I. Introduction
As history has indicated, the use of sports has always been a means to instil peace and order in society. In Ancient Greece, the practice of sports has been not only to train their warriors but also to instil camaraderie among the people. There are instances where what we consider sports today were considered forms of combat in ancient times. Thus, there was a time when the use of what we believe as sports activities as a means to rectify conflict between parties. However, changes in modern society have treated the sports to mere entertainment and as a profession. As seen in professional leagues, the world of sports is becoming a universal plane where every athlete could compete with the best of the world. Study will be focusing on the emergence of conflict in the sporting world. The discussions will not only focus on the possible causes of conflict in sports, it will also look into the means of resolving this conflict. Specifically, the discussion will be focused on the alternative dispute resolution (ADR) techniques employed by international sports federations. All arguments and observations are to be supported by articles on international sports law. Moreover, the discussions made on this paper are based on the provided reading materials and other scholarly and academic articles found in the web.
II. The Sporting World
Nowadays, Sports is an area where huge sums of money flow endlessly. To be precise, professional sports tend to manifest itself as one of the pillars of modern commercial enterprises and businesses in the world. As stated in the article of (2004) the area of sports has been evolving to a global spectacle of talent, determination, and power of the almighty dollar. Leagues in the United States like the National Basketball Association and Major League Baseball has started to recognise the potential of foreign players. In the same way, individual states and local governments have realised this potential and started to attract the operations of professional sports on their localities. ( 1998) Stadiums and arenas are among the many forms at which entities have the opportunity to make money out of sports.
This shows that aside from the professional players taking on these field, those who control and manage the environment surrounding the sporting world have enjoy the benefit that is bestowed upon them. Nevertheless, it is still these players that acquire the attention of the public and draw crowds. ( 1999) It is them who fill stadiums and arenas; it is them who are responsible for a person using a certain kind of cologne, or using a particular brand of shoes. Even golf tournaments have been taking a new breed of followers because of the emergence of sports icons such as Tiger Woods. In addition, there has been an considerable increase in athletes competing professionally in the said sport because of the high rate of golf tournament earnings. (1998)
The discussion above has manifested the monolith that is modern professional sports. With such a field wielding promises of fame, power, and fortune, it is not unlikely that conflict among the major actors take place. Individual federations have established regimes to address these incidents. The following discussions will now focus on the legal aspect of resolving the conflicts that emerge in sports.
III. Legal Regime in Sports
Changes have been seen in the area of international sports law. The early works of (1992) have uncovered the emerging trends that has shaped the current international laws in the sporting world. Generally, he pointed out certain shifts to a more “structured pattern” where administration and resolution of conflict are addressed. Other specific trends include the creation of legal authority on international sporting federations in controlling their members through their rules and bylaws. This provides uniform authority over the teams, team owners, and athletes involved in these federations. Along with these trends is the inclination towards arbitration among conflicting parties. This shows not only a predilection to fairness as opposed to justice among the parties to a case. This means that there is a perceived trend towards achieving a “win-win” solution in a conflict emerging between parties. The following discussions will present certain elements of the current international sports law and issues that tags along with the emerging trends.
A. International Sports Law
Initially, the regime governing international sports is held tightly in the Olympic Movement. (1992) However the changes that happened during the past decades have made this regime make the Olympic Movement a mere part of the existing process as opposed to being the sole reference of international sports law. Aside from the Olympic Movement, sports organisations have also been established to create and implement certain rules built upon the tenets of the Olympic Movement.
As (2003) claimed in his article, international sports law is defined by the “principles of international laws applicable to sport.” He further claims that this definition may be too general, possibly because there are dynamics between actual international law and sports law are considerably poles apart. He stated that there have to be some sort of distinction placed when the rule of law safeguard in sports is placed in the equation. In the same manner, given the observations made by (1992), the definitions held by (2003) doesn’t show enough promise and potential regarding authority and autonomy. Foster’s definition of international sport law still reflects a competitive nature inherent in sports, that is there must always a victor and a defeated party.
This prompted (2003) to point out totally different term to describe the existing conditions in the sports law environment. He coined the term “global sports law” as a means to describe not only the regime governing modern sporting activities but also to present how sport federations and sporting spectacles have become considerably transnational in a sense. () The discussion summed up the need of a legal regime that would not be affected by any state law or any other law for that matter to ensure the objectivity of the process. This also shows that Foster realises that modern sports, especially in professional sports, “rootless” teams are now dominating the scene.
B. Lex Sportiva
The discussions on the work of(2003) bellow the importance of distinguishing international sports law and global sports law. It is in this kind of observations that the issues on whether which one should be considered lex sportiva. The term is roughly defined as the set of universal legal principles applied in sports. (2006) This means that the principles, similar to those applied in court cases, are based on the established regulations in sports.
Looking at this working definition of lex sportiva, the discussions of (2003) relating to the context of global sports law may well fit at this category. In general, global sports law manifest a private system of laws distinct from the existing national laws. This also entails that it have its own set of jurisprudence and a separate system of authority. This shows that the existing trends indicated in the earlier parts of this paper has considerably been established in global sports law.
Though courts has always been the refuge of individuals, be it lay people or athletes, the emergence of a global sports law tends to protect the interests of those involved in a more specialised manner. This means that the emergence of sport federations and international organisations have created a means on which athletes and other units in the sporting industry would be able to deal with the matter on their own without the help of judicial proceedings in courts. However, the only problem as indicated in the claims of (2003) is the legitimacy of the said laws. The points of such arguments will be analysed in the subsequent part.
C. Issues of Independence
The issue of autonomy and legitimacy among the decisions of sports federations based global sports laws have been possibly the bane of development of the said field. In the article of (2004) issues on the legal status of organisations has been taken into consideration, particularly in the Australian setting. Based on his premise, majority of the sporting federations are voluntary associations and chose to remain that way for a considerable number of times. This shows that carrying out legal actions against the said organisation or within the organisation may prove to be considerably knotty. Issues on whether the guiding rules and regulations as tantamount to being a contract between the members have been considered in a particular Australian case. Another issue is to whether individuals in sports have redress to courts when they see any injustice upon themselves.
In any case, (2004) claimed that the sporting world could not still stand on its own feet when dealing with legal issues on their flock. They still have a long way to go, (2004) reckoned. This is similarly supported by (2003) indicating that eventually, global sports law will ultimately be autonomous. However, in order to achieve that level, they have to satisfy several preconditions: a global constitutive body; global forum of dispute resolution; and transnational and unique norms. ()
IV. Sporting Federations
As indicated in the previous discussions, the emergence of sporting federations have created a culture on which global sports laws are being introduced and implemented on their own terms. The following discussions will provide a presentation on several federations in the international setting. Along with these will include the dispute resolution methods used by the said organisations.
A. Federation Internationale de Football Association
This organisation is more notably known for the Wold Cup. It is the governing body of the international football associations with a seemingly autonomous body monitoring the developments among its members. Other than the World Cup, FIFA is also responsible for several international tournaments like the Confederations Cup.
With regards to its legal and disciplinary activities with its members, it turns to several committees that have individual specialties. To illustrate, the committees includes the Player Status Committee, Disciplinary Committee, Appeal Committee, and Court of Arbitration for Sport. Similarly, the federation has a Dispute Resolution Chamber where conflicting parties forward their case. (2007) It is in this part of FIFA where organisations seek agreements and compromise regarding their individual circumstances.
B. Confederation Africaine de Footbal
This federation represents the collection of international football in the African continent. Established in 1957, its members compete in at least seven other leagues within the confederation and in international tournaments. (2007) The rules and regulations are indicated in the CAF Disciplinary Code with at least three committees serving the purpose of dispute resolution. These committees include the Committee for Ethics and Fair-play, Committee for Legal Affairs and Statutes, and the Appeals Committee. This represents that the federation has three stages of action when conflict arise. The Committee for Legal Affairs tend to work out the conflict emerging from certain parties. If these parties are not satisfied with the outcome of the first ruling, then they are subjected to the Appeals Committee. Once the committee decided, then it is final. The Committee for Legal affairs on the other hand, will provide the adjustments needed in the statutes and regulations held by the federation before it is implemented. This indicates that the federation have a swift adjustment process given that they have tasked an entire committee to deal with the said course of action.
C. Confederation of North, Central American, and Caribbean Association Football
This is the governing federation in the North American, Central American, Carribean, and some South American football associations. With its inception in 1961, the CONCACAF (2007) has been promoting the sport. Unlike the two earlier indicated federations, the CONCACAF has a single committee that will deal with its affairs including legal and dispute resolution, the Executive committee. On a personal, note this may appear to be a major weakness of the federation. Without any available alternative dispute mechanism offered by within the organisation, the members may have recourse only with the courts the moment conflict emerges.
D. Union of European Football Associations
The UEFA serves as the administrative and governing body in the European continent. Similar to the previous federations, it is under the FIFA organisation thus emulates some of its statues and regulations. It is one of the largest continental confederations present given that aside from the European countries competing in the league, some Asian nations (at least eight) have also infused themselves with the organisation.
The federation have at least three organs that provide the management of justice. These include the Appeals Body, Control and Disciplinary Body, and the UEFA Disciplinary Inspector. This shows that the federation adheres to an internal quasi-judicial form of control in resolving dispute among its members. In addition, it also shows that the process available to the members is solely present a case against another party towards the Disciplinary Inspectors. And in the course of the process, that is up until an appeal is decided by the Appeals Body, then the conflicting members may have no more recourse. Personally, this may seem a tedious process for the members considering that the means offered by the committee does not have any inclination to serve the satisfaction of both parties. In any case, the last recourse of the conflicting party would essentially be with the courts, that is those outside the federation.
V. Dispute Resolution in Sports A. Litigation in Law
Court actions have been one of the most sought after recourse among parties in conflict. However, developments in sports have changed the way organisations regard litigation procedures. Primarily, the tendency of parties to regard litigation and other court proceeding as a last recourse is motivated by financial objectives. Nevertheless, the process of litigation has been already employed by sports organizations for dispute resolution for years. Essentially, parties attempting to employ litigation procedures do seek finality to some extent. However, the area of law has already built an intricate profession behind such dispute resolution. (2004, 32) that litigation does demand much of the parties involved. For one, the laws applicable in their cases tend to brim over the possibility of acquiring an exact verdict that will ensure just results. In the same line of thinking, the use of litigation tends parties to question whether the work does equate to them having the desired results. The problem with employing litigation methods is that the outcomes of the procedure may only favour one of the parties in conflict. Despite the expended resources lashed out in the process, there is still the possibility that further loss would entail.
In the case of litigation in global sports, there have been several which were forwarded to courts. In the European Union, the European Court of Justice has dealt with a case concerning contractual obligations of an athlete to a particular team. Specifically, the Bosman Ruling 2004) was a clear example of this litigation in sports. Courts have declared that players have a right to free transfer as their contracts have expired. However, that ruling is applicable to teams in the EU. Other instances of litigation are encountered with Flood v. Kuhn 407 US 258 where an opposite decision was made specifically with the issues of free agency and the reserve clause implemented by the teams. Other sports like basketball has also distinguished and acknowledged the decisions in these cases. This shows that the use of litigation in sports has spawned the possibility of precedence and uniformity in the decisions regarding sports. In the same extent, the use of litigation and court proceedings allows the parties involved for appeal in higher courts. In this manner, parties have a chance to petition higher courts to review the verdict if they are not satisfied. This means that using litigation measures provide a certain level of thoroughness in determining the actual decision of the case. The existence of reviews and appeals indicates that using litigation methods would provide the people involved in the case the assurance that the law is implemented and appropriately applied in their case.
B. Common ADR
The most frequent types of ADR are negotiation, mediation, arbitration among others. Out of which arbitration and mediation are the predominantly accepted. The following discussions will provide a brief description and analysis of the ADR processes indicated.
Negotiations are by far, possibly, the most uncomplicated means of resolving a disputee (2001, 18) claimed that these type of process tends to require an open conversation between the parties involved. In other instances, the parties are inclined to hire representation (lawyers) to deal with the negotiating proceman (2004, 33) similarly claimed that in this process, the outcome almost always satisfy the needs of the parties involved.
In other instances, the parties involved attempt to use mediation as a means to dissolve the existing conflict between them. In this form of dispute settlement, the parties employ an objective individual to serve as a mediator and preside over the proceedings. The mediator is tasked to provide the parties a forum where they could dialogue directly with each other so as to address the existing problem.al, 2005, 10) In this manner, the mediator provides the required atmosphere where the parties could understand the side of each one through proper correspondence and interaction. It is in this process of understanding and empathy that the parties are able to determine the desired outcomes of each other, thus providing an established course where they could build on their agreements.
Another dispute settlement method is arbitration. In arbitration procedures, the parties involved agree beforehand that the outcome of the arbitration process is to be absolute. 2005, 35) This means that the awards given by the arbitrator or arbitrators will be accepted by the parties devoid of any possibility of appeal. Initially, the conflict between the parties is forwarded to an individual or a set of individuals (arbitrators) to settle on a judgement. Arbitrators are frequently selected for their proficiency in the area under discussion out of which the disagreement came about. This means that the parties are able to save time just setting aside any form establishing the particular knowledge to the deciding group. In comparison to litigation cases, the process of arbitration tends to steer clear of the extra effort of arranging to inform the judge and jury regarding matters already within the understanding of the arbitrator.
C. ADR in Sports
Alternative Dispute Resolution (ADR) techniques pertain to ways of addressing conflict without courtroom interference. 2004, 32) There are certain ADR methods on which parties could chose from, basically it is suggested that they acquire a scheme that will suit their needs. The discussions above have given the common methods employed in the ADR process. In the case of international sports federations, they appear to have their own way of addressing conflict internally. However, the legitimacy of it is often disregarded by the parties involved and eventually goes to courts as their final recourse.
The article of Blackshaw (2006) presented the role of the Court of Arbitration for Sports (CAS or Tribunal Arbitral du Sport) in providing a forum where ADR methods are treated with final relief with conflicting sports parties. It is one of the few bodies internationally that parities depend on with regards to their dispute. Accordingaw (2006) the CAS has been the primary enforcer of mandatory arbitration in the sporting world. This shows that more and more participants in sports adhere to ADR methods and even place this on their individual contracts. With over two decades of operations, it seems that the CAS has become a dominant institution in the international sporting world.
Based on the article ow (2006), he noted that the CAS manifests judicial roles similar to both local courts and international courts. However, it is not considered a court because it is not established by any treaty among countries. In the same way, despite the inclusion of the term “arbitration” in its title, the organisation acts as court given that it regards precedence and uniformity in its decisions. In any case, the said body is a great start in establishing the initial steps in self-regulation in international sports.
VI. Conclusion
The discussions above have provided the author’s views on sports and the consequent regimes that govern it. As stated in the earlier claims of this paper, international and global sports law is far from supporting its own in terms of regulating and addressing concerns of parties in conflict. Though litigation is still a viable option, the presence of alternative dispute resolution processes has made conflicts in the sporting world more amenable to resolve. Though the discussions above have considerably been in favour of ADR methods, the researcher still realises the importance of litigation methods in resolving disputes. Nevertheless, in cases involving sports, the study has established that ADR methods are favoured. This is manifested in the fact that federations have their internal way of dealing with conflict among its members. This only reveals the compatibility of ADR with the field of conflict resolution in sports.
Activity 1
The rule of law still governs organisations and other legal entities regardless of whether they possess their own rules and regulation. Apart from being autonomous and having administrative control over the organisation, it is still a double edged sword. It could be used for abuse. The existence of law and its applicability to sport organisations protects those involved from arbitrary use of power. ( 2001) In the same way, the laws provide these organisations the right to exhaust all possible administrative resources before they are consulted. In this sense, the rule of law presents a patently obvious manifestation being an unqualified good, or what other academics called a universal human good. The judiciary serves as the vanguard of these principles. It is in their hands that the rule of law actually be followed. In the case of sporting organisations, they could resolve their conflicts on their own, no one could doubt that. However, they are still allowed to take legal actions if they see that they are still aggrieved. It thus my contention that it is for those involved whether the law should be applied on their case or not. If they are satisfied with the actions made by their federations then all is well and good. The conflict is resolved without adding up to the clogging of court dockets. (2006) However, if they are not satisfied, they could resort to the courts. Courts are permitted to defy and dispute delegated legislation as ultra vires if it goes beyond the extent of authority established by primary legislation or if the acceptable processes have not been complied with. In either way, order is restored.
Activity 2
Activity 3
The discussion regarding the use of CAS indicates that it could only be effective when it is used as a part of a contractual stipulation. This means that the use of CAS often leads to positive results when it is used as mandatory arbitration. Boulle (2005, p. 35) claimed that the arbitration process could be binding or non-binding depending on the agreement of the parties involved. Normally, this is indicated in the contractual stipulations. In instances of a binding arbitration, the arbitrator serves as a judge based on the presented evidence and arguments provided for by the parties involved 2004, p33) On the other hand, a non-binding arbitration process only allows for the arbitrators to forward suggestions and recommendations for the resolution of the dispute. There has been accounts where parties tend to use ADR to “stall court proceedings or as another method of discovery.” (Harmon, 2003, 194) This means that the resultant written settlement agreements of the involved parties are subjected to the propensity of both to actually perform the terms of the agreement. However, there is this tendency for one of the parties who in some ways felt aggrieved by the agreement who will go against it or even forward the claim to the courts. In this sense, the purpose of employing an ADR, and CAS for that matter, in the first place is totally defeated. As indicated in the earlier discussions, CAS is not officially a judicial body so this means that the findings of this organisation could only be used as evidence in the court of law. However in the context of being international, every federation all over the world could use the services of the CAS, thus making it accessible “internationally.” However, given that it is rooted with no state, as per (2001), then it is more global than international.
Activity 4
As far as I see, Kant’s ethical theory of deontology seems to be appropriate in the case of elite sports. The players have this sense of moral obligation to do their best and exert themselves to the limit and in the same time the coaches sense that it is their job to expose the full potential of the athlete.
Regrettably, Joseph’s behaviour is not unique. There have been studies that most coaches in elite sports have used fear and authoritative leadership in treating their athletes. (2000) This means that there are still athletes who are being terrorised out of their wits just to achieve the desired form required by elite sports.
The emergence of sponsorships and even fear of losing their positions may have triggered the way Joseph employ his style of coaching. However, these two are among the major factors that started the trends in international sports. (1998) Corporate sponsorships have been held highly not only by teams but also the leagues on which they play in. Even the Olympics have succumbed to the calls of advertisers and deals from major companies. (1996)
This not only places undue pressure to the players and coaches, it has also changed the dynamics of the games. There are times that players tend to disregard team-play and prefer showboating so as to acquire more sponsorship. The focus of the fans now becomes more cantered on the individual rather than on the team itself.
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