A guide to Denmark’s internal sports dispute resolution systemMads Quist Boesen
The overarching governing body for competitive sports in Denmark is the National Olympic Committee and Sports Confederation of Denmark (DIF). Beneath the DIF sits a pyramid structure of private non-profit associations of members comprising of 61 Member Federations (National Sports Federations), some 9,300 sports clubs and more than 1.9 million individual members out of a population of 5.75 million.
This pyramid structure, together with the domestic culture of amateurism and voluntarism, allows Danish sports to operate a robust, unified internal dispute resolution system. The highest judicial body – the NOC Court of Appeal – has jurisdiction across all of the DIF’s 61 Member Federations, providing all sports participants access to fair and impartial appeals procedures, regardless of their status as professional or amateur. The structure also enables DIF to implement common regulations for all sports in safeguarding matters, e.g. on doping, match-fixing and child abuse. This helps to secure equal rights and obligations, as well as mutual recognition of decisions across its sports.
This article provides a detailed introduction to the internal dispute resolution system (IDRS) in Danish sports. It explains its purpose and functioning, how the system works in practice, what its strengths are, and where its potential weaknesses lie. Finally it looks at why a robust and confidence-building IDRS is, in the author’s opinion, so important to the success of sports organisations.
Why does Denmark care so much about effective dispute resolution?
The Specificities of Sport call for sound and just IDR mechanisms
Imagine a clearly confined area in which the citizens’ every single move is regulated and sanctioned by law; what not to do, wear or say. It may sound like a prison, but it is not. It is simply the intrinsic nature of sports competitions and their myriad of rules.
In this somewhat caricatured description lies one of sport’s greatest contractions. The sport sector is presumably the sector of society with the highest penetration of rules and norms. Nonetheless, it is perhaps also the sector in which, relatively speaking, the highest number of decisions are taken by nonprofessionals empowered with judicial competence despite having no formal legal training, even when it comes to decisions that have severe negative effects on the addressee, e.g. the eligibility of athletes and clubs. This is not a critique; it is simply an observation. A reminder that, when evaluating the judicial aspects of sport, one must keep in mind the inevitable condition that judicial excellence and voluntarily driven grassroots sports, and perhaps even elite sports, do not necessarily work as hand in glove.
To add to this dilemma, disputes in sport vary significantly in one central aspect from the majority of other disputes arising in civil society. In many sporting disputes, justice cannot be served through monetary redress alone. The real-life consequence of being deprived, for instance, of an Olympic medal due to the cheating or misconduct of an opponent, is more than a dollar figure. Instead, what is really at stake is missed opportunities, and all the pride, fame and glory that follow from outstanding athletic performance one never got to experience. Lost sporting opportunities cannot be recalled.
These specificities of sport call for sound and just decision making, at an as early stage as possible. That is why IDRS in sport are of paramount importance and a prerequisite for fairness and equality in sports competitions. Needless to say, it is also the reason why practicing in the field as a lawyer is fascinating and a privilege, but also comes with a great responsibility.
Against this background, the multi-layered IDRS in place in Danish sports could, in the author’s view, serve as a useful blueprint in the field.
Autonomy must be earned
In accordance with the doctrine of separation of powers, the foundational purpose of the Danish IDRS is to provide fair, impartial and expeditious procedures for resolving disputes in Danish sports, at a relatively low cost compared to the courts.
However, the Danish IDRS serves a much wider purpose than just settling concrete disputes. DIF is the largest organisation in Danish civil society, affecting most Danes’ recreational, or perhaps even professional, sport activities on an everyday basis. This unique position enables the DIF sports to obtain substantial public funding and legislative privileges, not least in respect of a high degree of autonomy and de facto (in effect) tax exemptions. These great privileges, as well as public’s trust, must be earned and come with a heavy responsibility to ensure proper conduct and the use of good governance practices in Danish sports.
In this regard, the Danish IDRS serves as a concrete and effective tool to uphold the integrity of Danish sports and the rule of law. It comes with the “check and balance” that the sports organisations know their decisions (which directly affect the sports participants) are open to judicial review. This way, the sports participants know that their cheating or misconduct will be investigated and sanctioned in accordance with the core legal principles of due process and fairness.
As is apparent from this, a sound and just IDRS is inextricably linked to good governance, transparency and accountability in sport.
A brief definition of what constitutes a dispute – What happens on field stays on field
Arguably, the term “sports internal dispute resolution system” might even encompass field of play decisions taken by referees and umpires. In principle, such decisions settle disputes between the competition. However, presumably not even the referees perceive their actions as acts of judicial power; they are simply an integral part of the sports competition.
Instead, it is sensible to apply a narrower definition in which sport’s IDRS refers to the sports organiations’ internal bodies and authorities possessing judicial powers outside the field of play, providing an alternative to litigation or arbitration by means of;
- facilitating a mechanism for judicial review of decisions with direct effect on sports participants, that are taken within the realm of the sports organisations when governing the sport and administering its rules and regulations, e.g. in eligibility matters or within the framework of the systems of complaints provided for in the competition rules, and
- establishing an impartial disciplinary system dealing with the cheating and misconduct of sports participants, both in and outside competition, e.g. in safeguarding matters such a doping and match-fixing.
The Danish System
A Quick Look at the History – For the love of the game
The Sports Confederation of Denmark was founded on 14 February 1896 with the purpose of establishing uniform amateur and competition rules, as well as an organisation that could safeguard the interests of the sports community. In 1993, the Sports Confederation of Denmark changed its name to the National Olympic Committee and Sports Confederation of Denmark (abbreviated to “DIF”) following a merger with the Danish NOC.
Today, the pyramid-like structure comprises 61 member federations (national sports federations), 9,300 sports clubs and more than 1.9 million individual members. The legal bodies are all private non-profit associations.
For many years, DIF’s one central tenet was amateurism (“for the love of the game”). In the present, professionalism is far from the persona non grata of Danish sports but the heritage of amateurism and voluntarism in Danish sporting culture is still ever-present, from coaches and referees to board members and members of the judicial bodies within the IDRS.
In the context of this article, it is of great significance to note that already the Founding Fathers (representatives of a few dozen associations) decided to establish an impartial judicial body, the DIF Amateur & Disciplinary Committee, independent from the executive board. This body is the predecessor of today’s flagship body in Danish IDRS, the NOC Court of Appeal.
An overview of the multi-layered system
The Danish IDRS is a multi-layered system with three key features:
- a centralized NOC Court of Appeal, having jurisdiction across all sports within DIF’s 61 member federations, as the highest judicial body in the DIF sports;
- three centralized first instance tribunals: the NOC Match-Fixing Tribunal, the NOC Anti-Doping Tribunal, and a Tribunal for cases on Child Sexual Abuse, handling cases in those specific areas in which common regulations governing all sports within DIF’s Member Federations are implemented; and
- a Tribunal of First Instance set up within the framework of each of DIF’s 61 Member Federations.
The Danish IDRS can be illustrated like this:
The NOC Court of Appeal
The NOC Court of Appeal is set up in accordance with the DIF Statutes and Bylaw II (Procedural Rules) as an impartial judicial body, independent from the board and the administrative level of DIF and its Member Federations. As the highest judicial body in the DIF, it is empowered with jurisdiction across all sports within DIF’s 61 Member Federations. In fact, the acceptance of the court’s broad competence is a prerequisite for being a Member Federation of DIF, and thus receiving a portion of the public funds distributed through DIF to its federations.
The court is composed of 10 members elected at the DIF General Assembly for 5-year terms with the possibility of re-election. All members hold a master’s degree in law, and the Presidency is composed of 4 members all holding office as judges in their daily jobs; two of them at the Danish High Courts and two of them at the District Courts. If a case is deemed admissible, it will be submitted to a panel of at least 3 members, one of them from the Presidency.
Given that the members of the tribunal are elected at the DIF General Assembly, for 5 year terms with the possibility of re-election, it can be argued that the tribunal is not, in a strictly legal sense, fully independent (compare the arguments in the Pechstein case regarding the independence of the Court of Arbitration for Sport (CAS)). However, it must be recalled that the Danish IDRS is an internal system and not formal arbitration. In principle, the decisions of the NOC Court of Appeal can be brought before the ordinary domestic civil courts in Denmark with a potential de novo hearing, meaning that the court is legally entitled to make an independent determination of the case and not limit itself to assessing the correctness of the decision of the NOC Court of Appeal. The author is however only aware of one case in which a decision taken within the realm of the Danish IDRS was brought before the ordinary courts (presumably because of the quality of the decisions and the parties’ trust in its impartiality). That case concerned the rightfulness of an exclusion as member of a sports club, and not an actual sporting dispute. Therefore, it remains an open question what approach, as to the scope of the hearing, the ordinary courts would take.
Importantly, no fee is charged for bringing a case before the NOC Court of Appeal and, as far as this author is concerned, in no cases has a party been ordered to pay legal costs to the opposing side. The underlying ideal is that the prospect of incurring costs must not act as a deterrent to those seeking justice.
In addition, there is a high degree of flexibility on the procedural side. In most cases, the NOC Court takes on a “semi-inquisitorial” approach to the proceedings (compared to ordinary litigation and arbitration) by asking clarifying questions to the parties during the preparatory phase of the proceedings. They also request the Member Federation of the sport in question to inform them of the purpose and intention of the rules and regulations that apply to the case, and to disclose relevant case law. Because of this, it is in most cases feasible for the parties to conduct the case on their own (self-representation) without legal representation.
With a reservation for the aforementioned in-principle access to the ordinary courts, the decisions of the NOC Court of Appeal are final and not automatically subject to appeal to the CAS.
The 61 Member Federation’s Tribunal of First Instance
Under DIF Statutes Article 6, paragraph 1.2, it is an essential membership obligation for the Member Federations to operate an impartial judicial body – Tribunal of First Instance – in accordance with DIF Byelaw IV (“Minimum Requirements for the Tribunal of First Instance within the Member Federation”). Some Member Federations have even established an internal two-tier system, making the NOC Court of Appeal the third instance judicial body. If this is the case, the Member Federation’s tribunals are often named “The Disciplinary Tribunal” and “The Appeals Tribunal”.
Under the rule of competence in Bylaw IV Article 3, the tribunals have jurisdiction in matters concerning “the adherence to and the understanding and administration of the laws, rules and regulations of the Member Federation”.
The main point to be taken from this broad rule of competence is that the IDRS is put in place to decide in matters concerning the internal regulations of the federations (lex sportiva in its narrow definition). In contrast, as a starting point, it falls outside the scope of the IDRS to resolve disputes on the interpretation and application of the ordinary legislation in Denmark, e.g. in commercial disputes relating to IP rights or in tax or labor disputes. The main reason for this is that the decisions of the IDRS bodies cannot be enforced in the ordinary justice system in Denmark within the framework of the bailiffs courts.
The decisions of the tribunals are appealable to the NOC Court of Appeal within a time limit of four weeks under DIF Statutes Article 24, paragraph 1.
As opposed to the economic structure of the NOC Court of Appeal, some Member Federations do charge a fee for bringing a case before their tribunals. Thus, it is at times a peculiarity that the first instance proceedings are contingent upon the payment of a fee, whereas the appeals proceedings before the NOC Court of Appeal are, in any case, free of charge.
Potential Weaknesses of the System
While the success and viability of the Danish IDRS is largely due to its current economic structure, with volunteerism and low costs as the underlying ideals, one must not be blind to the (inherent potential) weaknesses of the structure. The most notable among these to the author are:
- Taking on weak cases - arguably, the low barrier to entry (in terms of costs), as well as the fact that it is unlikely that the NOC Court of Appeal will order a party to pay the opponent’s costs, might encourage litigants to bring weak cases before the NOC Court of Appeal as they have “nothing to lose”.
- The maneuverability of the panels - because the members of the tribunals within the Danish IDRS usually work as volunteers, the maneuverability of the panels, e.g. in matters of urgency, can at times be an issue. However, in the author’s experience, when time really is of the essence, the panels operate accordingly. In addition, naysayers may even suggest that, as volunteers, the panel members may be inclined to have a different approach to the case compared to a well-paid arbitrator.
- Enforcing decisions - the fact that the system is not a form of binding arbitration can at times cause problems in respect of enforcing decisions. This weakness was exploited in the long-winded aftermath of the NOC Court of Appeal’s decision of 18 February 2014 in case no. 21/2013. The case concerned a sailing club that had excluded of one of its members due to alleged misconduct. The exclusion was found invalid in both the Tribunal and First Instance and the NOC Court of Appeal, and thus the concerned person was entitled to be reinstated as member. The club refused to accept the decisions, and was consequently expelled from the Danish Sailing Federation. However, given the legal nature of the decisions, the concerned person never found redress in the form of reinstatement as member. As the case shows, the effectiveness of the Danish IDRS is, at large, contingent upon the mutual acceptance of the system and the decisions.
- No legal aid (and lack of proper legal representation) -perhaps the (potentially) most critical weakness of the economic structure of the Danish IDRS is that the general absence of any legal aid mechanism, as well as the NOC Court of Appeal’s restraint in making costs orders, might discourage athletes from seeking proper legal representation, as they don’t want to bare the associated costs themselves. As a result, even in complex case such as anti-doping, athletes rarely take on legal representation. Consequently, it is a valid concern that cases are not being challenged in a qualified manner. Ironically, the high credibility and trust in the Danish NADO may at times be at the detriment of the athletes concerned; they simply trust that the charges brought against them are not based on any legal (or medical) missteps. Perhaps a remedy in this regard could be the implementation of a pro-bono advice and representation service, with inspiration from the one in place within the UK’s Sport Resolutions.
- Where are the sports lawyers? - an auxiliary issue in the context of legal aid is that the low frequency of cases in which the parties take on legal representation may influence the possibility for external lawyers to obtain sports specific training and experience. As a consequence, even if an athlete would be willing to pay for legal services, it may show to be a challenge finding a native speaking sports specialist interested in conducting the case.
- The perception of impartiality – similarly to the arguments in Pechstein, in some of the major cases from the professional leagues (e.g. football and team handball, which is popular in Denmark) the parties have raised concerns as to the impartiality of the Member Federation’s tribunals, despite their composition. This issue has been discussed above. However, notwithstanding the merits of the arguments, illustrates that if the tribunals are set up as internal tribunals within the framework of the Member Federations, independence and impartiality in legal terms is of little worth if it is not reflected in how the parties perceive the judicial bodies.
Conclusion – What’s in the crystal ball?
The Danish IDRS is a good example of a one-size-fits-all-system for all sports at all levels, in which access to justice is not dependent on the party’s financial or legal power of arms.
However, as the sports industry evolves both nationally and internationally, rethinking the current economic structure of the Danish IDRS may be needed in the future in order to meet the demands in high-profile cases concerning professional parties.
Operating a national sport-specific arbitration body within the structural framework of the NOC Court of Appeal, in accordance with the Danish Arbitration Act, could very well be a way forward in this regard. This would also enable the parties to refer other sports-related disputes, that do not otherwise fall within the competence of the Danish IDRS, to the arbitration body. In that way, the Danish arbitration body would serve as a national equivalent to the CAS.
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- Tags: Danish Arbitration Act | Denmark | Football | Handball | National Olympic Committee and Sports Confederation of Denmark | NOC Court of Appeal | Sailing
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About the Author
Mads Quist Boesen is a licensed Attorney-at-Law at the National Olympic Committee & Sports Confederation of Denmark (DIF) and holds office as Legal Counsel at the NOC Court of Appeal. He joined DIF in 2012 after 2 years as Assistant Attorney with the law firm Kammeradvokaten / The Legal Advisor to the Danish Government in Copenhagen (following 3 years as Student Assistant within the firm). Mr. Boesen received his ba.jur. degree (with honours) and cand.jur. degree from the University of Copenhagen.