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CONTRACTUAL STABILITY IN PROFESSIONAL FOOTBALL

FIFA REGULATIONS AND CAS JURISPRUDENCE ON ART. 17 FIFA RSTP
1. CONTRACTUAL STABILITY

1.1 General outline

«Contractual stability is of paramount importance in football, from the perspective of clubs, players, and the public» - FIFA Circular Letter n.769.

Contemporary football is caught between two very powerful concepts: the freedom of movement of players on one side and contractual stability on the other. The freedom of movement is the consequence of many social, cultural and political developments which have caused an increase in international mobility of players in the recent past. Professional footballers are rather «special» as their value to clubs goes far beyond comparison to that of regular workers. Naturally, clubs must finance the acquisition and maintenance of these «assets» as to compete in an industry which shows a very diverging trend between big and small.

FIFA, as the international governing body for football, attempts to provide a universal guideline on how to deal with contractual stability and international mobility. The Court of Arbitration for Sports (CAS) based in Lausanne had to decide upon several cases of unilateral breach of contract under the article 17 of the FIFA Regulations on the Status and Transfer of Players. Yet the sentences so far have still left some of the issues unclear mainly because both FIFA and CAS had to discover this rather new territory. The keyword «specificity of sport» has been abundantly used to justify some of the decisions made. It remains to be seen what further developments in the legal regulations will bring. The articles from 13 to 18 of the FIFA RSTP specifically regard a fundamental principle of the international sports legal order: contractual stability between clubs and footballers.

Firstly, Article 13, introducing the main rule, states that a contract between a professional and a club «may only be terminated upon expiry of the term of the contract or by mutual agreement».

Furthermore, the following 2 articles regard the possibility of an early termination with just cause or sporting just cause, as exceptions to art. 13.



1.2 Unilateral contract termination under art. 17 of FIFA RSTP

Article 17 deals with the consequences of terminating a contract without just cause (hence, completing the framework introduced by the aforementioned articles 13-16).

In all cases, the party in breach shall pay a compensation to be calculated («unless otherwise provided for in the contract») with due consideration for the law of the country concerned, the specificity of sport, and any other objective criteria. These criteria shall include, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club.

Furthermore, in case of breach during the protected period (i.e. «a period of three entire seasons or three years, whichever comes first, following the entry into force of a contract, where such contract is concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever comes first, following the entry into force of a contract, where such contract is concluded after the 28th birthday of the professional»), sporting sanctions (4 months restriction on playing in official matches, 6 months in the case of aggravating circumstances) shall also be imposed on the player in addition to the obligation to pay compensation.

FIFA Dispute Resolution Chamber (DRC) and CAS firmly and unanimously always established that Art. 17 of FIFA Regulations does not allow a club or a player to unilaterally terminate an employment agreement. The unilateral termination of an agreement between a player and a club without just cause or without «sporting just cause» is legally a breach of a contract. Any interpretation of Art. 17 that is inconsistent with such a principle, would result in a wrong application of the rule. Indeed, the EU accepted that «certain restrictions on players mobility are justified in order to protect certain important features of sporting competition» (José Luis Arnault, Independent European Sport Review, 2006).

2. THE ROLE OF CAS IN FOOTBALL DISPUTES

FIFA has the responsibility and the monopoly on any dispute connected to the matches it directly organizes and, consequently, it has the power to issue disciplinary sanctions to footballers, clubs and National Federations.

Any decision, enacted by FIFA justice bodies (both the Players' Status Committee and the Dispute Resolution Chamber - according to articles 23 and 24 of the RSTP), may be appealed before the CAS (article 62 of FIFA Statutes).

FIFA generally recognizes CAS to «resolve disputes between FIFA, Members, Confederations, Leagues, clubs, Players, Officials and licensed match agents and players' agents» (art. 62 FIFA Statutes). Furthermore, article 63 on jurisdiction of CAS, states that «appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question».

At the same time, it is important to underline that «recourse may only be made to CAS after all other internal channels have been exhausted». However, CAS does not deal with appeals arising from: «a) violations of the Laws of the Game; b) suspensions of up to four matches or up to three months (with the exception of doping decisions); c) decisions against which an appeal to an independent and duly constituted arbitration tribunal recognized under the rules of an Association or Confederation may be made».

Moreover, in order to reinforce the authority of CAS, as a judicial body of last instance within the world of football, article 64 clearly states that «the Confederations, Members and Leagues shall agree to recognize 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 shall apply to licensed match and players’ agents».

In this regard, we have to mention the circular letter n.827/2002, in which FIFA recognized the jurisdiction of CAS, taking into account the failed experiment of the Arbitration Tribunal for Football (TAF). In fact, FIFA was «convinced that the recognition of the jurisdiction of the CAS by the football family will create the basis required to ensure and preserve a clear and comprehensible legal and factual security in the world of football and that it will guarantee continuity and development in the spirit of FIFA».

Finally, FIFA recently enacted the circular letter n.1270 (July 2011), which draws the attention to some amendments made to the Disciplinary Code.

The most relevant one involves art. 64, stating that: «the range of application of art. 64 of the FDC concerning the enforcement of decisions rendered by the Court of Arbitration for Sport (CAS) is now exclusively limited to those cases that had previously been dealt with by a body or a committee of FIFA».

In other words, the amendment FIFA made on its Disciplinary Code implies that the only CAS decisions it will enforce are those which have been previously dealt with by FIFA.

At first glance, FIFA could have decided to increase its power on sporting disputes, as it is intuitive that from now on there could be arbitration awards of “first class” (those whose questions had been previously dealt by FIFA, or its decision-making bodies), and arbitration awards of «second class» (those whose questions had been previously dealt by each national federation or by the CAS Ordinary proceedings).

This most likely will have a significant impact on the use of arbitration clauses in contracts. In fact, without the possibility of enforcing a breach of a CAS award by applying to the FIFA Disciplinary Committee, the parties could decide to modify their agreements by the insertion of a «FIFA-clause» (plus an appeal to CAS) to ensure the enforceability of them.



3. THE CAS JURISPRUDENCE ON ARTICLE 17 FIFA RSTP

Any dispute arising in international transfers of players will be dealt in accordance with the FIFA Regulations, disregarding any national laws and provisions of the involved players and clubs. If a dispute is settled at the CAS, this independent arbitrational body will as a final instance apply such Regulations and, additionally, the Swiss Law, never undermining the universal principles of law. Clubs and players must follow the aforementioned regulations to prevent any possible damage from a breach in their contractual relationship or in order not to suffer any unexpected losses due to an agreement which runs contrary to what is established by FIFA.

In this paragraph we will particularly focus on some relevant cases regarding the application of the parameters settled by article 17 in order to calculate the compensation to be paid in case of termination of contract without just cause.

3.1 The case of Andrew Webster

One of the most influential cases in relation to the freedom of movement and contractual stability of football players after Bosman is the case of Andrew Webster. In March 2001, Heart of Midlothian and Webster signed an employment contract that was due to expire in June 2005. On July 31st 2003, two years before the expiry of the initial contract and following a renegotiation of its terms, the Scottish club and the player entered into a new employment contract, which provided for a term of four years until June 2007.

In accordance with article 17 of the FIFA Regulations, he unilaterally terminated his contract with the club and signed a three-year employment agreement with Wigan Athletic FC in August 2006. Heart of Midlothian was not paid any compensation upon the departure of the player. Webster became the first player to unilaterally terminate his contract under article 17, something which was to create considerable insecurity among clubs and players.

In November 2006, Hearts filed a claim with FIFA against Webster and Wigan claiming a compensation for breach of contract in the amount of about £5 million against the player and his new club as they were deemed jointly and severally liable for having induced the breach. The key issue to be defined in this leading case was whether the compensation fee should be based on an assessment of the loss suffered by player's former club or whether it should be limited to the residual value of the contract which essentially means the sum of player's salary payments until the hypothetical conclusion of the contract. For Heart of Midlothian, the compensation should be measured by the cost of replacing Webster with a player of similar age, ability and experience or, alternatively, the loss of opportunity to receive a transfer fee. On the other hand, Wigan Athletic and the player advanced the view that the compensation should be limited to the residual value of the contract. Anything else would be an unlawful restriction on the right of free movement as established by the European Union Treaty.

The DRC, determining the amount of the compensation, settled that Webster had to pay £625.000 to Hearts due to the unilateral breach of contract and, furthermore, the player was disqualified for 2 weeks. All the parties decided, then, to appeal this decision to the CAS, which established its invalidity because DRC did not specify clearly either procedure or criteria used in its ruling.

The Panel stated that the compensation should be limited to the residual value of the contract primarily because any higher compensation would impose heavy restrictions on the free movement of players similar to the pre-Bosman era. The compensation fee to be paid by Webster and his former club was only £150.000.

Therefore, the CAS established that, in case of both an unilateral breach of contract by a player after the so-called protected period and the absence of a termination clause in the agreement, the only way to properly quantify the compensation was to refer to remaining amount of terminated contract.

3.2 The case of Matuzalem

Another recent decision regarding the compensation of breach of contract was taken in the case of the player Matuzalem. This award has been considered as the anti-Webster as it provides for a substantial compensation to be paid to player's former club Shakhtar Donetsk. In any respect, it sets out a new precedent for any future litigation over contractual breach under article 17 and the criteria used to arrive at a compensation fee.

The Brazilian player Matuzalem signed a five-year employment contract with the Ukrainian club Shakhtar Donetsk in 2004. After three years of contract, the player breached his contract without just cause and signed a new agreement with the Spanish club Real Zaragoza SAD.

The former club claimed that the compensation for breach of contract should be fixed in €25 million as established by the buy-out clause inserted into Matuzalem's contract (stating that «in case the club receives a transfer offer in an amount of €25 million or more the club undertakes to arrange the transfer within the agreed period»).

FIFA DRC decided that the €25 million referred to in the contract was not an agreement between the parties and that compensation should be €25 million in the event of termination.

Assessing the compensation payable in accordance with Art. 17, DRC decided that amount should have been set at €6.8 million.

This sum comprised unamortized acquisition costs - €3.2 million, residual value of the playing contract - €2.4 million, plus €1.2 million in lieu of the «sporting and commercial losses» arising from the particular circumstances of the player’s breach of contract. Then, both parties appealed to CAS, which stated that the correct amount was €11.2 million. Article 17 is intended to maintain contractual stability. Termination under this provision whether in or outside the so-called protected period is a «serious violation», which has to be properly compensated by an assessment of the true loss to the former club.

This compensation will be assessed on the facts of each case, considering what is necessary to put the club in the position it would have been in, if the contract had not been terminated. This sum was not calculated by simply considering residual value and unamortized acquisition costs. Rather, CAS considered all the factors that indicate a player’s value to a club, including that Italian club SS Lazio agreed to pay Real Zaragoza between €13-15 million and to give the player a salary from €1.8 to 2.5 million, during the period that Matuzalem would have been with Shakhtar if he had not terminated his contract. From this, CAS deducted the amount of salary that Shakhtar saved.

The specificity of sport requires that awards are legally correct but also reflect the special circumstances of employment within the sport of football. Also the timing of Matuzalem’s move (a few weeks before the start of UEFA Champions League qualification, after a season where he had captained the team) impacted on the amount of the award.

Finally, on 30 March 2012, the Swiss Supreme Court upheld the claim of the player against the threat of FIFA to suspend him from any activity until the payment of the amount for the breach to Shakhtar Donetsk. In fact, the Court deemed that such a possibility represented an unlawful conduct, clearly in violation of his rights. However, the player is still condemned to pay the compensation, as well as an interest rate of 5%.



3.3 The case of Morgan De Sanctis

The case of De Sanctis is the third major case dealing with art. 17 RSTP and the compensation payable for breach of contract. The Italian goalkeeper, currently playing for S.S. Napoli, breached his contract with Udinese outside the protected period and joined Spanish club Valencia in 2007, paying an indemnity lower than player’s market value. Therefore, the Italian club recourse to FIFA DRC asking for a compensation of around €23 million, but the Panel valued the damages flowing from the breach of contract at €3.9 million. Consequently, the parties lodged an appeal with the CAS, claiming the club to be rewarded of player’s market value (in accordance with Matuzalem award), while the player only wanted to pay the return of the missing salary (in accordance with Webster award). According to CAS, the DRC failed to sufficiently explain the reasoning behind its decision («there is no written reasoning behind the DRC’s key decision»). CAS, then, decided to take into account broad parameters for its own award and calculated the compensation taking into account the replacement costs of the player and the savings made for the unpaid salary. Furthermore, regarding the specificity of sport, CAS awarded to Udinese an additional compensation equivalent to 6 monthly salaries: therefore, the total amount due to the former club was €2.25 million.



3.4 Comment

This case shows that all breaches of contract falling within the scope of Article 17 of the RSTP must be dealt with on a case by case basis, whereby the outcome is dependent on the factual circumstances, the claims and the proof brought forward. Further, the uncertainty of outcome in any individual case encourages respect of contracts and stability in the game.

FIFA and CAS are of the opinion that contractual stability is crucial for the continuous functioning of the transfer system and, evidently in the cases considered, incorporate a far more complete calculation of the value of a player in the compensation fee.

A general opinion is that article 17 will lead to case-by-case jurisprudence and that the facts of each situation are going to be of maximum importance. Therefore, a similar situation like the one with Bosman, which was treated as erga omnes, cannot be expected but, instead much more ad hoc decisions.



Collins Bruce QC

FCI Arb, BA, LLB (Hons) (Sydney), LLM (Melbourne), Australian Olympic Appeals Consultant, Member Court of Arbitration for Sport
AN INTERNATIONAL APPROACH TO SELECTION APPEALS
It is both logical and desirable to strive for the establishment of similar selection appeal structures across the nations. The Court of Arbitration for Sport, established by the International Olympic Committee, sits at the apex of sporting appeals and if, as the author contends, each nation is in truth, or should be pursuing, the same objectives in its selection appeals structure, then mechanisms which result from the infusion of those objectives ought to be strikingly similar from nation to nation. The nature and character of such structures will be drawn even closer together from nation to nation, if sporting administrators liken such structures to those qualities of fairness, quality, striving for excellence and competitive fellowship which enliven a love for the sporting endeavour.

The spirit of the Olympic movement is not a seasonal sentiment confined to the Olympic Games. It is a sporting spirit. It should be possible to propound a broadly standard selection appeals structure for the consideration of the international sporting community.

The first task is to identify the desirable objectives of such a system. An accurate description of those objectives will do much to prescribe in turn the key elements of a fair and efficient selection appeals system5.

There is little room for legitimate debate concerning the desirable objectives of such a system. Different opinions there may be concerning the emphasis or the impact of various objectives, yet it is hard to contemplate excluding any from the list following.



Such a structure should exhibit qualities of:

  • the ethics of sport and the Olympic movement;

  • fairness6;

  • consistency and predictability;

  • recognition of the critical importance of selection to athletes who have in many instances devoted their lives to achieving selection;

  • respect for the rules by authorities and administrators7;

  • the proper identification and early dissemination of appropriate selection criteria;

  • the elimination of arbitrariness and unregulated subjectivity;

  • transparent8, accountable and free from bias;

  • an appropriate review mechanism;

  • no undue legalism or technicality;

  • exclusively sporting and «field of play» questions should be left to sporting administrators;

  • the question of the character of the athlete and its bearing upon selection should be an overriding consideration.

Taken such objectives are clearly identified and described the more readily a suitable selection structure takes on a visible form.

Bearing these considerations in mind should ensure that difficult questions concerning the so-called «field of play rule» do not arise9. This will be so because the sporting administrators and athletes should by their agreement, have established a regime in which it is not possible to resuscitate grievances about the result of an event and translate such grievances into last minute selection appeals.

There are a number of compelling reasons why that should not be allowed to happen.

Those reasons include:


  • the fact that the appeal against non-selection in the Olympic Team will almost certainly not be heard by sports-knowledgeable persons who observed the event or competition in question;

  • by the time such a belated challenge to an event result is heard the Olympic selections trials and preparations are usually well advanced and the challenge may actively undermine Olympic preparation and the chances of Olympic success;

  • it is essential that there be finality of the results of competitions when those results are to be later used by selectors to inform their selections. Rules should be drafted to ensure that sport’s National Appeals Committee cannot go behind the results of an event in the absence of fraud, corruption or bad faith;

An example of problems of that kind recently came before the Court of Arbitration for Sport in Sydney10.

In that case the athlete argued that he was not given an equal chance of selection with the other athletes, because in his kayaking selection trial he alleged that his paddle stroke was impeded by the presence of weed in the water on his section of the course, a difficulty with which the other paddlers did not have to contend.

The rules of the sport provided for a match day committee to hear such protests. The athlete availed himself of the right to protest and the Match Day Committee dismissed his protest. The athlete did not utilise his right to appeal from the match day committee decision to the Race Day Jury. Some time after the event in question and not having been nominated by the National Federation for the Australian Olympic Kayaking Team, Mr. Simpson appealed to the National Appeals Committee of the Kayaking Federation, contending that the presence of weed in his race lane, denied him a reasonable opportunity to be selected in the Olympic team. This contention failed upon the true construction of the relevant rules which, the Court held, did not enable the National Appeals Committee to go behind the race day result. Simpson’s participation in the race itself, overlaid with his first right to appeal, which was dismissed, considered together with his further right of appeal, which he did not exercise, all considered in their entirety, were sufficient to establish the conclusion that he had been afforded a reasonable opportunity to nominate for selection.

The suggested selection structure may be reviewed schematically from the bottom up. At this first important stage in the relationship between athletes and administrators, an appropriate contract should be entered into. The selection structure is born out of, and is completely dependent upon that contract.



The athlete’s key promises:

  • to agree to be bound by the relevant decisions of the sport’s administrators;

  • to agree with the sport and the National Olympic Committee that all disputes arising out of the athlete agreement will be resolved not in the courts, but by the National Appeals Committee and the Court of Arbitration for Sport;

  • to agree to comply with anti-doping laws and not to bring the sport into disrepute.

The administrators’ promises:

  • to ensure that the athlete is given a reasonable opportunity to be nominated for selection in the Olympic team;

  • not to alter the selection criteria without prior approval of the National Olympic Committee;

  • to apply the selection and nomination criteria fairly.

The selection criteria:

The details of the selection mechanism should all be in place before the athlete agreement is considered. The objective of the selection process should be clearly defined. For example, to maximise that sport’s chances of winning medals at the impending Olympic Games. From that point onwards the selection objectives should be clear, constant and well understood.

The chosen selection criteria is the exclusive province of the sport itself, after its national and international constitutional processes have been carried through.

This is subject to these important riders:


  1. The overriding good character requirements (of the National Federation and the National Olympic Committee.

  2. The athlete must be afforded a reasonable opportunity to satisfy the nomination and election criteria.

  3. Olympic selection is in the ultimate discretion of the National Olympic Committee.

It is not the purpose of this paper to analyse the different types of selection mandates, for example, purely objective, subjective or a hybrid with discretion. These questions are very well discussed in the Australian Sports Commission publication «Getting it Right: Guidelines for Selections»11. They may vary of course from sport to sport.
The next upward level in the scheme is:

  • appeals from the decision of the selectors;

  • the grounds for appealing to the National Appeals Committee of the sport should be limited to the following four grounds and these grounds should be clearly set out in the document which records the agreement between the athlete, the sport and the National Olympic Committee.

Those four grounds are:

  1. the applicable nomination/selection criteria have not been properly followed

  2. the athlete was not afforded a reasonable opportunity by the National Federation to satisfy the applicable nomination criteria

  3. the nomination decision was affected by actual bias, and

  4. there was no material on which the nomination decision would reasonably be based.

Appeals from the national Appeals Committee to the Court of Arbitration for Sport (C.A.S.)

This is the next level upwards in the selection appeals structure. The sole grounds for any appeal against the decision of a National Appeals Committee are:



  1. a breach of the rules of natural justice by the National Appeals Committee, or

  2. that the decision of the National Appeals Committee is otherwise wrong in law.

These narrow gateways of appeal achieve two principal objectives. Firstly, they ensure that sporting decisions are, subject to compliance with the rules of natural justice, left to be made by sports people. Secondly, they operate to encourage sports administrators to endeavour to properly institute and implement sound review structures.

Appeals against the ultimate decision of an National Olympic Committee not to select a nominated athlete for Olympic competition

In the same way that a non-nomination appeal lies to C.A.S. from the decision of a National Appeals Committee, so too an appeal lies from the National Olympic Committee’s non-selection of a nominated athlete, to C.A.S. There are only two grounds for such an appeal. They are:


  1. that the National Olympic Committee’s decision was affected by actual bias or

  2. that the National Olympic Committee’s decision is obviously or self-evidently so unreasonable or perverse that it can be said to be irrational.

At each of the points of transition in this schematic representation a number of legal principles apply. They are the requirements that the sports administrators act in good faith, be free from bias and address themselves only to relevant considerations, when coming to selection decisions. The National Appeals Committee is bound to comply with the rules of natural justice.

The point of greatest important is to ensure that the results of selection events are credible and bankable. The integrity of these results should be inviolable. How is that to be achieved? First, why is it desirable? The essential body of information relied upon by the selectors should be stable and not subject to challenge if the process has been properly implemented. If the results of a particular event are to be considered by the national selectors then those results should not be the subject of later challenge by an athlete under the guise of a selection appeal. How is that to be achieved? The answer is and must be, by the formation of a contract between the athlete, his sport’s National Federation and the national Olympic Committee. The conditions of entry for selection of events which are to be considered by selectors when nominating the Olympic team, should include:



    • a requirement that they be read by all entrants and signed to signify that they have been read and understood

    • that the proper decisions of event officials is final

    • appointment of match/event review committee and perhaps a race day jury if a further appeal is considered appropriate

    • if there is no appeal to the event day officials then the result declared is final

    • the rules of natural justice apply to the proceedings of any review tribunal.

I commend to delegates an international approach to sporting appeals which has at its heart the self-same ethical and fair values which infuse sport itself.

Panagiotopoulos Dimitrios P.

Assoc. Prof, University of Athens , Attorney-at-Law, Vice-Rector, University of Central Greece, President of International Association of Sports Law (IASL)
LEX SPORTIVA: INTERNATIONAL OR SUI GENERIS – «UNETHNIC» LAW?
Introduction

Sporting life, the sports community and physical activity are governed by an entire corpus of rules of law12, the rules of law regulating the nature of sports institutions, sporting and physical activity, participation in it, the sports relations between natural persons and legal entities and problems arising from sports events are dealt with. This system constitutes the applicable legal order for sport and sporting activity13. The question to be discussed in the present article is whether the entire system of rules of sports law may be considered a part of international law or a sui generis – «unethnic» law.



1. Subjects of International Law

What is international law? It is a body of rules and principles embodied in the legal instruments of agreements between states, in international customs binding for the subjects of international law, i.e. the states, international organizations, and, more recently, individuals. States are the primary subjects of international law14. Despite the fact that another category of subjects of international law has been emerging, namely international organizations, individuals, groups of people and liberation movements, the states remain the traditional category of international legal subjects which hold the authority in the international legal community15.

When states are interested in realizing and carrying out tasks of mutual interest, they establish international machinery. They institute distinct centers of action for the furtherance of common goals which are designed to perform only those activities which states delegate to them. The International Court of Justice in its advisory opinion on Legality on the Use by a State of Nuclear Weapons in Armed Conflict16, stated that the object of the constituent instruments of international organizations «is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals». In the same advisory opinion the ICJ stressed another feature of international organizations. Unlike states, they have limited competence and limited field of action. As the Court put it, «international organizations are subjects of international law which do not, unlike states, possess a general competence. In the famous Reparation case17 the ICJ observed that the performance by the organization of the tasks entrusted to it would be impossible, if the organization did not possess international personality. The judges took great care to link the attribution of such personality to the will of the member states, which is necessarily implied in the case. The court acknowledged in its 1949 advisory opinion that the concept of legal personality has no uniform content in international law18. Hence, from the reasoning of the court and the international law, it appears to be possible for an organization to obtain legal personality via custom19.

International organizations20 are governed by the principle of specialty, i.e. they are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them». A twofold test verifies the possession of legal personality by the international organizations21.

First, it must be shown that the member states, when they created these organizations with a view to carrying out certain functions, they intended to confer upon them the competence required to enable them to discharge effectively these functions22.

Second, it is necessary for the organization to enjoy real autonomy from member states and the effective capacity necessary for it to act as an international subject. In the words of the ICJ it is necessary to show that the organization «is in fact exercising and enjoying functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane». What are the international rights and duties conferred upon international organizations? We mention the most important ones:

The right to enter into international agreements with non-member states on matters within the organization’s capacity23.

The right to immunity from jurisdiction of state courts for acts and activities performed by the organization. Domestic courts of many states have held that disputes relating to employment with international organizations cannot be submitted to State’s jurisdiction for they concern activities which fall within the purview of the organization concerned24. The international organizations have the right to claim immunity from the jurisdiction as well as from the execution of national courts with regard to activities performed to attain the goals laid down in the organization’s statutes or constitution25.

The right to protection for all of the organization’s agents acting in the territory of a third state in their official capacity as international civil servants26.

The right to bring an international claim with a view to obtaining reparation for any damage caused by a member States or by third states to the assets of the organization or to its officials acting on behalf of the organization. The ICJ upheld this right in the Advisory Opinion on Reparation for Injuries27.

Despite the existence of these rights, international organizations do not always have the capacity to enforce them when member or non-member states breach them. When states do not comply with their own obligations, or with international decisions concerning their wrongful acts, international organizations are often unable to enforce international law.

Another subject of international law emerges timidly yet decisively: the individuals. More and more treaties confer rights directly on individuals and impose obligations on them, especially in the area of International Criminal Law28. The right of individual petition to the ICC and other judicial organs are indications of the slow but marked trend of making individuals subjects of international law. Of course, the states still have exclusive control over the individuals since they are the ones to enforce agreements which confer rights on individuals via the sole vehicle of incorporating international law in their legal systems. The right of individuals to petition international or quasi international judicial bodies is considered exceptional since it lacks any substantive right, or the power to enforce a possible decision of the international body that might be favorable to the individual. Again, at the present stage one cannot argue effectively that the individuals are entitled to seek enforcement of these obligations. Rather, it is the states that are in a position to advance such a claim and pursue enforcement bringing a claim before a national or international court those allegedly responsible for breaches of their international obligations29.



2. International law vs. domestic – national law

The status of the international law versus the national law has given rise to three distinct positions.

1) The monistic view30 according to which international law is not a separate legal order but a set of provisional guidelines to be advanced to the status of law, if this is in the interest of the sovereign state and according to its unchecked will.

2) The dualistic doctrine, according to which the international legal order and the domestic national orders are two different sets of legal order quite distinct from each other. Their differences lie in: a) their subjects (individuals and groups of individuals for the domestic legal orders, states and international organizations in the case of international law), b) their sources (parliamentary statutes or judge made law in the national law systems, treaties and customs in the international law), and c) the contents of the rules (national law regulating the internal functioning of the state and the relation between the State and the individual, while international law regulates the relations between states).31 This position allows for an equal, albeit separate status of international law. However, it is obvious that it is upon the discretion of the states to enforce by implementation in their legal systems or to discard it32.

3) A third view, formulated by Kelsen33, argues for the supremacy of international law vis-à-vis the domestic legal systems. It appears to have gained ground more in theoretical debates than in reality.

In order to find out to which of the above positions any given state ascribes, we must examine the stipulations the state sets for the implementation of international law in its domestic law34.



3. Enforcement of international law

In international law, neither central executive authority, nor an effective mechanism of enforcement exist. One would be justified to state that the UN has fallen short of its role to be the executive power of international order. The lack of an effective enforcement mechanism is coupled with a lack of a system of compulsory international adjudication. The International Court of Justice and other international courts such as the European Court of Human Rights only have jurisdiction when the parties to the dispute have consented to the Court’s jurisdiction. On the whole, the history of the ICJ has been, with a few bright exceptions, one of an embarrassing succession of failures to establish its authority over the subjects of international law, the most glaring being the South African case. It appears then that international law is still in a primitive state evident. Current political developments sadly confirm this. International law has moved but a little from the contractual mercantile spirit which gave birth to it. It remains highly fragmented, contractual, and, as a result, basically ineffective in its enforcement.35



4. Lex Sportiva: a sui generis – «Unethnic» Law?

Features

The term international sports law appears to be a subcategory of international law. Basically all international Sports organizations were the product of private initiative and belonged to the category of Private international organizations. However, it is commonplace that the most important ones, like the International Olympic Committee and the international sport federations, have acquired international legal personality through customary practice36. The compliance by the states and individuals with the rules created by these organizations leaves no other logical alternative. The fact that these organizations are subject to the law of the country they are based, does not contradict with their international personality. Ιt appears that the originally private international sports organizations by the implied will of states and individuals and as a result of custom have international legal personality and effective capacity in order to attain the specific goal of creating and organizing the performance of international sports and international sporting events. Thus, international sports organizations meet the requirements of the twofold test, discussed above, e.g., the International Olympic Committee, which is vested with the authority to organize and supervise the Olympic Games.

We note here a clear departure from the international law reality described above. In international Sports, law obligations and rights are imposed directly on the individual athletes. The direct effect of international sports law on individuals can be compared only with the vertical effect which exists in domestic national law systems and, in the case of regulations, in EU law.

In terms of the creation of the rules, the main legislating function is performed by the international organizations of sports law, i.e. the International Olympic Committee and the international sports federations. However, close to the international practice this might be, there is a specific difference. In case of non-compliance by the member states with the rules of the international sports organizations, the exclusion of the disagreeing member, be it a national sports organization or sports federation or athlete, is immediate and is enforced through the sanction of banishment from the games. Failure of the athlete or the member state to abide by the rules of the international sports law activates a system of penalties which vary from fines and suspension to partial and life game exclusion. The system of penalties for the athletic existence of the individual athlete is the equivalent of detention, temporary incarceration, and life imprisonment in a “land” of non-athletic competition. This is a crucial difference between international law and international sports law: an effective enforcement mechanism is definitely not one of the characteristics of international law while the sophistication of the international sports law has in terms of enforcement is impressive37.

Another very important difference is the exclusive jurisdiction of the judicial organ of international sports law that is the Court of Arbitration for Sport in Lausanne (CAS). In the «Bliamou case»38 the clash between national judicial organs and the CAS proved without doubt the superiority of the CAS jurisdiction in international sports law. In international law there is no system of compulsory international adjudication.

A new species of internationalized sports law

We observe differences between international sports law and international law on issues fundamental to the nature and the quality of the law itself. The position that sports law is merely a category or subspecies of international law does not appear to be true on closer examination. We are faced with a system of law which, although it undoubtedly possesses international characteristics since it regulates relations in the international domain, it has set in place a formidable mechanism of enforcement and compulsory adjudication that can be compared only to the national legal systems. Apart from the domestic national systems, only the EU legal order can exhibit such effectiveness in enforcement procedures.



Lex Sportiva: New demands, higher expectations

Therefore, different demands must be made on this legal system and different expectations are to be met. When a legal system exhibits such a power of enforcement of rules we are faced with the familiar ideological dilemmas that we have encountered in the area of domestic law. This debate has already taken place and the conclusions have been crystallized into principles that are concrete and undisputed, despite the fact that problems still occur in their application. These problems of course are more telling of the shortcomings of our societies rather than of the soundness of the principles. In any law order, where power accrues in the hands of the few, the solution lies in the principle of legality and in the separation of powers. There must be a separation of the legislative, executive and judicial powers. In other words the body which sets the rules must not execute them and must not judge the disputes arising from the application of the laws. Separate bodies must execute these functions. The separation of powers must be guaranteed by an independent judicial organ and by the existence of effective judicial remedy for the people39. Confusion of these powers will result in abuse of power and absence of democratic functions.

The particular nature of international sports law puts accepted and common practices as well as established organizational structures in a new light. First, the inadequacy of the international law practices in a system which possesses an enforcement mechanism comparable to that of the national systems and, second, the need to apply the principles of legality when we investigate its structure, criticize its practices, and state the need for its fundamental structural change.

Conclusion

Lex Sportiva is a new species of law, a synthesis of features of international law, (subjects, jurisdiction and content of regulations) and features of domestic national law (effective enforcement mechanism, vertical effect of its laws, and immediate incorporation in the national law systems and compulsory and exclusive jurisdiction of its judicial organs).

So, it appears we are faced with another species of international legal order that cannot be treated as an international law subcategory. It is a different kind of international law40. No clash exists between Lex Sportiva and international law, since we are dealing with a different kind of international law, sports law, which constitutes a supranational system which regulates a specific domain of international law41.

In conclusion, we could say that lex sportiva is not a part of international law, but a sui generis category of law. Lex Sportiva could be viewed by the people interested in sports law, as a category of law that it is neither part of international law, nor a part of the national one. It could be characterized as an «unethnic» law, meaning that it is a supranational category of law, above the power of the states.


Pitschen Gilles Carlo

Jurist, lic.iur Law Firm «Nobel & Hug», University of Zürich
CHALLENGING AWARDS OF THE COURT OF ARBITRATION FOR SPORT – CASE LAW DIGEST 2011-2012


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