(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

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or CAS awards at times will create tensions with national laws. Because sports are a microcosm of society 41 , an examination of how these confl icts are being resolved and the corresponding effects is fertile ground for academic discourse. Sports are a crucible for consideration of important global legal issues and presents an opportunity to examine the intersection between global alternative dispute resolution, international law, and national sovereignty 42 . In their introduction to a recent American Journal of Comparative Law symposium issue on Beyond the State: Rethinking Private Law, the authors observe that “it is precisely because globalization moves us ‘beyond the state’ that we are, more than ever, forced to rethink private law and its relation to the state” 43 . One of the issue’s fi fteen articles recognizes--in a cursory and rather oblique manner- -that inter-national sports federation ethical codes and disciplinary sanctions for violations are a form of global private law 44 . Another article briefl y notes that rules regulating economic transactions among sports federation members, such as player transfers, also constitute global private law 45 . However, although Olympic and international sports competition gives rise to a paradigm example of global legal pluralism 46 , 41. See generally Matthew J. MITTEN, Foreword, 38 S. Tex. L. Rev. 999 (1997). 42. Almost twenty years ago, Professor James Nafziger, a leading international law and international sports law scholar, observed: The much-neglected fi eld of international sports law is changing signifi cantly.... The evolving legal framework has important implications for participants and spectators in both sports and the international legal process. Among students and practitioners of international law, the role of nongovernmental sports organizations in gaining governmental and intergovernmental support, in shaping a still immature body of law, in acquiring a measure of legal personality, and in responding to new issues is of general professional interest. Athletic competition is a fundamental human activity whose history has been replete with international problems. Understanding the peculiar blending of governmental, intergovernmental and nongovernmental authority over political and other consequences of sports activity is therefore signifi cant. James A.R. NAFZIGER, International Sports Law: A Replay of Characteristics and Trends, 86 Am. J. Int’l L. 489, 489 (1992) (footnote omitted); see also James A.R. NAFZIGER, International Sports Law as a Process for Resolving Disputes, 45 Int’l & Comp. L.Q. 130, 149 (1996) (“Normative trends thus confi rm a growing commitment of national legal systems to the special processes of international sports law. The [CAS], in particular, is assuming a central position for avoiding, managing and resolving international disputes. What remains is for the legal profession throughout the world to take international sports law seriously.”). 43. Nils JANSEN & Ralf MICHAELS, Beyond the State? Rethinking Private Law: Introduction to the Issue, 56 Am. J. Comp. L. 527, 527 (2008). 44. Christiane C. WENDEHORST, The State as a Foundation of Private Law Reasoning, 56 Am. J. Comp. L. 567, 593-95 (2008). 45. Jürgen BASEDOW, The State’s Private Law and the Economy-- Commercial Law as an Amalgam of Public and Private Rule-Making, 56 Am. J. Comp. L. 703, 709-11 (2008). 46. Legal pluralism is based on “the premise that people belong to (or feel affi liated with) multiple groups and understand themselves to be bound by the norms of these multiple groups”. Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155, 1169 (2007). “[M]any community affi liations ... may at various times exert tremendous power over our actions even though they are not part of an ‘offi cial’ statebased system”. Id. at 1170. Thus, “situations [arise] in which two or more state and non-state normative systems occupy the same social fi eld and must negotiate the resulting hybrid legal space”. Id. Confl icts arising out of overlapping legal rules created by Olympic and international sports private agreements and national laws must be resolved either by “reimposing the primacy of territorially-based (and often nation- neither article recognizes the two situations in which a developing body of international sports law arising primarily out of the resolution of disputes between private parties interacts with national law, much less considers or analyzes this phenomenon from a scholarly perspective 47 . A. Evolving judicial treatment of international sports agreements and rules: traditional vs. deferential approach As the scope and detail of Olympic and international sports rules continue to expand, they may confl ict with national laws, thereby motivating athletes and others to seek the aid of a national court to overturn the adverse effects of those rules, at least within their respective home countries. Unless doing so would contravene valid and applicable choice of law provisions, a domestic court generally will apply its substantive national law in resolving disputes within its jurisdiction. Therefore, Olympic and international sports agreements and rules must comply with national law, and some domestic courts have ruled accordingly. On the other hand, other courts have adopted a deferential approach by refusing to apply national law to the challenged rules or agreements. The following 1988 case illustrates the traditional judicial approach. In Barnard v Australian Soccer Federation, the Federal Court of Australia ruled that the Australian Soccer Federation (ASF) violated Australian competition law by banning the plaintiff, who played both semiprofessional indoor and outdoor soccer, from competing in outdoor soccer competitions 48 . At the time, the Federation of International Football Associations (FIFA), the IF for soccer, and the Federaçao Internacional de Salao (FIFUSA) were rivals for governing authority state-based) authority or by seeking universal harmonization”. Id. at 1162. 47. The tide, however, is changing. In his concluding remarks during the 60th Congress of the International Association of Legal Science, which was hosted by the Istanbul University Law Faculty Centre for Comparative Law, in Istanbul, Turkey, on May 13-14, 2010, Mauro Bussani, Professor of Comparative Law at the University of Trieste, Italy, observed that comparative sports law is a “very attractive scientifi c discipline.” He stated: [C]onceiving sports law just as a legal specialization, in which national and international legal doctrines are subject to special deviations, exceptions, exclusions, would be inconsistent with reality. As my learned colleagues showed us during these two days, sports law can indeed be viewed as a legal system in itself. .... As any legal system, sports law has its own institutions, procedures, and rules. As most legal systems, it is made up of different layers, which present themselves as stratifi ed one upon the other. Some of these layers are regionally fragmented, while others have been internationally harmonized by homogenous practices. Legal solutions often circulate from one region to the other ones, and frequently this circulation gives rise to legal transplants and legal borrowing. Mauro Bussani, Professor of Comparative Law at the University of Trieste, Italy, Remarks at 60th Congress of the Int’l Ass’n of Legal Science (May 13-14, 2010) (transcript on fi le with authors). 48. Barnard v Australian Soccer Fed’n (1988) 81 ALR 51. Articles et commentaires / Articles and commentaries - 7
over the emerging game of indoor soccer. FIFA sought to extend its control to encompass indoor as well as outdoor soccer by directing its national affi liated bodies, including the ASF, to impose bans on players who played in FIFUSA-sponsored indoor soccer competitions. In turn, the ASF directed its regional affi liate, the Queensland Soccer Federation, to ban the plaintiff from playing in its outdoor competitions. Recognizing the primacy of Australian national law, the court rejected the ASF’s defense that it was contractually obligated to follow FIFA’s rules and may be disciplined by FIFA for failing to ban the plaintiff. An analogous example of the traditional approach is the European Court of Justice (ECJ)’s 1995 ruling applying European transnational laws in Union Royale Belge des Sociétiés de Football Association ASBL v Bosman, perhaps the world’s most famous sports law case 49 . It involved a successful challenge to the core labor market rules of soccer, the world’s most widely played and followed sport. The plaintiff was an out-of-contract Belgian professional player who was offered a contract to play for a French soccer club. The rules of the defendant Belgian soccer governing body incorporated European Union of Football Associations (UEFA) regulations establishing a transfer fee system and limiting the number of nonnationals who could play for domestic professional clubs. Despite plaintiff’s uncontracted status, he needed his former club’s approval to play for a new club, which was conditioned upon the latter’s payment of a prescribed player transfer fee. The player transfer fee requirement was part of an elaborate international system (of which FIFA and UEFA were the main proponents) governing the movement of soccer players between clubs--a system which an English court some years earlier had described as “a united monolithic front all over the world 50 ”. The ECJ held that these rules contravened article 48 of the then-European Community Treaty (now article 45 of the Treaty on European Union (EU Treaty)), which guarantees European workers freedom of movement between member countries and 49. 1995 E.C.R. I-4921 (E.C.J.). The case and its consequences have generated a voluminous literature in books and articles. See, e.g., ROGER BLANPAIN & RITA INSTON, The Bosman Case: The End of the Transfer System? (1996); David MCARDLE, From Boot Money to Bosman: Football, Society and the Law (2000); Stefaan VAN DEN BOGAERT, Practical Regulation of the Mobility of Sportsmen in the EU Post Bosman (2005); Braham Dabscheck, The Globe at Their Feet: FIFA’s New Employment Rules--I, Sport in Soc’y, Spring 2004, at 1, 69; Braham DABSCHECK, The Globe at Their Feet: FIFA’s New Employment Rules--II, Sport in Soc’y, Jan. 2006, at 1, 1; P.E. Morris, S. MORROW & P.M. SPINK, EC Law and Professional Football: Bosman and Its Implications, 59 Mod. L. Rev. 893 (1996); Jens Pelle VAN DEN BRINK, E.C. Competition Law and the Regulation of Football: Part I, 21 Eur. Competition L. Rev. 359 (2000); Jens Pelle VAN DEN BRINK, E.C. Competition Law and the Regulation of Football: Part II, 21 Eur. Competition L. Rev. 420 (2000). 50. Eastham v. Newcastle United Football Club Ltd., [1964] Ch. 413 at 438 (Eng.). prohibits discrimination on grounds of nationality 51 . Bosman generated a “welter of publicity” 52 , but it was an unsurprising result to informed observers 53 because the court ruled that international sports rules and agreements are subject to applicable transnational laws; here, a regional international treaty is given domestic application 54 . In contrast to the foregoing traditional view is the deferential approach of some courts, which demonstrates a judicial reluctance to apply national laws to Olympic and international sports rules and agreements. For example, some national courts have refused to apply national laws protecting human rights to international sports competitions held within their respective country’s borders. United States courts generally have rejected claimed violations of federal or state law in connection with Olympic Games hosted by American cities. For example, in Martin v. International Olympic Committee, the United States Court of Appeals for the Ninth Circuit affi rmed the denial of a preliminary injunction to require the organizers of the 1984 Los Angeles Summer Olympic Games to include 5,000- and 10,000-meter track events for women, which already existed for men 55 . The court rejected plaintiffs’ claims that the failure to include these events constituted illegal gender discrimination, even 51. The ECJ considered it unnecessary to adjudicate plaintiff’s claim that the rules contravened articles 85 and 86 (now articles 101 and 102) relating to freedom of economic competition. 52. MORRIS, Morrow & Spink, supra note 108, at 902. 53. Courts in other countries had long recognized the contrariness of such transfer systems to laws protecting freedom of economic competition and employment. See, e.g., Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976); Buckley v Tutty (1971) 125 CLR 353 (Austl.); Blackler v N.Z. Rugby Football League, Inc. [1968] NZLR 547. In Europe, serious doubt existed as well. See, e.g., Eastham v. Newcastle United Football Club Ltd., [1964] Ch. 413 (Eng.); Janssen VAN RAAY, Report of the Committee on Legal Affairs and Citizens’ Rights on the Freedom of Movement of Professional Footballers in the Community (European Parliament, Session Documents Series A, Mar. 1, 1989). 54. Bosman demonstrates that court rulings which apply national laws to interna-tional sports rules and agreements can prove to be problematic because they do not accommodate the special circumstances and needs of international sports. FIFA responded to the ruling by amending its transfer regulations, which caused some Belgian trade unions to fi le a complaint with the European Commission alleging contravention of competition law (articles 85 and 86 of the EC Treaty--now articles 101 and 102 of the EU Treaty). Following protracted negotiation and political lobbying, during which FIFA and UEFA were able to convince the Commission of the special economics and social status of soccer, an agreement was reached on new Regulations for the Status and Transfer of Players to apply worldwide. See Braham DABSCHECK, The Globe at Their Feet: FIFA’s New Employment Rules--I, Sport in Soc’y, Spring 2004, at 1, 69. The development of the new rules was strongly infl uenced by European perspectives and it is an issue worthy of scholarly investigation as to whether the socioeconomic and legal perspectives of Asia and the Americas have been suffi ciently considered in adopting these worldwide rules. 55. Martin v. Int’l Olympic Comm., 740 F.2d 670 (9th Cir. 1984). American courts also have rejected state discrimination law claims by foreign athletes seeking to march in opening ceremonies in Olympic Games held in the United States under fl ags of countries not recognized by the IOC. See Ren-Guey v. Lake Placid 1980 Olympic Games, Inc., 424 N.Y.S.2d 535 (N.Y. App. Div. 1980), aff’d, 429 N.Y.S.2d 473 (1980); Spindulys v. L.A. Olympic Org. Comm., 220 Cal. Rptr. 565 (Cal. Ct. App. 1985). Articles et commentaires / Articles and commentaries - 8
Page 1 and 2: Bulletin TAS CAS Bulletin 1 / 2012
Page 3 and 4: Arbitration CAS 2011/O/2422 .......
Page 5 and 6: “ Sports law ”: implications fo
Page 7 and 8: and procedures of the CAS 10 . The
Page 9: 2. Considering the plenary power of
Page 13 and 14: appeals arbitration proceedings, ab
Page 15 and 16: troubling because . . . United Stat
Page 17 and 18: La médiation : processus et applic
Page 19 and 20: Ainsi, la solution au confl it éma
Page 21 and 22: voir sa demande profonde comprise :
Page 23 and 24: pour les parties elles-mêmes. Cell
Page 25 and 26: divergent sur l’exécution (mer/m
Page 27 and 28: Ces deux grands courants font l’o
Page 29 and 30: peine de retomber rapidement dans u
Page 31 and 32: mémoires déposés par les parties
Page 33 and 34: d’un règlement d’obtenir un av
Page 35 and 36: • une brève description des moye
Page 37 and 38: R64.2 (…) R65 Appels contre des d
Page 39 and 40: written comments and shall give bri
Page 41 and 42: his own discretion, the questions s
Page 43 and 44: strong links between the two 1 . In
Page 45 and 46: According to Article 17.4 “If any
Page 47 and 48: Finally, in the absence of other de
Page 49 and 50: epresentative (Respondent) argued t
Page 51 and 52: Figure 2: Orders on language in CAS
Page 53 and 54: litiges pouvant être soumis à la
Page 55 and 56: au lien du litige en cause avec le
Page 57 and 58: Contrairement aux autres institutio
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Investigating magistrate no. 31 of
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2. Proper Defendants Article 282 of
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interference by state courts) with
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against doping in sports. To achiev
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Arbitration CAS 2010/A/2091 Dennis
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had stated that his claim had been
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effectiveness and validity of that
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another players’ agent (…) oper
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Beitar FC. In the Appellant’s vie
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The referred letter, in its pertine
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8. Condemn the Respondent to the pa
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It is clear for the Panel that the
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damage. There is wilful damage when
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in the determination of the compens
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Arbitration TAS 2010/A/2220 Corina
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En date du 27 août 2010, l’Appel
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2010, le droit de Greffe acquitté
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Il relève en effet que leur versio
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Arbitration C AS 2010/A/2275 Croati
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of golf clubs in Croatia had withdr
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(depending upon the translation) th
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waiting until the eve of the AGM 20
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provisional suspension and also to
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that it did not have any particular
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c) The resolution fi le dated Febru
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2011, Art. 156 no. 11 ff) if the ev
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Article 293 UCI ADR determines the
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The Decision seems to be based on t
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clenbuterol can only have entered t
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- how the Prohibited Substance ente
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entry into his system of the Prohib
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which will be addressed in detail b
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in those countries is rampant. Sinc
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as high as 1 out of 100 slaughtered
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athletes having tested positive to
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illustrate that his blood values ar
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specifi c gravity of 1.020. Without
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values of subjects that did not und
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urine tests performed the evenings
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WADA that the calculations regardin
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One of the reasons for that could b
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ingested by him was contaminated wi
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The Athlete refers the Panel to the
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athlete but withdrawn once the time
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The USOC argues that the IOC Regula
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period of ineligibility (non-partic
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Arbitrage TAS 2011/A/2433 Amadou Di
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précisions sur les offres que le Q
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estrictions, non, entre les comité
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En date du 3 février 2011, la Comm
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II 271; H.M. RIEMER, Berner Komment
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onne foi et de respect de la procé
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son exploitation mais, comme observ
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des droits de la personnalité. L
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ne peut que prendre note de remarqu
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En l’espèce, celui qui cherchait
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évidence le fait que leur “condu
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toute activité liée au football
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Extracts from the legal fi ndings A
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Arbitration CAS 2011/O/2574 Union o
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SFL Appeals Tribunal of 29 July 201
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its position on OLA’s request for
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- production par la fondation du co
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(iii) To confi rm that OLA is not e
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CCP. The substantive validity of th
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2.2 Article R46 (1) of the CAS Code
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constitutive of an abuse of a domin
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Claimant to indicate its prayers fo
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It results from the above that UEFA
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The UEL 2011/2012 is an internation
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The Panel considers that the sancti
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- discriminate OLA pursuant to Arti
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Appellant requested the matter be d
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The Panel is satisfi ed that the Bu
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E. Conclusion In summary, the Panel
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Appellant described as caffeine pil
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apply the various regulations of FI
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in doping matters is to be upheld w
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* * 4A_404/2010 Judgment of 19 Apri
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BGG; Jean-Maurice Frésard, in Comm
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Art. 2.1 of the Statutes of Respond
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validity, namely with regard to its
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that he is a Turkish citizen, who p
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in the provisions of any other serv
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Respondent had their domicile, seat
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evidential submission took place ti
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un contrôle antidopage ou à l’a
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essortissant à la conception suiss
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4A_428/2011 Arrêt du 13 février 2
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interdiction d’exécuter les sanc
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Il leur a cependant échappé que c
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éférence (arrêt 4A_246/2011 du 7
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l’AMA entendait tirer de la Conve
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4A_652/2011 Arrêt du 7 mars 2012 I
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