Session 1: Contractual autonomy

Andrew Smith: Handling sporting disputes

The topic of sports arbitration provides considerable scope for interesting debate.  Whilst members of the sporting and legal community tend to agree that it is a good concept with numerous potential benefits over ‘standard’ civil litigation in this context, there exists a diverse range of opinions regarding the way in which it ought to operate in practice.    

This paper considers a number of important and topical issues, looking both at the domestic legal framework in the UK and the Court of Arbitration for Sport (“the CAS”), including:

  • The potential benefits of arbitration as a means of resolving sporting disputes
  • What constitutes an arbitration and why this is significant
  • Freedom of choice vs 'enforced arbitration'
  • Human rights considerations
  • The Pechstein litigation and potential ramifications for the CAS and other arbitral bodies
  • The extent to which Courts may legitimately intervene in respect of arbitral procedures and/or awards
  • The development of lex sportiva and its impact on sports arbitration

Antoine Duval: Rethinking the Independence of CAS after the Pechstein saga

Sports lawyers, all-around the world, have been fretting with excitement over the Pechstein saga lately. It seems like a legal gift that simply keeps on giving. This paper will focus exclusively on a specific problematic raised by the case: the question of the independence of the Court of Arbitration for Sport (CAS). In other words, are the CAS and its broader administrative structure really independent from the sports governing bodies? The paper will first retrace the long doctrinal (and jurisprudential) roots of the debate on the independence of CAS and embed it in the wider discussions on the independence of arbitrators at large. Thus, highlighting the peculiarities of the framework of international sports arbitration and the difficulty to transpose one to one the standards developed in commercial arbitration. The paper will then assess the take of the Oberlandesgericht (OLG) München in its Pechstein ruling on the frailty of this independence at present and show the insufficiency of the reform conducted until now to secure it. Finally, the paper will outline some general proposals to help improve the independence of the CAS and secure its position at the helm of the global sporting judicial system.

Ian Blackshaw: CAS - is the role of arbitration in sport serving its stakeholders fairly?

It has been and continues to be the jealously-guarded policy of Sports Governing Bodies to settle disputes concerning their sports within their own organisations and on their own terms and conditions. In other words, within 'the family of sport' and without any outside interference, especially from the Courts. Indeed, recourse to the Courts is expressly prohibited in their Statutes and Regulations. With the same motivation, the International Olympic Committee set up the Court of Arbitration for Sport (CAS) in 1983, with a wide remit to settle by arbitration and mediation disputes relating to the practice of sport, not only those of a purely sporting nature, such as eligibility disputes, but also commercial ones relating to the business of sport, such as disputes arising under sports agency and marketing agreements. Under the CAS rules, it is only possible to challenge legally CAS decisions in the Courts on limited grounds and, in such cases, only to the Swiss Federal Tribunal (TFS), the CAS being domiciled in Switzerland and subject, generally speaking, to Swiss Law. The paper will examine to what extent legally, from a general public policy point of view, Sports Bodies and the CAS can claim exclusive jurisdiction in sports disputes and thereby oust the ordinary jurisdiction of the Courts. We will particularly review the current situation in the light of the Claudia Pechstein Case, which is pending before the German Courts, notwithstanding a CAS ruling against Pechstein, which, on appeal, was upheld by the TFS. The paper will also review the Statement issued by the CAS in relation to this particular Case, defending the autonomy of arbitral bodies in general and the need for uniformity in respect of international sports arbitration in particular.

Leonardo Valladares Pacheco de Oliveira: the origins of lex sportiva and its application to contracts.

Contracts involving sports matters such as the participation of an athlete in an international sports competition would normally have an arbitration clause submitting disputes to arbitration under the rules of the Court of Arbitration for Sports. As a result, in international sports disputes, the subject matter of disputes has been predominantly decided by a private tribunal. Consequently, the Court of Arbitration for Sports in its 30 years of existence has produced a rich jurisprudence regarding sports disputes. Such body of case law has created what some scholars called a lex sportiva. This lex sportiva is currently being challenged by EU regulations, especially competition law. Hence, this paper aims at analysing the origins of lex sportiva and its application to sports contracts.

Session 2: political autonomy

Jack Anderson: Crime and Corruption in Sport: A Study in Match Fixing

This paper seeks to highlight weaknesses in international sports organisations’ governance structures which make them vulnerable to exploitation by criminal syndicates by way of match fixing and namely the conspiracy to fix or otherwise manipulate the outcome of a sporting event for profitable purpose. The paper focuses on the sometimes under explained reason why match fixing has reportedly become increasingly attractive to international crime syndicates. That reason relates to the fact that given the traditional liquidity of gambling markets, sports betting can, and has long been, an attractively accessible conduit for criminal syndicates to launder the proceeds of crime.

The paper attempts to review the possible links between match fixing in sport, gambling-related “winnings” and money laundering and is presented in three parts. First, some context will be given to what is meant by money laundering, how it is currently policed internationally and, most importantly, how the growth of online gambling presents a unique set of vulnerabilities and opportunities to launder the proceeds of crime. Second, and using the seminal 2009 report “Money Laundering through the Football Sector” by the Financial Action Task Force, this paper seeks to assess the vulnerabilities of international sport to match fixing, as motivated in part by the associated secondary criminality of tax evasion and transnational economic crime. The concluding part of this paper spins from problems to possible solutions. The underlying premise here is that heretofore there has been an insularity to the way that sports organisations and sports managers have both conceptualised and sought to address the match fixing threat and along the lines that if we (in sport) initiate player education programmes; establish integrity units; enforce codes of conduct and sanctions strictly; then our integrity or brand should be protected. This paper argues that, although such initiatives are important, the source and process of match fixing is beyond sport’s current capacity, and must be better located within the discourse of transnational economic crime.

John O’Leary: Legislating for dopers: why criminalising anti-doping would be a crime

Doping is one of many types of cheating in sport. Not unreasonably, sport authorities wish athletes to compete on an ‘equal playing field’ and prescribe sanctions to punish and deter cheats. On closer inspection however, sanctions for various forms of cheating vary considerably and reflect the degree of opprobrium in which particular types of cheats are held. There are many ways in which cheating can be classified; one of which distinguishes those types of cheating that are also criminal offences outside of sport from those that are of purely sporting concern, for example the rugby field battery compared to the football dive. Yet these distinctions can become blurred when even ‘low level’ cheating can have significant economic consequences. Historically sport treated doping like any other form of cheating: anti-doping was pursued with the same vigour as other sports-rule violations. At some point, however, things changed.

Today there would be little dissent to the assertion that athletes who dope are regarded as the pariahs of the sporting world. The ‘War’ against dopers has begun and it is a ‘fight’ we must not lose. Anti-doping is supported by politicians through the International Convention against Doping in Sport and condemned by the Council of Europe. The World Anti-Doping Code has been approved by the European Court of Justice and doping has been criminalised by France, Italy, Belgium and Greece amongst others.

This paper maps the growing momentum to criminalise doping in sport. This momentum began within sport but has transcended mere sporting rules and has become a matter of national and international importance. The logical conclusion is to criminalise doping; that criminal sanctions would add a new level of punishment and deterrence and aid sport in the 'war against doping'. This paper will argue however that the momentum to make doping a criminal offence must be halted and reversed to prevent undemocratic and divisive laws and the blurring of the distinction between illegal and unlawful conduct.

Tom Serby: Getting back on track- a template for better governance in sport

Tony Blair, in his foreword to the 2001 Labour sports strategy paper ‘A Sporting Future for All’, wrote "The Government does not and should not run sport". This mirrored the laissez-faire approach of the English courts and their reluctance to accept that sports governing bodies are public bodies susceptible to the judicial review process.

Fifteen years later we see a parliamentary private member’s bill on the governance of sport proposing to radically reform the relationship between sport and the state, and the UK government itself in its consultation on sport: ‘A new strategy for Sport’, emphasising the need for greater proactivity by the state in sports governance and regulation (not to mention the increasing activism and intervention from the parliamentary Department of Culture, Media and Sport select committee). The government has also tasked UK Sport and Sport England with agreeing, with the other home nations sport councils, the new UK Sports Governance Code.

Is this a sign that the ‘autonomy of sport’ is at an end? What about EU and international law; can that be instrumental in reforming sports governance, and ending the corruption scandals that threaten to engulf sport? How relevant is the Council of Europe’s convention on match-fixing? Is it a harbinger of greater international state cooperation to recast the traditional ‘sporting autonomy’? Under EU ‘sports law’ and the sporting competence acquired under TFEU Article 165 does the European Commission ‘run’ EU sport? If not, should it? Is the European Commission too close to sports big business to regulate for open and fair competition? Or can EU law be used to create fairer sport which is better regulated?

Session 3: Legal autonomy

Aysem Diker Vanberg: The role of the EU in promoting fair competition in sport

Application of European competition rules to sports is not a recent development. In the Meca-Medina decision the General Court clarified that the EU competition rules are applicable to sports. Until recently the application of competition rules has been generally limited to cases involving the sale of media rights and ticketing arrangements. Arguably there has been a recent escalation in competition law cases with a sporting angle. Most recently, in October 2015 the European Commission opened a formal antitrust investigation into International Skating Union (ISU) rules that permanently ban skaters from competitions such as the Winter Olympics and the ISU World and European Championships. Amongst other issues, in its investigation the Commission examines whether ISU rules may prevent alternative event organisers from entering the market or drive them out of business, which might result in breach of Article 101 and Article 102 TFEU. With the number of competition cases increasing in the sports sector, this paper aims to critically analyse whether the European Commission needs to adopt new guidelines and rules specifically addressing the sports sector.

In order to answer the research question, the paper is divided into three sections. First, the paper will analyse seminal case law in order to identify recurring competition issues in the sports sector. Second, it will look at general policy documents such as the 2007 White Paper on Sport and the 2011 Communication on Sports with a view to analyse their adequacy in terms of addressing the problems in the sports sector. Finally the paper will discuss whether there is a need for further direction from the Commission, and what form that should take if needed.

Egle Dagilyte: ‘Subjects’ in EU sports law: a finite list, or an elusive category in the eyes of the Court of Justice?

When, in the1950s, the European Communities were created via international agreements, as a matter of traditional public international law, the only subjects to the rights and obligations arising from these agreements could be the Member States - the signatories of the EC Treaties. However, soon after the Court of Justice ruled in Van Gend en Loos that natural persons also had rights and obligations arising from EC Treaties, in later cases it went on to establish that not only individuals, but also private undertakings, self-governing professional bodies, sports associations, even trade unions and could derive certain rights and obligations from the provisions of EC/EU Treaties and legislation, in this way casting the circle of EU law ‘subjects’ widely.

Given the development of EU law as a separate legal order from international law that has its own human rights protection standards, the question of what actors fall within the scope of EU law becomes an issue that may affect not only the effectiveness of EU law or the workload of the Court of Justice, but also the legitimacy of the whole EU legal order in the eyes of its Member States, citizens and associations that benefit from sport both as a well-being, educational and active citizenship/inclusion activity, as well as an entertainment industry.

The purpose of this paper is to track the developments of the CJEU’s case law in which this expansion of the ratione personae occurred, with particular focus to ‘sporting rules’ and the bodies that create them. This will serve as a backdrop for critical debate as to how far EU law - as developed by the Court - could serve as a reliable tool for regulating the behaviour of such sports bodies and associations in the internal market, both with regard to the fundamental freedoms and the EU competition rules.

The paper will explore to what extent sport’s recent corruption scandals are a result of sport ‘being above the law’, and how greater state intervention and/or international treaties might improve the legal framework in which sport operates thereby benefiting all sport’s stakeholders; and will consider whether there is a consensus about what form improved sports governance-state imposed or not- should take.

Simon Boyes: Judicial scrutiny of sports governing bodies in English law: towards a new approach

The activities of sports governing bodies have grown both in prominence and in their significance in recent years. This, in turn has engendered a parallel growth in legal engagement with sport. Such development is driven by the burgeoning economic and commercial significance of sport, to the regulators, to those individuals and organisations regulated, and to an expanding range of stakeholders. Today’s sports governing bodies are entirely different creatures from their nineteenth century origins as coalitions of athletes, aimed at facilitating competition and of little interest to the outside world.

In the modern era sports governing bodies occupy a significant place in society; not only are they major economic and commercial players, sport is an important aspect of social life in which they have significant capacity to impact both livelihoods and reputations. Sports governing bodies play a conspicuous and central role in – and wield wide-ranging power over – the lives and livelihoods of those they regulate, as well as their significant influence in wider society. As such the extent to which they are accountable through law for their rules and decisions is of significant contemporary interest.

This paper seeks to explain and assess the role of the courts in calling these bodies to account. The paper begins by explaining the development of judicial intervention into the activities of sports governing bodies – beginning with the notable judgement of Lord Denning in Russell v Duke of Norfolk – setting out the historical definition of the relationship between governing bodies and those they regulate was predicated on the existence of a contractual relationship. Noting the impact of this characterisation – particularly the case of Law v National Greyhound Racing Club – on the claim for judicial review in respect of sports governing bodies, the paper welcomes the developments made in Bradley v Jockey Club, creating a special private law supervisory jurisdiction under which claims against such organisations can be made. This, it is argued, amounts to a welcome recognition of the realities of the relationship between sports governing bodies and those subject to their regulation.

The main thrust of the paper is that these developments, however welcome, do not go far enough, and that the level of scrutiny still falls well below that which is desirable given the significant powers held by sports governing bodies and the absence of other meaningful controls. An assessment of existing judicial attitudes demonstrates that sports governing bodies are subject to a ‘light touch’, ‘one size fits all’ approach which is not sensitive to the impact or magnitude of individual rules or decisions. In particular the paper argues that judicial approaches are limited by the adoption of a judicial review-style approach, with all its attendant constraints, unjustifiably so in the private context. Further the limitation – other than in particular, narrow circumstances – to a narrow approach to illegality means that few challenges are successful. The paper concludes by making a claim for a more nuanced and responsive approach to such cases, in particular advocating the adoption of a more overt and sophisticated approach to the question of proportionality – a concept which offers substantial opportunities for meaningful development of the law.