Arbitration In The Realm Of Sports Law – Sport

I Introduction

The internationalisation of sports has resulted in making it a
huge industry and has also, owing to globalisation and
commercialisation of sports in general, led to the integration of
sports and law. The sports industry has witnessed huge growth in a
short span of time, which has completely transformed the nature of
the industry as a whole and has led it to become a more
commercialised set-up rather than being considered only a leisure
activity, especially owing to the exorbitant amounts of monies
involved in a few of the major sports. As a result, it is no
surprise that the industry produces a large number of legal
disputes which require speedy adjudication and well-settled bodies
to deal with the specificity of the subject matter. Like any other
sector depending largely on arbitrations as a means of resolving
disputes, sports arbitrations entail a method of resolving
sports-related disputes by submitting them before a person/tribunal
for final and binding decisions. The only difference between sports
arbitrations and any other arbitrations is merely the subject
matter of the former. Although procedurally all arbitrations are
the same, sports arbitrations do have their unique set of
challenges that make them different from other forms of
arbitrations. While sports arbitrations offer the same advantages
as arbitrations in commercial disputes like a neutral setting,
flexible procedures and specialised arbitrators; however, sports
arbitrations do not conform to the New York Convention since the
governing bodies have their internal rules and regulations in place
to deal with the disputes that arise in the industry. Hence, the
enforcement of awards through sports arbitrations is different from
those arising through commercial or investment arbitrations.

The following paragraphs would trace the history of the
development of jurisprudence for Sports arbitration and the
creation of the Court of Arbitration for Sports (“CAS”)
in Switzerland for adjudication of sports-related disputes.
Additionally, the focus would also be given to the development of
mechanisms of sports arbitrations in India and its ratification of
foreign principles in its municipal jurisdiction.

II Development of Court of Arbitration for Sports and
Significance of Switzerland in Sports Arbitration

Switzerland is home to a number of international sports
organisations. International Olympic Committee (IOC), the
International Council of Arbitration for Sport (ICAS) and the CAS
are all headquartered in Lausanne, Switzerland. The presence of
such important sports organisations/authorities has led to
Switzerland becoming the hub for adjudication of Sports Arbitration
globally. Once read in detail, Swiss law is extremely flexible,
which ultimately allows potential litigants a significant level of
control and flexibility in the entire process of dispute
resolution.

The CAS was a result of the efforts of the President of IOC in
1981, Juan Antonio Samaranch, who recognised the requirement of
such an independent adjudicating body, which would be understood to
take up the role of “the supreme court of world
sport.”  In 1982, at an IOC meeting, late Judge
Keba Mbaye, who was acting as a judge in the International Court of
Justice was asked to chair a working party with the aim to create
Statutes of a sports dispute resolution body which would be known
as the “Court of Arbitration for Sports”. It was in
1983 that IOC officially ratified the Statutes of the CAS which
came into force on 30^th June 1984 and CAS began its
operation.

The CAS witnessed several reforms and revisions in its
functioning in 1994. Since the institution of the body, the IOC has
held a great degree of control in the working of CAS. In order to
allow the CAS to work distinctively from the IOC, the International
Council of Arbitration for Sports (ICAS) was established solely to
deal with the management and operation of CAS. One of the primary
functions of the ICAS was to ensure that CAS functions as an
independent body and overlooks its administration, financing and
overall running of the organisation.

III Working of Court of Arbitration for Sports

Arbitration, as a dispute-resolution process, has been developed
to tackle the unnecessarily long and stretched court proceedings
and provide for a quicker and more efficient mode of
dispute-resolution. Even though all forms of arbitrations are
inherently supposed to be a quicker means of dispute-resolution, in
sports arbitrations, this requirement is proliferated. Given the
nature of the industry involved, it becomes essential that the
decision to the disputed point of question is provided at the
earliest opportunity to ensure that the even runs as per schedule.
In order to ensure that decisions are pronounced in a timely
manner, ICAS established an ad hoc division in 1996 which was given
the responsibility to resolve disputes arising from the Olympic
Games in Atlanta within twenty-four hours. Since the ad hoc
division proved to be a huge success, similar divisions were set up
for all succeeding Olympic events thereafter. Furthermore, to help
aid and quicken the entire resolution process in sports
arbitrations, arbitrators hold a more active function in the entire
procedure as compared to commercial and investment arbitrations.
However, there are certain rules and regulations that the parties
cannot circumvent. This includes the strict liability rule under
the anti-doping regulations wherein the sportspersons are instantly
disqualified and abstained from getting any medals or prizes
through the concerned event. In the case of Alain Baxter
v. IOC,  a British skier was disqualified from the Alpine
Skiing Slalom even at the Salt Lake City Olympics for having tested
positive for a prohibited substance under the Olympic Movement
Anti-Doping Code. Appellant suffered from chronic nasal congestion
for which he used a non-prescription Vicks Vapour Inhaler to manage
his symptoms. However, the version of the drug present in the US
contained certain prohibited substances which the appellant was
unaware about. The panel found, in line with the previous CAS
rulings, that the appellant is strictly responsible for the
substances they place in their body, and for the purposes of
disqualification neither intent nor negligence needs to be proven.
Another rule that the parties cannot derogate from includes that
all the arbitrations before CAS are seated in Lausanne,
Switzerland, including the cases coming through ad hoc divisions.
In a way, this adds to the swift nature of the entire process since
it eliminates any scope of debate between the parties over the
question of competent jurisdiction presiding in an arbitration.

To guarantee expertise on the panels adjudicating upon the
disputes, CAS maintains a closed list of a group of arbitrators
from which the parties are required to appoint arbitrators for
their disputes. CAS arbitrators are required to undergo appropriate
legal training which involves proficiency with respect to sports
law and/or international arbitrations and a good knowledge of
sports in general. In 2003, this rule was challenged before the
Swiss Federal Tribunal where it was contented that the
parties’ freedom to choose their arbitrator is curtailed and
they should not be bound by CAS’s closed list of arbitrators.
However, the Tribunal rejected this challenge establishing that the
rule was justified by the need for sports-specific legal expertise
for timely resolution of disputes and to ensure consistency arising
through the decisions given by CAS.

Another important feature of arbitrations before the CAS
includes the transparent nature of the proceedings. In comparison
to other forms of arbitrations, CAS is comparatively more
transparent when it comes to releasing their awards. Despite a
certain level of transparency in their proceedings, CAS arbitrators
are bound by a duty of confidentiality which refrains them from
disclosing any facts to a third party. If the arbitrator fails to
abide by this duty, it may lead to cancellation of their
empanelment.Other than the responsibility of the arbitrator, rules
for publication of awards are different depending upon whether the
proceedings are initiated in the Ordinary or Appeals Division.
While Ordinary proceedings are confidential and none of the
stakeholders are allowed to disclose any information to the
non-concerned party without prior permission from CAS and an
agreement between the parties to disclose the award publicly, the
Appeals division works very differently and has the opposite
principles attached to it. As a rule, the awards passed from the
Appeals division are published for the general public, unless
otherwise agreed by the parties.

IV Authority of Awards passed by the Court of Arbitration for
Sports

CAS awards do not carry a binding authority with them, and the
arbitrators are free to deviate from the rulings previously given
while they adjudicate upon a dispute. However, CAS panels often
refer to previous decisions for persuasive guidance or to make a
different ruling by distinguishing cases upon facts. This has led
to the harmonisation of the rulings given by CAS even though there
is no binding authority that the awards carry. Nevertheless, given
that the closed list of arbitrators that CAS consists of
arbitrators that belong to different legal backgrounds, coupled
with a lack of institutional scrutiny of the awards being passed,
there is always a certain degree of uncertainty present before the
award is rendered by the tribunal.

Thus, while CAS has created an organised structure for Sports
Industry, there are certain aspects that still need to be developed
better in order to ensure that the rulings remain consistent, and
the participants are provided with a fair platform for the
resolution of disputes.

V Sports Arbitration in India

The sporting industry and the horizon of sports entertainment
have had a significant boom in the past decade with a surge in
viewership and investment thanks to multiple sporting leagues. With
this surge has come a rising demand for a conducive infrastructure
for dispute resolution for resolving sports disputes. Sports
competitions and tournaments have acted as a platform for national
recognition on the horizon of global politics alongside acting as a
source of income for the economy. The need for utilising the same
was realised by India years after independence. This led to a
mirage of developments towards developing an organised structure
for the sports community. Parallel to the developments happening
globally, India also witnessed their initial developments in the
field of sports.

Matters relating to sports, development or otherwise, come under
the purview of the State Government as per Entry 33 of the
State List under the Constitution of India. However, with respect
to issues of international sports, it is the Union Government that
has the responsibility of enacting laws as per Entry 10 of List 1
of the Constitution Despite the State and Central Government
having the responsibility to control the developments happening in
the country with respect the sports industry, there are many
private bodies that take up this responsibility in practice. The
concern arises when there exists ambiguity in accountability of
functioning of bodies that work independently of the governments
i.e., when the bodies that hold the primary power to regulate and
sway the events that may take place in the sports community are
privately functioning bodies,for e.g. the Board of Control for
Cricket in India (BCCI), which is the self-governing body in nature
and would not fall under the definition of the state, thus escaping
the statutory accountability that comes with the same, for example,
the enforcement of Article 12 of the Constitution. Thus,
having an entity created by the state, specifically catering to the
intricacies of the needs of an effective dispute resolution in the
field of sports, is integral. This drawback is overcome by the
establishment of the Sports Arbitration of India (SACI), which has
been further elaborated on in the following paragraphs.

Following the events of the Asian Games in 1982, a need for
development in the field of sports and education was realised. The
year 1984 has been marked as the year of the creation of the Sports
Authority of India (SAI), which is an autonomous registered
society. This was followed by the creation of a National Sports
Policy in 1984, the first milestone in the development being aimed
for in the country. It was an amalgamation of all aspirations and
ideals in furthering the Indian Sports Community. It could be
observed in the trends that there did not exist an active
inclination and interest within the nation towards developing and
pursuing sports activities as a skill. Thus, the policy largely
focused on promoting sports infrastructure and situating physical
education as a part of school curriculums. However, the policy did
not focus enough to create a more organised and equipped
environment with a formal set of rules, along with institutional
bodies to enforce the same.

Upon the lack of success of the National Sports Policy of 1984,
a new National Sports policy was envisaged and created in 2001. It
was a joint effort initiated by the State and Central Government in
consonance with the Olympic Association and National Sports
Federation and their primary objective of the policy was to further
excellence in sports events internationally along with the
“Broad Basing of Sports”. It still retained a focus on
amalgamating physical education within the existing academic
curriculum. The policy placed the responsibility of enforcement on
the central and state governments to provide them with appropriate
powers to institute legislation, which constituted a hurdle for
effective implementation of the rules.

In furtherance to these efforts, the Indian Court of Arbitration
for Sports (ICAS) was set up in 2011 with Dr. A.R. Lakshmanan at
the helm as Chairman. ICAS was one of India’s first concrete
steps toward laying the groundwork for having a robust dispute
resolution mechanism specifically catering to the nuances of issues
involved in sport. The court was centred around the principle of
effective and speedy resolution of sports disputes keeping in mind
the limited time span that a sportsperson enjoys during their
career in sport.

Another major step in the evolution of sports regulations
Guidelines concerning Safeguarding the Interests of Sportspersons
and Provision of Effective Grievance Redressal System in the
Constitution of National Sports Federations were brought forth. In
the aftermath of the Sushil Kumar Case, before the High Court of
Delhi in 2016, the Youth Affairs and Sports Ministry issued a
notification through which they laid down guidelines with respect
to dispute resolution in the area of sports. The guidelines
titled, “Safeguarding the Interests of Sportspersons and
Provision of Effective Grievance Redressal System in the
Constitution of National Sports
Federations”, emphasised two major points that
are:

1. The establishment of a transparent, free and fair grievance
   redressal system aimed to protect the interests of the persons
   involved in sports.




2. Directed all sports federations to include a clause for
   appealing to the Court of Arbitration of Sports in their contracts
   and their Constitutions to address those cases where the
   sportsperson is unhappy with the ruling made by the sports
   association/federation. Directing the Sports Federations to include
   within their Constitution and their contracts a clause to appeal to
   the Court of Arbitration of Sports in case they are aggrieved by
   any decision or ruling of the federation/association.

At present most sporting disputes in India are attempted to be
resolved through the constitution of an internal commission
typically appointed by the Sports Authority/Federation in charge of
the sport in India or the State in question. Failing the commission
route, disputes usually go through litigation in either the Supreme
Court or the respective High Court. There is a salient need for a
specialised dispute-resolution mechanism for disputes in sports and
the sporting industry. To tackle these issues head-on there have
been a plethora of suggestions made by the Law Commission of India
primarily centred around the prospective setting up of a practice
friendly and modern law to govern the settlement of disputes in the
field and the set-up of a specialised body for Sports Arbitration
in India.

To address this lacuna, the Sports Arbitration Centre of India
was founded in 2021. Sports Arbitration Centre of India (SACI) was
inaugurated by Minister of Law and Justice, Kiren Rijiju in
September 2021 in Ahmedabad, Gujarat to serve as an independent
body to fast track disputes in the sports sector and serve as a
mechanism to redress issues related to sports. The SACI will be
promoted by Ahmedabad-based SE TransStadia Pvt Ltd. and all legal
backing will be provided by the Ministry of Law and Justice. The
SACI will have a far-reaching impact on the sports sector of the
country by creating a reputation and establishing credibility for
itself through the provision to settle disputes and other issues
and concerns of the sports sector in a fast, transparent and very
accountable manner.

It answers to the need for an independent body specifically
catering to the intricate needs of the up and coming era of sports
within a country by providing a neutral platform that’s more
efficient and caters only to dispute matters within the sports
community. Since the centre has been set up by the Ministry of Law
and justice, and in a way it is an extension of the same, providing
a level of accountability that remained ambiguous before this
venture. While there have been multiple ventures in the past in
India, aiming to aid and facilitate the development of the sports
communities, they failed to accomplish these aspirations owing to a
lack of vision. For the development of the sports community of
India, focusing on expanding the infrastructure alone is not
enough. There existed a need to provide appropriate amenities,
regulations, rights and rules to sportsmen partaking in the world
of sports activities. It is important to give access to all
sportsmen these rights and follow through on this ideal vision by
implementation by giving them a platform that can efficiently act
as a redressal mechanism. Turning to the hierarchy of courts in
India for dispute redressal, as they themselves remain afflicted by
administrative hurdles that make the entire process extremely
time-consuming and technical, not to mention the lack of expertise
required to address matters of such nature, does not suffice.
Having a Sports Arbitration Centre in India acts as an effective
safeguard available to the sportsmen in India that’s
time-efficient and possesses the requisite knowledge to
appropriately address the disputes that may arise.

The most important venture after the inauguration of SACI is to
raise awareness about the regulations rights and that commands and
are available to the community. Despite being significantly behind
in the field of dispute resolution and arbitration, India has made
efforts to develop the infrastructure for the sports community,
essentially moving to the commercialisation of the field. What the
need of the hour calls for are steps towards formalisation, to have
more organised structures that provide aid and amenities to the
sportsmen to develop and flourish.

Footnotes

1. Daniel Girsberger and Nathalie Voser, ‘Sports
Arbitrations’, International Arbitration: Comparative and Swiss
Perspective (4th edn).

2. Ian Blackshaw, ‘Access to Justice in Sports
Arbitration’, Access to Justice in Arbitration: Concept,
Context and Practice.

3. ibid.

4. Philippe Cavalieros and Janet Kim, ‘Can the
Arbitral Community Learn from Sports Arbitration’ 32 Journal
of

International Arbitration 237

5. Baxter v IOC (CAS Case No 2002/A/376).

6. Philippe Cavalieros and Janet Kim (n 4).

7. A, B v, Comité International Olympique et
Fédérations Internationale de Ski (Swiss Federal
Tribunal, 1st Civil Law Chamber, 4P267/2002).

8. S19, Court of Arbitration for Sports, ICAS
Statutes

9. Rule 43, General Provisions, CAS Procedural
Rules

10. Dr. Awadhesh Kumar Shirotriya, “Conceptual
Framework for Redesigning the Sports Policy of India” (2019)
08(01) International Journal of Physical education health &
sports sciences.

11. Id.

12. Mukesh Rawat, ‘Choice of Law in Court of
Arbitration for Sport: An Overview’ SSRN (Jan 23,
2021).

13. Sushil Kumar v. Union of India, W.P.(C)
4514/2016

14. Safeguarding the Interests of Sportspersons and
Provision of Effective Grievance Redressal System in the
Constitution of National Sports Federations_.Pdf’

15. Arka Majumdar and Kunal Dey ‘Significant
Judgments On Arbitration And Conciliation Act, 1996 – May,
2020 To July, 2020 – Litigation, Mediation & Arbitration
– India’ Mondaq (25 Aug 2020).

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