuna, the Sports Arbitration Centre of India was founded in 2021. Sports Arbitration Centre of India (SACI) was inaugurated by Minister of Law and Justice, Kiren Rijiju in September 2021 in Ahmedabad, Gujarat to serve as an independent body to fast track disputes in the sports sector and serve as a mechanism to redress issues related to sports.[16] The SACI will be promoted by Ahmedabad based SE TransStadia Pvt. Ltd. and all legal backing will be provided by the Ministry of Law and Justice. The SACI will have a far-reaching impact on the sports sector of the country by creating a reputation and establishing credibility for itself through the provision to settle disputes and other issues and concerns of the sports sector in a fast, transparent and very accountable manner.

It answers to the need for an independent body specifically catering to the intricate needs of the up and coming era of sports within a country by providing a neutral platform that’s more efficient and caters only to dispute matters within the sports community. Since the centre has been set up by the Ministry of Law and Justice, and in a way it is an extension of the same, providing a level of accountability that remained ambiguous before this venture. While there have been multiple ventures in the past in India, aiming to aid and facilitate the development of the sports communities, they failed to accomplish these aspirations owing to a lack of vision. For the development of the sports community of India, focusing on expanding the infrastructure alone is not enough. There existed a need to provide appropriate amenities, regulations, rights and rules to sportsmen partaking in the world of sports activities. It is important to give access to all sportsmen these rights and follow through on this ideal vision by implementation by giving them a platform that can efficiently act as a redressal mechanism. Turning to the hierarchy of courts in India for dispute redressal, as they themselves remain afflicted by administrative hurdles that make the entire process extremely time-consuming and technical, not to mention the lack of expertise required to address matters of such nature, does not suffice. Having a Sports Arbitration Centre in India acts as an effective safeguard available to the sportsmen in India that’s time efficient and possesses the requisite knowledge to appropriately address the disputes that may arise.

The most important venture after the inauguration of SACI is to raise awareness about the regulations rights and that commands and are available to the community. Despite being significantly behind in the field of dispute resolution and arbitration, India has made efforts to develop the infrastructure for the sports community, essentially moving to the commercialisation of the field. What the need of the hour calls for are steps towards formalisation, to have more organised structures that provide aid and amenities to the sportsmen to develop and flourish.


Kanika Arora Partner, Advani Law LLP

†† Vidyotma Malik, Associate, Advani Law LLP

[1] Daniel Girsberger and Nathalie Voser, “Sports Arbitrations”, International Arbitration: Comparative and Swiss Perspectives (4th Edn.) .

[2] Ian Blackshaw, “Access to Justice in Sports Arbitration”, Access to Justice in Arbitration: Concept, Context and Practice.

[3] Ian Blackshaw, “Access to Justice in Sports Arbitration”, Access to Justice in Arbitration: Concept, Context and Practice.

[4] Philippe Cavalieros and Janet Kim, “Can the Arbitral Community Learn from Sports Arbitration?” 32 Journal of International Arbitration 237.

[5] CAS 2002/A/376.

[6]  Philippe Cavalieros and Janet Kim, “Can the Arbitral Community Learn from Sports Arbitration?” 32 Journal of International Arbitration 237.

[7] A, B v. Comité International Olympique et Fédérations Internationale de Ski (Swiss Federal Tribunal, 1st Civil Law Chamber, 4P267/2002).

[8] Court of Arbitration for Sports, ICAS statutes, S19.

[9] CAS Procedural Rules, General Provisions, R. 43.

[10] Dr Awadhesh Kumar Shirotriya, “Conceptual Framework for Redesigning the Sports Policy of India” (2019) 8(1) International Journal of Physical Education Health & Sports Sciences.

[11] Dr Awadhesh Kumar Shirotriya, “Conceptual Framework for Redesigning the Sports Policy of India” (2019) 8(1) International Journal of Physical Education Health & Sports Sciences.

[12] Mukesh Rawat, “Choice of Law in Court of Arbitration for Sport: An Overview” SSRN (23-1-2021).

[13] 2016 SCC OnLine Del 3660.

[14] Safeguarding the Interests of Sportspersons and Provision of Effective Grievance Redressal System in the Constitution of National Sports Federations.pdf

[15] Arka Majumdar and Kunal Dey, “Significant Judgments on Arbitration and Conciliation Act, 1996 – May 2020 to July 2020 – Litigation, Mediation & Arbitration – India” (25-8-2020).

[16] “Kiren Rijiju Inaugurates Country’s First Sports Arbitration Centre, Says it Will Have Far-Reaching Impact” (The Times of India, 26-9-2021).

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