Table of Contents
Background:
If freedom is nature’s gift to mankind, then why would one of man’s favourite activities be away from enjoying it! Thus, sports laws had also developed this notion of enjoying autonomy – which allowed international sporting bodies to demand for immunity from the grasp of domestic courts’ power of judicial review. The sports authorities wanted to be allowed with self-governance and non-accountability.
With more professionalism among athletes and growing commercialisation of sports, the idea of sports to be a sector – effectively maintained & managed by corporate bodies – had come into vogue.
Reforms that followed:
A streak of challenges, consisting of cases of athletes’ getting banned from competing due to drug offences, arbitrary judgement by courts leading to threatening of athletes livelihood, etc. had surfaced before national courts.
To deal with these rising issues, the pre-existing Court of Arbitration for Sport was revamped into a global arbitration institution to include most sports and the International Olympic Committee (IOC) had made it a precondition for sports authorities and athletes to submit before the CAS’ jurisdiction in order to participate in the Olympics.
Besides, at both national and international levels, constitutions and rules books were re-framed into legal documents; tribunals were reconstituted to reflect legal culture, which were often presided directly by lawyers; due process to justice came to be heavily emphasised alongside good governance and proportionality in penalties.
Thus, although having a few issues, the international sporting federations had, at last, achieved their much-demanded autonomy & freedom to govern themselves.
Issues with the legal order:
The much-coveted autonomy for the sporting federations had come with some controversies & limitations:
? The sports laws so framed, were unable to prevent serious abuses and corruption within the governance structure of some international sporting federations;
? These laws were autonomously formed and were immune to legal scrutiny by the domestic judicial systems and the governments of the sporting nations. Thus, the laws so formed by the sporting federations – beyond the purview of the courts – came to be seen as laws without a state.
A tug of war:
The legislative, administrative, judicial, sanctioning and enforcement activities of the international sports bodies clearly demonstrate the tension between their aspiration to freely manage the sports sector without legal intervention and a doubt over their legitimacy, as free from government scrutiny.
“Global sports law is viewed as a transnational order that tries, and in some circumstances actually manages, to circumvent the hierarchy of state law” – Meier and Garcia, 2015; James & Osborn, 2016.
Sports federations have been alleged to frequently ignore state laws, or claim immunity from the domestic legal orders or, at the minimum, seek for a co-existence with domestic state laws.
The World Anti-Doping Code or the “WADA Code” and its very introduction, as a superior mandate over the directives of the other courts had furthered the cold war between sports laws and domestic legal verdicts. As the WADA Code read- “ all courts… should be aware of and respect the distinct nature of the anti-doping rules” (2018).
In its Article 68, the FIFA has imposed compulsory arbitration on players and excluded legal proceedings by the courts:
Article 68(2)- Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA Regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.
Article 68(3)- Instead of ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted tribunal recognised under the rule of the Association or Confederation to CAS.
The Self-Governance Model:
The sports federations have been, since their inception, trying to keep their business and affairs away from political controls. “Sport and politics don’t mix” has been a myth, followed blindly by the federations. Hence, an ideology – of non-politicalness – and a desire to govern (the sports sector) free from government control gave birth to the ‘Self-Governance Model.’
In this regard, the FIFA took a step ahead and embodied in its statutes, the idea of non-interference by national governments and began to practise the same:
- ? Article 13.1 of FIFA’s constitution empowers the national sports federations to ‘manage their affairs independently and ensure that their own affairs are not influenced by any third parties.’
- ? In a study of FIFA’s relations with national governments, Meier and Garcia had concluded that- ‘The presented evidence indicates that FIFA is able to confront national governments and defend its autonomy to govern and regulate football.’ It further reads… ‘The factor most indicative of FIFA’s influence is the fact that case resolutions are invariably in line with FIFA’s preferred solution.’The WADA Code acted as the pivot to bring sports laws under a self-governing mode. The Act was brought-in as a transnational organisation in order to snub off allegedly ‘arbitrary’ and national regimes and to bring anti-doping away from the jurisdiction of domestic courts of the sporting nations.To the readers’ surprise, the International Olympic Committee (IOC) enjoys an observer status at the United Nations General Assembly (UNGA). Thus, establishing the role of the IOC as a legitimate legislator in the international sporting world.
‘A further indication of the supranational nature of international sporting
federations is their claim to a special status in international law’- Beutler
2008; Peacock 2010.
“ The status of observer at the UN General Assembly creates expectations and normative pressure on the IOC … [And] … it represents an important move on the part of the IOC to keep its place as the norm entrepreneur for sport on the international stage. This willingness to ‘stay at the centre’ of sport standards is a characteristic attitude of the IOC choices since the nineteenth century “ – Bousfield & Montsion.
In 2014, by the 69/11 resolution of the United Nations, the IOC’s status as a norm entrepreneur was further reinforced. Thus, the UN gave an official recognition to the IOC’s specific mission – of operating as the leader of an independently sports law-making world – and accepting the autonomy of the sports federations.
Conclusion:
The long-stretched cold war between the autonomy-loving sports federations and the national courts has led to several reforms and debates. However, the sporting bodies – although enjoying autonomy over decisions and activities – haven’t been able to secure a complete sanitization of sporting evils.
In that case, the ‘BCCI model’ can come-up as an example of self-governance, where liberty is granted to the Indian cricket board, but matters regarding maintenance of fairness in governance can also be taken to the Apex Court of the country, where impartial and competent judges are trusted to come up with sustainable solutions and global best practices. Thus, ensuring public trust remains intact with autonomous sporting governance.
