The prospect of and need for sports arbitration in Asia - a Japanese lawyer's perspective
Published 11 February 2013 By: Takuya Yamazaki
It is beyond question that sports law is at its most advanced in Europe and America. Unfortunately, the same cannot be said for sports law in Asia, which lags way behind Europe and America at both the working and research levels. Thus, when we take into account the prominence of Asia on the world stage from the perspectives of economics and population, this undoubtedly illustrates the pressing need to improve and develop sports law throughout the region.
The mission of sports law is, within the special role of sport in society, both to respect and limit the autonomy of sports associations. To a certain extent, the freedom of sports associations is recognised in laws. On the other hand, under the constitutional “rule of law” there are limits on this autonomy. Namely, this is to ensure that a balance is achieved with the concept of respect for human rights which is, where applicable, assumed under national law.
However, in Asia the situation still remains that the internal regulations of sports associations are riddled with problems. Basically, there are two major issues:
- “Legislative process” – in terms of the internal regulations of sports organisations, democratic processes are lacking (including, informed debate between stakeholders such as sports organisations and players’ unions) and these regulations are unilaterally established by the organisations’ leaders
- “Judicial process” – it is generally the case that the members of dispute resolution bodies in sports organisations are unilaterally chosen by the organisations’ leaders. Thus, when a dispute arises, even if balanced internal regulations existed within sports associations, their subsequent interpretation and application by such parties raises doubts about the delivery of fair and impartial dispute resolution.
Let us consider the example of Asian football. In Korea there still exists a domestic transfer fee system1, with prescribed amounts for player transfers even following the expiry of such players’ contracts, which is a violation of FIFA rules2.
Even in India, problems are apparent, including the fact that the provisions of FIFA Circular No.11713, which stipulates minimum standards that must be incorporated into professional playing contracts, are not honoured4. These problems combined with the lack of democratic processes by sports associations, perfectly illustrate the unilateral nature of the “legislature” employed within such Asian sports organisations.
In terms of the “judiciary” within Asian sports organisations we can also refer to the example of football. For instance, FIFA Circular no.11295 obliges all FIFA’s constituent associations to establish fair and impartial national dispute resolution chambers (“NDRC”). However, as no Asian countries have complied with this circular, there are no NDRCs in existence in the region [please note, only Australia, which is under the jurisdiction of the Asian Football Confederation (“AFC”), has complied with the circular to create a NDRC].
The present situation with sports law in Asia, is that it is extremely unsatisfactory when compared to that in Europe and America. In particular, from the players’ viewpoint it cannot even be said on a legislative and judicial level that fundamental human rights are established. Accordingly, it is absolutely essential for sports law scholars across the continent to proactively cooperate in serious discussions about how to advance sports law in Asia (including, in particular, guaranteeing the fundamental rights of sports players).
The Asian Court of Arbitration for Sport (“ACAS”) concept
In Autumn in 2010 the concept of establishing an Asian sports arbitration body, ACAS, arose and was debated at the 16th International Sports Law Association (“IASL”) Congress held during November 2010 in Seoul, South Korea.
I am also a player representative member of the FIFA Dispute Resolution Chamber6, and I fully recognise the significant role sports arbitration plays in sports dispute resolution. However, as aforementioned sports law in Asia is way behind that of Europe and America. Thus, even if ACAS were to be created, I strongly believe that it is necessary to strictly examine whether this is an effective means to advance Asian sports law at the present time.
In other words, even if great time and expense were to be put into establishing such a sports arbitration chamber, should the chamber not be used it would simply become meaningless. Also, in the worst case scenario, we may conclude that the chamber could not be sustained when considering its extensive running costs.
Issues to be considered in establishing ACAS
The present situation concerning sports law in Asia
To begin with, in Asia, unlike in Europe, there is no commonality of legal rules like EU law and there are also massive disparities in legal thinking regionally. Even when exclusively considering sport, in Asian countries there are no sports regulations in existence based on governmental involvement, such as the European style sports charters [e.g. the European Sport for All Charter (20 March 1975) and the New European Sports Charter (May 1992)]. In other words, at present there are no common sports “laws” whatsoever in the Asian region.
Also, it is necessary to take into account that due to the diversity of legal systems in Asia, the sports law experts that become arbitrators will naturally have different ways of thinking. Thus, doubts remain about whether these arbitrators could provide effective resolution in relation to disputes from other Asian countries. For example, it is open to question whether a west Asian sports law expert could effectively arbitrate a settlement to a sports dispute occurring in east Asia.
In Japan the Basic Act on Sports (“BAS”)7, which came into force in August 2011, has finally implemented “sports rights” into national law. Nevertheless, in Asia there are still many countries where basic human rights in sport are not guaranteed. Therefore, I firmly believe that in Asian countries there is an urgent priority to guarantee a basic level of human rights for sports participants (e.g. “sports rights”).
The time and expense required to administer dispute resolution
The main advantage of a sports arbitration body over a national court is basically to ensure swift resolution of disputes at a lower cost. Judging from this perspective, if parties to sports disputes arising in Asian countries have to apply for dispute resolution to the Switzerland based Court of Arbitration for Sport (“CAS”), these advantages of speed and low cost arbitration will not be sufficiently realised.
Consider, for example, the doping case involving the Japanese professional footballer Kazuki Ganaha which lasted from 2007 to 2008. Basically, in the case Ganaha demanded the annulment of a suspension for an alleged breach of doping rules. Notwithstanding the player’s desire for the dispute to be arbitrated by the Japan Sports Arbitration Agency (“JSAA”), the J-League rejected this so Ganaha was forced to bring his case to CAS. Nevertheless, despite Ganaha eventually winning his CAS arbitration (CAS 2008/A/1452), he had to bare tens of millions of yen (tens of thousands of US dollars) in costs, including expenses for translating documents into English.
On this point, it is certainly not in doubt that ACAS, as an Asia based sports dispute resolution body, rather than CAS, is a positive idea. However, just suppose that even if such a dispute resolution body was established in Asia and that the proceedings were based in English. In such a case, for Japanese sports players and associations the problems which arose in the Ganaha case (e.g. massive translations costs) would be no different. Furthermore, depending on where the arbitration chamber is based, logistical problems may also occur for the parties. Accordingly, it is not always true to say that an Asia based sports arbitration body, specifically meant for sports disputes arising in Asian countries, can provide swift dispute resolution at a low cost.
Securing the sports associations’ approval to participate in arbitration proceedings
Even if further disputes such as Japan’s Ganaha case arise, it is highly likely that the sports associations in Asian countries would not grant their approval to participate in arbitration proceedings. In Japan, as outlined below, there are still many sports associations which refuse their approval to participate in arbitrations at JSAA. In South Korea, the Korea Sports Arbitration Committee is hardly ever used. Consequently, even where sports dispute resolution bodies are established in Asia, the massive problem exists as to how athletes can acquire the approval of national sports associations to participate in such arbitration proceedings.
Additionally, at the international level the great majority of international sports federations (“IF”) stipulate CAS as their dispute resolution body. In order, therefore, to acquire the approval of IFs to participate in ACAS arbitration proceedings, it would be necessary to persuade IFs of the benefits of resolving “Asian sports disputes” in Asia. However, at present, there are strong doubts about whether IFs can be convinced of the merits of relinquishing CAS’s jurisdiction for sports disputes arising in Asian countries.
The possibility of sports arbitration in Asia
As mentioned above, at present there are still many issues that must be resolved prior to the establishment of ACAS. Before anything else, for sports disputes in each Asian country, it is absolutely essential that fair and impartial dispute resolution bodies are established on a domestic level.
According to data collated by JSAA (up until 1 November 2012), out of the seventy four sports associations and affiliated associations in the Japan Olympic Committee (“JOC”) and the Japan Amateur Sports Association (“JASA”), only thirty nine, including both JOC and JASA themselves (52.7% in total), have adopted an automatic arbitration acceptance provision for JSAA proceedings. Also out of the 109 sports associations and affiliated associations within the Japan Sports Association for the Disabled and the Prefectural Amateur Sports Associations, only twenty have adopted the provision (18.3% in total)8.
Nevertheless, in BAS, Article 5(3) places a duty on sports associations to strive for swift and appropriate resolution of disputes involving sports; and Article 15 provides that the state has the obligation to implement various measures in relation to guaranteeing the impartiality of arbitrations and mediations for such disputes. Thus, as a result of these provisions, in Japan it is widely expected that dispute resolution systems will be further promoted, including through more sports associations granting their approval to participate in JSAA arbitration proceedings.
On top of this, it is absolutely essential throughout each Asian country that we strive to establish basic sports laws (e.g. like Japan’s BAS) which oblige the creation of sports rights, and the swift and appropriate resolution of disputes. This will then encourage the development of a greater commonality across Asia’s sports law systems, perhaps through an “Asian Sports Charter”.
Therefore, in order to prepare an ACAS style “judiciary”, it is necessary for this to be based on an effective “legislature” in conjunction with the above described development. For the establishment of ACAS it is these requirements and possibilities that we must thoroughly discuss.
1 Link in Korean; K-League Articles of Associations are available as a pdf document (link 3) - https://kleague.com/kleague/bylaws.aspx
2 In fact in Japan similar rules for domestic transfers also existed up until 2009. However, in the same year FIFA wrote to the Japan Football Association (“JFA”) stating that the basic principles for domestic transfers (including that: “at the end of a contract, both parties must be free to sign a new contract with a new party, if they wish to do so, and they should not be excessively hindered in such actions”) were derived from Article 1 3(b) and Article 13 of FIFA’s Regulations on the Status and Transfer of Players, and therefore, that JFA had to comply with these principles. This development prompted JFA in 2009 to finally abolish the aforesaid domestic transfer rules.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission is granted to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: Arbitration | Asian Football Confederation (AFC) | Court of Arbitration for Sport (CAS) | Dispute Resolution | Europe | FIFA | Football | Governance | Japan Football Association (JFA) | Regulation
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.