Thursday, 5 April 2012

The Sports Judicial System - Executability of Decision

Executability - capability of being executed. 

The legal discussion today is about the competency of judicial bodies at national level to make decision. The issue is what are the effects and enforcement limits of the decision? The principle idea is when sports persons and sports administrators are obliged to abide by national law (example: Sports Development Act 1997) and the rules of the relevant sports association (example: FAM Constitution / Statute), they are also obliged by the rules of the international sports federation (FIFA / IOC) to which their national federations affiliated with.

Effect: People claim that since the nature of obligation among members of the national sports body derives from contractual freedom, nothing much can be said when the provisions agreed by all parties were breached. This is totally unfair against the right of affected party. We agreed that through the statute of national sports body, it regulates internal administration and function and establishes normative and disciplinary competence within their field of responsibility. It applies to their members (athletes and officials) and interestingly prevails over any provisions. However, international sports judicial system does not coincide with traditional sources (or other provisions / statutes). CAS (Court of Arbitration for Sports) constitutes their own arbitration panel sector and its operation is within sports judicial system and the jurisdiction to regulate international arbitration. Thus, all disputes arising between members (athletes and officials) that are refereed to this panel will be arbitrated on the basis of statutes of international sports rules of IFs and IOC. 

Limitation: The theory of lex sportiva is unique or sui generis. It means that it emerges beyond the bounds of states. The international rules are followed by national federations (NSB) and the legitimizing result may prevail over national law / court. Why? Because IFs (FIFA for example) are private legal bodies with objective to regulate the sports for which they are responsible or any disputes that take place across the borders of more than one state. And the same applies to NSB / IFs that wish to have their sports recognized as Olympic sports. The IOC will implement its legal rules as contained in Olympic Charter.

So, why afraid if there is no appeal process in the disciplinary hearing?