JURIST Guest Columnists Shivang Yadav, a third-year student at Dr. Ram Manohar Lohiya National Law University, Lucknow, India, and Harshit Gupta, a fourth-year student of Symbiosis Law School, Noida, India, discuss the need to expand sports arbitration practices in India...
This article discusses the need to introduce arbitration in the field of Sports law as it will contribute towards the steady disposal of disputes arising on and off the field. We will discuss why there’s an immediate need to promote and bring an efficient form of arbitration into the area of Sports law. We will also overview the functioning of various national and international bodies that govern such issues. The piece also discusses cases where arbitration proved to be an effective way to get the issue addressed at both national as well as international levels. In the end, we will discuss the issues pertaining to the field of sports law and will make recommendations to refine the sports arbitration mechanism.
Sports has been one of the most significant parts of Indian history ranging from Indus civilization to the Mughal dynasty and further continued in the Colonial era, but still our nation has failed to acquire an effective dispute resolution method to resolve issues arising in the field of sports law.
Early on, the only thing that mattered was sportsmanship and people gained fame and recognition because of their talent and extraordinary skills until bad practices such as corruption, special treatment, labor abuse, drugs abuse and politics started to interfere with the sanctity of sports. In the past, there have been several incidents where sportsmanship has been tarnished by these bad practices which were later taken to court often taking a long time to reach a verdict. The prolonged litigation surrounding these led to delayed delivery of justice to players and other innocent victims on both domestic and international platforms. So, in the present time there’s a need to introduce a new governing authority to tackle such situations. This new authority must deal with sports disputes and render speedy justice with an affordable means. Arbitration must be considered an effective tool while framing sports laws.
Role of arbitration in the present scenario
In uncomplicated language, ‘arbitration’ can be defined as an alternate dispute resolution (ADR) method, mutually selected by the parties where an arbitrator is appointed, who after reviewing the case gives a decision legally binding on both the parties. There are several other forms of ADR which including mediation in which the negotiation settlement is facilitated by a neutral third party. Arbitration is noteworthy because it maintains the privacy and confidentiality of both parties by preserving their respective goodwill and reputation which is not the case in litigation, the traditional method for resolving such disputes.
After recognizing such major issues, the Indian government inaugurated India’s first arbitration center in 2009 at Delhi. Because it was leading to the steady disposals of disputes, arbitration became popular among the several methods of disputes resolution. With numerous cases arising daily it’s not viable to use litigation as a mode of dispute resolution.
Status at International Platform
The viability of arbitration was acknowledged on the international platform long before when the Centre of Arbitration for Sports (CAS) was set up in Lausanne, Switzerland by the International Olympic Committee (IOC) in 1983. The Centre of Arbitration for Sports is often referred to as the “Sports supreme court of world” and generally dominates the disputes resolution scene in the international arena. It’s the highest authority where disputes arising between sports personnel and sports federations are settled. In CAS, the effective law is mutually decided by the parties otherwise Swiss law is effective. The jurisdiction of CAS is very wide in dealing with disputes arising within sports law between parties defined under section 1 of the code.
CAS is one of the organizations dealing with disputes arising out of sports. Another one was setup in 1994 after the landmark case of Gundel v. FEI CAS where multiple connections were discovered between CAS and the International Olympic Committee (IOC). The IOC was competent to appoint members to CAS, provide funds and even modify the statutes of CAS leading many to question the approach of CAS. This led to the establishment of a supreme body to CAS named the International Council of Arbitration for Sports (ICAS), whose main duty was to protect the independence of CAS by creating a more transparent mechanism for CAS to operate with.
Binding decisions of CAS are limited to parties who fall under the jurisdiction of its courts which excludes non-national parties. This issue was dealt with in the landmark case of Raguz v. Sullivan where one of the two Australian ‘Judokas’ involved in arbitration, challenged an award by CAS in the New South Wales Court of Appeal. In this case, the court ruled that the CAS agreement for arbitration signed between parties was a foreign agreement not a ‘domestic arbitration agreement’ and declared it out of the jurisdiction of the Australian court of appeal. The court also explained the distinction between the legal seat of arbitration Laussane, Switzerland explicitly stated in the CAS agreement and physical seat of arbitration Sydney, Australia.
CAS has entertained a variety of cases under the ambit of sports law ranging from criminal cases to doping. The well-known ‘Tonya Harding case’ was a hapless case dealing with criminal acts in the sports arena where the victim, Nancy Kerrigan, was brutally attacked during training leaving her unable to participate in the U.S. Figure Skating Championships (USFSC). Due to this her biggest rival Tony Harding won the competition. Later rumors surfaced in the media that Tonya was behind the assault leading to the setup of an investigation. The court held Harding guilty, confiscated the 1994 national title(USFSC) and imposed life-ban from the sanctioned event.
Several countries such as the UK, South Africa, Canada etc have their own independent mechanisms for dispute resolution in sports but CAS has established itself as a “global dispute resolution body.”
The present mechanism in the Indian judiciary has led to a huge number of cases being piled up and delayed justice. In India, several organizations make up the governing authorities of issues in sports including the National Sports Policy of India, Sports Authority of India (SAI), The Sports Broadcasting Laws and the Sports Law and Welfare Associations of India. These organizations manage and tend to regulate the issues that arise in the sphere of sports law in the country apart from the courts.
But in the year 2011, the India Court of Arbitration for Sports (ICAS) was set up as a body to introduce ADR mechanism in the sports realm to resolve disputes in the most efficient way possible. This was done because the lifespan of an athlete is limited and they cannot afford to lose time in litigation. In the famous case where Indian wrestler Narsingh Yadav was caught in a doping controversy ahead of the 2016 Rio Olympics, an indefinite hold was put on the wrestler’s career. In that case, the verdict was decided when CAS upheld the World Anti-Doping Agency’s appeal against the clean sheet given to him. But there are still several cases experiencing prolonged hearings in courts despite of running lifespan of the athletes in question.
1. Inconsistency in the Mechanism
Sports Managers in India are currently unaware of the rules and procedural aspects of arbitration which is leading to a delays which must be resolved. The Judiciary, the most primitive mode of dispute resolution, leads to delays in disposal of cases through its prolonged process which has ended the career of several athletes. Judges who adjudicate these matters in normal court may not be experts about the rules and nuances of a particular sport.
2. Additional issues
In sports several incidents may take place in the heat of the moment but one inappropriate action can place an athlete in a vulnerable position. Such incidents may include drug abuse, contractual disputes, and labor issues.
Recommendations and Advantages of the implementation of Arbitration in Sports Law
Since, sports is at its highest public importance ever, it is necessary for dispute resolution to be effective. Arbitration is a suitable method. It has diversity, swiftness and professionalism. Litigation is not suitable for dispute resolution due to the increasing number of disputes.
The current situation requires that the matters must be adjudicated through arbitration with CAS on the international platform and ICAS on the domestic platform. These specialized forums have a great edge when compared to usual dispute resolution mechanism practiced in normal courts. There are various advantages to the implementation of arbitration as a form of dispute resolution as seen here:
- The arbitrators appointed possess expertise in the intricacies of Sports Law along with the technical knowledge leading to a better understanding of disputes.
- Privacy and integrity are maintained throughout the process by the parties and officials appointed to adjudicate the matter.
- The decision given by CAS is globally accepted as per the law and jurisdiction. Arbitrators appointed by CAS are eminent jurists within the international sports community.
- It is a steady process setting a time frame within which a dispute has to be resolved. Moreover, having an uncomplicated procedure makes it more convenient.
In India where sports are considered a religion, sports law is a relatively new field of law to study and faces several issues during the dispute resolution process. With the presence of such issues, players are suffering. Litigation is a long process where the technicalities and nuances are not fully entertained as they can be in Arbitration. Through arbitration both privacy and speed can be taken care of to bring justice to the aggrieved party in sphere of sports law. Thus, there is no doubt that arbitration can be a better option than litigation making the process of dispute resolution in sports law convenient and promoting the welfare of sports.
Shivang Yadav is a third-year student at Dr. Ram Manohar Lohiya National Law University, Lucknow, India.
Harshit Gupta is a fourth-year student of Symbiosis Law School, Noida, India.
Suggested citation: Shivang Yadav and Harshit Gupta, Arbitration in the Realm of Sports Law – Need of the Hour or Not?, JURIST – Student Commentary, April 29, 2020, https://www.jurist.org/commentary/2020/04/yadav-gupta-sports-arbitration/
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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