BY PROF. DR. IAN BLACKSHAW
Sports’ governing bodies take various forms and their powers and influence vary from one sport to another.
In most sports, there are national as well as international bodies which regulate them. In the case of association football, as well as national bodies, for example, the English FA, and the global body, FIFA, there are also regional bodies on various continents, for example, UEFA, which is the governing body of the sport in Europe.
However, all sports’ governing bodies have one thing in common:
“[…] they are composite bodies with a membership of others involved in the sport, and they control the organisation of a particular element of the sport or the commercial exploitation of it.”
One other thing that sports’ governing bodies have in common is the extent to which they go to safeguard their autonomy and exclude outside interference of any kind in their internal affairs.
In this article, we will consider the role and powers of sports’ governing bodies and, in particular, we will comment on certain legal limitations that affect their autonomy and powers, including the doctrine of “ousting the jurisdiction of the courts”.
Most sports belong to the Olympic Movement, and, according to the Olympic Charter, which codifies the “Fundamental Principles of Olympism”, the role of sports’ bodies is stated as follows:
“Recognising that sport occurs within the framework of society, sports organisations within the Olympic Movement shall have the rights and obligations of autonomy, which include freely establishing and controlling the rules of sport, determining the structure and governance of their organisations, enjoying the right of elections free from any outside influence and the responsibility for ensuring that principles of good governance be applied.”
The key word in this “sporting manifesto” is “autonomy”, which, as mentioned, sports’ bodies jealously guard and defend on every possible occasion. In other words, they expect to be left alone to govern their sports and conduct their affairs without any external interference, including the ordinary courts. However, they are not – whatever they might think – above the law and, in the final analysis, are subject to the general law as interpreted and applied by the ordinary courts. On the whole, the courts, especially the English courts, leave sports’ bodies alone to get on with their affairs, particularly when it comes to the application of their “rules of the game” and their disciplinary regulations. See the comments of Vice Chancellor Megarry in the case of McInnes v. Onslow-Fane where he said that sports bodies are “[…] far better fitted to judge than courts”. Also, Lord Denning, a former Master of the Rolls, went further stating in the case of Enderby Town Football Club Ltd v. Football Association Ltd: “[…] justice can often be done in domestic tribunals better by a good layman than a bad lawyer”.
However, the English courts will intervene when there has been a breach of the rules of natural justice and also in cases of “restraint of trade”, where livelihoods are at stake. Also, on an exceptional basis, in cases where the parties have expressly agreed to arbitration, but where the arbitration arrangements and procedures would not lead to justice being done in the particular case.
A similar legal position of general non-intervention by the courts in sports disputes exists in the United States. In the case of Harding v. United States Figure Skating Association, the Federal District Court made the following observations:
“The courts should rightly hesitate before intervening in disciplinary hearings held by private associations […]. Intervention is appropriate only in the most extraordinary circumstances, where the association has clearly breached its own rules, that breach will imminently result in serious and irreparable harm to the plaintiff, and the plaintiff has exhausted all internal remedies. Even then, injunctive relief is limited to correcting the breach of the rules. The courts should not intervene in the merits of the underlying dispute.”
Likewise, the legal situation is similar in Canada. In the case of McCaig v. Canadian Yachting Association & Canadian Olympic Association, the judge made the following pertinent remarks about the role of the courts in the resolution of sports disputes:
“[…] The bodies that heard the appeals were experienced and knowledgeable in the sport of sailing, and fully aware of the selection process. The appeal bodies determined that the selection criteria had been met [… and] as persons knowledgeable in the sport […] I will be reluctant to substitute my opinion for those who know the sport and knew the nature of the problem.”
In Continental Europe, which follows and applies the Napoleonic civil law tradition, the courts are generally amenable to the parties trying to settle their disputes, including sports disputes, by arbitration and other extra-judicial methods, and will adjourn proceedings where there is an express contractual requirement to refer disputes to, say, arbitration, to allow this process to be pursued. Only in the event of failure to reach an extra-judicial solution, and in some other very limited cases, will the courts be prepared to entertain a suit and adjudicate on the dispute. Also, generally speaking, the European courts will not intervene in sporting disputes, which concern the “rules of the game” of the sport concerned.
The legal position in Switzerland provides a good example of these general principles. Under art. 190(2) of the Swiss Federal Code on Private International Law of 18 December 1987, a decision (known as an “award”) of an arbitral body, such as the CAS (Court of Arbitration for Sport), can only be challenged in the following limited circumstances:
“[The Award] can be attacked only:
a if a sole arbitrator was designated irregularly or the arbitral tribunal was constituted irregularly;
b if the arbitral tribunal erroneously held that it had or did not have jurisdiction;
c if the arbitral tribunal ruled on matters beyond the claims submitted to it or failed to rule on one of the claims;
d if the equality of the parties or their right to be heard in an adversarial proceeding was not respected;
e if the award is incompatible with Swiss public policy.”
In practice, perhaps ground d is the most important one, and the CAS bends over backwards in each case to ensure that the parties are properly heard and receive a fair hearing.
It will be noticed that one of the other grounds is that of Swiss public policy and mention should be made here of the first and only case to date, decided on 27 March 2012, under this ground, involving the Brazilian professional footballer, Matuzalem Francelino da Silva.
This particular ground for legally challenging arbitral awards in Switzerland, whether rendered by CAS or any other Swiss arbitral bodies, is notoriously difficult to establish in practice, as “public policy” (“ordre public”) is a complex and vague concept and one that is restrictively assessed and interpreted by the Swiss courts.
For the legal position in other countries, see the book Sport, Mediation and Arbitration by Prof. Dr. Ian Blackshaw.
One particular area of external influence, which sports’ bodies, such as the IOC, the custodian of the Olympic Movement, will not generally tolerate is political interference.
Sports’ governing bodies will not generally tolerate political interference in their affairs.
In the case of the IOC, the Olympic Charter lays down the following provisions on this important matter:
“The NOCs must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter.”
“Apart from the measures and sanctions provided in the case of infringement of the Olympic Charter, the IOC Executive Board may take any appropriate decisions for the protection of the Olympic Movement in the country of an NOC, including suspension of or withdrawal of recognition from such NOC if the constitution, law or other regulations in force in the country concerned, or any act by any governmental or other body causes the activity of the NOC or the making or expression of its will to be hampered. The IOC Executive Board shall offer such NOC an opportunity to be heard before any such decision is taken.”
A recent example of this kind of situation is the disbandment, on 25 August 2016 by the Kenyan Cabinet Secretary for Sports and Culture, of the Kenya National Olympic Committee, following certain of its members’ involvement in the so-called “Rio fiasco”. See the post on this affair by Elvis Majani on the GSLTR website. See also his post on the GSLTR website on “Kenya: Autonomy of the National Olympic Committee and the legal consequences of government interference”. As he points out in this post:
“Interference is inextricably linked to the concept of sports autonomy.
It can be described in the following terms: the legal autonomy of a sports organisation can be defined as the private autonomy of the organisation, to adopt rules and norms that have a legal impact, in a legal framework imposed by the State, be it at national or at international level.
Sports autonomy is, therefore, a broad concept which requires that the affairs of sports organisations be run without interference from governmental or non-governmental bodies, which interference might be political, religious, economic, judicial or otherwise. Interference in the management of sports organisations by governments and courts has often seen several federations suspended by their umbrella bodies from participating in their respective sports.”
And he adds:
“The principle of autonomy of sport is a universally accepted principle that cuts across all sports and is widely embraced as forming part of the distinct body of law called “lex sportiva”. The situation is no different in the case of the Olympic Movement. This is a Movement with various stakeholders, including the International Olympic Committee at the apex; International Federations; National Federations; National Olympic Committees; and Organising Committees for Olympic Games. The International Olympic Committee (IOC), at the apex, is in charge of the Olympic Movement and determines which games are to be played in the Olympics depending on the accreditation of the statutes of the various international federations.
The IOC, therefore, admits, as its members, international federations, but not before it has checked, for compliance with the Olympic Charter, the statutes of the international federations. Such compliance is usually principally based on issues such as whether or not the statutes of the federations allow for sports dispute resolution through recourse to ordinary courts of law and whether or not they recognise the Court of Arbitration for Sport as the apex dispute resolution body.”
As mentioned, failure to comply with the IOC requirement of non-governmental interference in sport results in the suspension of the NOC concerned and withdrawal of IOC funding. This creates a tense and difficult situation, not only for the NOC and athletes, but also for the national authorities. For example, in October 2015, the membership of the National Olympic Committee of Kuwait was withdrawn by the IOC, for governmental interference. This meant that Kuwait could not participate in its own right in the Rio 2016 Summer Olympics. The national government of Kuwait had enacted several laws that were deemed, by the IOC, to interfere with the autonomy of the various sports federations. In the event, the Kuwait government, bowed to this pressure, and decided to amend the offending laws and restructure its various federations in line with the provisions of the Olympic Charter. This shows not only the power of major sports bodies, such as the IOC, but also the power and importance of sport itself in a nation’s life!
For further information on the meaning and application of so-called “Olympic law”, see The Law of the Olympic Games by Alexandre Miguel Mestre.
But, it is not all plain sailing for and sports governing bodies do not always get their own way, as the Wilhelmshaven FC case clearly demonstrates.
Wilhelmshaven FC case
This is an important case concerning the German football club, SV Wilhelmshaven (Wilhelmshaven), which had been ordered by FIFA to pay training compensation, pursuant to the FIFA Regulations on the Status of Players and Transfers, to two Argentinian clubs in respect of a player, who had been trained by these clubs.
Wilhelmshaven consistently refused to pay the compensation and appealed against the FIFA decision to the CAS, which upheld the FIFA ruling on both claims. However, Wilhelmshaven did not challenge the CAS ruling before the Swiss Federal Tribunal (Supreme Court).
Eventually, a FIFA disciplinary committee imposed fines on Wilhelmshaven, and, following further fines, league points were also forfeited and the club was relegated to a lower league.
After further unsuccessful proceedings before the CAS, Wilhelmshaven decided to refer the matter to the German national courts and to fight the forfeiture of the league points, as well as their relegation.
The State Court in Bremen ruled that the awards made by the CAS against Wilhelmshaven and the fact that Wilhelmshaven had failed to take the CAS awards on appeal to the Swiss courts, precluded the club from challenging the FIFA disciplinary committee’s decisions and the resulting penalties before the German courts according to the legal principle of “res judicata”. In other words, the matter had already been adjudicated.
However, on further appeal to the Higher State Court in Bremen, this Court ruled that the disciplinary measures imposed by the NFV, the German National Football Association, were against the public interest under German law, because, in effect, they implemented the CAS and FIFA decisions, which were contrary to the free movement of workers under art. 45 of the Treaty on the Functioning of the European Union, to which the NFV was subject.
In essence the ruling in the Wilhelmshaven case is that sports authorities in Germany, like all other persons and businesses, are subject to German and EU law. Sports authorities in Germany cannot merely enforce decisions of sports bodies that are based in Switzerland and, therefore, not directly subject to German law and the authority of the EU, without having regard to the principles of German law and also EU law.
Thus, the Court was prepared to hear Wilhelmshaven’s case. After all, it was a German football club that opposed the decision of a German sports federation in a German court.
On further appeal by the NFV to the German Federal Court, the Court did not address the question of whether the order to pay training compensation was contrary to art. 45 of the EU Treaty, but left open this point. Instead, the Court based the dismissal of the appeal by NFV on the principle that a parent association makes rules only for its members. Wilhelmshaven was a member of the NFV, but it was neither a member of the German Federal Football Association, DFB, nor of FIFA. The Court explained that an association makes rules only for its members. The mere fact that the NFV was a member of the DFB and that the DFB was a member of FIFA, did not provide the legal basis on which the FIFA decision could be enforced against Wilhelmshaven. It also did not warrant a conclusion that Wilhelmshaven had submitted itself to the disciplinary jurisdiction of FIFA.
This aspect turned out to be the decisive factor on which the German Federal Court concluded that the compulsory relegation of Wilhelmshaven by the NFV was not appropriate. Also, the rules of the NFV did not empower it to impose relegation on the club because Wilhelmshaven did not pay the training compensation as ordered by FIFA.
The appeal was, therefore, dismissed and, at least as far as Germany is concerned, Wilhelmshaven was not obliged to pay the training compensation.
This case has important implications for international sports federations (IFs), such as FIFA.
The essence of the judgment is that IFs can only impose disciplinary measures on their own subordinate members. IFs, therefore, cannot impose sanctions on clubs that are affiliated only to those subordinate members. Thus, IFs do not have any disciplinary jurisdiction over clubs that are affiliated to national federations. In other words, there is no “privity of contract”; that is, there is no contractual nexus between clubs and the IFs, of which they are not members.
Where the contractual nexus exists, so-called “association law” applies and determines the rights and obligations of the members of sports’ bodies at all levels.
Ousting the jurisdiction of the courts
In line with the desire of sports’ governing bodies to preserve their autonomy, as described above, and, in particular, to exclude the jurisdiction of the ordinary courts in settling various kind of sports-related disputes, especially disciplinary ones, within their own organisations and according to their own procedures, the statutes of these bodies usually include express provisions denying their members access to the ordinary courts of justice. In other words, provisions that expressly “oust the jurisdiction of the courts”.
Take FIFA, for example, its Statutes (April 2016 edition) provide in art. 59.2 and 3 (Obligations relating to dispute resolution) as follows:
“2 Recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited.
3 The associations shall insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in the association or disputes affecting leagues, members of leagues, clubs, members of clubs, players, officials and other association officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to ordinary courts of law. Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the association or confederation or to CAS.”
Apart from this, FIFA requires in art. 59.1 of its Statutes that CAS shall be the final “court of appeal” for football disputes for all its stakeholders as follows:
“The confederations, member associations and leagues shall agree to recognise 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 intermediaries and licensed match agents.”
As regards the Olympics, the Olympic Charter contains similar provisions to those of FIFA in art. 61 of the Charter as follows:
“1 The decisions of the IOC are final. Any dispute relating to their application or interpretation may be resolved solely by the IOC Executive Board and, in certain cases, by arbitration before the Court of Arbitration for Sport (CAS).
2 Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports-Related Arbitration.”
Notice the word “exclusively” in art. 61.2 above.
Similar provisions are also found in the rules and regulations of national sports’ governing bodies. See, for example, art. K.1(e) of the English Football Association Rules of 2015-2016, which provides for arbitration for the settlement of disputes and expressly excludes the powers of the English courts under sections 44, 45 and 69 of the UK Arbitration Act of 1996.
It is clear from the above that international and national sports’ governing bodies, in effect, aspire to being a law unto themselves! But how far is this legal under the general law?
Ousting the jurisdiction of the ordinary courts is contrary to public policy and any agreements to do so are void and unenforceable under the English Common Law and in other countries that follow this legal system. Take for example the US case of Doyle v. Insurance Company, in which the US Supreme Court refused to sanction a contract in which it was agreed that neither party shall resort to the US courts.
However, what is generally permitted is to provide, in the first instance, for arbitration and, if the parties in dispute are not satisfied, then and in such a case, they may refer the matter to the ordinary courts. But, see the Trinidad and Tobago Gymnastics Federation case (mentioned above) for a particular exemption to this general rule. Also, what about the requirement for athletes who qualify of and wish to participate in the Summer and Winter Games who must submit exclusively to the CAS for the settlement of their disputes and expressly renounce their rights to resort to the ordinary courts? The wording of this “undertaking”, which is quite comprehensive and all-embracing, is as follows:
“I shall not constitute any claim, arbitration or litigation, or seek any other form of relief in any other court or tribunal.”
Can such a clear ousting of the jurisdiction of the courts be justified on sporting grounds? See “CAS at the London 2012 Olympics: a question of jurisdiction” by the author of this article. See also the CAS Statement of 27 March 2015 on the Claudia Pechstein case, which also involved “forced” arbitration by the CAS under the Sports’ Governing Body (ISU) Rules. In that statement the CAS made, inter alia, the following comment:
“The [Munich] Appeals Court also mentioned that CAS arbitration does not breach Article 6 para. 1 of the European Convention for Human Rights and recognized the need to have a specialized international tribunal, instead of state courts, ensuring the uniform adjudication of sports-related disputes.”
This need for uniformity in determining sports disputes is a persuasive legal argument for justifying mandatory reference of all sporting disputes by sports persons to the CAS rather than to the ordinary courts.
See also the controversial Claudia Pechstein case, in which the German speed skater, sought to pursue a claim for damages outside the CAS arbitration system in the German courts. Her case has gone all the way up to the German Federal Constitutional Court, where a final decision is currently pending.
As we have seen, sports’ governing bodies jealously guard and defend their autonomy and powers to organise their own affairs without any outside interference of any kind, including national governments and reviews of their activities by the ordinary courts.
However, as we have also seen, there are, in fact, some legal limitations on their autonomy and powers in that they may not oust the jurisdiction of the courts in all cases, not least, where there has been a breach of the “rules of natural justice” or of their own rules or where their own adjudication procedures are found to be wanting in other respects to such an extent that a just and fair outcome for the claimant is not possible outside the courts. There is always a “public interest” or “public policy” element to be satisfied.
Of course, sports’ governing bodies always claim that they are in the best position to determine sports disputes and there is some sympathy for this point of view shown by the ordinary courts, which, in general, are reluctant to get involved in such cases.
Sports’ governing bodies also argue that sport is “special” with its own particular characteristics and dynamics and, as such, should be outside the normal legal system. And they support this contention by pointing to the fact that the Court of Arbitration for Sport (CAS) is, after its thirty-three years of operations and currently registering between four and five hundred cases a year, proving, in practice, to be a fair and effective body for settling, in a timely and relatively inexpensive manner, a wide range of sports-related disputes, purely sporting as well as commercial ones.
This latter claim is difficult – if not impossible – to refute, but, of course, a proper balance needs to be struck between the roles that should be played by sports’ governing bodies and by the courts, which, ultimately, it is submitted, are the guarantors of the rights and freedoms of all enjoyed in a free and democratic society!
 Prof. Dr. Ian Blackshaw is an international sports lawyer, academic, author and member of the Court of Arbitration for Sport. He may be contacted by e-mail at email@example.com. This article is based on Chapter 4 on “Sports’ Governing Bodies” of a new book by Prof. Blackshaw, entitled International Sports Law: An Introductory Guide, published in September 2017 by the Asser Press, The Hague, The Netherlands.
 Lewis, Taylor, De Marco and Segan, Challenging Sports Governing Bodies (Bloomsbury Professional Limited, UK, 2016), p. 1.
 Para. 5 of the Fundamental Principles of Olympism as set out in the Olympic Charter, which is in force as from 2 August 2016.
  1 WLR 1520, p. 1535.
  1 Ch. 591, p. 605. A “Domestic Tribunal” under English law is defined as a body that exercises jurisdiction over the internal affairs of a profession or an association under powers conferred by statute (Act of Parliament) or by contract, for example, the disciplinary committee of a sports’ governing body.
 Revie v. Football Association, in: The Times, 19 December 1979. The Rules of Natural Justice are: the rule against bias (“nemo judex in sua casa”); and the right to be heard (“audi alteram partem”).
 Greig v. Insole  3 All ER 449.
 See the Trinidad and Tobago High Court case of Thema Yakaena Williams v. Trinidad and Tobago Gymnastics Federation & Others, Claim No. CV2016-02608, 25 April 2017, in which the Court refused to stay Court proceedings to allow the parties, who had expressly and exclusively agreed in their contract to arbitration, to do so, on the grounds that the arbitration provided by the Federation was inadequate and would not serve the needs of justice in the particular case. See also the post “Sports Arbitration: Resort to the Courts” by Prof. Dr. Ian Blackshaw of 22 May 2017 on this case on the GSLTR website http://www.gsltr.com.
  851 F Supp 1476.
  Case 90-01-96624.
 See the Judgement of 22 March 2007 in the ATP Tour Appeal case brought before the Swiss Federal Court against a CAS Award of 23 May 2006 (reference: 4P 172/2006), which was brought under either paragraph d or e of art. 190(2) of the Swiss Federal Code on Private International Law of 18 December 1987.
 For further information on this important ruling of the Swiss Federal Supreme Court, see the article entitled “Matuzalem case: red card to FIFA?” by Alara Efsun Yazıcıoğlu, in: GSLTR 3-2, June 2012, p. 17-21.
 TMC Asser Press, The Hague, The Netherlands, p. 8.
 See “The contemporary Olympic movement” by Dr. Dikaia Chatziefstathiou, in: GSLTR 3-3, September 2012, p. 7-10. See also “Olympic Agenda 2020 – The strategic roadmap for the future of the Olympic Movement” at www.olympic.org/olympic-agenda-2020. This Agenda is designed to safeguard the uniqueness of the Olympic Games and to strengthen sport in society. It addresses such issues as reducing the costs of bidding to host the Games and encouraging candidate cities to present a proposal that fits their sporting, economic, social and environmental long-term planning needs.
 Ibid., art. 27.6.
 Ibid., art. 27.9.
 See Michaël Mrkonjic and Arnout Geeraert, Sports organisations, autonomy and good governance (Play the Game/Danish Institute for Sports Studies 2013, p. 135, available at www.playthegame.org/fileadmin/documents/Good_governance_reports/AGGIS-report_-_13Sports_organisations__autonomy_and_good_governance__p_133-150_.pdf (accessed 29 November 2017).
 Kilili Nthiw’a, Autonomy of Sport: The Role of National Courts in Sports Dispute Resolution (LL.B Dissertation, unpublished, 2015),. See also Farai Razano, “Keeping Sport Out Of The Courts: The National Soccer League Dispute Resolution Chamber – A Model For Sports Dispute Resolution In South Africa And Africa”, in: African Sports Law And Business Bulletin 2/2014, available at www.africansportslawjournal.com/Bulletin_2_2014_Razano.pdf (accessed 29 November 2017).
 FIFA, the world’s governing body for association football, futsal and beach football, has been notorious in cracking the whip in respect of sports bodies that do not discourage government interference. The Nigerian Football Federation, the Kenyan Football Federation and the Kuwait Football Association are some of the federations that have, in the past, been banned by FIFA for alleged governmental interference.
 Kenneth Foster, “Is There A Global Sports Law”, in: Entertainment and Sports Law Journal 2, no. 1 (2003).
 See Sagen v. Vancouver Organising Committee for the 2010 Olympics and Paralympics winter games, 2009, BCSC 942, where some female ski jumpers challenged the Committee for enforcing the decision of the IOC to prevent them from competing in the Olympics.
 Kuwait’s nine qualifying athletes had to compete under the Olympic flag at the Rio Games.
 www.insideworldfootball.com/2016/06/17/another-kuwaiti-goal-government-edge-dissolving-sports-bodies (accessed 29 November 2017).
 TMC Asser Press, The Hague, The Netherlands, 2009.
 SV Wilhelmshaven eV/Norddeutscher Fußball-Verband eV.
 94 U.S. 535 (1876).
 See the English House of Lords Decision in the case of Scott v. Avery (1856) 5 HLC 811.
 GSLTR 3-3, September, 2012, p. 11-12.
 For a full report on this case and its current status, see section 13.10 of chapter 13 in the new book, entitled International Sports Law: An Introductory Guide, by Prof. Dr. Ian Blackshaw (The Asser Press, The Hague, The Netherlands, September 2017).
 See the EU Commission “White Paper” on sport of 11 July 2007 which recognises the so-called “specificity” of sport.