The autonomy of sport brought into question - the Czech Republic motorcycling caseJirí Janák
In recent years, the Czech Republic witnessed one of the most significant attempts in its history to breach the autonomy of sport. The former Minister of Education, Youth and Sports (the “Sports Minister”) made an authoritative decision on which organisation would be the national sporting authority in the area of motorcycling sports.
On the basis of that decision, the Sports Minister withdrew the national sporting authority from its existing holder, Autoclub of the Czech Republic (ACCR), and vested it to a newly established entity, Czech Association of Motorcycle Sport (CAMS).
In this article, I will set-out the degree of autonomy that sports enjoy in the Czech Republic, and that motorcycling enjoys as a whole, and then I will analysis the impact and outcome of the Sports Minister’s decision.
The autonomy of sports in the Czech Republic
Sports organizations, on the whole, enjoy extensive autonomy in the Czech Republic, and the legal regulation is characterized by less interventional actions of the state than in many other sectors1. In the Czech Republic, as well as in many other countries, the majority of sports organizations have the legal form of an association. The autonomy of sports organizations stems from the statutory regulation that admits the intervention of bodies of state power only in exceptional cases and according to statutory principles defined in advance (as discussed in detail below).
The most significant permitted intervention in the autonomy of associations (thus in the area of sports) can be seen to be Section 258 of the Act No. 89/2012 Coll., Civil Code, under this Section, each member of an association, or a person who has legal interest, may request the civil court to decide on the validity of a decision of an association due to its conflict with the law or by-laws but only if the validity of such a decision has been challenged with the association itself (i.e. internal means of protection of an association were exhausted).
“State intervention” thus causes situations in which cases that should be resolved within an association, are submitted under the general jurisdiction of the courts that, apart from sports standards, apply also general law to such cases. The Czech courts generally apply one basic premise - that no decision of bodies of a sport organization should be reviewed, unless it is a decision that seriously interferes with the right of a person and directly affects such a person. Nevertheless, considering the fact that a court precedent is not a source of law in the Czech Republic, it is at the discretion of the relevant court to choose a procedure for each relevant case.
It is fair to say however that the decision of the Sports Minister on the withdrawal of statutes of the national sporting authority from one entity and vesting it to another entity was an exceptional case.
The Fédération Internationale de Motocyclisme (FIM) and the autonomy of its national affiliate members (FMN)
The FIM is the governing body for Motorcycle sports and the global advocate for Motorcycling.2 In Article 4.3 of the FIM Statutes, it is stated that the FIM is politically, economically and administratively independent. It shall allow no political, religious, sexual or racial discrimination. On the basis of these provisions, it may be assumed that FIM itself has the autonomy as expressly stipulated in its Statutes.
However, this requirement is not so definite in relation to individual members of the FIM; on the contrary, it appears that the situation is rather different. Under Article 11.1.1 of the FIM Statutes, National Federations which are not-for-profit in the opinion of the FIM and are representative of and exercise effective control over motorcycling activities in their own countries (including motorcycling sport and acting as the national advocate for motorcycling in their countries) may be accepted as Affiliate Members (FMN) of the FIM. Only one FMN for each country may be the member of the FIM.
Specific requirements for members are then stipulated in By-Laws, namely in Article II - Membership. It follows from the above list that one of the conditions for becoming the member is:
- the letter from the official body governing sport in its country (whether a government body of otherwise), or other evidence certifying recognition of the authority of that FMN at the national level.
However, this requirement does not directly correspond to the requirement for autonomy of sports entities that intend to be members of the FIM. By contrast, it follows from this requirement that one of the preconditions for admitting the relevant organization to become a member of the FIM is the certification issued by the body of state power. Of course, interests of various groups come into play at this stage. Ministers change frequently in the Czech Republic, so the preferred entity can theoretically change as well. It is the author’s opinion that this requirement is not appropriate and should be transformed into some “supporting” requirement or, as the case may be, optional requirement.
The Sports Minister’s Letter to the FIM
A letter by the Sports Minister dated 7 October 2011 (the “Letter”) notified the FIM that the newly established entity, CAMS, was now the sole national sporting authority in the Czech Republic for motorcycling. Further, the Sports Minister stated that the CAMS had the full support of the Ministry of Education, Youth and Sports (MEYS). The Sports Minister concluded that in the area of motorcycling the CAMS entirely replaced the existing powers and competences of the national sporting authority, the ACCR.3
The Sports Minister claimed in the Letter that the MEYS was the only authorized institution in the Czech Republic with the power to appoint the national governing body for each individual sport.
The alleged reason for that measure, as claimed by the Sports Minister, was the fact that the ACCR had received numerous complaints from drivers and organizers of motorcycling events stating that the ACCR allegedly disposed of public funds in non-transparent manner and had cared insufficiently for youth sports4. However, it was later confirmed by the Prague Municipal Court that the Sports did not provide adequate evidence for any of those claims. Therefore, they were biased claims aimed at discrediting the ACCR before the FIM and they should have presented and supported the new entity, the CAMS.
Developments after the Sports Minister’s Letter to the FIM and the ACCR
The ACCR itself, as the Affiliated Member to FIM from 2001, and therefore the existing holder of the national sporting authority in the area of motorcycling, received the Letter not from the Sports Minister, but through the FIM. In its reply to the Letter, the FIM requested an explanation from the ACCR, and informed the ACCR that it would deal with the matter at the meeting of the Executive Board and General Assembly. The Executive Board of the FIM decided to form the FIM Commission for Expansion and Development to investigate the situation in the Czech Republic before the FIM´s adoption of the specific stance and decision on Czech representation. One of the crucial outcomes of the Letter was that the FIM decided to vest in the newly established entity (CAMS) the authority to organize selected races of the World Championship, for example: Moto GP, Superbike World Championship, or Speedway World Championship Qualification.
After sending the Letter to the FIM, the Sports Minister, through MEYS, started to issue official press releases stating that the ACCR was no longer the national sporting authority in the area of motorcycling sports in the Czech Republic, and that the state would only deal with the newly established entity, the CAMS. The statements attracted significant media coverage, particularly in the Czech Republic, and caused legitimate concerns.
The Letter and subsequent statements of the Sports Minister resulted in state aid being withdrawn from the ACCR. Both entities (the ACCR and the CAMS) then organized their own events, including international events; however, at such events, there was no mutual recognition of licences issued by the other. This led to controversial situations arising at international events, because some events were organized by international organizations whose member was only the ACCR, but they were attended under the authority of the CAMS.
Could the Sports Minister make such a decision?
A fundamental legal issue followed from the Letter: was the Sports Minister entitled to determine the holder of a national sporting authority in the Czech Republic purely on the basis of his authoritative decision?
Under the Act No. 2/1969 Coll., on Establishment of Ministries, which regulates powers and competences of individual ministries as central bodies of state administration in the Czech Republic, within their powers, ministries fulfil tasks stipulated in acts and tasks following from the membership of the Czech Republic in the European Union and other integration groupings. Within its activities, the MEYS must observe constitutional and other acts of the country. The framework of activities of authorities of public administration is determined directly by the Act No. 1/1993 Coll., Constitution of the Czech Republic (the “Constitution”), which stipulates that state power may be exercised only in events, limits and manners prescribed by the law5. Therefore, if an express statutory authorization is missing, under the Constitution the MEYS, as the body of public power, is not authorized to intervene in the relevant area in any manner whatsoever.
In the Czech Republic, the area of sports is regulated through the Act No. 115/2001 Coll., on Support of Sports (“Act on Support of Sports”) which, as well as other functions, specifies competences and powers of the MEYS that include, for example, the preparation of the framework of state policy in sports, the provision of financial support for sports from the state budget, the creation of conditions for the national sports teams, and the organising of anti-doping program.
If we follow only the above statutory requirements, we the natural conclusion is that the regulations do not grant the Sports Minister the power to decide on who is the competent national authority for any particular sport.
The ACCR’s Response
The measures taken by the Sports Minister were of such a serious character that the ACCR decided to address it to the supreme judicial authority in the Czech Republic, the Constitutional Court. On the basis of the constitutional complaint, the ACCR objected that the Sports Minister’s measures had intervened in fundamental rights and freedoms that are guaranteed and protected by the Constitution, in particular the right of association, the freedom of every individual to make such acts that are not prohibited by the law, and the right to equal treatment. The ACCR also objected that, under the Constitution, state power serves all citizens and may be exercised only in such manners prescribed by the law.
Although the Constitutional Court rejected the complaint for procedural reasons (because the ACCR had not applied all means of protection against the Sports Minister´s procedure prior to filing the court case), the Court nevertheless made several fundamental pronouncements that would have been decisive for the application. Specifically, the Court stated that:
- the power of the MEYS, and by definition the Sports Minister, to make authoritative decisions on the determination of the holder of the national sporting authority in the area of motorcycling sports may not be concluded from the Act on Support of Sports; and
- the competence claimed by the MEYS did not follow from the Czech legal order or from the statutes of the FIM that is the private entity.
Thus, the Constitutional Court effectively confirmed that the Sports Minister’s intervention was unlawful.
The Czech Olympic Committee (“COC”) – of which the ACCR was a founding member - also commented on the situation, declaring in its statement that no state body could determine the national sporting authority, it could only make a recommendation to the international sporting federation that makes the final decision in the matter.6 The FIM itself made a similar statement claiming that, as the international sporting organization, it was the only entity authorized to make a decision on the holder of the national sporting authority for motorcycling in the Czech Republic.7
At the end of this saga, the FIM agreed with the ACCR and eventually the FIM did not vote on the exclusion and the admission of another member for the Czech Republic at its Congress held in December 2012 in Monte Carlo. This was principally because it could not find any reasons for the authority of the ACCR to be withdrawn. Therefore, the ACCR remains the only entity with the national sporting authority in motorcycling sports in the Czech Republic.8
The dispute, however, points to the dangers of the concentration of power in one person, in this case the former Sports Minister, which unfortunately affected the broad area of motorcycling sports. Somewhat ironically, after the former Sports Minister resigned, his successor made a statement claiming that the MEYS had no competence to intervene in the exclusive powers of individual legal entities that are active in the area of sports in the Czech Republic within international structures and had no power to decide on determination of national sports authority, because sports federations manage and organize activities within the relevant sports areas in accordance with their by-laws and international authority. Hopefully, no similar future situations will arise in the future.
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- Tags: Autoclub of the Czech Republic (ACCR) | Czech Association of Motorcycle Sport (CAMS) | Czech Olympic Committee (COC) | Czech Republic | Governance | Motorcycling | Motorsport | Regulation
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About the Author
Jiri Janak is an attorney-at-law specialising in the fields of sports law, civil and procedure law, and business law. He practices in Prague, Czech Republic for KSD Legal, the award winning sports law firm.