Islj 2009 3-4 - TMC Asser Instituut

petition and the prizes or rewards in accordance with Articles 850 and
851 of the Civil Code.
This provision, probably without the legislator’s intention, means a
significant breakthrough in the perception of sport rules adopted by
sport associations. The rules of national sport associations on the
organization of sport competitions are now no longer merely a contractual
matter, but the competence of national sport associations to
adopt such rules is defined by law. The recipients of these rules will
have to abide by them, regardless of their acceptance of them at the
time of application for a competition, application for membership of
the national association, etc. This could be said to constitute a delegation
of state authority to national sport associations in determining
the rights and duties of participants in sport competitions, candidates
for participation in sport competitions or other entities involved in
sport competitions.
It should be mentioned that the legal acknowledgment of these
competences of national sport associations does not alter the fact that
the rules issued by them must be in accordance with mandatory rules
of law.
In our opinion, sport rules, even if they are issued in accordance
with legal authorization, cannot prevail over generally binding legal
provisions. In spite of their legal authorization, they fail to meet the
conditions for classification as normative legal acts, because they are
not necessarily published in a way described by law. 10 For this reason,
we believe that such regulations are subordinate to mandatory rules in
all normative legal acts 11 .
In our opinion, the legal solution adopted acknowledges the right
of national sport associations to adopt provisions which are not related
to their own organization, but are also related to the commercial
activity of their members, as was also an objection raised by the Court
of first instance when it reviewed the nature of sport rules, for example
in the judgment in the Piau case.
The question still remains as to how broadly we should interpret
the authorization of national associations to determine the rules of
sport competitions. Should the authorization include rules for the TV
or radio broadcasting of sport events, or rules for employing players’
agents? If so, then these rules would be automatically binding upon
entities that are not members of national sport associations, for example
television companies or drafters of professional sport contracts, all
on the basis of Article 8(3) of the Act on the organization and support
of sport.
4.4. Dispute resolution in sport
Part 4 of the Act on the organization and support of sport containing
Articles 24-27 that deal with dispute resolution in sport will have significant
impact on the legal situation in sport. The Act still distinguishes
between the resolution of disputes that arise in the course of
a particular team game or an individual performance and disputes
that arise outside this context.
The resolution of disputes arising during the course of the game is
left to the competence of the sport associations or to arbitrators
appointed by them under the rules of the sport association concerned
(i.e. not in accordance with Act no. 244/2020 on arbitral proceedings)
and arbittrators’ decisions in such cases are final. It is apparent that
the legislator clearly wished to exclude such arbitral awards from
appeal proceedings or special proceedings so that the smooth running
of the competition is not disrupted. This is a case of legal delegation
of the competence to issue individual legal acts. However, what if a
10 See Bröstl, A. - Dobrovicová, G. -
Kanárik, I.: Teória práva, Košice: UPJŠ,
2004, p. 46
11 The publication of legal acts nowadays
makes for the only difference between
rules adopted by sport administration
bodies and generally binding provisions
adopted by municipalities as local
authorities. This cannot be said about
the relationship between the norms of
sport associations and generally binding
provisions of municipalities as these are
original normative legal acts, idem, p.
57.
12 It is interesting to note that the Act only
excludes decision making in contractual
disputes concerning labour law and private
law. The legislator apparently forgot
about possible conflicts arising outside
the scope of contracts where there is no
reason for any deciding authority of the
sport association as such disputes do not
follow from the contractual relationship
between their members.
participant in a sport competition feels prejudiced by the arbitrator’s
decision in the course of a game and decides to turn to a general court
with a claim for reparation? Claims for reparation are typically cases
for private (or alternatively commercial) law and a court will have to
hear such a case or it could be considered as a refusal of justice
(denegatio iustitiae).
National sport associations are also authorized to decide in cases
that arise outside the course of a particular game and involve breaches
of the rules for competition or of the rules of national associations
that regulate disputes between:
a) the organizer of a sport event and a sport club participating in such
an event or an athlete competing individually and in his own name;
b) sport clubs that are members of the national sport association if the
dispute does not relate to commercial law or property issues;
c) a sport club that is a member of a national sport association and an
athlete or sport expert who is a member of or has a contractual relationship
with the sport club if the dispute does not relate to the fulfilment
of contractual obligations concerning labour law or private
law rights, as such disputes have to be decided by the relevant
courts.
The legislator thus attempts carefully to allocate competence between
the national sport associations and the courts. This demarcation of
the discretionary powers of national associations within the law
strengthens the overall position of national associations and the
authority of their decisions. It could be said that the Act acknowledges
the legal authorization of national sport associations to issue
individual legal acts. We have to appreciate the contribution of the
new Act in this field, as it clearly declares that issues closely related to
the organization of sports events are subject to a certain degree of
autonomy and that the state should not interfere in this without sufficient
reason. However, in our opinion, this does not mean that
authorized decisions of national associations may not be reviewed by
the general courts under the aforementioned Article 15 of Act no.
83/1990 on associations. Decisions of national associations made outside
the context of a particular game are not considered final according
to the Act on the organization and support of sport (other than is
the case for arbitrator’s decisions as mentioned above). In reviewing
such decisions, the general courts will only investigate whether the
decision of the national association is not contrary to its rules or regulations
or to provisions of law that prevail over the provisions of
sport associations or sport competitions’ regulations. National associations
should not presume to take over the role of general courts, as
decision making in commercial disputes between sport clubs is
excluded from their authority by law (it is not clear why the situation
is not the same in respect of private law disputes). Outside their
authority is also decision making regarding labour law and private law
claims arising in contractual relationships 12 between clubs and athletes
or coaches. These are disputes that according to Article 7 of the Civil
Code belong to the jurisdiction of the general courts. However, this
does not eliminate the possibility of sidestepping the jurisdiction of
the general courts through arbitral action.
Typical disputes that are to be decided by national associations outside
the course of a particular game may for example be disputes
regarding permission to participate in the competition or refusal of
such permission. Possible claims for damages submitted by sport
clubs that are refused permission to compete will still be decided by
the general courts.
It is worth noting that the Act presumes that a commercial law relationship
is mainly developed between sport clubs. Although the Act
does not contain a legal definition of either team or individual sport,
in Article 25(1)(a) it discusses the legal relationship between the organizer
of a sport competition on the one hand and a sport club or an
athlete performing individually and in his own name on the other. In
this way, the legislator implies criteria for the distinction between
team sports and individual sports. These criteria would then establish
whether a participant in a sport competition is a sport club or an athlete
competing individually and in his own name - similarly to what
we stressed elsewhere in the present article. 13 2009/3-4 69
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