An overview of the key issues discussed at the International Sport Law Conference

The University of Gibraltar hosted the latest addition to the ever more crowded calendar of conferences focussing on sport and the law. Over two days in late March, the inaugural International Sports Law Conference saw a number of academics and practitioners gather to talk about a variety of issues affecting sports law professionals.

The programme was put together with a view to inspiring and enthusing an audience of international and local lawyers, as well as representatives from many sporting bodies and clubs in Gibraltar. Over the course of the two days, two main themes emerged from the papers presented and the panel sessions: 

• politics and sport; and 

• the role of the Court of Arbitration for Sport (CAS).

This article briefly reviews the discussions around these two themes.

The role of CAS

The panel spoke about the development of a Lex Sportiva by CAS through its precedent decision making, important in light of the number of people working in sports industries (currently 5.4% of all the EU workforce), and in light of the continued acceptance of the principle of specificity of sport.

However, although CAS has a policy of publishing decisions online, the actual practice of this was criticised by lawyers who appeared before CAS. A simple search through the archives shows the objective of making all decisions available on the CAS website is a long way from being fulfilled. The audience pointed out that this caused an imbalance of knowledge, with lawyers from firms among whose number there were CAS Arbitrators having a much greater access to prior decisions than those reliant solely on published decisions.

Even though cases in front of the Appeals Division are supposed to be published, the length of time for publication can vary widely, and can be dependent on the attitude of the parties to the decisions. Article R59 of the CAS Code of Sports-Related Arbitration (the CAS Code) provides that in all CAS appeals cases,

“the award […] shall be made public by the CAS, unless both parties agree that [it] should remain confidential.”

Comparisons were drawn with other tribunals, such as the New Zealand Sports Tribunal, which publishes all decisions. As cases before the CAS are essentially confidential, they are not held in “open court”, which removes another aspect of transparency.

The choice of arbitrator was another aspect discussed at the Conference. The importance of selecting an arbitrator from the client’s perspective was emphasised. One specific criticism identified in relation to this issues was the short time permitted to select the arbitrator, particularly when given the need to research the arbitrator, and identify previous cases and awards that arbitrator may have made. However, it was emphasised that other matters may be key, such as language skills – it was important that the arbitrator spoke the language of the client – and also that only sometimes was it necessary to have a sports specific arbitrator.

At times, such as in a commercial contract dispute, it may be preferable to nominate a commercial arbitrator from a common law background. It was pointed out that whilst there are 350 arbitrators on the CAS list, in practice there is a very narrow selection for panels, with fewer than 20% of the available arbitrators sitting in most of the cases.

Although the CAS is independent of the International Olympic Committee (IOC) (as confirmed by the Swiss Federal Tribunal in Lazutina[1]) it was pointed out that IOC is disproportionately represented on the ICAS (International Council of Arbitration for Sport) and thus can significantly influence the choice of arbitrator in many cases. With a closed list, it is not possible to select from outside arbitrators, nor is it easy to object to the nominated arbitrator. One audience member urged that a neutral mechanism should be implemented to select the President of each CAS panel.

A further theme that emerged was the costs of appearing before CAS, particularly as this could affect athletes and small clubs, such as some of the Gibraltar sports bodies. The lack of legal financial aid might act as a deterrent to pursuing a case, bearing in mind the short time period to appeal to the Appeals Division. Doping cases and match fixing cases can be very expensive, with the need to find evidence from experts in order to prove to the Arbitrators the case to the “comfortable satisfaction” of the CAS panel.

There was a clear consensus amongst attendees that CAS should work more quickly towards greater transparency by publication of all decisions.

Sport and politics 

One of the key drivers for the Conference was the struggle that Gibraltarian sport has had in establishing itself in terms of membership of international sporting bodies. Unlike many other sporting organisations, which form a separate geographical entity but not a separate nation, Gibraltar has found its applications blocked by its Spanish neighbour, not on sporting grounds but on pure political grounds. In contrast, for example, both UEFA (as well as the other regional organisations) and FIFA has admitted to its membership analogous associations such as those of the Faroe Islands, the four Home Nations, American Guam, the Cook Islands with less obstruction than that experienced by Gibraltar.

Michael Llamas, the Attorney-General of Gibraltar, told about the journey that the Gibraltar FA underwent in gaining membership of UEFA and then FIFA,[2] a journey during which he returned on a number of occasions to CAS. Indeed, he praised the arbitrators at CAS for their quality, expertise and courage, particularly their courage to straddle law and politics in upholding the rule of law in ruling for Gibraltar and against Spain. However, he pointed out that whilst this pathfinder journey has been successful, there are numerous other sports associations in Gibraltar who have not yet embarked on seeking international recognition status yet. The live nature of the debate can be seen from the decision of CAS in January 2017 to reject Serbia’s appeal against the inclusion of Kosovo into the UEFA family; CAS specifically criticised UEFA’s Article 5 as being “ambiguous”. Although this decision has not yet been made publicly available, already other associations, notably Jersey, are looking at following the route led by Gibraltar into UEFA.

The theme of sport and politics was taken up by several other speakers. The effect on Malaysian sport when a political approach to equality was imposed on sporting bodies was discussed. In the interests of multiculturalism, there was a concerted effort by the Malay Government to assimilate all races into sports, instead of accepting that certain ethnic groups naturally gravitated to a certain sport. Whilst the impact may have been positive in some areas, particularly with the widened acceptance in Malaysia of women in sport and Paralympic sports, there has been a concomitant negative impact on the on-field achievements in football.

The author also presented a paper considering the political background to the imposition of all-seated stadia in English football[3] and the political opposition to the return to “safe standing”. Although principally the driving force behind the legislation was the Report by Taylor LJ into the causes of the Hillsborough Disaster, it is clear from cabinet papers that the Conservative Government of Margaret Thatcher was targeting football fans as an undesirable element. The Government was already privately adopting an approach to effect social change by initially seeking to implement an identity card scheme, and then by switching horses to remove the option to stand at football matches. The ripples of this decision to eradicate “hooligans” has been keenly felt around Europe with UEFA’s subsequent requirement that competition matches be held in all-seater stadia changing long-held behaviours.

The international approaches taken to combatting match fixing was discussed. The Macolin Convention on manipulation of sports competitions was implemented in 2014 as a result of combined political will of the Council of Europe[4] and served notice on the efforts of the international nations to protect the integrity of sport. Despite being promoted by Europe, it was and is intended to have worldwide applicability. However, the take-up has been slow with countries failing to ratify the convention as yet, perhaps not seeing political will in curbing betting activities. Just as slow progress has been made in the field of anti-doping, Kevin Carpenter put forward a persuasive argument for putting integrity at the heart of sporting competition.

The ramifications of Brexit and its effects on Gibraltarian sport was a further hotly debated topic which ran through the two day conference.

With plans already being drawn up to hold a second conference in early 2018, this is an event that many practitioners and academics should put into their calendars.