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...

SportslawMalaysia 

Monday 14 May 2012

Olympic Games: Ambush marketing, Issues and Defences


1.  The eligibility criteria for each member of NOC's team (OCM) are set out in the Olympic Charter. A competitor, coach, trainer or team official must not only respect the spirit of fair play or/and observe the regulation in the World Anti-Doping Code, but to disallow his/her image to be used for advertising immediately before, during and immediately after the Games without prior approval .

2. This ensures real exclusivity for the official marketing  partners of the Games. Olympic imagery and assets are carefully controlled and regulated. Only those sponsors known as The Olympic Partner Programme (TOP) have the worldwide rights to use Olympic rings and imagery. However, IOC also in the past has created another category of sponsor known as International Sponsors. These sponsors have similar rights but limited to selected NOCs territories only. Organiser and NOCs share in the revenues and deals (see Olympic Charter, bye laws 2.2.2.; Host City Contract, clause 48(e).

3. Why this? To combat ambush marketing. Ambush marketing occurs when a company or firm claims an association with the Olympic Games, which it does not have / sponsor / partner. This causes confusion in the minds of customers, prejudices to the Organiser and will make those TOP and International Sponsors get angry. Ambush marketers (parasite) claim a false association in many ways. Examples are (1) unauthorised use of intellectual property rights (2) advertising (3) broadcast sponsorship (4) pourage agreement and (5) corporate hospitality and ticketing.

4. I may say compared to Olympic Beijing 2008, London 2012 works smarter. Instead of sing up for Nairobi treaty to protect Olympic symbol, UK government enacted the Olympic Symbol (Protection) Act 1995 - OSPA. And to specifically address ambush marketing activities, a new law known as London Olympic Games and Paralympic Games Act 2006 (LOGPGA) was introduced.

5. What I want to emphasize in this blog is not the detail description of the LOGPGA. The first issue is about athlete’s contractual conflict. Athletes normally were insisted to wear sportswear suppliers or equipment or to visibly appear in advertising slots of sponsors appointed by NOC. And even during the competition, the athletes must wear at least sponsors logo and NOC emblem. But this leads to the situation which contradicting with the Olympic Charter. However, at the same time, refusing to wear or appear in sponsor’s advertisement may put the athlete in breach of his/her athlete’s individual contract.

6. I believe this suppose to be a well settled issue. Since 1997, these rules have been set for every edition of Olympic Games. There is a consultation between IOC and the World Federation of the Sporting Goods Industry about the matter. The reason why we do not know is either the non-intervention of OCM in athletes' individual contractual deal or the misappropriation of good intention of Malaysian sponsors towards the Games (especially without proper research). Take note that athletes cannot report his winning or act as journalists without the permission, or even blogging during the Games. This may also consider as a breach under by law to Rule 49, Olympic Charter. Strict maaa...

7. The next issue is defence. (Please read Adam et al., Sport: Law and Practice, 2008 for detail).We have to consider many aspects, for example burden of proof, concept of 'association' and whether or not a ‘commercial’ or ‘contractual’ relationship exists. Normally the ground of defence is whether 'honestly made statement' are really confusing, misleading or used in the context of the Games. And there are exceptions too. For example advertisement which are presented as a report or information on the Games, or product representation, design rights or registered trademarks which have been made continuously since prior of the Olympic.

8. Whatever exceptions or defences available, it is all about sports legal education. The law means to regulate and not means to be manipulated.

SportslawMalaysia



Tuesday 8 May 2012

Duty to act fairly - hearing process

1. In unincorporated sports association, members are governed by its Constitution and by-laws (Rule). However, the principle of natural justice is still applied to any accused members. Members of the sporting association could not arbitrarily be expelled or suspended without first being given a hearing, for their contracts of membership included a duty to act fairly.

2. In discussing the principle of natural justice in hearing process, we will consider a few issues:

(a) the objection on the ground of  likelihood of bias against the chairman / appointed Disciplinary Committee. A person who is appointed as chairman must objectively, fairly and impartially deal the matter brought before him. The universally accepted principle is that a person acted in a quasi-proceedings must be able to act above suspicion of unfairness. What account to suspicion of unfairness? (i) his past relationship (ii) feeling of bias or animosity or (iii) relevant circumstances from the available evidence or knowledge of which would not necessarily be available.

Read:
Darshan Singh v Farid Kamal Hussain  [2005] 3 MLJ 502;
Andhra Pradesh State Road Transport Corporation v Satyanarayan Transporters AIR 1965 SC 1303
Franklin v Minister of Town and Country Planning [1948] AC 87


(b) If the appointed chairman of disciplinary committee is also the same person to hear an appeal hearing. The chairman  or any disciplinary committees had shown active participation in the disciplinary proceedings. The general principle is the complainant or prosecutor should not participate in a decision or in an appeal from a decision, and should not even appear to participate; to do so would be contrary to the rule of natural justice.

Read:
Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487
Rattan Lal Sharma v Managing Committee AIR 1993 SC 2155
Collins v Lane, Cornish and Worcester Norton Sports Club Ltd [2003] LLR 19

(c) The failure of the Disciplinary Committee to provide full report of its decision. This constitutes breach of natural justice. The report must be made available in order to answer any allegations against the accused.

Read:
BSS Kanda v Government of the Federation of Malaya [1962] MLJ 169

Sunday 6 May 2012

FAS vs. FAM: The Possibilities

1. Court will not intervene into dispute between national sports association and its members. Under the common law, associations may require their members to exhaust all internal remedies within the association before resorting to any court or tribunal outside of the association. 

2. As a general rule, when a private organization has procedures for internal review of its decisions, those procedures must be exhausted before seeking any redress from a court. (Holt Hackney, How State Judges Are Clearing Backlogs In Cases Involving Associations And Clubs, 22 Ent. & Sports Law. 31). The Malaysian law applied the same principles (see previous discussion).

3. Section 23 of Malaysian Sports Development Act 1997 spelled out that 'every sports body shall resolve any dispute arising amongst its members or with its committee or governing body in accordance with the internal procedures prescribed in the regulations'. 

4. However, the section broadly defined dispute as 'any disputes' thus confusing and need interpretation. I may simply divide the disputes into two; Intra-Association Conflict and Inter-Association Conflict. Intra-association conflicts are disputes that involve an association's adoption and implementation of its national rules. It includes the procedures of conducting hearing, decision making and punishing by the national sports body for its members. Inter-association conflicts simply mean disputes between members within the sports association. Disputes normally arise on gate received, assault and transfer issue.

5. The issue of discussion now is not about control and jurisdiction. Obviously FAS (Football Association of Sarawak) is affiliated to FAM, which means, an organization that is under the control of FAM. FAM is affiliated to an International governing body of football, FIFA. And at the same time, FAM is a registered National Sports Association with Olympic Committee of Malaysia (OCM) as an associate member. 

6. Affiliation and association of one sports body to larger structure of sports body is merely a tool to seek 'recognition and sense of belonging'. Nothing more. But the key to be a sports body in Malaysia is registration. This is clearly stated in section 15(1) of Sports Development Act 1997, 'Every sports body shall apply to the Commissioner to be registered under this Act to carry out any sporting activity'. By registering its identity, the sports body stands by itself as an incorporated legal entity. 

7. OCM at the same time not only recognise sports body registered under the auspices of Sports Development Act, but other statutes. OCM Constitution interpreted that (d) ‘Registered Organization’ means any organization duly registered under the Sports Development Act, 1997, the Societies Act, 1966 and/or the Companies Act 1965 and with an interest in sports. ‘Associate Member’ means a registered National Sports Association or Registered Organization involved in the promotion and development of sport, which may or may not be affiliated to any International Federation. 

8. With due respect, FAS may register itself as 'registered organisation' under any of the Acts to be associated with OCM. This will deprive FAS from receiving direct funding from FAM or other detriment including the possibility of not competing in the Malaysian league. However, the only good thing is FAS is  an independent incorporated legal entity (private and domestic body). Having no fear of non-intervention of private issue, FAS will bring court action as FAS, and not as an affiliated member.

SportsLawMalaysia