Thursday, 17 May 2012

Why Not Appeal: The Normative Trend of Resolving Sports Dispute

1. What is the normative trend in resolving sports dispute according to international sports law? 
The answer is arbitration and not court proceeding. For example, (a) National sport body resolves dispute within their sports and territory by way of domestic procedure (disciplinary hearing). International federation (AFC, FIFA) will review decisions of national bodies within a particular sport. (b) National Olympic Committee (OCM) intervenes in dispute at a national level by conducting domestic inquiry (internal procedure). International Olympic Committee (IOC) may review decisions of a National Olympic Committee. (c) Independent arbitration panels may deal with disputes (Court of Arbitration for Sports-CAS, done by Regional CAS) and this is totally arbitration proceeding and if going to the (d) Court, the Court will normally recognised and enforce foreign arbitration award (if arbitration was done by CAS). Only where such disputes are not susceptible of resolution by international sports institutions, they have to be decided by national court and decide it according to substantive system (statutory) of national law.

2. FAM Constitution (for example) is a comprehensive one that had incorporated many clauses in Rules and Regulations adopted by international federation (FIFA). One of the important clauses is an arbitration clause. Thus any attempts to resort to the courts without regard to an arbitration clause will generate stay of proceeding (see Colchester United FC Ltd v Burley [1995]). This is on the basis of Article 58 of FIFA Rules that requires all clubs / member associations (including Leagues) to refrain from litigation in court until all possibilities of sports jurisdiction within, or under the responsibility of their national association have been exhausted. To emphasize their authority, all national member associations must ensure all members / clubs observed this obligation.

3. However, Neuberger J in Notts Incorporated Football Club Limited v The Football League Limited and Southend United FC Limited [1996] exceptionally unravelled by saying that "a point of law not requiring resolution of contested facts, may be resolved on a summary judgement application before a court notwithstanding any arbitration clause. The reason is simply because an arbitration clause is unlikely to displace the right of access to court. Thus, any rules seeking 'to refer to the court' in the association’s constitution as a breach is invalid. If the rules of any association do not contain an arbitration clause at all (as claimed by many of sports body's constitutions in Malaysia), the arbitration is optional and may be used if both parties consent (see Stevenage Borough FC Limited v The Football League Limited [1997]) 

4. The intention of writing is not to criticize any association. The sports association should understand that despite the ambiguous interpretation of arbitration clause, the rule is conceptually distinct from a right of appeal against a decision of the lower organ (disciplinary committee). And yet the internal appeal still does not involve recourse to any external body that may expose them to any strictures.  

5. And most important, a right of appeal merely provides for a second tier ruling, derived from autonomous authority within the association. Nobody looses...