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Sports Arbitrations
Graham Perry, 15 March 2005
Graham is a solicitor with experience in commodities arbitration - and a football referee. He started his talk by reminding us of a number of high-profile cases that have caught the media's attention. Kerry Packer, Diane Modahl and several footballers have been involved in public disputes, with sporting bodies who then had pause for thought about whether their reputations, and that of the sport they administered, were suffering. Speedy, informal and flexible resolution of disputes over results in major sporting fixtures such as the Olympic Games are necessary so that the tournament can move on with certainty. Confidentiality is often lost because of press interest and coverage, but in some ways more openness could be good for arbitration.
The growth in the compensation culture and the amount of money at stake in modern sport are other factors leading to more and more disputes, and it is not just the sporting authorities that are concerned. Sportsmen and women also have a vested interest in speedy, private dispute resolution, especially when their sponsorship is at stake and their sporting careers are relatively short. Graham reminded us that Johnny Haynes was the first footballer to be paid more than £5,000 per annum in the sixties, whereas some players now receive £65,000 per week!
Disputes range from challenges to the decisions of the referee or judge on the day of the event, through disciplinary and drug-related complaints to pure commercial issues. Arbitration is well suited to sporting disputes. It is quick and flexible - it can be held on the pitch or in the Olympic Village. It can use the specialist knowledge of experts in the game, rather than a judge (remember the quotation: "Who is Gazza?"). Finally it is private. Thus arbitral bodies have been developing across the world in recent years, notably the Sports Dispute Resolution Panel (SDRP) in this country and the Court of Arbitration in Sport (CAS), which is based in Lausanne.
The SDRP heard 35 cases in 2002/3, ranging from discipline, selection and doping to personal injury and child protection. The SDRP is funded by UK Sport, and deals with commercial disputes for the Football Association (FA) disciplinary panels, the UK Olympics Association and the Commonwealth Games.
The CAS is better known than the SDRP. Originally the brainchild of Juan Antonio Samaranch, the former President of the International Olympic Committee (IOC), whose original intention was to bring together all the sporting jurisdictions, the CAS has not yet met that aspiration, but has gone a long way towards it. The CAS became operational in 1984, and has dealt with such diverse matters as TV rights at one end of the spectrum, to the nationality, and hence the eligibility for selection, of participants at the other. The CAS consists of senior arbitrators, such as Michael Beloff QC, himself a Blue, and Peter Lever QC, who is a former Chief Executive of the Premier League. Arbitrators and lawyers are often on stand-by at major sporting events.
An important step was taken in 1993 when the International Equestrian Federation (FEI) appealed against a CAS decision to the Swiss Federal Tribunal, which criticised the CAS for its funding by the IOC. An element of bias was seen by the tribunal towards organisations, as distinct from individuals, and since then, the CAS has sought greater independence.
An interesting series of events happened during the Athens Olympic Games some years later, involving the Olympic Associations of Germany, France, Britain and the USA, the FEI and the IOC as an invited party. The case heard before the CAS was an appeal from a decision by the FEI appeals committee, which decision was itself taken as an appeal from that of the ground jury about a time penalty imposed on a German rider during the show-jumping competition. The decision was significant because it demoted German riders and their team from first place, advancing other teams and individuals to win gold, silver or bronze.
In the event a German rider had crossed the starting line twice, causing the stadium clock to reset to zero, whilst the computerised clock carried on counting. The rider took more than the allowed maximum 90 seconds to complete the course, 103 seconds according to the computerised clock. The decision of the ground jury to disqualify the German rider was taken by the German team to the FEI's appeal committee, who deemed that the matter fell within their jurisdiction, as the question was one of interpretation of the rules. The appeal was upheld and the Germans were awarded the gold medal, displacing the others.
In a rare display of unity the UK, France, and the USA all appealed against this decision to the CAS. They stated that the lack of notice to them constituted a lack of due process and that the question was a matter of fact, and was thus not able to be appealed to the FEI under their rules. The CAS agreed, holding that the rules confirmed that the ground jury was the final decider of all matters of fact concerning the event and as such their original decision could not be appealed. The ground jury's decision was upheld and the original medal winners were reinstated. All of these proceedings were completed within two days of the competition, and fulfilled the need of the IOC for speedy decisions of good quality.
Graham believes that sports dispute resolution is a growing field, and sports bodies'? decisions are growing more and more susceptible to challenge as modern administrators replace the old guard of volunteers. There will be a need for good arbitrators and appointing bodies, and the Chartered Institute is intent on playing its part. They are setting up training courses to educate administrators and lay assessors, and the FA already has an established relationship with the Chartered Institute. The FA has organised hearings with a judge as the lead arbitrator, assisted by two lay, footballer assessors. The Chartered Institute has already delivered lectures to sportsmen, and has arranged a two-day training programme for June 2005.
In answering questions, Graham noted that individual sports are grappling with the need for effectiveness and independence, and as a result are reviewing the structure of appeals hierarchies. The FA, for example, is working with the Chartered Institute to set up an appeals body to hear cases referred from disciplinary tribunals, where the sporting body is the "court of first instance"?. The Human Rights Act is influencing the FA, who are looking to the Chartered Institute to appoint independent chairmen.
Matters of fact are always left to the referee or judge on the pitch. Decisions on matters of law on the pitch may be overturned, but this is discouraged, although the emergence of the video panel presents the possibility that this might happen. It seems more likely that the referee will seek advice from the panel when he has been unsighted, rather than to seek confirmation for his decisions or to find his decisions challenged.
Graham's talk was well received, especially amongst those with a sporting back-ground, and the vote of thanks was carried with the usual acclamation.