Sports disputes and disciplinary procedures – the year in review 2018/19Mark Hovell, Tiran Gunawardena
For the last few decades, we have seen more and more disputes being dealt with through arbitration (and in some cases mediation), as opposed to through the State Courts. Those in favour of sports arbitration will point to advantages including speed, costs, privacy and having the dispute heard by sports specialists. However, over the years, these systems of alternative dispute resolution system have been challenged many times and in many different ways, for example:
Is it always quicker and cheaper?
Are the specialists independent?
Are the institutions themselves independent?
Should sports governing bodies pick their own panels?
Does a private hearing offend an individual’s human rights?
The last year was no exception. In this article, the authors examine the increase in the number of cases being dealt with, before summarising some key cases and developments both domestically and internationally occurring over the past twelve months.
The increasing number of sports disputes
Sport has been increasingly litigious over the last few years and that trend continued over the past year, evidenced by the number of cases that have been heard at various sporting tribunals around the world. Despite the challenges, there is an upward trend in the number of cases being dealt with by arbitral institutions.
The number of cases that have were filed at some selected sporting tribunals in 2018 (where statistics were available) are as follows:
Court of Arbitration for Sport (CAS)
FIFA Dispute Resolution Chamber (DRC) and Players’ Status Committee (PSC)
FIFA Disciplinary Committee
Sports Resolutions (UK)
Whilst the latest available statistics from the CAS website are for 2016, where the CAS dealt with 599 procedures, this number has continued to increase year on year to well in excess of 600 procedures a year. The CAS is now looking to move to a new home in or around 2020, where the Court can hold up to three hearings at once.
2019 saw the CAS open its Anti-Doping Division, which will look to deal with first instance doping matters for a variety of sports across the World, as discussed below. This alone will see a further increase in the number of procedures being dealt with by the CAS on an annual basis.
The statistics from FIFA were obtained from its recent Football Law Annual Review on 15 February 2019. The conference, which was livestreamed around the world, provided a fascinating insight into the key regulatory changes and decisions from FIFA in 2018. Videos of the presentations and the slides used are available on the FIFA website1, and is worthwhile viewing for any sports law practitioners working in football around the world.
Upon further analysis of the statistics from Sports Resolutions, it heard almost twice as many cases from the National Anti-Doping Panel (28 v 15) and more than four times as many cases from overseas (36 v 8) compared to the previous year. It also conducted nine independent investigations and reviews in 2018 compared to two in the previous year.
There were numerous high-profile cases over the last year, but we have selected a few notable international highlights in 2018. The first couple look at challenges to the arbitration system, with the next few being developments that are likely to see more such disputes being arbitrated upon.
RFC Seraing cases
There were two sets of proceedings involving RFC Seraing. The case related to a disciplinary sanction imposed by FIFA on a football club for violating the Third-Party Ownership (TPO) provisions in the FIFA Regulations on the Status and Transfer of Players (RSTP).
The Belgian club RFC Seraing had concluded TPO contracts with the investment company Doyen Sports – a familiar name to many sports lawyers. Shortly after entering into the TPO contracts, RFC Seraing and Doyen Sports initiated a legal challenge before the Belgian courts challenging the TPO ban arguing, among other things, that it violated EU competition law. Separately, FIFA brought disciplinary proceedings against RFC Seraing on the basis that the TPO contracts extended beyond the transitional period provided before the enforcement of the TPO prohibition. The FIFA Disciplinary Committee imposed a four-window transfer ban and CHF 150,000 fine on the club. This was reduced to a three-window ban on appeal at the CAS, but the fine was confirmed.
The CAS decision was then appealed to the Swiss Federal Tribunal (SFT), which issued a decision which Dr. Despina Mavromati referred to in her article2 on the case as “the sequel to the Lazutina judgment that was rendered by the [SFT] 15 years ago.”
A key element of this case, and indeed the main part of the SFT judgment, was the legality and validity of the CAS as an arbitral institution. The case also looked at the CAS’s independence from FIFA, one of its main users (by comparison, the Lazutina judgment3 only reviewed the CAS’s independence from the IOC).
In answering that question, the SFT concluded that the CAS was, in fact, an independent arbitral tribunal.
An interesting element of the SFT proceedings was the disclosure the CAS made regarding its governance and internal financial structure. As summarised by Dr. Mavromati, the CAS submitted that:
“… FIFA’s annual financial contribution [was] CHF 1’500’000 in order to contribute to CAS’s overhead costs, compared to CHF 7’500’000 paid by the entire Olympic movement out of a total budget of CHF 16’000’000. The CAS also highlighted the fact that most football arbitration proceedings are of commercial nature (where the parties need to pay the arbitration costs) and FIFA only plays an active role in the CAS proceedings in cases arising out of the FIFA Disciplinary Code and the FIFA Code of Ethics (approximately 5% on average). It further disclosed that 65% of the CAS’s workload involves football cases but almost half of them do not concern FIFA since they are either domestic cases, decisions rendered by continental confederations such as UEFA and so-called "direct" proceedings involving parties wishing to bring their case to the CAS without going through the FIFA instances.”
Mutu & Pechstein - European Court of Human Rights
The landmark decision in the Mutu & Pechstein5 matter at the European Court of Human Rights (ECtHR) was certainly a highlight of 2018. Especially considering the case started in 2009, when the International Skating Union found her guilty of an anti-doping rule violation (ADRV) and imposed a 2-year ban, which was confirmed on appeal at the CAS the year after.
Due to their long running litigation in this space, the names Adrian Mutu and Claudia Pechstein have almost become synonymous with sports law, the CAS and sports arbitration. The two claimed that their rights pursuant to the European Convention on Human Rights (ECHR), and in particular Article 6 rights to a fair hearing, had been violated in various ways. They brought two main challenges:
to the independence of the CAS; and
the CAS’s failure to grant a public hearing.
The independence of the CAS
The Court dismissed the challenge to the independence of the CAS by a 5-2 majority. The majority of the Court, despite dismissing the challenge, held that Pechstein did not have full freedom of choice over the selection of an arbitrator (unlike the norm in commercial arbitration). However, the athletes failed to establish a bias or lack of independence in respect of the specific arbitrators who were appointed to their cases. Therefore, this limb of their challenges failed.
However, it is worth noting that the minority of the Court put forward a compelling dissent on this point, arguing that it was not sufficient for arbitrators to be impartial individually if the structure of the organisation lacks the appearance of independence and impartiality.
Whilst that was the minority opinion in this case, it remains to be seen whether this will lead to any changes to institutional structure of the CAS in the future. What we did see was that in February 2019, a Panel of the ECtHR Grand Chamber dismissed her request that her matter should be heard by the entire 17-person Grand Chamber.
The CAS’s failure to grant a public hearing
The Court however upheld the second limb of the challenges. The Court unanimously found that the athletes’’ right to a public hearing guaranteed by Article 6(1) ECHR had been violated. Specifically regarding Pechstein, she had requested a public hearing and the outcome of the case would have affected her professional reputation and credit, so it was a case in which she would have had a right to a public hearing.
As a result of this decision, Article R57 of the Code of Sports-related Arbitration (CAS Code) was amended to include the possibility of holding a public hearing in disciplinary matters. Article R57 now states (amendments are in bold):
“…After consulting the parties, the Panel may, if it deems itself to be sufficiently well informed, decide not to hold a hearing. At the hearing, the proceedings take place in camera, unless the parties agree otherwise. At the request of a physical person who is party to the proceedings, a public hearing should be held if the matter is of a disciplinary nature. Such request may however be denied in the interest of morals, public order, national security, where the interests of minors or the protection of the private life of the parties so require, where publicity would prejudice the interests of justice, where the proceedings are exclusively related to questions of law or where a hearing held in first instance was already public.”
Practical impact of the decision
Nick De Marco QC stated in his article on this case:
“As far-reaching as all these things might at first appear, however, there is nothing in the Mutu & Pechstein decision that threatens the very existence of arbitration in sport. Rather, the decision reflects the fact that arbitration in sport is of a special type – very different from routine private arbitration. It is already the case that most sports disciplinary cases end in a public judgement and sanction, even though the hearing itself is held in private. Many penalties are standardised, and decisions in one case often referred to and relied on in others; all of this is in marked contrast to the norm in arbitration. Allowing some hearings to be held in public merely further reflects this distinction.”6
Whilst individual athletes now have the right to request public hearings in disciplinary matters at the CAS, the authors wonder how often they would actually request one in practice. In anti-doping matters in particular, private and sensitive information regarding an athlete’s health are often discussed in extensive detail (even if not all that detail is ultimately included in the arbitral award which may be published), and one wonders whether athletes would be willing to for all of these personal details to be public. Indeed, in many of the betting/match-fixing and anti-doping matters which the authors have been involved in, the confidentiality of the proceedings (including the very existence of the proceedings itself, let alone the outcome) was of paramount importance for the implicated athletes. This is entirely understandable, given the mere implication of anti-doping or betting/match-fixing charges can be significantly detrimental to an athlete’s reputation, even if those charges are eventually dismissed/dropped.
Aside from the above, in the broader context of the validity of the CAS as an arbitral institution (which was confirmed by the Court) as is often stated in the context of bias in tribunals: “Not only must justice be done; it must also be seen to be done.” Transparency and trust in a court is fundamental in order for there to be justice. The CAS is constantly evolving in line with the findings of various court proceedings, which have challenged its validity. In that regard, any changes to the structure of the CAS, which improves its independence – be it in perception or reality – are welcome.
Changes to the FIFA RSTP and transfer system
2018 was a significant year in terms of amendments to FIFA regulations and the transfer system. What normally follows new sporting regulations is a series of new legal challenges to these, which institutions such as the CAS then have to determine.
In June 2018, we saw the introduction of a revised FIFA RSTP, taking into account numerous amendments, which had been agreed between football stakeholders on the issues of abusive conduct, compensation parameters and overdue payables. An explanation of those amendments can be found in this article7.
In September 2018, the FIFA Football Stakeholders Committee approved a landmark reform package of the football transfer system. A detailed explanation of these changes and their potential future impact can be found in this article8. We can expect numerous changes to FIFA regulations over the next few years as these changes are implemented.
In May 2019, a further revised version of the FIFA RSTP was published to reflect the change in approach of no longer considering players as a third-party in the definition of a third party (Definition 14) and Article 18ter (third-party ownership of players’ economic rights). The new 2019 RSTP, which will come into force on 1 June 2019, can be found here9.
The permanent CAS Anti-Doping Division
As mentioned above, as of 1 January 2019, the CAS introduced a permanent CAS Anti-Doping Division (ADD). The CAS ADD will manage first-instance (or sole instance) procedures relating to anti-doping matters. These anti-doping matters will be delegated to the CAS ADD by sports organizations, which are signatories to the World Anti-Doping Code. There are also specialist arbitration rules applicable to the CAS ADD, which can be found on the CAS website10.
Specialist anti-doping arbitrators have been selected for the CAS ADD. To maintain independence, arbitrators who are on the CAS ADD "list" cannot appear or participate in matters heard in other CAS divisions (i.e. the Ordinary and Appeals divisions) and vice versa.
Where there are appeals of these first instance decisions, those appeals will be heard in the CAS Appeals Division.
When the CAS ADD was established, Mr John Coates (ICAS President) said:
“The establishment of the CAS Anti-Doping Division is a major step in the continuing evolution of CAS. Its independence as an adjudicatory tribunal ensures a proper separation of powers from the Independent Testing Authority (ITA) and other testing and prosecutorial bodies. It offers experienced anti-doping sole arbitrators at first instance with right of appeal, or as three person first and final panels if the parties agree to waive any appeal. The costs of the sole arbitrator procedures will be borne by the Olympic Movement for up to four cases per Olympic IF per annum or are free of charge in the case of three person panels.”
CAS Ad Hoc Divisions
When one criticism of sports arbitration is the time it can take to receive a decision, the CAS’s Ad Hoc Divisions show how efficient sports arbitration can be. The intention is for Panels to deliver a written decision within 24 hours of an appeal being made.
In 2018, we saw the CAS at the Commonwealth Games on the Gold Coast in Australia, at the Pyeongchang 2018 Olympic Winter Games and at the 2018 Asian Games in Jakarta.
Moreover, when independence is often questioned too, the CAS delivered its decisions in the matter of the 39 Russian athletes in their appeals against the IOC in February 2018, at the beginning of the Winter Olympics. The CAS upheld 28 appeals and partially upheld the other 11, having heard evidence from Professor Richard McLaren and Dr Grigory Rodchenkov.
Ultimately, the Panel did not find that the evidence against each of the 28 was insufficient to establish the existence of an ADRV. With the other 11, their life bans were reduced to being rendered ineligible for the Winter Olympics in Pyeongchang.
Domestic (UK) highlights
In the last year we’ve seen a number of domestic cases where the Courts had to determine whether a matter could or should be dealt with by arbitration. These were disputes around the Football Association’s Rule K arbitration system and whether the parties were obliged to use the system or free to go to the Courts.
For reference, FA Rule K(1)(a) states:
“Subject to Rule K1(b), K1(c) and K1(d) below, any dispute or difference between any two or more Participants (which shall include, for the purposes of this section of the Rules, The Association) including but not limited to a dispute arising out of or in connection with (including any question regarding the existence or validity of):
the Rules and regulations of The Association which are in force from time to time;
the rules and regulations of an Affiliated Association or Competition which are in force from time to time;
the statutes and regulations of FIFA and UEFA which are in force from time to time; or
the Laws of the Game,
shall be referred to and finally resolved by arbitration under these Rules.”
Therefore, if it could be established that the parties were “Participants”11 under The FA Rules, then Rule K arbitration may be an available avenue even if there was no express reference to the same in the dispute resolution clause in the contract binding the parties.
The cases in the English Courts (Billy Davies v Nottingham Forest12 and the Wilfred Bony13 case) both determined that the absence of an express clause regarding Rule K does not necessarily restrict a Participant from using this dispute resolution process. In Davies, the Court said that even if there is no mention of Rule K in the contract, Participants agree to submit to Rule K by virtue of submitting to The FA Rules as Participants, as this in itself acts as an arbitration agreement.
In July 2018, we then saw a third High Court case consider this issue, in Mercato14. The judgment in that case sought to reconcile the Davies and Bony cases, but in doing so rather than clarify the position on jurisdiction, it likely served to cause more uncertainty. The immediate impact of this case will likely be to create more additional “fact sensitive” arguments in jurisdictional disputes. For an analysis of these three cases, see this article by Shane Sibbel15.
We also saw the Courts intervening in a sports arbitration case (in the Fleetwood Town v AFC Fylde16 case), where an arbitrator went beyond his scope of reference by carrying out his own investigations through The FA, without providing this information to the parties. For more information on the case and the key lessons for arbitrators please see Celia Rooney’s article, here17.
There was a high profile financial fair play case in the English Football League in 2018 (albeit the decision was issued in March 2019). In the EFL v Birmingham City case18, the Championship club were hit with a 9-point deduction for breaching the Championship Profitability and Sustainability Rules. Under those rules, clubs were permitted to make losses of up to £39m over a monitoring period; however, Birmingham City incurred £48m of losses. The 9-point deduction sent Birmingham plummeting down the Championship table, where it landed in 18th place (although it ultimately avoided relegation). A further interesting aspect in this case was that the EFL used Sport Resolutions to select the panel, which added a layer of independence.
In UKAD v Ryan Bailey19, a rugby league player managed to avoid a ban despite failing/refusing to provide a sample for drug testing. However, this was a unique case on the facts, and “compelling psychiatric evidence” by the player was a key factor in the panel’s decision. In coming to its decision, the panel commented that this case should not be taken as a precedent for other cases – however, one suspects this will not likely be the case. You can read more about this case in this article20. Again, we see the benefit (for the athlete) of having a totally independent panel, the National Anti-Doping Panel, hear his case.
Sport is still a growing sector and there seems to be no let up on the number of new disputes it produces each year. Whilst arbitration has its critics, the challenges do shape the arbitral system.
It will be interesting to see if an athlete now wishes to have a public hearing post-Pechstein, however, one suspects most athletes live enough of their lives in the press and may prefer to keep their legal issues private.
The new ADD at CAS is likely to see a further increase in the number of procedures it has to deal with. New Arbitrators, with specialist anti-doping experience will be brought in.
At home, Sport Resolutions have already seen their caseload increase having attracted the likes of the IAAF’s first instance cases. Further, it brings an increased level of independence to SGB’s that run their own first instance tribunals.
Hot off the press for 2019 is the CAS decision on the Caster Semenya dispute, but the debates have already begun. If Semenya decides to continue with the case, then the authors expect the next stop to be the Swiss Federal Tribunal, where she may seek an award that the CAS decision offends the “ordre public” (i.e. public policy) in Switzerland.21 For an analysis of the CAS decision, please see this article22 by Celia Rooney.
The Semenya case is one of the most complex and controversial cases the CAS has ever dealt with. If/when the 165-page arbitral award is ultimately published, it will undoubtedly be closely scrutinised by lawyers, scientists, human rights advocates and medical experts alike. Whilst the legal disputes will likely continue for many years in many jurisdictions, it is important not to lose sight of the fact that at the heart of this ‘dispute’ is a human being and athlete who has conducted herself with remarkable grace under extremely challenging circumstances.
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- Tags: Anti-Doping | CAS Ad Hoc Divisions | CAS Anti-Doping Division | CAS Code | Court of Arbitration for Sport (CAS) | Dispute Resolution | European Court of Human Rights (ECtHR) | FIFA Disciplinary Committee | FIFA Dispute Resolution Chamber (DRC) | FIFA Players’ Status Committee (PSC) | FIFA Regulations on the Status and Transfer of Players (RSTP) | Football | Ice Skating | Olympic | Regulation | Sports Resolutions (UK) | Swiss Federal Tribunal (SFT) | Third-Party Ownership (TPO) | United Kingdom (UK)
- Sport, safety and participation – the year in review 2018/19
- Sports integrity (betting and corruption) – the year in review 2018/19
- Sport and anti-doping – the year in review 2018/19
- The validity of FIFA’s arbitration clause and the independence of the CAS: A detailed review of the RFC Seraing cases
- The right to a fair hearing in sports’ cases: lessons from the ECtHR’s decision in Mutu & Pechstein
- FIFA’s April 2018 amendments to its Regulations on the Status and Transfer of Players (RSTP)
- Changing the game: Dissecting the landmark reforms endorsed by the FIFA Football Stakeholders Committee
- Sex on a spectrum in the binary world of sport: the CAS’s decision in the case of Caster Semenya & Ors v the IAAF
About the Author
Tiran Gunawardena is an Associate (Australian Qualified) in the sports law team at Mills & Reeve LLP.
Tiran specialises in international and domestic sports arbitration, with significant experience with proceedings before the Court of Arbitration for Sport (CAS) and regulatory matters in sport. He is dual qualified as an Australian solicitor and chartered accountant, and holds a Master in International Sports Law from ISDE (Madrid). Tiran is also an England Boxing and British Gymnastics Disciplinary Panel member. Prior to working at Mills & Reeve, Tiran spent almost 4 years working in the Corporate Tax and M&A team at PwC Sydney.
Tiran was selected by Who’s Who Legal as a leading sports lawyer in the UK in 2018.