This article is written by Dhruv Vatsyayan of Law School, Banaras Hindu University who is pursuing his 1st year of B.A.LL.B and is a sports enthusiast by passion. In this article, he deals with the Practice of ADR in Sports in Court of Arbitration for Sports.
In the latter half of the last century, Sports, rather than just being a leisure activity, emerged as a growing industry. Its growth as an industry can be attributed to commercialization.
With commercial stakes increased in this industry, an increase in various kinds of disputes was inevitable.
Conventionally, the dispute resolutions were done in Courts of Law. But, with an increase in the number of disputes, the concept of Alternative Dispute Resolution emerged.
In this article, we’ll be discussing the scope of Alternative Dispute Resolution in Sports and different aspects of it.
What is ADR?
Alternative Dispute Resolution, famously known as ADR, is a mechanism that helps in resolving disputes without courtroom litigation. Alternative Dispute Resolution primarily includes:
In other words, Alternative Dispute Resolution is a term used for the procedures, by which parties can resolve or negotiate their disputes with the help of a neutral third party.
Despite prolonged resistance to ADR, it has gained wide popularity, especially in commercial cases. This rising popularity of ADR can be attributed to an increased burden of work on the traditional courtrooms.
Thus, the means of Alternative Dispute Resolution proves to be a feasible and easy way for dispute resolution.
Now, let’s inquire into why the need for ADR in sports disputes arose.
Need for ADR in Sports Disputes
With the emergence of sports as a multi-billion industry, the vulnerability of stakeholders involved in it also intensified. And consequently, the number of commercial disputes started to rise.
However, the cases related to disciplinary actions and anti-doping can not be resolved through this means of dispute resolution. The sports dispute or other disputes of civil nature increases the burden of the courts. There is a need to lessen the burden. So, sports disputes settled through ADR facilitates the same.
Another reason which seems practical is that most of the cases which are decided in the courtrooms take a much longer time than those resolved by means of ADR. Most of the players and clubs want their disputes to be resolved quickly as their career span is short. Thus, ADR is a viable way to resolve disputes pertaining to sports.
Applicability of ADR in Sports
The usefulness of ADR in Sports disputes can be understood in the words of Simon Gardiner, who writes, “The sports world is a small one, everyone seems to know the other people. Thus, relationships and reputations are worth preserving. So, by means of ADR, the disputes can be resolved within the family of sports itself”.
The usage of ADR in sports can be traced back to the decade of the 1980s, which saw a regular increase in the number of sports-related disputes having international importance.
In the year 1982, at the session of the International Olympic Committee in Rome, it was decided to constitute a Court of Arbitration for Sports, or CAS, to deal with Mediation and Arbitration in Sports. And, in the year 1984, IOC officially ratified about the formation of CAS and started its operations.
Now let’s understand what is Mediation and Arbitration, and how it works in instances of sports disputes.
Generally, Mediation as a means of dispute resolution is followed wherever the parties share a close relationship. As defined by Black’s Law Dictionary, Mediation is a method of non-binding dispute resolution involving a neutral third-party who tries to help the disputing parties reach a neutrally agreeable solution.
There are some basic principles of Mediation, which are needed to be taken care of:
- Voluntary Participation of the Parties: To be able to successfully enter the process of mediation, it is necessary that the participation of the parties is unforced and voluntarily. It is upon the parties to choose whether they want to go to the courts or are participating in the mediation process. Also, when people are knowing that they are free to abandon the whole process, they will be cooperating more freely and wholeheartedly. For example, a player and a club are involved in a dispute and they want to get it resolved. To make the whole process more effective, any of both must not have an undue influence on the other.
- The process should remain Confidential: All the information shared during the mediation must be kept confidential and the mediator is expected to not disclose it anywhere else.
- Mediators should be neutral and impartial: The third party, i.e. mediator is expected to remain neutral and impartial. He/she should first observe all the facts and issues involved and should refrain from giving advice or commenting on anything.
- The settlement must be done with the satisfaction of parties concerned: The satisfaction of the parties in dispute must be taken care of by the mediator. However, the responsibility of defining the problem, setting the agenda and agreeing to the solution provided by the mediator lies with the parties themselves. Also, if at point of time during the mediation, if the mediator feels that parties are being more opposed to each other and the dispute is being intensified, then he can interrupt the mediation.
Let’s suppose, there are two football clubs named FC Tottenham and Athletico Roma. These teams are involved in Open Window Transfer of players for next season. There is some payment dispute, which arose in the transfer of a player, Timothy Morgan.
So, instead of going to the court, both the parties would prefer to settle down with mediation as it will take less time and that would facilitate with fast disposal of the dispute before the next season.
Now, let’s talk about Arbitration.
Arbitration is just another form of Alternative Dispute Resolution. Arbitration is the private, judicial resolving of a dispute, by a neutral third party. An arbitration hearing may involve the use of an individual arbitrator or a tribunal.
There are some principles of arbitration too:
- The objective of Arbitration is to resolve the dispute by an impartial third party without unnecessary expenses or delay.
- The parties are solely responsible for how their dispute should be resolved.
- Judicial Courts must not interfere in the arbitration process.
Like mediation, the matters subject to arbitration are also mostly the commercial disputes involved in sports deals.
Now, let’s discuss the international body responsible for ADR in sports, i.e. CAS and it’s functioning.
Court of Arbitration for Sports (CAS)
Court of Arbitration for Sports is the apex body for the resolution of sports disputes. It was established under IOC (in the year 1984). So, such an arbitral institution was formed with a motive of speedy resolution of international disputes through a flexible, quick and inexpensive procedure.
Since its inception, this institution has also gone through various reforms. One of the major reform came in the year 1992 in the case of Gundel v. La Fédération Equestre Internationale.
In this case, an appeal was filed against the order of CAS in the Federal Supreme Court of Switzerland. It challenged the impartiality of CAS. The question raised was that since the CAS is working as a body under IOC, it’s natural that in cases related to IOC there are chances that CAS would be biased.
The court obviously held that Court of Arbitration in Sports is a true court of Arbitration, but it also questioned about various links between CAS and International Olympic Committee.
This judgment led to various radical reforms in the functioning and structure of CAS. Most important among them is the formation of the International Council of Arbitration for Sports, i.e. ICAS.
Now the administration and funding of CAS were to be looked after by ICAS instead of IOC.
Other significant changes include the introduction of the Code of Sports-related Arbitration which governs the procedural aspect of CAS and other related organizations.
These changes also included the formation of two separate divisions for arbitration, i.e. Ordinary Arbitration Division and Appeal Arbitration Division.
Code of Sports-Related Arbitration
This code of 1994 lays down the procedure through which arbitration and other forms of ADR to be done. This code establishes rules and procedures for the following:
- For ordinary Arbitration Procedure;
- For Appeal Arbitration Procedure;
- For Advisory Procedure, which provides for sporting federations to seek advisory opinions from CAS;
- For Mediation Procedure.
Let’s discuss the code in detail.
Statutes for CAS & ICAS
Sections 1-26 of the code talks about the functioning and composition of both the bodies.
Section 1 establishes the formation of two sports dispute resolving bodies, i.e. CAS and ICAS and seats of both these bodies would be in Lausanne, Switzerland.
Section 2 of the code defines the purpose of the establishment of ICAS. It says that the purpose of the establishment of ICAS is to facilitate the functioning of the Court of Arbitration in Sports and ensure its independence.
Section 3 explains a little bit about the working of the CAS. It says that CAS would be maintaining a list of the arbitrators and would provide the redressal of disputes through a panel of 3 arbitrators. It also lays down that CAS would comprise 3 divisions, i.e. Ordinary Arbitration Division, Appeals Arbitration Division, and Anti-Doping Division.
Composition & Operation
Sections 4-11 talks about the composition and operation of the International Council of Arbitration for Sports. The Council would be having 20 members including experienced jurists and sports experts. The Council would comprise of 4 members from each of the following:
- 3 members from the Association of Summer Olympic International Federations and 1 member from Association of Winter Olympic International Federations.
- 4 members from the Association of National Olympic Committees.
- 4 members from the International Olympic Committee.
- Other 4 members would be chosen by the members elected above.
- And the next 4 members would be chosen by the 16 members of ICAS listed above and these members would be independent of the bodies listed above.
These members are appointed for a tenure of 4 years which may be renewed once or several times. Section 5 of the code talks about the title of Honorary Member of ICAS, for those who have contributed immensely towards the growth of CAS or ICAS.
Section 6 deals with the functions of ICAS which includes, adoption and amendment of the Code, elect the president and vice-presidents of the council, to maintain the list of arbitrators among other functions.
This code ensures that the members of ICAS would meet for at least once in a year or whenever the activity of CAS is required. The quorum required for meetings to be conducted is at least half of the total members. The voting is done in a matter of making a decision by secret ballot and the president would have the final vote cast in event of a tie.
Section 9 of the code establishes that the president of the International Council for Arbitration in Sports would also serve as the president of the Court of Arbitration for Sports.
Procedure for CAS Proceedings
The next segment of the code, i.e. Section 12-22 of the code, discusses the provisions and procedures regarding the Court for Arbitration in Sports.
Section 12 of the code discusses the responsibilities of the panel of Arbitrators appointed by CAS which are as follows:
- The foremost responsibility of the panel is to resolve the dispute through ordinary arbitration.
- To resolve the matters related to Anti-Doping as a first-instance authority.
- To resolve the disputes through appeals arbitration.
- To resolve the disputes, which are referred to them through mediation.
Section 13 of the Code provides the list of Arbitrators and Mediators and ensures that there should be not less than 50 Mediators and 150 Arbitrators in the list provided by CAS.
Section 17 of the code, establishes the provision for replacement of an arbitrator if he/she:
- Or, unable to carry out his/her functions due to any other cause.
The composition of CAS is discussed in section 20 of the code. It comprises of three divisions, i.e. Ordinary Arbitration Division, Appeals Arbitration Division, and the Anti-Doping Division.
Section 22 of the code provides for the establishment of Court Office, which would be composed of Secretary-General and other Counsels and the Court Office would function according to the code.
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These procedural rules would be applied in those cases only, wherever the parties have agreed about referring the dispute to the Court of Arbitration for Sports.
Seat and Language
The seat of CAS and other panels is decided to be in Lausanne, Switzerland. However, if the president allows, the panel may hold the hearing at other places too.
The language of the CAS has been decided to either French or English, as the parties may decide. But, in case the parties are unable to decide upon the same, the panel may allow any one of these languages after taking account of all relevant circumstances.
Notifications and Communications
CAS Court Office would be making all the notifications and communications on behalf of the panels and CAS itself.
The request for arbitration and other written submissions would be made through the printed or digital medium. By means of Email, it can be communicated to the following Email address- [email protected].
Independence and Qualification of the Arbitrators
The most important requirement is that the arbitrator must remain impartial and neutral. He/she shall have good command over the language of Arbitration and must be available whenever he/she is needed to resolve the dispute expeditiously.
Challenging the Arbitrator
One can challenge the impartiality of an arbitrator if legitimate doubt arises regarding his/her impartiality or independence Such challenges shall be dealt with by the Challenge Commission. The challenge shall be filed by the party raising it, in the form of a petition and shall be sent to CAS Court Office henceforth.
Removal and Replacement
After an arbitrator is challenged upon the allegations that he/she can’t carry out their duties, the challenge commission after considering all the facts can remove the arbitrator. The parties can not have a say in the removal of the arbitrators. However, the commission may invite the parties to comment on the removal.
The replacement of an arbitrator may happen in the following situations:
- Resignation of the arbitrator;
- Death of the arbitrator;
- Removal of the arbitrator or successful challenge of the arbitrator.
Provisions Applicable to Ordinary Arbitration Procedure
To initiate an Ordinary Arbitration, the following information is to be submitted in the CAS Court Office:
- Name and address of the claimant;
- Statement of facts and arguments;
- Request for relief;
- Any other relevant information.
Formation of Panel
Generally, the panel is composed of one or three arbitrators. Unless the arbitration agreement doesn’t carry any specified number, the president should decide upon the number of the arbitrators after considering the dispute.
The hearing dates shall always be decided by the president of the panel. According to section 44.2 of the code, there will be one hearing in which the panel hears the parties, witnesses and any experts where the respondent is heard last. The number of appearances of witnesses or experts can be limited or disallowed by the panel or any part of the evidence on the ground of irrelevance.
The award given to the parties is decided by the majority of the panel or the president himself in case of the absence of the majority. The reasons for the award should be mentioned in the written order unless the parties are satisfied otherwise. Dissenting opinions are not taken into account and thus, are not notified by CAS.
Provisions Applicable to the Appeal Arbitration Procedure
In CAS, an appeal may be filed against the decision of a federation, association or any other sports-related bodies. An appeal may also be filed against any award given by CAS as a first-instance authority.
Statement of Appeal
The statement of appeal must contain the following information:
- The name and the address of the appellant;
- The copy of the decision against which the appeal is filed;
- Request for relief;
- Application to stay the decision which is appealed against.
Number of Arbitrators
The appeal must be submitted to the panel of three arbitrators unless the parties have agreed upon any other composition for the panel of arbitrators. In the absence of any sort of arbitration agreement between the parties regarding the number of arbitrators, the President of the Division would decide upon the number of arbitrators for resolving the dispute. This also includes whether or not the Respondent pays its share of the advance of costs within the time limit fixed by the CAS Court Office.
The nomination of Arbitrator by the Respondent
The arbitrators may also be nominated by the respondent or the party. The respondent can nominate the arbitrator within 10 days after the receipt of the statement of appeal. In absence of above, the president of the division shall make a decision regarding this.
Scope of Panel’s review
The panel of arbitrators has full authority to review the facts of the dispute and appeal. After taking account of the circumstances and fact, the panel in consultation with the parties may also decide not to hold a hearing.
In case, if any of the parties, or witnesses, after being summoned, fails to appear, the Panel may proceed with the hearing and can render an award ex parte.
Award in cases of appeal shall be given according to the provisions as laid down under provisions applicable to Ordinary Arbitration Procedure.
These days when everyone wants a speedy dispute resolution, the means of Alternative Dispute Resolution becomes important. In cases of sports-related disputes too, the role of ADR becomes important as the teams and parties want speedy disposal of the cases.
To invoke the means of ADR, it is necessary to have a written agreement between the parties. While drafting the arbitration agreement, one needs to be mindful of all the possibilities of dispute and should draft the clauses after taking all the permutations and the combinations into account. In case of ambiguity in the arbitration clauses, the execution time may delay, the court can grant award to another party in case of absence of such clauses or the award given in favour of the party can easily be challenged.
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