Islj 2009 3-4 - TMC Asser Instituut

Institute for Sports Law in The Hague - Holland in the person of Dr.
Robert Siekmann, an expert in Sports Law 86 . By e-mail I could explain
the issue to him and he immediately considered it a very interesting
topic. It was clear to him that it was not an ordinary sport dispute, but
rather an international public and private law related question. A few
mail messages later we decided to have a meeting in Holland to discuss
the matter and, at my request, Siekmann agreed to introduce me to a
reputable lawyer, experienced in CAS procedures and international law,
to guide the CSF and Curaçao through the entire procedure.
In early February 2009 I went to Holland and visited the T.M.C.
Asser Institute for Sports Law. It was an exciting experience meeting
with the world wide recognized sports law expert dr. Siekmann. He
really took time for me and linked me to Prof. dr. Ian Blackshaw, originally
from England but residing in France, introduced by Siekmann
as one of the best European legal counselors regarding sports arbitration
and CAS procedures. 87
Shortly thereafter I had contact with Prof. Blackshaw. I explained
the matter to him in detail. He understood the problem perfectly and
also sensed that it is not a typical sports conflict. At his request I sent
him additional information on my return to Curaçao. In subsequent
mail messages we agreed on some strategically dos and don’ts. It does
not need further clarification that the entire procedure for seeking
IOC recognition by the CSF, fundamentally depends on the fact that
Curaçao indeed will be an autonomous country within the Kingdom
and there must be clarity about the exact date.
6.2 The Sine Qua Non conditions
In addition to the above, the following requirements must be considered
very crucial, without which recognition is unachievable.
Sine Qua Non condition #1
One of the legal requirements at this point in time recommended by
Blackshaw was that the CSF must formally claim its position and officially
inform the NAOC and the IOC that it reserves the right to seek
proper IOC recognition once Curaçao becomes autonomous.
According to Blackshaw, this is essential for the rest of the procedure,
since after analyzing the documentation provided, we agreed that the
NAOC information given to the IOC, confirms that all the five islands
of the Netherlands Antilles have agreed in advance to continue with
the NAOC as a territorial NOC, once the dissolution of the
Netherlands Antilles takes effect. In the documentation mentioned in
chapters 2 and 3, it can be seen that both, the IOC and the NOC/NSF,
did realize the juridical importance of this 88 .
Shortly after my return to Curaçao, preparations for a presentation
for the CSF General Assembly started. An important goal was to
obtain the green light for our exploring intentions and simultaneously
achieve the formal appointment of a well balanced working group
(board members and delegates) to deal with the matter. In order to be
able to keep things moving, it was necessary for us to offer the
General Assembly our ongoing support and be appointed as advisors
to the working group 89 . The first step worked out well. After an hour
of giving information and answering a number of questions, the CSF
General Assembly concluded that it will pursue proper IOC recognition.
Our plan of action presented, including the appointment of a
working group, was unanimously accepted. Having the blessing of the
General Assembly of the CSF is an important sine qua non condition for
initiating the next step.
Sine Qua Non condition # 2
Within days the working group released a letter announcing their
existence to the island government, copy to the NAOC, the IOC and
86 www.sportslaw.nl/categorieen/
intro.asp?c_nr=10&l2= - 626k.
87 www.sportslaw.nl/categorieen/
intro.asp?sub_categorie=77 - 73k.
88 IOC letter of June 18th 2007 , paragraph
I point A
89 Articles of Associations Curaçao Sport
Federation ( 2007 ) , article 14
90CSF letter to Island Council of Curaçao,
April 16 2009.
91 Olympic Charter Bye-Laws to Rules 28 -
29 , 1.2.
92 Olympic Charter Rule 3.2.
the Minister of Sports of the Netherlands Antilles. In this letter the
CSF requests the government to take into account the fact that the
General Assembly of the CSF, after receiving circumstantial information,
has decided unanimously to exercise its right resulting from the
constitutional alteration, seeking proper IOC recognition 90 . The CSF
made it clear that there has never been an agreement with the NAOC
and that the CSF has never abandoned its position of lawful representative
of the sports federations of Curaçao. Legally this closes the door
on the NAOC as regards continuing with whatever scenario.
Stopping any further damaging activities on the part of the NAOC is
crucial and will allow the CSF the ease to overlook the new situation
and to come to necessary preparatory steps. Among other things, an
important one is that at least five member federations (IF’s) of the
CSF have to become direct members of their specific international
federation (IF). This procedure should be initiated the soonest as
proof of this process will be needed to support the request to the IOC.
Any organization filing for IOC recognition as an NOC must prove that
it has at least five member federations affiliated with their IF 91 , a sine qua
non condition to initiate IOC recognition.
Sine Qua Non condition # 3
I have matched the CSF Articles of Association with the Charter on
conformity. This aspect is fundamental since non-conformity leads to
early IOC dismissal of recognition request. Any NOC filing for IOC
recognition must prove to have included certain compulsory rules in
its Articles of Association. The following are the adaptations the CSF
will at least have to make in its Articles of Associations to become eligible
for filing to acquire IOC recognition.
1. have legal status, unless excused, ex Rule 3.2
2. be the national sports association of the country, ex Rule 3.2
3. include that the CSF will promote Olympism as a co-objective and
supports the Olympic Movement. Ex Rule 28.2
4. accept all NFs, affiliated with their respective IOC recognized IFs,
as members. Ex Rule 29.1.2
5. include all active and retired Olympic athletes originating from
Curaçao. Ex Rule 29.1.3
This Statutory compatibility with the Charter is a sine qua non condition
92 .
Sine Qua Non condition # 4
Although not within the scope of my Thesis, I can’t ignore the need
of funds for this operation. Aware of the constraint this may represent
for the CSF, the working group had preliminary conversations with
Island Council members. They were confronted with the idea that
any expenses incurred in connection with the CSF’s efforts to seek
IOC recognition, are a direct consequence of the constitutional
change and of the general interest. The working group has given a
number of examples of costs covered by the budget for constitutional
change and has filed a written request to the island government for
the same. It looks right to me that the CSF attempt to get IOC recognition
is directly linked to the status change and also of general interest.
Consequently, the costs should be covered by designated funds
against the effects of the constitutional alteration. The legal guidance
to the acquire recognition at the IOC, and, if required, the procedure
at the CAS, will surely require legal fees and other related costs. I have
referred earlier to the Sports Related Arbitration Code and noted that
the CAS only reviews rejected facts/grounds and not accepts new
arguments. In other words, the CSF will need expertise as early as the
initial filing with the IOC for effective presentation of the legal arguments
dealing with Rule 31.1. Adding new elements to the denied
request when presenting the case to the CAS, is not permissible.
Timely availability of funds must therefore also be regarded a sine qua
non condition.
7. The juridical justification of the CSF request
The information and remarks of the previous chapters show the necessary
aspects for the right valuation and understanding of the legal
complications involved with the intention of the CSF to seek IOC
recognition. No doubt it all looks quite complicated and difficult;
56 2009/3-4
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