The rights ‘revolution’ for pro sports stars in Japan – Part 3

Published 16 May 2013 By: Takuya Yamazaki

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In this article Takuya Yamazaki, private practice lawyer and member of FIFA’s Dispute Resolution Chamber, provides a fascinating insight into the development of professional sports players’ rights in Japan focussing on baseball and football. In this third and final Part Takuya gazes into the future and predicts the legal future for professional baseball and football players in Japan.

The establishment of a ‘collective-bargaining’ system

The period since 2000 has been one which has seen a significant amount of developments regarding players’ rights in professional sports in Japan. It has been a period which has seen the progression towards the creation of an environment where the stakeholder clubs and players can both negotiate equally. This has marked an important step forward for the future to change the situation where the ‘soft law’ concerning players’ rights in professional sports is made solely for the advantage of the clubs.

The approach based on the Labour Union Act has frequently yielded positive results for the establishment of labour negotiation rules in Japanese professional baseball and mirrored the history of the MLBPA, whose long experience of labour negotiations provided a useful reference.

On the other hand, matters in football are different to those posed in professional baseball. In order to establish a common system of rules worldwide, FIFA (the governing body for world football) has co-operated with FIFPro (the world players’ union). Both parties have held debates and negotiations in relation to creating a system that also balances players’ rights. Of course, there are also domestic debates and negotiations concerning players’ rights in Japan, which are held by the JFA and the J-League with the JPFA. However, FIFPro has had greater success with FIFA in shifting to a properly-functioning system of equality in labour negotiations, which is an absolutely essential requirement to achieve this balance. In both Japanese professional baseball and football, although the structures are different, both sports are progressively establishing the stage for such an environment to exist.  

In fact the labour unionisation of the JPFA in 2011, following in the footsteps of the JPBPA which became a labour union in 1985, is considered to be a hugely significant step forward for professional players.

 

Effective dispute resolution mechanisms

As far as the legal functions in sports are concerned, a stage for equal negotiations is not in itself enough. In the event disputes arise between the clubs and players it is also essential to have an impartial dispute resolution mechanism. In other words, even if, based on collective bargaining, balanced ‘soft law’ can be achieved, this will not function at all if there is no impartial dispute resolution body to interpret and apply such laws. Also, if the arbitrators consist of people wholly elected by the clubs, biased interpretations will occur (through perception even if not in reality). For the purpose of enforcing ‘soft law’ highly important factors are: independent sporting bodies adopting rules and regulations in respect for the principles of good governance and a distribution of sporting justice in which the independence of adjudicators is guaranteed.

In football FIFA has established the DRC1, whose decisions are acknowledged as subject to appeal to CAS.2 Both these arbitration bodies play critically important roles in specifically interpreting and applying FIFA rules and regulations. The DRC and CAS also assume an extremely valuable legal function, in matters such as clarifying interpretations of the provisions in the FIFA rules and regulations.  

In MLB originally the free agency was not determined on either labour relations or judicial grounds, but actually by the so-called ‘Peter Seitz Decision’, a ruling by the arbitrator of the same name in 1976. Moreover, year after year, as multiple applications are filed for baseball salary arbitrations, the role that arbitration is being asked to play has become a vital one.  

Regarding football, from January 2008 FIFA made it obligatory upon each national FA to establish National Dispute Resolution Chambers (‘NDRC’) for the purpose of domestic dispute resolution with equal representatives from both sides: the clubs and the players.3 In Japan the JPFA has consistently demanded that the JFA set up the NDRC, but this has not yet been done.

 

The role of sports lawyers

The problem of governance in sports associations has recently received a lot of coverage in Japan, in particular with the various scandals that have embroiled sumo wrestling (e.g. the 2008 Marijuana Scandal, the 2010 Baseball Betting Scandal and the 2011 Match-Fixing Scandal). Governance issues even arose with the 2004 restructuring in professional baseball for the NPB and the clubs. As a result the time is coming where sports associations will be required to meet the same, or even stricter, governance and compliance standards that regular companies have to.

There remains the view that the sports world is a kind of special ‘village society’ and therefore should be governed by its own specific rules/laws. However, even in professional baseball and football, with the gradually increasing number of management professionals participating in the operations of each sport, there are some signs of improvement.

Moreover in Japan on 17 June 2011, a highly significant law for the sports sector came into force, the ’Basic Act on Sports’ (‘BAS’). The BAS emphasises the significance of governance in sports associations by stipulating the following duties:

Article 5(2):
Sports associations shall, for the purpose of appropriately carrying out work to promote sports, endeavour to ensure transparency in such work as well as establishing standards in relation to the said work activities which the sports associations themselves must strictly observe.

Article 5(3):
Sports associations shall endeavour to achieve swift and appropriate resolution to all disputes involving sports.

Above all, Article 2(1) of the BAS, in effect, establishes the concept of ‘sports rights’, that could be seen as quasi-human rights: “All the people have the right to maintain a wholesome and happy lifestyle through participation in sports”.
 
Accordingly, from here on for each Japanese sports association, it is expected that the operations of these associations shall be based on robust governance, underpinned with balanced and transparent rules that respect these new sports rights.  

In the future, together with the development of professional sports, it is expected that instances of disputes will increase. In fact, the more these disputes increase the more it becomes obvious that such matters cannot be resolved without expert consultation and knowledge. Therefore it is anticipated that the expert capabilities of lawyers will be necessary, including special legal knowhow and the realisation of procedural justice.   

Currently, it cannot yet be said in Japan that labour relations between the clubs and players have improved anywhere close to the degree needed. Therefore, it remains an absolute necessity to continue breaking down the ‘soft law’ which was imposed unilaterally by the clubs long ago by using the ‘hard law’. To this end it is undeniable that lawyers must play a significant role for the time being. However, the true goal is to build up a relationship of trust between the clubs and players through equal negotiation and the establishment of an impartial dispute resolution body.

Japan, which is learning a great deal from America about professional baseball and from Europe about football, is truly on the road to becoming an advanced country in terms of sports law and sports governance. Of course it is necessary to have a certain amount of respect for the traditions and customs that sports cultivated, however, in order to realise the rule of law based on the fundamental human rights by challenging the ‘soft law’ in sports the only people that can facilitate this are lawyers.

 

International collaboration between lawyers

It is not only Japan that requires action in order to achieve the rule of law in sports, other areas in Asia and Africa (for example) can be said to be lagging behind when compared to Western countries. In connection with this, in football, FIFPro conducts activities in each world region to realise rights for professional football players. For example, FIFPro Division Asia/Oceania (whose members consist of player associations from: Australia, New Zealand, Japan, Indonesia, India and Malaysia) conducts various activities in relation to achieving the objectives stated in the following FIFA Circulars:

FIFA Circular no. 1171: all FIFA members worldwide should ensure that the Professional Football Player Contract Minimum Requirements are regulated and agreed as a minimum.

FIFA Circular no. 1129: all FIFA members worldwide are obliged to establish impartial NDRCs in connection with disputes under player contracts.  

The activities in relation to achieving the objectives stipulated in the above Circulars, not only apply to FIFPro member countries, but also to non-member countries. The activities conducted by FIFPro Division Asia/Oceania also include establishing football players’ associations in countries such as South Korea and China, where such associations do not presently exist.

FIFPro’s activity is one of the good examples of lawyers cooperating internationally to achieve the ‘rule of law’ at the international level in sport. To achieve a good balance in sport, the lawyers of each country should proactively meet together to discuss and agree legal strategy. It is then necessary to bind this strategy to specific activities that are required to be carried out throughout the world. For this purpose international academic conferences, for instance, play a very important role.

To achieve the sporting ‘rule of law’ in every country throughout the world, in the future it is hoped (and indeed expected) at the international level that sports law academics and professionals will collaborate together in a positive concerted manner.


 

1 In relation to the details about the DRC, please refer to: https://www.fifa.com/aboutfifa/federation/administration/disputeresolution.html.

2 In relation to the details about CAS, please refer to: https://www.tas-cas.org/.3 Please refer to: FIFA Circular no. 1129
(https://www.fifa.com/mm/document/affederation/administration/circular_1129_en_33849.pdf).

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Author

Takuya Yamazaki

Takuya Yamazaki

Takuya, a Japanese Attorney-at-Law, is the founder and Managing Partner of Field-R Law Offices, a niche sports and entertainment legal practice based in Tokyo.

Takuya has vast legal and business experience in sports both in Japan and internationally. He is a member of the FIFA Dispute Resolution Chamber, a position held since 2009. In 2016 he became the Chairman of FIFPro Division Asia/Oceania.

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