Source: lexismiddleeast.com
Abstract
Sports arbitration has become more prominent in the Gulf Cooperation Council region in the last few years. Whilst some of the background to a sports arbitration will be well understood by many lawyers it is a technical area and not all parts of the process may be clear to those who have not had prior direct involvement. This article looks at what sports arbitration is and how it operates in the GCC region.
Analysis
The Gulf region (Gulf or GCC) is a significant venue for major sporting events of worldwide importance. The 2022 World Cup will be held in Qatar. The Abu Dhabi grand prix is a long standing fixture in the Formula 1 season. More recently the 2018 Race of Champions which saw drivers from Formula One, World Rally Championship, IndyCar, NASCAR, sports cars and touring cars compete against one another was held in the Kingdom of Saudi Arabia. Horse racing fans both in and outside the GCC region look forward to the prestigious Gold Cup race in Dubai every year. It is outside the scope of this article to substantively speculate on the degree to which there will be fluctuations in the volume of major international sporting events held in the GCC area. However, it is arguable that there has not been a long-standing tradition of such significant events being held in the region until more recent times and as a result, it is more likely than not that their volume and size will continue to grow in the short to medium term.
Aside from these international events in a region of more than 50 million people, sportsmen and women regularly train and compete at local and national level. It follows that disputes often arise whether they relate to local sporting competitions within municipalities or regions or occur at one of the major international sporting events. What is the best way of resolving these disputes?
It is valuable to consider that traditional court-based litigation is often seen as slow, expensive and not bearing the hallmarks of confidentiality as may often be required. The focus of this article is on the position in the GCC, while any reports that are available on the cost of litigation tend to be focused on the position in one jurisdiction rather than in the region. It is generally well recognised that where arbitration or other alternative dispute resolution (ADR) regimes work well they are cheaper than litigation and can be expedited to suit the requirements of the parties / impending competition event dates.
Sports bodies that find themselves before the courts for employment related matters, eligibility questions, or selection issues have found to their cost that even where they are successful there are no winners. The fallout from an elongated process, can leave rifts within a sport and have negative public relations and sponsorship consequences. In addition, national sports federations (NSF) are ordinarily funded by the state so frequently it is taxpayers’ funds that are used to defend litigation and this ultimately affects the funding of development of the sports concerned. Compare for example the cost of addressing subjects such as compensating the CEO of an NSF who has been unfairly dismissed or appealing an on-field disciplinary sanction to the high court with the comparative cost, speed and confidentiality of an ADR process.
When looking outside the GCC region some helpful guidance may be found in countries that have a long tradition of dealing with sports disputes. In the Republic of Ireland, a common law jurisdiction, the Irish courts have stated that disputes involving sports organisations are best resolved through their own governing bodies and such matters should only come before the courts as a last resort in the rarest of cases [Justice Hedigan in Coughlan v Football Association of Ireland – unreported January 2010].
A dispute arose between St Patrick’s Club and the Tug of War International Federation (TWIF) [Conway v Irish Tug of War Association Tug of War International Federation, Co Koren & Cathal McKeever [2011] IEHC 245, decision of Justice Laffoy] when the Club was penalised with a £1,000 fine and a one-year suspension from international competition for withdrawing from the semi-finals of the men’s world indoor championships (2006) because an opposing team was wearing allegedly non-compliant footwear and permitted to do so by the TWIF official. The Irish Tug of War Association imposed the sanction. St Patrick’s claimed the TWIF had pressured the national federation into applying tougher sanctions and sought a declaration that the TWIF and two of its officials acted outside of their powers and contrary to international tug-of-war rules. The Irish High Court struck out the claim that St Patrick’s Club was wrongly disciplined for refusing to take part in an international competition as an abuse of process. The Court also referenced the jurisdiction of the Court of Arbitration for Sport (CAS) noted in the Constitution of the TWIF (dated 2008, after the initiation of the High Court proceedings), stating that it is usual for a court to lean in favour of disputes involving sporting bodies and clubs and members being resolved by the relevant internal mechanisms. The High Court was not however satisfied that it would be proper to strike out the plaintiff’s proceedings on that ground alone in this action.
Where a dispute relates to whether a player is eligible to participate in an upcoming competition, litigation can be particularly unsuitable. In the matter of Chambers v British Olympic Association [[2008] EWHC 2028 (QB), Mackay J], the British track and field sprinter Dwain Chambers, who won the 2010 World Indoor 60m champion when that championship was held in Doha, made an application to the High Court of England for an interim-injunction preventing the British Olympic Association (BOA) from applying its Bye-Law 25 (Eligibility for Membership of Team GB of Persons found Guilty of a Doping Offence) and a declaration that the Bye-Law was void and unenforceable. The application was dismissed, in circumstances where the athlete, had not proved a reviewable restraint of trade or that the Bye-Law was not proportionate. However, the matter ultimately was the subject of proceedings before the Court of Arbitration for Sport in BOA v WADA (CAS/2011/A/2658), in which the Panel concluded that the Bye-Law is a doping sanction and is therefore not in compliance with the WADA Code. The athlete went on to compete in the 2012 Olympic Games for Great Britain.
Consequently, many disputes including sporting disputes are resolved by arbitration. Arbitration is a process within the ADR spectrum where parties involved in a dispute make oral and written submissions to an arbitrator. The arbitrator, or indeed depending on the circumstances – the arbitral panel, is an independent third party that at the conclusion of the arbitral reference issues a final, binding written reasoned award. Sports arbitration shares many of the characteristics of commercial arbitration but also differs in terms of the procedure followed. Arbitration can be organised in two different ways, by way of ad-hoc dispute, where the parties do not fall within the umbrella of an arbitral institution and must make their own arrangements to pick an arbitrator, or alternatively by way of institutional arbitration, where an institutional expert in arbitration will support the process.
In the context of sports disputes, the best known and most important institution at the international level is the Court of Arbitration for Sport (CAS), which hears sporting related disputes ranging from disciplinary matters (including for example anti-doping, corruption, and match fixing), to eligibility (to participate in particular competitions or for particular nations) and commercial matters (such as sponsorship arrangements and player contracts). It has two divisions, Ordinary and Appeals. The latter being the final court of appeal for anti-doping matters under the World Anti-Doping Code, for decisions made by many international sporting federations that have their own arbitration systems (and exclusively for FIFA decisions regarding the status and international transfer of players), as well as for global sports organisations such as the International Olympic Committee.
The CAS was established in 1984 and is under the financial and administrative authority of the International Council of Arbitration for Sport (ICAS). It is headquartered in Lausanne, with decentralised offices in New York and Sydney. Several decisions involving athletes from Saudi Arabia, Qatar, UAE, Iran and Iraq have been handed down by the CAS, including when sitting in its Ad Hoc capacity, providing expedited arbitration at major events such as the Olympic Games and Commonwealth Games. Its decisions are enforceable in over 157 countries under the New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.
A decision of the FIFA Dispute Resolution Chamber in a contractual dispute involving the transfer of Mark Brescia in favour of the UAE’s Al Nasr Sports Club was appealed by the Qatari football team Al Gharafa and the player to the CAS. The case was heard in Switzerland and determined ultimately upheld the FIFA decision [Arbitration CAS 2013/A/3411 Al Gharafa S.C. & Mark Bresciano v. Al Nasr S.C. & Fédération Internationale de Football Association (FIFA), award of 9 May 2014].
An Emirati national, Mohammed Shafi Al Rumaithi appealed to the CAS, [CAS 2015/A/4190 Mohammed Shafi Al Rumaithi v Fédération Equestre Internationale, award of 1 March 2016] the sanctioning decision of a Fédération Equestre Internationale (FEI) Tribunal, which had imposed a 2 year period of ineligibility on him as a result of prohibited substances, namely Propoxyphene and Norpropoxyphene – opiate analgesics (painkillers) which are classified as Banned Substances under the FEI equine anti-doping rules. These substances were found in the blood of Royal des Fontaines, the horse he rode in the FEI sanctioned CS12 event in Ghantoot, UAE. The CAS Panel determined in dismissing the appeal, that a rider cannot delegate his duty of caution or due diligence [see CAS 2013/A/3318 at para 71; and CAS 2014/A/3591 (Glenmorgan) at para.169] – whether to the owner of the horse or medical advisor – stating that double delegation does not decrease the Appellant’s obligations; it aggravates it; nor could the rider attempt to shift the burden of responsibility to the FEI in terms of an alleged failure to inform him about any problems with regard to the use of a substance which is contrary to the fundamental principle of personal responsibility.
These are examples of the types of cases which could now be heard in the UAE at less cost and greater convenience to the parties, as since 2012, Abu Dhabi has become an Alternative Hearing Centre of the CAS following the signing of an agreement between the Abu Dhabi Judicial Department and the ICAS. This is a recognition of the growing importance of the Gulf Region in a sporting and major event hosting context. In addition to the CAS, there is also a draft law in the UAE facilitating the establishment of an Emirates Sports Arbitration Centre. The first case involving an Indian swimmer Amar Muralidharan against the decisions taken by the Anti-Doping Disciplinary Panel (ADDP) and the Anti-Doping Appeal Panel (ADAP) of the Indian National Anti-Doping Agency (NADA) [CAS 2014/A/3639 Amar Muralidharan v. Indian National Anti-Doping Agency (NADA), Indian National Dope Testing Laboratory, Ministry of Youth Affairs & Sports, award of 8 April 2015] was heard on 16 January 2015. It was the first ever hearing held at the CAS Alternative Hearing Centre in Abu Dhabi.
But what recourse is there for national sports disputes which arise and would benefit from an independent arbitration review? Concrete steps to emulate the international sports dispute regime domestically in the United Arab Emirates got underway when in May 2014 the UAE Federal National Council passed a federal draft law regarding the establishment of the Emirates Centre of Arbitration for Sports. The Centre will hear any disputes relating to sports activities or decisions taken by sports federations and clubs. Decisions of the Centre cannot be appealed. A sports-related dispute may be submitted to the UAE Sports Arbitration Centre only if there is an arbitration agreement between the parties which specifies recourse to the Centre, which will be run by a sports arbitration board chaired by the head of the national Olympic Committee. At the time of writing, the legislation enabling the Emirates Centre of Arbitration for Sports to be established remains in draft form.
By definition, the sport of predicting the future requires some skill and generally should be avoided but some comments about what will happen in the next few years may be helpful and therefore are offered. It seems reasonable to expect that the use of arbitration for sports disputes in the GCC region will increase. The process itself is not new and is easily understood by users. Sports bodies are accustomed to including arbitration provisions within their rules. There are tangible benefits, already referenced, from availing of arbitration in preference to litigation. Most importantly, the arbitral institutions and arbitral tribunals active in the area of sports arbitration within the GCC region are likely to maintain the confidence of those parties involved in a sports dispute that has gone to arbitration. David Casserly, a partner with Swiss firm Kellerhals Carrard who is active in the region, noted that there has been a limited but nevertheless steady flow of international sports disputes from the GCC region over the last number of years, with football – in particular football employment disputes – being the biggest generator of international sports arbitrations. He also noted that a recent positive development has been the increase in the number of specialised local practitioners and arbitrators, the region having previously been under-represented in the international arena. The future looks bright for the development and expansion of sports arbitration in the Gulf.
SUSAN AHERN AND ARRAN DOWLING-HUSSEY© 2018
About the Authors
Susan Ahern-Barrister, FCIArb practises as a Barrister and Arbitrator from the Law Library, Dublin. Ms Ahern is a CAS Arbitrator who formerly was Head of Legal and Legislative Affairs for World Rugby. Susan.Ahern@Lawlibrary.ie.
Arran Dowling-Hussey-Barrister, FCIArb practises as a Barrister and Arbitrator from the Law Library, Dublin and 33 Bedford Row in London. Mr. Dowling-Hussey’s current arbitral appointments include references in the GCC region. ADHussey@33BedfordRow.co.uk.
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.