The New Game: International
Law and the Resolution of
Sporting Disputes
Paul J Hayes
Barrister-at-Law
Owen Dixon Chambers West (Devers List) - Melbourne
39 Essex Street - London
Lauterpacht Centre for International Law
University of Cambridge
10 March 2006
PAUL J. HAYES
BARRISTER-AT-LAW
The Emergence of Sporting Disputes
Sport? Sport and Culture
• The playing of games (sport) is one of the most “human” things we do.
• Sport forms part of our recreation and for many their employment and
is the focus for participation (playing or spectating) in many different
forms and at many different levels.
• Sport plays a significant role in many people’s lives and the lives of
many communities. Rates highly for many along with their job and family.
• Sport is a means of individual or group physical, creative and/or cultural
expression (ie. The role of sport in forging the cultural identity of
Australia).
• The Symbolism of Sport. Sport is often used or misused to make
political statements. It can unite people. It can be a bridge to greater
cultural understanding and development within the world. Sport speaks
all languages (ie. 1936 Berlin Olympics; North & South Korea marching
together at the 2000 Sydney Olympics).
• Sport is culture. Sport is transcultural. Sport is a manifestation of the
“human condition”.
PAUL J. HAYES
BARRISTER-AT-LAW
The Emergence of Sporting Disputes
The Professionalisation of Sport
• The professionalisation of sport is a 20th Century phenomenon and is a
nowadays a trite proposition.
• Contrast: Corinthianism, Amateurism and De Coubertin’s Olympic ideal
in 1896 to the Machiavellian era of professional sport in 2006.
• Participation in modern sport can be broken down into 3 categories:
Elite/Professional, Sub-elite and grass roots levels of participation.
• Revenue Streams to professional sporting entities: Media (broadcast
rights); Sponsorship; Merchandise; Government.
• The recent growth in the international marketplace for “sports product”
(media and merchandise).
• As business develops globally then so does professional sport and as
sport becomes more international, then so does sports business.
• The professionalisation of sport brings with it, commercial and legal
pressure upon the playing of games (sport) which did not exist in 1896.
PAUL J. HAYES
BARRISTER-AT-LAW
The Emergence of Sporting Disputes
The Internationalisation of Sport
• The Olympic Games. International Sporting Competition – Nations and Clubs
or Associations. World Cups and World Championships.
• “The goal of Olympism is to place sport at the service of the harmonious
development of man, with a view to promoting a peaceful society concerned
with the preservation of human dignity” Olympic Charter, Art 2.
•“Olympic Ideals are also United Nations ideals: tolerance, equality, fair play
and, most of all, peace. Together, the Olympics and the United Nations can be a
winning team…” Kofi Annan, UN Secretary General, Sept 2000.
• UN Commitment to Sport. 2001 - Establishment of the Office of the Special
Adviser to the UN on Sport for Development and Peace. 2005 - UN & UNESCO –
“International Year of Sport and Physical Education” – UNESCO International
Convention Against Doping in Sport 2005 (UNESCO 33rd Session, Paris 2005).
• World Conference on Doping in Sport – Copenhagen, 2003. The forerunner to
the World Anti-Doping Agency and the WADA Code 2003.
• The Court of Arbitration for Sport – Established 1984.
• The international business of professional sport.
PAUL J. HAYES
BARRISTER-AT-LAW
The Emergence of Sporting Disputes
Organisation of International Sport
Organisation of International Sport – Basic Structure
The Olympic Games
International Olympic
Committee
(IOC)
ANOC
National Olympic Committees
(NOC’s)
International Federations
(IF‘s)
National Federations
(NF’s)
Local Club/Association
Athlete
International Competition
(World Championships)
GAIF
PAUL J. HAYES
BARRISTER-AT-LAW
The Emergence of Sporting Disputes
Sporting Disputes
• Many sports are conducted at an international level.
• Many people (individuals and teams) participate in sport at an international level.
• With the growth in the professionalisation and internationalisation of sport, there is more at
stake for: Athletes; Nations; Teams; Sponsors; Broadcasters – in terms of participation in
certain sports and outcomes in sporting contests.
• In the professional arena, the official’s, selector’s, referee’s/umpire’s decision nowadays is not
necessarily final.
• The greater the stakes, (brought about by the growth in the professionalisation of sport), the
greater number of sporting disputes requiring legal responses. (CAS Statistics 1986 to 2004).
• Sporting Disputes primarily fall in to two categories. 1. Those disputes which concern
sporting factual matter which fall within the traditional legal causes of action (ie. contract and
tort – sports injury, etc). 2. Those disputes which are unique to sport which are addressed by
an emerging body of international (and domestic) jurisprudence relevant to sport.
• International Sports Dispute Resolution (“SDR”) is concerned with this second category.
PAUL J. HAYES
BARRISTER-AT-LAW
What are Sporting Disputes?
Pure Sporting Disputes
• Doping (Raducan)
• Results & Outcomes (“Game Rule” / “Field of Play”) (Hoy)
• Selection (Rankin)
• Eligibility
• Conduct
• Discrimination
• Child Protection
• Internal Management / Membership
• Athlete Contracts – Sports Labour Law (Bosman)
• Sponsorship
• Regulation / Rules of Games
PAUL J. HAYES
BARRISTER-AT-LAW
Sources of Law – Sporting Disputes
International Private Law
• The international “umbrella agreement” controlling participation in:
- Each of the Olympic Sports; and
- The Olympic Games.
• The International Olympic Committee (“IOC”) and The Olympic Charter.
• Contract – IOC and National Olympic Committees (NOC’s).
• Contract – IOC and International Sports Federations (IF’s).
• Contract – NOC and National Sports Federations (NF’s) and Athlete (Shadow Team Agreements).
• Contract – IF and NF.
• Contract – NF and Club / Association and/or Athlete.
• Contract – Club / Association and Athlete (Membership Agreements).
• Common provisions include: Rules and Regulations for each sport; The incorporation into the agreement of the
World Ant-Doping Code 2003 (“WADA Code”); Arbitration Clause for SDR - Court of Arbitration for Sport (“CAS”).
• To participate in a particular Olympic sport (and also other sports), either at local, national or international levels
(depending upon the ability of the Athlete), Athletes are “required’ to accept the provisions set forth by the IOC and
the IF’s with respect to the prescribed method of dispute resolution (ie. CAS), along with other mandatory
provisions. The opportunity to negotiate such provisions between the parties is in practical terms, completely absent.
PAUL J. HAYES
BARRISTER-AT-LAW
Sources of Law - Sporting Disputes
Organisation of International Sport Revisited
Organisation of International Sport – Basic Structure
The Olympic Games
International Olympic
Committee
(IOC)
ANOC
National Olympic Committees
(NOC’s)
International Federations
(IF‘s)
National Federations
(NF’s)
Local Club/Association
Athlete
International Competition
(World Championships)
GAIF
PAUL J. HAYES
BARRISTER-AT-LAW
Sources of Law – Sporting Disputes
Public International Law
• Universal Declaration of Human Rights 1949 (Arts 2, 8, 24, 27 & 29).
• Geneva Convention III 1949 (Art 38).
• Geneva Convention IV 1949 (Art 94).
• International Covenant on Economic, Social and Cultural Rights 1966 (Art 15(1)(a)). (See also:
O’Keefe (1998) 47 ICLQ 904 – sport and culture).
• International Convention Against Apartheid in Sports 1985.
• The Olympic Truce and accompanying UN General Assembly Resolutions declaring a truce during
each modern Olympiad since 1994. (Ancient Greece 9th Century BC “Ekecheria”). IOC proposal 1992.
UN General Assembly support 1993. 2000 – International Olympic Truce Foundation (IOTF).
• WADA Code 2003 (A hybrid public international law/international private Law instrument).
• UNESCO International Convention Against Doping in Sport 2005.
• European Law (EC Treaty).
• Commonwealth Secretariat (Manchester Communique 2002).
PAUL J. HAYES
BARRISTER-AT-LAW
Sources of Law – Sporting Disputes
Domestic Law
• The common law.
• Public / Administrative Law – traditional causes / remedies.
• The reluctance of Courts to intervene in the affairs of voluntary associations (ie.
sporting clubs and associations) – (Cameron v Hogan (1934) 51 CLR 358) unless:
- infringement of contractual, proprietary, equitable or statutory rights; or
- a person’s livelihood is at stake; and
- the Tribunal concerned has:
. Acted ‘ultra vires’ to its Constitution;
. Denied the aggrieved person ‘procedural fairness’; or
. Acted in a manner with manifest ‘unreasonableness’ or
absurdity (Wednesbury principle).
PAUL J. HAYES
BARRISTER-AT-LAW
A Jus Ludorem?
Is there a body of Law and Regulation unique
to Sport?
• Yes.
• A Jus Ludorem, a Lex Sportiva.
• A distinct body of regulatory and case law unique to sport.
• Jus Ludorem is primarily international in character.
• Has really only emerged since the early 1980’s.
• Comparisons to Lex Mercatoria?
PAUL J. HAYES
BARRISTER-AT-LAW
Why SDR is important
Sport = Culture = Human Right
• Sport is part of culture (as discussed earlier).
• The resolution of sporting disputes within the prism of international private law,
ultimately determines the right to participate in sport, together with the manner of
such participation.
• Participation in sport is participation in cultural life.
• Participation in cultural life is protected by public international law principles.
• Therefore the resolution of private sporting disputes is important because
ultimately human rights are at stake (ie. the right to fairly participate in sport, at a
level commensurate with one’s ability).
• The relationship and/or tension between international private law and public
international law in the consideration of all factors relevant to SDR.
• Should what are ultimately human rights be ‘compulsorily’ determined by private
arbitration? See: Lissarague CAS 2005 @ para 90 (88 to 102).
• Athlete’s rights IAAF & USTAF 2002
• See: Puerta v ITF CAS 2006 and also Swiss Civil Code, Article 28(2) – sport = right
to personal fulfilment.
PAUL J. HAYES
BARRISTER-AT-LAW
Current Means of SDR
Generally
• The Court of Arbitration for Sport (CAS).
• European Court of Justice.
• Domestic Courts of Nations (especially Switzerland).
• Domestic Tribunals.
• Specialist National Sports Tribunals:
- Sports Disputes Resolution Panel (United Kingdom);
- NZ Sports Disputes Tribunal (New Zealand);
- ADR Sports Red (Canada).
• Statutory Tribunals.
• Private Mediation.
PAUL J. HAYES
BARRISTER-AT-LAW
Current Means of SDR
Internationally – Court of Arbitration for Sport
• Established by the IOC in 1984.
• Permanent Seat in Lausanne, Switzerland. (Also regional offices
in New York and Sydney).
• Initially NOC’s, IF’s and NF’s voluntarily submitted to its
jurisdiction.
• Jurisdiction now contractually entrenched in all Olympic sports.
• Appellate jurisdiction appeared in 1991 at the behest of the
FEI. (Gundel, 1992)
• 1993 – The Swiss Federal Tribunal upheld the jurisdiction of
CAS under “an enforceable agreement for arbitration” which is
capable of delivering legally enforceable awards (Gundel v FEI
and CAS).
PAUL J. HAYES
BARRISTER-AT-LAW
Current Means of SDR
Internationally – Court of Arbitration for Sport
• The 1994 Paris Agreement and the establishment of the International Council of
Arbitration for Sport (“ICAS”). 20 members. Primary function is to oversee the
operation of CAS and to safeguard its independence. (IOC, ANOC, GAIF, Athlete and
Independent representatives – rolling appointment system).
• The IOC and the independence of CAS? Upheld by the Swiss Federal Tribunal in
Lazurtina and Danilova v IOC, FIS and CAS in 2003).
• Rapidly growing jurisdiction.
• Can deliver prompt decisions where necessary – ie. Ad-hoc division at each
Olympic Games and Olympic Winter Games.
• Understands the special needs of sport in dispute resolution.
• CAS has international panel of approx 200 Arbitrators. Process of selection of
Arbitrators is provided for under the CAS Code of Sports-related Arbitration. Process
of appointment of Arbitrators to the Arbitral Panel though (on four year renewable
terms) differs from region to region, but is endorsed by the CAS Lausanne Registry.
PAUL J. HAYES
BARRISTER-AT-LAW
Flaws in the present system of SDR
Internationally
• Independence of CAS? (IOC/NOC’s/IF’s). Closed panel of arbitrators and means of
appointment under ICAS statutes (incl. 4 year renewable terms).
• Compulsory submission to the jurisdiction of CAS by all participants in the Olympic
suite of sports.
• Limited rights of review of CAS decisions. The CAS “black hole” and appeal
exclusion clauses (Raguz v Sullivan (2000) 50 NSWLR 237 and Art 192 of the Swiss
Federal Code on Private International Law). Swiss Federal Tribunal?
• Fractured process of SDR when examined in conjunction with other available
means of consideration of domestic disputes.
• Inconsistent Outcomes. Similar disputes sometimes producing different outcomes
being determined by a variety of international and domestic tribunals.
• Poor system of sports law reporting.
PAUL J. HAYES
BARRISTER-AT-LAW
The New Game: International Law
and the Resolution of Sporting
Disputes – Challenges ahead
Conclusion
• The challenge is to maintain the integrity of sport and fair
access to and participation in sport for all.
• International Private Law versus Public International Law. See:
Findlay, University of Warwick, 2005 [electronic article].
• Therefore, should the resolution of sporting disputes (which
ultimately effects human rights, namely the right to participate in
sport/culture), take place within a public international law
framework (ie. special tribunal having its foundations in
government), rather than within a system of international private
law, as it is presently (ie. compulsory arbitration before the CAS),
which is ultimately controlled by a private body, namely the IOC?