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International Sports Law as a Process for Resolving Disputes

Published online by Cambridge University Press:  17 January 2008

James A. R. Nafziger
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International sports law is more than a static set of rules and principles: it is better described as a process for avoiding and resolving disputes. Recent cases highlight its significance. The Swiss Equestrian case,1 decided by the Swiss Federal Tribunal, demonstrates the efficacy of using this process in cases involving issues of eligibility for competition. By contrast, the Reynolds case,2 decided by US federal courts, shows the folly of ignoring non-judicial remedies prescribed by international sports law. As a result, Reynolds became a sort of Dickensian struggle involving three years of litigation and some nine decisions before the case was finally dismissed. The courts could have, and should have, reached the same result by simply enforcing decisions of the appropriate international sports federation and the arbitral tribunal that had upheld the federation's decision. The Harding case,3 which was also decided in the United States, demonstrates that adjudication outside the prescribed process of international sports law is fundamentally unstable.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 45 , Issue 1 , January 1996 , pp. 130 - 149
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. Gundel v. FEI/CAS, I Civil Court, Swiss Fed. Trib. (15 Mar. 1993).Google ScholarThe decision is summarised in Olympic Review, July–Aug. 1993, p.305.Google Scholar

2. Reynolds v. International Amateur Athletic Fed. 23 F.3d 1110 (6th Cir. 1994), cert, denied, 115 S.Ct. 423 (1994) (reversing No.C–2–92–452 slip. op. (S.D. Ohio, 3 Dec. 1992). as modified, No.C–2–92–452 slip. op. (S.D. Ohio, 13 July 1993)). See also prior proceedings in 1992 U.S. Dist. LEXIS 8625, at *1, stay of preliminary injunction granted, 968 F.2d 1216 (6th Cir. 1992) (Table), application for emergency stay granted. 112 S.Ct. 2512 (1992); No.C–2–91–003. 1991 WL 179760 (S.D. Ohio, 19 Mar. 1991), vacated and remanded, sub nom. Reynolds v. Athletics Congress of the USA 935 F.2d 270 (6th Cir. 1991) (Table).

3. Harding v. United States Olympic Committee No.CCV–942151 (Clackamas County Cir. Or., 13 Feb. 1994) (civil action). See also State v. Harding No.94–0331872 (Multnomah County Cir. Or., 16 Mar. 1994) (criminal action).

4. Creig v. Insole [1978] 3 All E.R. 449, [1978] 1 W.L.R. 302; Reel v. Holder [1981] 3 All E.R. 321, [1981] 1 W.L.R. 1226; Cowleyv. Heatley (1986) T.L.R. 430. See discussion in text at infra nn.49–56.

5. See Anthony, Polvino, “Arbitration as Preventative Medicine for Olympic Ailments: The International Olympic Committee's Court of Arbitration for Sport and the Future for the Settlement of International Sporting Disputes” (1994) 8 Emory Int.L.Rev. 349–352Google Scholar; Spotts, JoAnne D., “Global Politics and the Olympic Games: Separating the Two Oldest Games in History” (1994) 13 Dick. J.Int.L. 103Google Scholar: Will, Michael R., “Les structures du sport international”, in Chapitres Choisis du Droit du Sport (1993), p.21.Google Scholar

6. It is therefore questionable whether the law of sports involves only rules and procedures of more general origin and scope. See Paul C Weiler and Gary R. Roberts. Sports and the Law (1993). In arguing that “‘Sports law’ is a misnomer”, the authors may have meant only domestic sports law, particularly in the US. Even so, many if not most domestic legal systems do have distinctive regimes of sports law. E.g. the Amateur Sports Act. 36 U.S.C. §§371–396 (1988), governs not only US participation in international competition but related, often incidental, domestic sports activity as well. Viewing the relationship between sports and the law in only a conjunctive sense can have the effect of distorting the analysis of problems and the perception of applicable law. For example, a short section on Olympic sports in Weiler and Roberts, Idem, p.690, discloses little awareness of specific international processes for avoiding, managing and resolving sports-related disputes.

7. E.g. the US Olympic Committee provides in its constitution for resolution of disputes by the American Arbitration Association: AAA. Arbitration Times. Summer 1993. p.3 (acknowledgement by the AAA of its role).Google Scholar

8. Olympic Review, July–Aug. 1993, pp.298. 300.Google Scholar

9. E.g. see James, Nafziger. International Sports Law (1988), pp.71–163Google Scholar and “International Sports Law: A Replay of Characteristics and Trends” (1992) 86 A.J.I.L. 489. 495–505.Google Scholar

10. “In today's high-technology world of sports, improved performance typically requires professional assistance and money. In response, grass-roots management and funding of training and competition are channeled to aspiring athletes through local and national sports associations. These associations operate at the base of a pyramid of authority with the IFs [international federations] and the IOC at the top. This structure for transmitting the authority and legitimacy of the Olympic process influences even schoolyard and sandlot activities whenever participants receive support from sanctioned sports organizations that are ultimately assisted and governed by organizations within the Olympic Movement”: Nafziger, Idem (1992), pp.492–493.Google Scholar

11. An example of this confusion may be found within a discussion about eligibility for competition in Weiler and Roberts, op. cit supra n.6: cf. pp.690 and 705.Google Scholar

12. Reynolds v. International Amateur Athletic Fed. 23 F.3d 1110 (6th Cir. 1994), cert, denied, 115 S.Ct. 423 (1994); and earlier stages of the litigation (supra n.2) and arbitration (infra n.14).

13. The case is also controversial because all the district (trial) court opinions were decided by a single, 88-year-old senior judge and are unpublished. When the IAAF finally appeared in the proceedings, it moved (unsuccessfully) to recuse the judge, questioning his impartiality: 23 F.3d 1110, 1114.

14. In the Matter of An Arbitration Initialed by the International Amateur Athletic Federation (IAAF), Applicant, Under IAAF Rule 20.3(ii) on the Case Where a Member of the IAAF—The Athletics Congress of the US, Respondent—Has Held a Hearing Under the IAAF Rule 59 “Disciplinary Procedures for Doping Offenses” and the IAAF Believes thai in the Conduct or Conclusion of Such Hearing the Member Has Misdirected Itself or Otherwise Reached an Erroneous Conclusion (11 May 1992) (London arbitration): Arbitration Times, Summer 1992, p.1 (report on earlier AAA arbitration).

15. Reynolds 23 F.3d 1110,1113. For details on the litigation before the Games, see James, Nafziger, “Interlocking Rings of International Sports Law” (1993) 1 Pandektis: Int. Sports L.Rev. 406–409.Google Scholar

16. See 36 U.S.C. §§393, 395; Dolan v. US Equestrian Team 608 A.2d 434 (N.J. Super. A.D. 1992). “Referring to the Congressional determination that these types of disputes should be resolved outside the judicial processes”, the opinion emphasises, Idem, p.437, that “courts are hardly suitable to determine the eligibility, or the procedures for determining the eligibility, of athletes to participate on our behalf in international competitions”.

17. Done 10 June 1958,21 U.S.T. 2517, T.I.A.S. 6997, 330 U.N.T.S. 3. The Convention provides that arbitral decisions may be refused only by a “competent authority of the country in which … [the] award was made” (Art.V(1)(e)). Although the Convention authorises a party to refuse to enforce a foreign arbitral award if it is contrary to the public policy of that party (Art.V(2)(b)), the public policy of the US, as expressed in the Amateur Sports Act, would support enforcement of the award. The district court ignored this policy in its discussion of the enforceability of the arbitral award. Instead, the court relied on the lack of a written arbitration compromis between Reynolds and the IAAF even though Reynolds and his attorneys participated fully in the arbitration (23 F.3d 1110, 1113) and even though, as a technical matter, the arbitration was not directly between those parties but, rather, between The Athletics Congress and the IAAF: Reynolds No.C–2–92–452 slip. op. (S.D. Ohio, 13 July 1993).

18. See Comment, “Butch Reynolds and the American Judicial System v. The International Amateur Athletic Federation—A Comment on the Need for Judicial Restraint” (1993) 3 Seton Hall J. Sports L. 173, 182, 187, 191.Google Scholar

19. Under a theory of specific jurisdiction, a plaintiff must show that a cause of action arose out of, or was related to, the defendant's activities in the State where the federal district court is located. Most significantly the IAAF had not “purposely availed itself” very directly of the benefits of that State, Ohio, a due process requirement that was first articulated in Hanson v. Denckla 357 U.S. 235 (1953). Under a theory of general jurisdiction, on the other hand, a plaintiff need show only that the defendant has had a “systematic and continuous presence” in a particular State, regardless of whether the plaintiff's cause of action arose out of, or was related to, that local presence. Two US Supreme Court decisions establish this basis of jurisdiction: Perkins v. Benguet Consolidated Mining Co. 342 U.S. 437 (1952); Helicopteros Nacionales de Colombia SA v. Hall 104 S.Ct. 1868 (1984). Coincidenlally, Perkins established the jurisdiction of a court in Ohio, perhaps because of the lack of an alternative forum in the Japanese-occupied Philippines during the Second World War. The “general jurisdiction” test is obiter in Helicopteros, where the court denied jurisdiction to a Texas court in a matter otherwise centred in Colombia and Peru.

The district court has interpreted the Ohio long-arm statute to extend “to the full limits of the Due Process Clause”, which would include both specific and general jurisdiction: International Pizza Co. v. C. A F. Packing Co. 858 F.Supp. 696,697 (S.D. Ohio 1994) and authority cited therein. Also Reynolds seems to assume that Ohio courts would ordinarily accept a theory of general jurisdiction: 23 F.3d 1110, 1116. (“Depending on the type of minimum contacts in the case, personal jurisdiction can be either general or specific [citation omitted]. Reynolds relies on specific jurisdiction because he claims that jurisdiction arose out of the IAAF's alleged wrongful acts in Ohio.”) The court did analyse the applicability of Ohio's explicit provision for jurisdiction related to a non-resident's “(1) Transacting any business in this state”, but limited the applicability of that provision of the Ohio long-arm statute to specific jurisdiction, 23 F.3d 1110, 1115 (emphasis added), as seems to be consistent with Ohio common law.

20. Ohio's long-arm statute is concerned primarily with specific jurisdiction, but language in it could be interpreted more broadly. See Ohio Rev. Code Ann., §2307.382 (Banks–Baldwin 1994) (e.g. “Transactingany business in this state”, §(A)(1) (emphasis added); “Causing tortious injury … if he regularly does or solicits business … in this state”, §(A)(4)). Both the district and appellate courts in Reynolds seem to have assumed that Ohio courts would ordinarily entertain general jurisdiction but found an insufficient basis for doing so in Reynolds itself. This was apparently because of the plaintiff's failure to seek jurisdiction on that basis. See supra n.19.

21. In the US a non-appearing defendant may preserve a right to attack a default judgment on jurisdictional grounds, typically to bar recognition or enforcement of a judgment. On 14 July 1993 the IAAF lost a motion to vacate the judgment against it. The motion was heard by the same judge who made all district court decisions in the case: supra nn.2,13. For a summary of American common law rules concerning collateral attack on the validity of judgments, see Robert, Leflar, Luther, McDougal III and Robert, Felix, American Conflicts Law (4th edn. 1986), p.236.Google Scholar

22. See e.g. Behagen v. Amateur Basketball Ass'n 884 F.2d 524 (10th Cir. 1989); Oldfield v. The Athletics Congress 779 F.2d 509 (9th Cir. 1985); Michels v. United Stales Olympic Comm. 741 F.2d 155 (7th Cir. 1984); DeFrantz v. United States Olympic Comm. 492 F.Supp. 1181 (D.D.C. 1980); Dolan, supra n.16.

23. Ohio has adopted the more complicated, policy-orientated approach of the Restatement (Second) of Conflict of Laws. See e.g. Gregory, Smith, “Choice of Law in the United States” (1987) 38 Hastings L.J. 1041, 1121–1123.Google Scholar

24. Historically, the lex loci delicti was generally determinative, but that is no longer so in many legal systems, including the US federal system.

25. Far West Capital Inc. v. Towne 46 F.3d 1071, 1079 (10th Cir. 1995).

26. Paquete Habana 175 U.S. 677 (1900).

27. The district court found as follows: “Prior to his suspension, Plaintiff earned the following in appearance fees and endorsement contracts: 1987: $56.000 1988: $255,112 1989: $316,915 1990: $333,375”: Reynolds No.C–2–92–452, slip, op., p.27 (S.D. Ohio, 3 Dec. 1992). The above data would not seem to confirm the court's earlier finding that Reynolds “as an individual, has limited economic resources”: Idem, p.25 (S.D. Ohio, 13 July 1993). The court then speculated about projected loss of earnings, premised on a finding—after Reynolds failed to qualify in the Olympic trials except as an alternate—that he “was likely to win a gold medal in the 1992 Olympic Games”: Ibid. Although Reynolds failed to qualify for the Olympics as an individual runner, he remained eligible for selection as a member of the US medley team: Michael Janofsky, “Reynolds Loses His Last Claim to Olympic 400”, New York Times, 27 June 1992, p.31.

28. “The association found that she was either involved in the assault or that she knew about the attack and failed to prevent it, that she failed to notify authorities or that she made false statements about what she knew of the attack”: Michael Janofsky, “Harding's Lawyers Prepare Strategy”, New York Times, 9 Feb. 1994, p.B7; Jere, Longman, “Official Says Harding Should Skate”, Idem, 5 Feb. 1994, p.34.Google Scholar

29. Jere, Longman, “Reynolds Overturned in IAAF Victory”, Idem. 18 03 1994, p.16 (on both Reynolds and Harding).Google Scholar

30. Under the terms of this agreement, in the face of a possible criminal indictment, Harding pleaded guilty to a felony charge of hindering the prosecution and was placed on three years' supervised probation with the following conditions: an assessment of $160,000 in fines, court costs and charitable donations; resignation from the USFSA; performance of 500 hours of community service; and her submission to psychological evaluation. In return, the court barred further prosecution by “any” jurisdiction for her involvement in the assault on Nancy Kerrigan. If another court initiated a prosecution contrary to the order, Harding would have the right to withdraw her plea and have her sentence set aside: State v. Harding, supra n.3. Jere, Longman, “Harding Deal Handed Something to Both Sides”, New York Times, 20 03. 1994, p.21.Google Scholar

31. The Oregonian, 1 07 1994, p.A14.Google Scholar

32. Comment, supra n.18, at p.194.

33. Supra n.1.

34. The Court (CAS) was established by the IOC and, until recently, was under IOC supervision. Chartered under Swiss law with headquarters in Lausanne, Switzerland, it remains a vital part of the Olympic Movement. See Olympic Review, 11. 1983, p.763.Google Scholar The Statute of the CAS is reproduced in Nafziger (1988), op. cit. supra n.9, at p.221. For an introduction to the CAS see Bruno, Simma, “The Court of Arbitration for Sport”, in Böckstiegel, K.-H., Folz, H.-E., Mössmer, J. M. and Zemanek, K. (Eds), Völkerrecht/Recht der Internationalen Organisationen/Weltwirtschaftsrecht: Festschrift für Ignaz Seidl-Hohenveldern (1988), pp.573, 580.Google Scholar

35. “In a judgement notified to the parties on 18th June 1993, the 1st Civil Court of the Federal Tribunal dismissed the appeal lodged against the FEI and the CAS, and ordered the rider to pay SFr. 9,000 in judicial costs. The federal judges confirmed in their judgement that the CAS is a real arbitral court whose decisions properly constitute arbitral awards at an international level. The CAS therefore represents an alternative to state justice while, of course, respecting certain inalienable fundamental rights. This neutral and independent institution is therefore in a position to pronounce final and enforceable awards which have the force of a judgement. Thus, through recourse to the CAS, sports organizations, athletes and their partners can avoid referring any disputes they might have to ordinary state courts for settlement”: Olympic Review, July–Aug. 1993, p.305.

36. CAS Statute, supra n.34, Art.4 (emphasis added).

37. For examples see Nafziger (1992), op. cit. supra n.9, at pp.507–508. In Federation Internationale de Basketball (FIBA) v. Wriedt & Brandt Hagen e.V. TAS No.94/123 (1994), the CAS decided that an athlete with dual American and German nationality had sufficiently confirmed his German nationality. The CAS therefore concluded that FIBA must allow him to compete as a member of a Bundesliga club.

38. CAS Statute, supra n.34, Art.5.

39. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, 21 U.S.T. 2517, T.I.A.S. No.6997,330 U.N.T.S. 3. On the enforceability of CAS and other arbitral awards, and exceptions to the UN Convention, see Adam Samuel and Richard Gearhart, “Sporting Arbitration and the International Olympic Committee's Court of Arbitration for Sport” (1989) 6(4) J.Int.Arb. 39,52.

40. (1986) Eur.Y.B. (Council of Eur.) 34.

41. Olympic Review, 08. 1991, p.407; 10 1989, p.202Google Scholar; Polvino, , op. cit. supra n.5, at p.372.Google Scholar

42. Gasser v. Stinson (15 June 1988 (QB)), available in LEXIS. Intiaw Library, ENGCAS file. See also Nagle v. Feilden [1966] 2 Q.B. 633.

43. But see McInnes v. Onslow-Fane [1978] 3 All E.R. 211, 223 (“This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities”); followed in Law v. National Greyhound Racing Club Ltd [1983] 1 W.L.R. 1302, 1307. In the UK judicial review seems to extend at least to cases involving clearly monopolistic practices in restraint of trade or to those involving discrimination contrary to the fundamental human rights of athletes.

44. Cf. the observation in R. v. Jockey Club [1993] 2 All E.R. 225, that “never hitherto has any sporting body been found amenable to review … that is really only because the courts have in the past sought to meet the needs of public policy by developing private law principles instead. We are here in a dynamic area of law, well able to embrace new situations as justice requires” (per Simon Brown J, concurring—emphasis added).

45. See Olympic Review, 07–07. 1993, pp.299, 305–306.Google Scholar

46. idem. Jan 1994, p.16.

47. idem. July–Aug. 1993, p.306.

48. The CAS has been Eurocentric: 45 of the 59 arbitrators officially listed for 1991–94 are Western European: Idem, Aug. 1991, p.408. The CAS is, however, being expanded from 60 to 100 members: Idem, July–Aug. 1993, p.305. See also Polvino, op. cit. supra n.5.

49. For a thorough discussion of issues and applicable English law see Edward Grayson, Sport and the Law (1988). This book fully acknowledges the role of courts in giving effect to the public interest and ensuring fairness and natural justice to individual athletes when their rights are seriously threatened.

50. Supra n.4.

51. Supra n.4. See discussion in Nafziger, (1988), op. cit. supra n.9, at pp.90–92.Google Scholar

52. Olympic teams from such entities as Hong Kong, Gibraltar, Puerto Rico, Guam and the Cook Islands are other examples. Eveleigh J, concurring in the decision, emphasised the lack of agreement among States concerning the sovereign status of particular entities: “Those who formed the federation were not concerned with international politics; they were concerned to set standards for athletics throughout the world. They were concerned to collect together people who would be in a position to exercise control over athletics in various parts of the world. Unless a governing body of some kind applies for membership, the federation is not concerned to determine if a given place or area is a country. It is only in connection with an application for membership by an applicant who puts himself forward as a governing body for a particular place, district or region that it becomes necessary to consider the meaning of ‘country’ in the rules. One thing that is clear is that there may only be one member for each country. Therefore, in entertaining an application, it has to be seen whether or not there is an existing member who has control, or a measure of control, over the same area as that for which the applicant contends. There must be no doubt who is to speak with authority as the governing body for a particular group of athletes. The word ‘country’ has been used in the rules in order to delineate the area of authority. They do not use the word in the sense of sovereign state.”

53. Supra n.4.

54. A summary of the English jurisprudence appears in Nafziger (1992), op. cit. supra n.9, at pp.509–510.Google Scholar English courts “have normally limited judicial review to disputes requiring them to interpret or enforce professional contracts or otherwise protect a person's ability to earn a living. ‘Amateur’ athletes, therefore, have generally lacked standing to challenge decisions by their sports organizations. The courts have often refused to issue orders of certiorari to review the decisions of private or ‘domestic’ tribunals, such as nongovernmental review panels and other organizational mechanisms for dispute resolution. Their rules are said to be ‘more than a contract: they are a legislative code laid down to be obeyed by the members.’

Significantly, this jurisdictional barrier has been overcome in several cases: where a plaintiff was denied a right to respond to objections or was confronted with bias; where a sports organization's administrative tribunal was deemed to be exercising public law functions or its decision would have had public law consequences; and where the relationship at issue between the parties was an amateur contract not governed by organizational rules. A final exception involves parties in a monopolistic position, such as international and national federations. These exceptions demonstrate a modest trend toward the judicial assumption of competence to review ‘public’ issues or issues of procedural fairness.”

55. Evans, Andrew C., “English Law of Sport”, in Will, Michael R. (Ed.), Auf dem Wege zu Einem Europäischen Sportrecht? (1989). p.91 at p.95: “the principal feature of English sport law appears to be the freedom enjoyed by sporting organizations to regulate the sport concerned, provided that no right falling within an established legal category is violated. The interest of an individual in participation in sport does not so fall. To the extent that such regulation is thus protected against effective challenge in the ordinary courts, the state could be said to have been captured by such bodies. Such capture might be thought simply to reflect judicial recognition of the fact that the essence of sporting activity would be threatened by the transfer of sporting competition from the stadium to the courtroom … There is no apparent reason why public interest considerations should not equally well be invoked to justify the overruling of restrictions imposed on individual participation by a sporting organization.”Google Scholar

56. McInncs v. Onslow-Fane [1978] 3 All E.R. 211, [1978] 1 W.L.R. 1520, 1535 observed that “the courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the court for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts … The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens.”

57. In re Gault 179 A.D. 2d 881, 884, 578 N.Y.S. 2d 683, 685 (1992).