The legal status of international sports federations

by Steve Cornelius[1] and Danie Cornelius[2]

 

Introduction

As the notion that elite sports can be practised by amateur athletes faded during the 1980s and 1990s, the transition to professionalism inevitably brought increased pressures to bear upon the major international sports federations. During the formative years of international sports in the first half of the twentieth century, adverse decisions taken by sports federations often merely tarnished the reputations or egos of the athletes involved. But as money began to play a more important part in sport, adverse decisions began to influence, not only the financial means of individual athletes, but also expensive investments made by clubs, sponsors and others. Amateur athletes have little motivation and inadequate means to challenge the all-powerful sports federations. Professional athletes, on the other hand, have millions of reasons to seek redress and substantial means to afford legal action. And when athletes begin to challenge the authority of sports federations, the legal status of these federations inevitably comes under scrutiny.

 

The Olympic Movement

Since the end of the nineteenth century, the preeminent institution in international sport has been the Olympic Movement, which consists of the International Olympic Committee (IOC), international sports federations (IFs) affiliated to the IOC, national Olympic committees (NOCs) and organising committees for Olympic Games (OCOGs).[3] Of these, the IOC is arguably the most powerful sport’s governing body the world has ever seen. Rule 1 of the Olympic Charter provides that the IOC is the supreme authority of the Olympic Movement. It binds any person or organisation belonging in any capacity whatsoever to the Olympic Movement.

The IOC is, in effect, only an elite club of no more than 115 selected individuals. In a sense, the IOC is not much different from the boards of directors of any large multinational corporation. And yet it seems to enjoy powers and privileges that are far beyond the grasp of ordinary commercial organisations. The president of the IOC enjoys, at least in practical terms, if not in legal terms, a status not unlike that of any high-ranking official of the United Nations (UN). This status is underlined by the fact that the IOC has 204 national members, while the UN has 193 member states. In practical terms, the IOC has, in little more than a hundred years, acquired a status which few other organisations of individuals have managed to attain.

Initially, organised sport and the Olympic Movement developed almost in the background. Governments took little interest in these “pastimes of gentlemen”. As a result, the IOC was initially given a free hand in the organisation and development of international sport. And while the IOC by itself could not generate rules of public international law, states began to recognise the autonomy of the IOC. When governments realised that international sport was a matter of government concern, they were confronted with an existing organisation which had already become very powerful in the world of sport. Rather than interfere with the operation of the IOC, governments continued to allow the IOC to operate autonomously. This resulted in an implied delegation of government functions in sport to the various bodies within the Olympic Movement.[4] This resulted in “the sui generis law of the Olympic Movement [being] accepted, respected and applied as a state-independent body of legal rules in a number of municipal court decisions”.[5]

Even though the IOC is a private entity governed by Swiss municipal law and, therefore, a non-governmental organisation with limited competence beyond the Olympic Movement, the privileged treatment it has received at the hands of governments across the globe, has accorded it a unique status in international law.

In the run-up to the 1984 Summer Olympics in Los Angeles, a number of female athletes instituted legal action[6] against the IOC. They alleged that its failure to include 5,000 m and 10,000 m track events for women at the Games, constituted sex discrimination in violation of US constitutional, federal and state law. The Federal Appeals Court found “persuasive the argument that a court should be wary of applying a state statute to alter the content of the Olympic Games. The Olympic Games are organised and conducted under the terms of an international agreement – the Olympic Charter. We are extremely hesitant to undertake the application of one state’s statute to alter an event that is staged with competitors from the entire world under the terms of that agreement.”[7]

This view was confirmed by the New York Court of Appeals in Ren-Guey v. Lake Placid 1980 Olympic Games Inc[8] as the court did not fault a decision where “the Department of State, acting on behalf of the President, has elected to defer to the IOC in matters concerning national representation at the Olympics”.[9] And in San Francisco Arts & Athletics Inc . USOC and IOC[10], the US Supreme Court referred to the IOC as a “highly visible and influential international body”. Similarly, the Court of Appeal for British Columbia held, in a case following the exclusion of female ski jumping from the 2010 Winter Olympics in Vancouver, that the Canadian Charter of Rights and Freedoms did not extend to the IOC and that the court, therefore, had no jurisdiction to decide the matter.[11]

Reinisch[12] criticises the approach adopted by the American courts. He is of the opinion that the court overestimated the legal relevance of the Olympic Charter. The Olympic Charter, he argues, is not an international agreement in the sense of an agreement under international law. In spite of this criticism, Reinisch concurs with the courts’ concerns that the unilateral imposition of national policies might hamper the internationally governed rules of the IOC.

Reinisch may be correct in his assertion that the Olympic Charter is not an agreement under international law. However, it would be simplistic to view the Olympic Charter merely as a private international contract. It ignores the fact that a whole body of customary law has developed and is continuing to develop around the practise of international sport. Nafziger[13] explains that:

“[t]he overall process of rule-making and enforcement “on the fringe of public international law” might be classified as an “international regime”, “true international law”, “droit des gens”, “transnational common law”, or perhaps simply “transnational law.” The label would not seem to be terribly important. What is important in understanding the structure and force of international sports law is to take into account the interdependence of public and private authority and of the emerging role of complex legal processes that blend governmental and non-governmental authority […] National Governments, committed to the Olympic Movement or influenced by it, often assist directly in this transmission of [international sports law]. The agencies of transmission vary greatly among countries. In some, the process is confined to a strictly non-governmental hierarchy, from the IOC down through IFs and NOCs to national federations and finally to local associations. In other states, national legislation, pronouncements of sports ministries or national commissions, and judicial decisions may involve governments more directly. Olympic rules and decisions normally constitute either an autonomous regime to which governments defer or international custom practised by them.

This deference by or practise of governments elevate the Olympic Charter to a position which transcends the realm of a mere international contract. At the very least, it has acquired a customary status which affords the Olympic Charter a status not unlike that of an international agreement in international law. This is compounded by the fact that more countries are affiliated to the IOC than are members of the UN.

This status of the IOC is further highlighted by its relationship with the UN. Since 1993, the UN General Assembly has, in the run-up to an Olympiad or Winter Olympic Games, adopted a resolution supporting the IOC and calling on members states to observe the Olympic Truce and promote “a peaceful and better world through sport and the Olympic ideal”.[14] Furthermore, the UN declared 1994 the International Year of Sport and the Olympic Ideal.[15] And most significantly, in 2009, the General Assembly of the UN granted observer status to the IOC, and invited the IOC to participate as such in the sessions and work of the General Assembly.[16] This is a status enjoyed almost exclusively by international organisations and puts the IOC in the same league as the Organisation of American States; the Council of Europe; the African Union; Interpol; the International Committee of the Red Cross; and the World Customs Organisation, to name but a few.

It is also interesting to note that national governments have used political, rather than legal means to deal with socio-political issues in relation to the IOC in much the same way as they would deal with other states. This is highlighted by the boycotts of the 1976 Montreal games by African states protesting at the participation of New Zealand after the New Zealand rugby team had toured South Africa; the boycott by the United States and many of its allies of the 1980 Moscow Olympics because of the Soviet invasion of Afghanistan; and the boycott by the Soviet Union and its allies of the 1984 Los Angeles Olympics in retaliation for the 1984 boycott. It is interesting to note that, in 1980, US president Carter merely “requested” the US Olympic Committee not to send a team to Moscow, but threatened to withdraw its funding and tax exemption if it refused to adhere to the “request”.[17]

As a result, one has to concur with Nafziger,[18] when he states that:

the IOC “manifests traits and actions characteristic of international organisations”. It meets the requirements of international legal personality. Clearly, the IOC was “intended to exercise and enjoy, and 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”.”[19]

 

WADA

Doping is as old as sport itself and the modern phenomenon of doping emerged as soon as modern sport emerged in the nineteenth century.[20] Initially, doping seemed to be an acceptable and even necessary element of sport.[21] However, as reports of side-effects on the psychological, physical and physiological well-being of athletes began to surface, a steady call for measures to redress the problem began to arise. The International Amateur Athletics Federation[22] was the first IF to address the problem of doping in sport when it adopted a simple rule against doping in 1928.[23] However, the fight against doping only truly gained momentum after the deaths of cyclists Knut Jensen at the 1960 Olympic Games and Tommy Simpson during the 1967 Tour de France.[24] In 1967, the International Olympic Committee (IOC) established a Medical Commission and approved a ban on doping the following year, in time to conduct the first tests on athletes at the 1968 Winter and Summer Olympic Games.[25] However, because of the inconsistency in measures to deal with doping from one sport to the next and from one country to the next, the World Anti-Doping Authority (WADA) was established in 1999 to harmonise and strengthen anti-doping actions and rules across all sports and countries.[26] This resulted in the adoption of the World Anti-Doping Code (the Code) in March 2003.[27] The legal status of WADA and the Code was elevated with the adoption of the International Convention against Doping in Sport 2005 (the Convention), which expressly refers to WADA and the Code.

In view of the express recognition which the Convention accords to WADA and the Code and the adoption and/or ratification of or accession to the Convention by most countries affiliated to the IOC, compliance with the Code and the authority of WADA are matters of national and international law. In addition, many countries have adopted legislation to deal with the issue of doping in sport, as envisaged in art. 5 of the Convention. This also brings compliance with the Code and the authority of WADA into the sphere of national law. However, as will be seen below, any athlete participates in sport on the basis of a contractual relationship,[28] the terms of which are derived from the constitution, laws, rules and regulations of the various bodies, unions, associations and federations which govern the particular sport. The result is that athletes are subject to the doping control measures of WADA and the terms of the Code on at least two grounds, as a matter of international law and a matter of contract.

 

International sports federations

While the IOC and WADA seem to have acquired a privileged status that few organisations not composed of member states enjoy, it seems that other IFs have not shared in the same fortune.

Initially, it seemed as if courts would also accord a special status to international governing bodies. In the Nehemiah case[29], the New Jersey courts refused to exercise jurisdiction over the International Amateur Athletic Federation (IAAF) in a dispute about the amateur status of an athlete who had played professional football. Similarly, in the Oldfield case[30], which also dealt with the eligibility of an athlete, who had joined a failed attempt at establishing a professional track and field athletics league, the 9th Circuit of the US Supreme Court ruled that the Amateur Sports Act of 1978 did not provide a private remedy with which an athlete could challenge the IAAF in court.

However, courts all over the globe have since not hesitated to hold international sports federations accountable for their actions. In Reel v. Holder[31], a case which dealt with the expulsion of Taiwan from the IAAF, Denning MR held[32] that:

the court was faced with a similar problem in relation to badminton […]; Shen Fu Chang v. Stellan Mohlin. The judge […] took the view, with which I agree, that we are not concerned with international law or with sovereignty. We are simply concerned with the interpretation of the rules of the IAAF. The rules are in English. The head office of the IAAF is in England. It is right that […] the matter should come to English courts to be decided.

As a direct result of this judgment, the IAAF relocated its headquarters to Monaco. However, this has not prevented courts in various countries from entertaining actions against the IAAF. In the run-up to the 1992 Olympic Games in Barcelona, a 400 m sprinter, who had failed a drugs test, decided to fight the subsequent ban and took on the might of the IAAF in the American courts. In the first Reynolds case, a district court granted an injunction allowing Reynolds to compete in the US Olympic Trails. This injunction was at first stayed in the Sixth Circuit Court of Appeals[33] and then reaffirmed by the US Supreme Court[34]. In spite of this, the IAAF refused to recognise the injunction and declared that any athlete who competed with Reynolds, would face sanctions from the IAAF. After protracted negotiations between the US Athletic Congress and the IAAF, the IAAF backed down and Reynolds was allowed to run. Any dispute concerning his eligibility to compete in the 1992 Olympic Games disappeared when he failed to make the US team.[35] However, Reynolds was not finished. He subsequently successfully sued the IAAF for $ 27.3 million in damages. The IAAF called the judgment worthless and refused to comply with it. Reynolds seemed on his way to recover $ 700,000 when a garnishment order was given against Mobil Oil, a sponsor of the IAAF. But the Sixth Circuit Court of Appeals[36] eventually overturned the order, citing lack of jurisdiction and the US Supreme Court refused to intervene.[37] However, subsequent litigation in Germany[38] compelled the IAAF to take note and reduce its mandatory penalties for certain positive drugs tests from four years to two.

Other international sports federations, such as the Union of European Football Associations and FIFA[39], the International Swimming Federation[40], the International Triathlon Union[41] and International Tennis Federation[42] have also found that they were not immune from intervention by municipal courts. In all these instances, the courts held that athletes stood in a contractual relationship with the international federations and, as such, could claim appropriate relief if their contractual rights had been infringed[43].

More than any other factor, the establishment of the European Union with its culture of human rights, transparency and accountability has dealt a severe blow to the autonomy of international sports federations. Initially, international federations reacted to judicial intervention in their affairs by moving their offices to jurisdictions that were more accommodating and less meddlesome. In this way, most international federations ended up being based in Switzerland, apparently beyond the reach of courts in other European countries and the United States. However, the establishment of the European Union means that a core block of the leading countries in international sport, is subject to European Union law, with the result that even if the international federations are not based in an EU member state, some of their leading members are bound by EU law, so that international federations cannot ignore judgments of European courts.[44].

 

CAS

Because of the inconsistencies is national laws and the potential difficulties which could arise if different courts in different jurisdictions made different rulings in similar matters, the IOC established the Court of Arbitration (CAS) for Sport in 1983 to deal with disputes relating to the Olympic Games. In 1993, the Swiss Federal Tribunal ruled that the CAS was sufficiently independent and impartial, at least in so far as the IOC was not a party before the CAS.[45] As a result, in 1994, CAS became more independent when the International Council of Arbitration for Sport (ICAS) was established and the CAS came under the jurisdiction of the ICAS, rather than the IOC. And because of increased legal action against IFs in national courts, most IFs have tended to include mandatory dispute resolution involving the CAS, either in the first instance or as the forum for appeal, in their rules.[46] The CAS is based in Lausanne, Switzerland and, as such, is subject to Swiss federal law and the jurisdiction of the Swiss Federal Tribunal. Awards of the CAS can be enforced in national courts pursuant to the terms of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

Apart from the Swiss Federal Tribunal, which has repeatedly upheld the independence of the CAS[47] and, therefore, the validity of the CAS as forum for dispute resolution, which effectively excludes the jurisdiction of national courts to hear matters in the first instance, courts elsewhere have also accepted the CAS as an appropriate forum for the resolution of sports disputes. In Slaney v. IAAF[48] the Seventh Circuit Court of Appeals in Illinois ruled that it was not against public policy to enforce a ruling of the CAS in the US. And in Gatlin v. US Anti-Doping Agency Inc[49] a federal district court in Florida came to the same conclusion. Similarly, in Armstrong v. Tygart & USADA[50] a federal district court in Texas dismissed Lance Armstrong’s arguments that arbitration with USADA would violate his rights to due process on the basis, inter alia, that he could appeal an adverse decision to the CAS.

The way in which the ICAS and the CAS are now set up, should also satisfy the due process requirements set out in other legal instruments, such as art. 6 of the European Convention on Human Rights of 1950, which provides that everyone, whether in a civil or criminal case, is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law; or section 34 of the Constitution of the Republic of South Africa, 1996, which provides that:

“[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

 

Conclusion

It seems as if the IOC, as the preeminent organisation in the world of sport today, enjoys a status in international law which is not unlike that enjoyed by various international organisations, such as the International Monetary Fund, UNESCO, the International Labour Organisation, etc. It can probably be said that the IOC has, through custom, acquired the status as the international organisation responsible for global sport.

But in spite of their defiance, other IFs have not been able to secure that same advantage for themselves. Courts in various jurisdictions continue to deal with them on the basis of voluntary associations based on a series of contractual relations. In this regard, the inclusion in IF rules of mandatory dispute resolution involving the CAS, either in the first instance or as the forum for appeal, seems to provide, at least, some shield against the uncertainties and inconsistencies that would result from litigation in national courts.

 



[1] BIuris LLB (SA) LLD (Pret) FA Arb SA L Akad SA. Professor in Private Law, Director of the Centre for Intellectual Property Law and Co-director of the Centre for Sports Law, Faculty of Law, University of Pretoria.

[2] Manager, University of Pretoria Athletics Club.

[3] Nafziger, in: International Sports Law, 2nd ed (2004) 18.

[4] Nafziger 6.

[5] Nafziger 4. See also Mestre, “The Member States and the Olympic Movement: THE Double Face of legal Subordination”, available at www.en.acnolympic.org/acno/fichiers/File/XVIII_AG_ Moscou_2012_-_Documents_/2nd_wosc_moscow_2012_-_presentation_secretary_of_state_ portugal_-_the_member_states_and_the_olympic_movement_-_engl.pdf (accessed on 23 November 2013).

[6] Martin v. International Olympic Committee 740 F 2d 670.

[7] 677.

[8] 72 AD 2d 439. Affirmed in Ren-Guy v. Lake Placid 1980 Olympic Games Inc 49 NY 2d 771.

[9] See also Spindulys v. Los Angeles Olympic Organising Committee 175 Cal App 3d 206.

[10] 107 S Ct 2971.

[11] Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games 2009 BCCA 522 par 6.

[12] International Organisations Before National Courts (2000) 95.

[13] 6-8.

[14] See UN Resolution 11 of 2 November 1993 (A/Res/48/11); UN Resolution 13 of 21 November 1995 (A/Res/50/13); UN Resolution 21 of 8 December 1997 (A/Res/52/21); UN Resolution 34 of 18 January 2000 (A/Res/54/34); UN Resolution 75 of 10 January 2002 (A/Res/56/75); UN Resolution 6 of 18 November 2003 (A/Res/58/6); UN Resolution 8 of 1 December 2005 (A/Res/60/8); UN Resolution 4 of 16 November 2007 (A/Res/62/4); UN Resolution 4 of 1 December 2009 (A/Res/64/4); UN Resolution 5 of 8 December 2011 (A/Res/66/5).

[15] UN Resolution 10 of 2 November 1993 (A/Res/48/10).

[16] UN Resolution 3 of 22 October 2009 (A/Res/64/3).

[17] Epstein Sports Law (2013) 324.

[18] 26.

[19] See also Mestre, “The Member States and the Olympic Movement: THE Double Face of legal Subordination”, available at www.en.acnolympic.org/acno/fichiers/File/XVIII_AG_ Moscou_2012_-_Documents_/2nd_wosc_moscow_2012_-_presentation_secretary_of_state_ portugal_-_the_member_states_and_the_olympic_movement_-_engl.pdf (accessed on 23 November 2013).

[20] Sheehan, “Doping in Sport – A Deadly Game”, in: The Athlete (available at www.theathlete.org/doping-in-sport.htm, accessed on 2 May 2012).

[21] Woodland Dope, The Use of Drugs in Sport (1980)

[22] As it then was. Now it is the International Association of Athletics Federations.

[23] Brown (ed), IAAF Medical Manual (2009), chapter 15.

[24] “History of Performance Enhancing Drugs in Sport”, available at http://sportsanddrugs.procon. org/view.resource.php?resourceID=002366, accessed on 2 May 2012.

[25] Brown (2009), ch 15.

[26] Idem.

[27] Idem.

[28] Harding v. US Figure Skating Association 851 F Supp 1476; Slaney v. The International Amateur Athletics Federation 244 F 3d 580; Armstrong v. Tygart & USADA case no A-12-CA-606-SS; Jockey Club of South Africa v. Transvaal Racing Club 1959 1 SA 441 A 446F, 450A; Turner v. Jockey Club of South Africa 1974 3 SA 633 A; Jockey Club of South Africa v. Forbes 1993 1 SA 649 A 645B, 654D; Natal Rugby Union v. Gould 1999 1 SA 432 SCA 440F; Rowles v. Jockey Club of SA and others 1954 1 SA 363 A 364D; Johannesburg Country Club v. Stott and another 2004 5 SA 511 SCA.

[29] 765 F 2d 42.

[30] 779 F 2d 505.

[31] [1981] 3 All ER 321.

[32] 324.

[33] 968 F 2d 1216.

[34] 112 S Ct 2512.

[35] Epstein (2013) 327.

[36] Reynolds v. IAAF 23 F 3d 1110.

[37] Anon, “Supreme Court will not review ruling on Olympic gold medalist’s botched drug test”, available at http://ndsn.org/jan95/testing.html (accessed on 24 November 2013).

[38] Katrin Zimmerman Krabbe v. Deutscher Leichtathletik Verband (DLV) and International Amateur Athletic Federation (IAAF) (Munich Court of Appeal, Germany, 28 March 1996).

[39] Barnard v. Australian Soccer Federation 81 ALR 51; Union Royale Belge des Sociétiés de Football Association ASBL v. Bosman 1995 ECR 1-4921 (ECJ); COMP 37.806 ENIC/UEFA IP/02/942 27 June 2002.

[40] Meca-Medina [2006] ECR 1-6991.

[41] Smith v. International Triathlon Union (Supreme Court of British Columbia, Vancouver, Canada, 26 August 1999).

[42] Korda v. International Tennis Federation (ITF Ltd) (High Court of Justice, Chancery Division, United Kingdom, 29.1.99); ITF Ltd v. Korda (Court of Appeals (Civil Division), United Kingdom, 25.3.99).

[43] Harding v. US Figure Skating Association 851 F Supp 1476; Slaney v. The International Amateur Athletics Federation 244 F 3d 580; Armstrong v. Tygart & USADA case no A-12-CA-606-SS; Jockey Club of South Africa v. Transvaal Racing Club 1959 1 SA 441 A 446F, 450A; Turner v. Jockey Club of South Africa 1974 3 SA 633 A; Jockey Club of South Africa v. Forbes 1993 1 SA 649 A 645B, 654D; Natal Rugby Union v. Gould 1999 1 SA 432 SCA 440F; Rowles v. Jockey Club of SA and others 1954 1 SA 363 A 364D; Johannesburg Country Club v. Stott and another 2004 5 SA 511 SCA.

[44] Such as Union Royale Belge des Sociétiés de Football Association ASBL v. Bosman 1995 ECR 1-4921 (ECJ); COMP 37.806 ENIC/UEFA IP/02/942 27 June 2002; Meca-Medina [2006] ECR 1-6991.

[45] Blackshaw, “CAS 92/A/63 Gundel v. FEI” in: Anderson (ed), Leading Cases in Sports Law 65 66 et seq.

[46] Davis, “What is Sports Law?” in: Siekmann & Soek (eds), Lex Sportiva: What is Sports Law? (2012) 1 49.

[47] Mitten, “Judicial review of Olympic and international sports arbitration awards: Trends and observations” 2009 Pepperdine Dispute Resolution LJ 51.

[48] 244 F 3d 580.

[49] 2008 WL 2567657 (Fla).

[50] Case no A-12-CA-606-SS.