By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

SNIPPET:

Sport and law seem a world apart to casual sportsmen and women playing their weekend games of tennis, golf, swimming, or even horse riding, oblivious of the mechanism of the laws governing their activities. The truth is that many key areas of overlap directly affect both participants and administrators. As sports have become an everyday affair in the lives of millions of Nigerians and billions of individuals globally, the staging, organizing and execution of major events takes governing bodies deeper into the realms of law, governance, finance etc.

INTRODUCTION

It is without a doubt that sports play a very significant role in our national development and integration, in view of the earlier established fact that football creates employment opportunities, leisure and pleasure, harmonious and team relationship, and boast talent exploration.

In order to effectively provide an avenue for Sports disputes to be handled, especially across geographical and political plains, there was a need for the establishment of the Court of Arbitration for Sport. This Court was created in 1984 to provide dispute resolution services to the sports world. For over 30 years, it has settled disputes involving athletes, coaches, federations, sponsors, agents, clubs, leagues, and organizers of sports events from almost every country in the world through arbitration and mediation procedures.

The Court of Arbitration for Sport is answerable to the International Council of Arbitration for Sport (ICAS). The Headquarters is located in Lausanne, Switzerland. The import of this is that just like the Hague is the seat of the International Criminal Court and the International Court of Justice, Lausanne has become the seat of justice in the sporting community. There are also offices in Sydney and New York due to these cities’ historical antecedents in Sports and Finance respectively. The Court of Arbitration for Sports has nearly 300 arbitrators from 87 countries around the world. The arbitrators are often specialists in one or more areas of the various sports played.

The Court of Arbitration has a structure similar to the Nigerian Court system, in the sense that matters can commence from the Ordinary Court division and end up in the Appeal division. For clarity the Court is divided into three major divisions, namely;

The Ordinary Arbitration Division: Their duty is to determine first-instance disputes between sporting stakeholders that are generally commercial (rather than disciplinary) in nature. The import of the bracketed phrase is that this Court limits itself to commercial disputes, and not the interpretation of the codes or laws regulating a particular sport.
The Anti-Doping Division hears first-instance anti-doping cases (Please see the Article: Role of Arbitration in Doping Issues in Sport published here @omaplex.com.ng).
The Appeals Arbitration Division: Just as the name implies, this is the final seat of the Court. It hears disputes arising from first-instance decisions made by sport’s governing bodies and adjudicates over same like an appellate Court.
By way of adding to the already constituted division of the Court, the rules of the Court empower the formation of Ad-Hoc communities, tribunals and fast-track hearings. The CAS also provides ad hoc expedited arbitration services at major sporting events, such as the FIFA World Cup and the Olympic Games.

SCOPE OF DISPUTES GOVERNED BY THE COURT OF ARBITRATION FOR SPORTS

The CAS can deal with any disputes submitted to it which are directly or indirectly connected to sport. The scope of the cases it hears can therefore be wide-ranging and include anything from commercial disputes regarding sponsorship agreements, or contractual provisions in a sportsperson’s contract to issues such as doping allegations faced by individual athletes.

Sanctions handed down by worldwide governing bodies to their members are often also challenged before CAS, such as a football club being handed a transfer ban by the worldwide governing body of football – FIFA.

To bring a dispute before CAS, a body must be an individual or a legal entity with the capacity to act, and which is involved in the sporting context. This is a wide-ranging definition meaning the following bodies and individuals may apply to the CAS to settle a sporting dispute:

Individual athletes;
clubs;
sports federations;
the organizing committees behind sporting events;
sponsors or television companies.
RULES ON SUBMISSION

For a dispute to be submitted to CAS, the parties must have agreed in writing that if a dispute arises, this can be referred to the CAS. This written agreement will often be found within the statutes or regulations of a sports organization, or in the contracts between the organization and its member associations. This agreement may be on a one-off basis, or appear in contracts in order to make it a more permanent recourse to solving disputes.

Often the agreement will exist prior to the dispute arising in one of the above scenarios. However, if there is no agreement as such before a dispute arises, both parties can agree in writing that they will submit the dispute to the CAS.

APPLICABLE LAW

When the parties agree in writing to submit the dispute to the CAS, they will usually also decide which jurisdiction of law will apply to the proceedings. If the parties cannot agree or if they do not state which law should be applicable, the rules of the Court will apply. The Code is known as the CAS Rules.

In the context of the appeals procedure, the arbitrators rule on the basis of the regulations of the body concerned by the appeal and, subsidiarily, the law of the country in which the body is domiciled. The procedure itself is governed by the Code of Sports-related Arbitration. The ordinary procedure lasts between 6 and 12 months. With regards to the appeals procedure, an award must be pronounced within three months after the transfer of the file to the Panel. In urgent cases and upon request, the CAS may, within a very short time, order interim measures or suspend the execution of a decision appealed against.

PROCEDURE AT CAS

The party wishing to submit a dispute to the CAS must send the CAS Court Office a request for arbitration (ordinary procedure), or a statement of appeal (appeals procedure), the contents of which are specified by the Code of Sports-related Arbitration.

In the case of the appeals procedure, a party may lodge an appeal only if it has exhausted all the internal remedies of the sports organization concerned. A person may appear alone before CAS, they may also be represented or assisted at CAS hearings by a person of their choice, not necessarily a lawyer, but a lawyer is preferable especially when documents and evidence need to be tendered and analyzed. Once the arbitration request or statement of appeal is filed, the respondent submits a reply to the CAS stating his defense or position against the petition raised or the arbitration dispute occasioned. After any additional exchange of statements of case, the parties are summoned to a hearing to be heard, produce evidence, and argue their case before the arbitrators.

The final award is communicated to the parties some weeks later, unless it is pronounced the same day – applicable under the appeals procedure.

ARBITRAL AWARD BY THE COURT OF ARBITRATION FOR SPORT

An arbitral award pronounced by the CAS is final and binding on the parties from the moment it is communicated. It may be enforced in accordance with the New York Convention on the recognition and enforcement of arbitral awards, to which more than 125 countries are signatories.

APPEALS AGAINST THE COURT OF ARBITRATION FOR SPORTS’ AWARD

Where a person is dissatisfied with the arbitral award given by CAS, he may lodge an appeal at the Swiss Federal Tribunal on limited grounds. Some of the grounds upon which an appeal can be brought include:

lack of jurisdiction;
violation of elementary procedural rules;
incompatibility with public policy.
The procedure at the Swiss Federal Tribunal is a little more complicated due to the use of the Swiss Private International Law Act (PILA). For a more robust understanding of the procedure for appeal against the decision of CAS, please read the article published by Antonio Rigozzi, a Professor of Sports Law, published in the Oxford Academic Journal for International Dispute, titled Challenging Awards of the Court of Arbitration for Sport.

CONCLUSION

It is interesting to note that as of today, most countries and international sports Federations have acceded to the jurisdiction of the Court of Arbitration for Sports. The Procedure for instituting an action at the Court is very flexible. This is in line with the need to keep the spirit of sport alive, and not encumber it with the rigours and technicalities of the generic method of instituting an action. It is important to mention that although the procedure and working of the Court for Sport are flexible, time efficient, and novel, it is cancerously marred by the present fact that the decision of the Court is appealable to the Swiss Federal Court. The import of this anomaly is predicated on the fact that the idea that the decision of the Court is not final, has defeated the idea of having a central Court for all sports disputes.

Similarly, the interference of the Swiss Court affects the independence of the Court, rendering same a mere illusion. It is our humble submission that in the coming years, it will be imperative for a Supreme Court for Sport to be established, clothing same with the power to be the final appellate body for all sport-related disputes. This way the doctrine of judicial precedence will find increased expression within the sports world, and consolidate the doctrine of lex sportive­­, the Law of Sport.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of International Sports Law and Arbitration and this has seen him advise and represent his vast clientele in a myriad of high level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.