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Protecting arbitration

FIFA describes its Statutes as ‘the constitution of FIFA and world football’.[1] [2] This is perfectly accurate. They are not a state constitution, but they bring together the rules and working methods of FIFA, the organization that stands at the apex of the global governance pyramid of the sport of football. The rules constitute the entity— which is FIFA.

FIFA’s Statutes make careful provision for the dominant role of arbitration, and they place the CAS in a presiding role. Article 59(1) of the currently applicable Statutes5 directs that: ‘The confederations, member associations and leagues shall agree to recognise CAS as an independent judicial authority and to ensure that their members, affiliated players and officials comply with the decisions passed by CAS.’ The same obligation is extended to intermediaries and licensed match agents. Article 57 adds that ‘FIFA recognises the independent Court of Arbitration for Sport (CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, officials, intermediaries and licensed match agents’, and that: ‘The provisions of the CAS Code of Sports-related Arbitration shall apply to the proceedings. CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law.’

The aim, however, is more ambitious than simply to engage CAS in dispute resolution. The FIFA Statutes seek to confer exclusive jurisdiction on CAS. Article 59(2) provides that ‘Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations’ and also that: ‘Recourse to ordinary courts of law for all types of provisional measures is also prohibited.’ Article 59(3) seeks to ensure the implementation of this exclusion of ordinary courts within the several lower layers of the organizational pyramid over which FIFA rules as the global body. Article 59(3) provides:

The associations shall insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in the association or disputes affecting leagues, members of leagues, clubs, members of clubs, players, officials and other association officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to ordinary courts of law. Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the association or confederation or to CAS. The associations shall also ensure that this stipulation is implemented in the association, if necessary by imposing a binding obligation on its members ...

Were a party to this contractual network to seek to break out of its bonds and to route a claim through the ordinary courts of a state then it would be open to FIFA to rely on these provisions as a reason why such ordinary courts should not claim jurisdiction to hear a case. An agreement to commit to arbitration and not to litigate is binding as a contract in the normal way. A national court should respect the contractually agreed exclusion of its own jurisdiction over the matter. The multijurisdictional excursion that would be needed to provide an exhaustive account of practice will not be pursued here: suffice to say that at national level, through judicial practice and commonly pursuant to statutory mandate, and at international level, most of all because of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, also known as the New York Convention, the promise not to litigate is typically enforced. Remedies vary according to circumstances and there are distinctions at the level of detail between common and civil law systems but, beyond simple refusal to consider the substance of a case which the parties have agreed to send to arbitration, they include orders to compel arbitration, antisuit injunctions, non-recognition of judgments which are obtained in breach of a valid agreement to arbitrate, and conceivably an award of damages.[3]

In the consumer context the EU asserts a power to check whether clauses that require that disputes be taken exclusively to arbitration are fair and, if they are not, to treat them as unenforceable.[4] This is one aspect of the EU’s relative readiness to intervene in the process of arbitration in order to protect its values and it is for that reason generally treated with some hostility by arbitration specialists. The wider context of EU interventionism, and its possible application to sport, is considered more fully later.

There is, however, more to FIFA’s exclusion of recourse to ordinary courts of law under its Statutes. Article 59(3)’s concluding sentence adds teeth. It provides that: ‘The associations shall impose sanctions on any party that fails to respect this obligation and ensure that any appeal against such sanctions shall likewise be strictly submitted to arbitration, and not to ordinary courts of law.’ Article 61 provides more broadly that ‘Any violation of the foregoing provisions will be punished in compliance with the FIFA Disciplinary Code’. As shown in section 2.2.8, such sanctions are on occasion imposed, in the event that these contractual obligations are disrespected.

FIFA, then, establishes a contractual network into which other parties in the ‘pyramid’ of sporting governance—most prominently, the continental confederations and national associations—are locked, under which they accept and will enforce on their clubs and players the central place of the CAS and normally too, in conjunction, the exclusion of recourse to ordinary courts of law. And, moreover, sanctions are available to discipline those who would seek to break out of this system of arbitration by engaging with ordinary courts.

This amounts to a thorough and vigorous protection of the lex sportiva. The plan is to resolve sporting disputes internally by isolating them from the ordinary courts of law. Comparable provisions allocating to the CAS the job of arbitrating disputes may be found in the constitutions of many other sporting bodies, and usually in company with an exclusivity proviso that shuts off recourse to ordinary courts of law. For example, Article 61 of the Olympic Charter is entitled ‘Dispute Resolution’. It provides that any dispute relating to the application or interpretation of decisions of the IOC ‘may be resolved solely by the IOC Executive Board and, in certain cases, by arbitration before the Court of Arbitration for Sport (CAS)’; and that any dispute ‘arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport (CAS), in accordance with the Code of Sports-Related Arbitration’.[5]

There is in fact a high level of coordination among governing bodies. Most sports federations are based in Switzerland.[6] Reasons for this include matters of tax and transparency (in relative terms there is not much of either), but the effect is to promote shared practice. In general, sports federations have much in common with each other, though, judged according to their organizational character, functions, and strategic roles, they are not identical.[7]

  • [1] accessed29 November 2016.
  • [2] The current—April 2016—version of the Statutes is at accessed 29 November 2016.
  • [3] G Born, International Commercial Arbitration (2nd edn, Kluwer 2014) ch 8; M Moses, ThePrinciples and Practice of International Commercial Litigation (2nd edn, CUP 2012) ch 5; N Blackaby,C Partasides, A Redfern, and M Hunter (eds), Redfern and Hunter on International CommercialArbitration (6th edn, OUP 2015) ch 7.
  • [4] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJL95/29.
  • [5] version in force from August2015, accessed 29 November 2016. See generally AM Mestre, The Law of the Olympic Games (TMCAsser 2009).
  • [6] C Dudognon, ‘The Standard International Sports Federation: An Association under Swiss Lawwith its Headquarters in Lausanne’ [2014] Intl Sports L Rev 50.
  • [7] F Lefebvre-Rangeon and C Dudognon, ‘Typological, Institutional and Legal Analysis ofInternational Sports Federations’ [2014] Intl Sports L Rev 79; A Geeraert, J Alm, and M Groll, ‘GoodGovernance in International Sport Organisations: An Analysis of the 35 Olympic Sport GoverningBodies’ (2014) 6 International Journal of Sport Policy and Politics 281.
 
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