The Author, Shivang Yadav, is a 3rd year student and Harshit Gupta is 4th year student of Dr. Ram Manohar Lohiya National Law University, Lucknow, Uttar Pradesh.
Abstract
The blog discusses the need to introduce 'Arbitration' in the field of Sports law as it contributes towards the steady disposal of disputes arising in and off the field for the welfare of sports. The authors have discussed why there’s an immediate need to promote and bring an efficient working of arbitration in the area of Sports law. The functioning of various national and international bodies that govern such issues has also been talked about in the submission. The piece also discusses the cases where arbitration proved to be an effective way to get the issue addressed at both national as well as international level. In the end, authors have discussed the issues pertaining to the field of sports law along with recommendations to refine the mechanism.
Introduction
Since ever sports has been one of the most significant part of the Indian history ranging from Indus civilization to Mughal dynasty and further continued to the Colonial era but still our nation has failed to acquire an effective dispute resolution method to resolve issues arising in the field of sports law.
Earlier, the only thing that mattered the most was game spirit and people gained fame and recognition because of their talent and extraordinary skills until the ill-practices such as corruption, special treatment, labour abuse, drugs abuse and politics started to interfere which affected the sanctity of sports. In past, there have been several incidences where genuineness of sports has been tarnished by several ill-practices which later have been taken to court and took a long time to get a verdict. These prolonged litigation practices led to late delivery of justice to players and other innocent victims at both domestic as well as on international platform. So, in the present time to tackle such situation there’s a need to introduce a new governing authority to deal with the sports disputes that would render speedy justice and in affordable means and to this “Arbitration” must be considered as an effective tool in the form of law while framing sports laws.
Role of arbitration in the present scenario
In uncomplicated language, ‘arbitration’ can be defined as an alternate dispute resolution (ADR) method, mutually decided by the parties where an arbitrator is appointed, who after reviewing the case gives a decision i.e. legally binding on both the parties. There are several other forms of ADR which includes mediation in which the negotiation settlement is facilitated by a neutral third party. Two noteworthy things about arbitration is that the mode maintains the privacy and confidentiality of both parties by preserving goodwill and reputation which is not in case of litigation.
After recognizing such major issue, government inaugurated India’s first arbitration center in 2009 at Delhi leading to the steady disposals of disputes making arbitration popular among the several methods of disputes resolution but with the numerous cases arising daily it’s not viable to use litigation as a mode of dispute resolution.
Status at International Platform
The viability of arbitration was acknowledged at international platform a long before that in India as Centre of Arbitration for Sports (CAS) was setup in Lausanne, Switzerland by the Indian Olympic Committee (IOC) in year 1983. Centre of Arbitration for Sports is often referred as “Sports supreme court of world” and generally dominates the disputes resolution scene at international arena. It’s the highest authority where auspices arising between sports personnel and sports federations are settled. In CAS, the effective law is mutually decided by the parties otherwise Swiss law is effective. The jurisdiction of CAS is very wide dealing with disputes arising within sports law between the parties defined under section 1 of code.
Thus, CAS is the one of the organizations dealing with disputes arising out of sports, another one was setup in 1994 due to a landmark case of Gundel v. FEI CAS where multiple leading links were drawn between CAS and International Olympic Committee (IOC) as IOC was competent to appoint members of CAS, provide funds and even modify the statutes of CAS leading to question the unrestrained approach of CAS. This led to establishment of a supreme body to CAS named International Council of Arbitration for Sports (ICAS), whose main duty was to protect the independence of CAS by further creating transparent mechanism.
Then considering the binding value of CAS, it is limited to parties who fall under the jurisdiction of the courts leaving behind the non-national parties. This issue was dealt with in the landmark case of Raguz v. Sullivan where one of the two Australian ‘Judokas’ involved in arbitration, challenged an award by the CAS in the New South Wales Court of Appeal. In this case, the court ruled that CAS agreement for arbitration signed between parties was a foreign agreement not a ‘domestic arbitration agreement’ hence declaring it out of the jurisdiction of Australian court of appeal. The court also explained the distinction between the said legal seat of arbitration i.e. Laussane, Switzerland explicitly stated in the CAS agreement and physical seat of arbitration i.e. Sydney, Australia.
CAS has entertained variety of cases but under the ambit of sports law ranging from criminal to doping, the well-known ‘Tonya Harding’s case’ was a hapless case dealing with the criminal nature in the sports arena where the victim Nancy Kerrigan was brutally attacked in the knees during training leaving her unable to participate in the U.S. Figure Skating Championships (USFSC) due to this her biggest rival Tony Harding won the competition. Later the rumors surfaced in media that Tonya was behind the assault leading to the setup of the investigation. The court held Harding guilty, confiscated the 1994 national title(USFSC) and imposed life-ban from the sanctioned event.
Several countries such as UK, South Africa, Canada etc have their independent mechanisms for dispute resolution in sports but CAS has established itself as a “global dispute resolution body”
Indian Context
The present mechanism in the Indian judiciary has led to huge number of cases being piled up and delay in the justice. In India, National Sports Policy of India, Sports Authority of India (SAI), The Sports Broadcasting Laws and the Sports Law and Welfare Associations of India are the names of the governing authorities that manage and tend to regulate the issues that arise in the sphere of sports law in the country apart from the courts.
But in year 2011, India Court of Arbitration for Sports (ICAS) was a body setup to introduce ADR mechanism in sports realm to resolve disputes in earliest way possible as lifespan of a sportsperson is limited and they cannot afford to lose time in litigation. In famous case where Indian wrestler Narsingh Yadav was caught in doping controversy ahead of Olympics 2016 leading to indefinite stop on the wrestler’s career. In the instant case, verdict was decided when the CAS upheld the World Anti- Doping Agency’s appeal against the clean chit given to him. But in several cases still prolonged hearings are going on in courts despite of running lifespan of various athletes.
Contemporary Issues
- Inconsistency in the Mechanism
- The Sports Managements in the state are currently unaware about the rules and procedural aspects of the mechanism which leads to delay in the working which must be resolved.
- Judiciary i.e. most primitive mode of dispute resolution leads to delay in disposal of cases as it’s a prolonged process which leads to end of career of several sports persons.
- Judges who adjudicate the matter in the normal court are not fully-aware of complicated aspects with relation to a particular sport.
- Additional issues
In sports several incidences take place within the heat of the moment but one inappropriate action place athlete in the vulnerable position. Some of them are enlisted below:-
- Drug abuse
- Contractual disputes
- Labour issues
Recommendation and Advantages for the implementation of Arbitration in Sports Law
Since, sports is at the highest ever stake, it is necessary that dispute resolution must be effective and therefore ‘Arbitration’ is a suitable method. It has diversity, swiftness and professionalism. Litigation is not suitable for dispute resolution due to increasing number of disputes.
The current situation requires that the matters must be adjudicated through arbitration having CAS on the international and ICAS on the domestic platform. These specialized forums have a great edge when compared to usual dispute resolution mechanism practiced in normal courts. Some of the advantages with the implementation of arbitration as dispute resolution method are as follows–
- The arbitrators appointed possess the expertise in the intricacies of Sports Law along with the technical knowledge leading to a better understanding of disputes.
- Privacy and integrity are maintained throughout the process by the parties and officials appointed to adjudicate the matter.
- The decision given by the CAS is globally accepted as per the law and jurisdiction as arbitrators appointed by CAS are eminent jurists with regard to international sports community.
- It is a steady process because of a time frame within which dispute has to be resolved. Moreover, having an uncomplicated procedure makes it more convenient.
Conclusion
In India, where sport is considered a religion sports law is relatively a new field of law to study leaving it to face several issues during dispute resolution process. With the presence of such issue, players are on the suffering end. Litigation is long process where the technicalities and nuances are not fully entertained which can be done in Arbitration. Through arbitration both privacy and speed can be taken care of to bring justice to aggrieved party in sphere of sports law. Thus, there exists no doubt that arbitration at any day can be a better option than litigation making the process of dispute resolution in sports law convenient and towards the welfare of sports.
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