Is a Domesticated version of the Court of Arbitration for Sport in South Africa a possibility?
Liam Shirley
SHRLIA001
A dissertation submitted in partial fulfillment of the requirements for the Degree of MPhil in the Department of Law.
University of Cape Town
Supervisor: Professor Rochelle Le Roux
Jan 2012
Name: Liam Shirley
Student Number: SHRLIA001
Course: CML6019W
Declaration
1. I know that plagiarism is wrong. Plagiarism is to use another’s work and pretend that it is one’s own.
2. I have used the convention for citation and referencing. Each contribution to, and quotation in, this dissertation “Is a domesticated version of the Court of Arbitration for Sport in South Africa a possibility?” from the work(s) of other people has been attributed, and has been cited and referenced.
3. This dissertation “Is a domesticated version of the Court of Arbitration for Sport in South Africa a possibility?” is my own work.
4. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work.
Signature ______
Date 15 January 2012
Thanks to Professor Le Roux who helped me realize health was more important than deadlines.
Also to Robyn.
Contents Page:
- Introduction – A Domestication of the Court of Arbitration for Sport in South Africa ……………… ……………………………………………8
1.1 The contents of the dissertation………………………...….11
- Introduction to Court of Arbitration for Sport …………………12 2.1 Introduction to Code …………………………………………13
2.2 The Structure of the CAS …………………….……………....15
2.3 The Seat of CAS ……………………………………………...17
2.4 The Jurisdiction of the CAS ………………….. ……………...17
2.5 How does a CAS award work? ………………………………..19
2.6 The role of the Swiss Private International Law (PIL 1987) ….20
2.7 Introduction to World Anti Doping Agency (WADA) ………..21
2.8 Concluding remarks ………..………………………………….22
- Introduction to Lex Sportiva ……………………………………23
3.1 The existence of Lex Sportiva……………………………….....24
3.2 The term lex sportiva and its role in International sports law …24
3.3 Benefits to a developed body of sports law ……………………25
3.4 Lex sportiva in the area of doping within sport ………...………25
3.5 Lex sportiva as a tool for decision-making and case studies …...26
3.6 Criticisms of Lex Sportiva and the CAS ....………………….….28
3.7 Concluding remarks …………………………………………....29
- CAS-type models from other areas in the world .………………….31
4.1 The US model …………………………………………………...31
4.2 The Canadian model …………………………………………....31
4.3 The Australian model …………………………………………...32
4.4 The UK model …………………………………………………..32
4.5 The Japanese model …………………………………………….34
4.6 The Trinidad and Tobago “experience” ………..………………36
4.7 Concluding remarks ……………………………………………38
- Landmark Cases from the CAS and elsewhere …………………..40
5.1 Gundel – The introduction of the ICAS ……………………….40
5.2 Baumann v. IOC – The jurisdiction of the CAS ……………….41
5.3 A & B v. IOC – The independence of the CAS as an impartial tribunal ………………………………………………………………….42
5.4 CAS 98/200 AEK Athens and Slavia Prague v UEFA – The Acceptance of a lex sportiva in CAS jurisdiction ………………………………42
5.5 OG 98/004-005 – Fair Play in CAS decisions ..……………….43
5.6 The Bosman Case……………………………………………...44
5.7 CAS 2007/A/1300 Webster v Heart of Midlothian - The Bosman Case for the 2000’s The Webster case ...... 46
5.8 CAS/2011/O/2422 USOC v. IOC – The ‘Osaka Rule’ declared invalid and unenforceable by the CAS ………………………………...…48
5.9 Concluding remarks …………………………………………50
- South African Case Law ……………………………………...51
6.1 Are the courts an effective mechanism for resolving sports specific disputes? ………………………………………………………………...51
6.2 Santos Professional Football Club (Pty) Ltd v Igesund and Another
6.3 Coetzee v. Comitis and others – The South African Bosman case ………………………………………………………………..54
6.4 Is the CCMA an effective mechanism for resolving sports specific disputes? ……………………………………………………………….56
6.5 Augustine and Ajax Cape Town Football Club ……………56
6.6 SA Rugby Players Association v. S.A Rugby (Pty) Ltd …...57
6.7 Concluding remarks ……………………………………….59
- The South African Court of Arbitration for Sport (SACAS) …60
7.1 Establishment of the SACAS ……………..……………....61
7.2 Alternative Dispute Mechanism …………………………...61
7.3 Costs ……………………………………………………62
7.4 The Procedure …………………………………………...63
7.5 Jurisdiction ………………………………………………64
7.6 Arbitrators ……………………………………………….66
7.7 The Decision ……………………………………………..67
7.8 Reviews and Appeals ……………………………………..67
7.9 A Risk Assessment ……………………………………….68
7.9.1 Can the SACAS be effective ………………68
7.9.2 The weaknesses of the SACAS …………….69
7.9.3 The pro’s of the SACAS …………………....70
7.9.4 The future of the SACAS …………………...71
- Conclusion ………………………………………………………73
8.1 Concluding remarks ………………………………………...73
8.2 Final words ………………………………………………….74
- Annexure A ……………………………………………………...75
- Bibliography …………………………………………………...76
1. Introduction– A domestication of the Court of Arbitration for Sport in South Africa.
On 6th February of this year (2012) Alberto Contador, one of cycling’s most elite athlete was found guilty of doping by the Court of Arbitration for Sport. This case highlighted the problem the sporting world faces with the fight against doping in sport, as well as the prominence the CAS has in resolving sporting disputes globally.
The Court of Arbitration for Sport (CAS) is based in Lausanne, Switzerland. It governs the most high-profile sports disputes, passing awards and opinions on sport-specific cases by panelists with expertise and specialist knowledge. Of the cases heard by the CAS, only a very few have been from South African athletes.[1] The distance from Switzerland can possibly explain this low number of South African cases referred. However, one must also take into consideration that there is a lack of education and awareness of the benefits of sports-specific alternative dispute resolution in South Africa. Hence this paper will try to argue the need to develop a domesticated version of the CAS for South African sports that shall henceforth be referred to as the South African Court of Arbitration for Sport (or SACAS).
At present, the law regulating sport in South Africa has of a number of sources. These include but are not exhausted to the common law, judicial precedents contract of employment, and legislation.[2] Other sources are collective bargaining agreements, ministerial sectoral determinations and the supreme source for all laws the Constitution.[3] In addition to terms implied by labour legislation, sports employment contracts almost always incorporate the rules and regulations of the particular governing body/league into the contract of employment. Therefore a full sporting contractual position can only be gathered from the following; the contract, the terms and conditions implied by legislation, applicable collective agreements and finally the rules and regulations of the sports governing body.
Nafzieger claims, that within the sporting world there is a distinct lack of dispute settlement. He also suggests alternative dispute resolution (ADR) in sport is a ‘growth industry’ and views the expanded role of the CAS as one of the most important developments in sports law in the past several years.[4] This dissertation will strive to prove the claim that within the South African sporting context there is a clear lack of ADR. It shall also aim to prove, the time is ready for South Africa to develop its own sport-specific dispute resolution mechanism, and in doing so will set the trend for the rest of Africa to follow.
In order to determine the need for the SACAS, one must first address the issue of whether a sportsperson in South Africa can be deemed ‘employee’ under current labour legislation. Cheadle, claims that at its simplest form a worker is an employee who works for another person under a common law contract of employment.[5] This would apply to most sportspersons who play in a team sport, for a franchise, club or team. However, to answer that question properly one must refer to the South African Labour Relations Act[6] (LRA) which defines an ‘employee’ as the following:
1. any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
2. any other person who in any other manner assists in carrying on or conducting the business of an employer; and "employed" and "employment" have meanings corresponding with that of "employee".[7]
Whether this definition can be used to describe all types of sportspersons, is debatable, as team sports have different characteristics than individual sports. However, professional sportspersons who play in a team sport, i.e. rugby, cricket or football would generally meet the definition of ‘employee’, albeit employment with very specific characteristics.
This idea of a ‘employment with very specific characteristics’ was emphasized in McCarthy v Sundowns Football Club[8] in which the court expressed this sentiment as follows:
“This Court must, however, be mindful of the fact that, unlike any other employees, professional footballers only have a relatively short period within which to practice their profession, a profession which is inherently risky as they may suffer injuries which may ruin their careers; they are subjected to the vagaries of selection not faced by other employees; they are required to earn sufficient to sustain themselves and their families in a relatively short period and cannot simply, like any other employee, decide to move from one employer to another. Here we have a class of employees who face restrictions in carrying out the trade which restrictions can have an effect on their earnings that cannot be calculated with any degree of certainty.”[9]
Although the court refers to a ‘professional footballer’, it is easy to substitute that phrase for any professional sportsperson, all of whom have to deal with similar inherent risks due to their profession. These comments confirm that sportspersons playing team sport are indeed employees however; they are a ‘specific-type’ of employee with a specialized skill set, subject to inherent risks not faced by other types of ‘employees’. Le Roux suggests that where emphasis is on individual performance (tennis, golf, etc.), the athlete is likened to an independent contractor and so in terms of section 213 of the LRA is specifically excluded from the definition of employee in terms of labour legislation.[10]
The other aspect crucial to the domestication of the SACAS is the role International law will play in this proposed domestication. This will be addressed in Chapter 7.
The Contents of the dissertation:
Each chapter will attempt to deal with different aspects of the idea of domesticating the Court of Arbitration for Sport in South Africa. The opening chapter (Chapter2) will consider background to the CAS including its jurisdiction, its structures and the changes it has made since its inception in 1984. Chapter 3 will focus on the jurisprudence the CAS has created, known as lex sportiva. It will consider the usefulness this has had on CAS decisions as well as how this could affect the South African domesticated version. Chapter 4 will reflect on other examples of domesticated models of the CAS including developed and developing countries. This chapter will also consider how the best aspects of these institutions can usefully be applied to the South African version. In Chapter 5 the case law available from CAS decisions will be highlighted and critiqued and it will be shown how this has helped shape the current jurisprudence of the CAS. Chapter 6 will then focus on the South African case law and will show through examples that presently the current dispute mechanisms in South African sports are either not ideal or simply not in a position to deal with sports-specific disputes. Chapter 7 will imagine what the SACAS would look like and propose the structures, funding responsibilities and jurisdiction needed. It will then focus on highlighting the strengths and weaknesses before the domesticated version can be realized.
In Conclusion, Chapter 8 will reflect on the issues raised for the need of a domesticated version of the CAS, and will conclude that such a proposal is necessary, and will have a resounding effect on South African sports.
2. Introduction to The Court of Arbitration for Sport
The Court of Arbitration for Sport (CAS) was established in 1982 at a session of the International Olympic Committee (IOC) in Rome. The then President of the IOC (President Juan Antonio Samaranch) championed the idea of enlisting arbitration process whose jurisdiction would encompass all International Sports. Following this decision a draft Statute was concluded, and subsequently adopted by the IOC after approval from its Executive Board in 1983 during the New Delhi Session in March of that same year. The Statute came into full existence in 30 June 1984. Members of the CAS were appointed on this date and adopted a Regulation supplementing the Statute.[11]
It continued to grow throughout this time, and started to build a collective body of sports law arbitrations. However ten years following it’s inception in 1994, the CAS faced a challenge over its impartiality. Following the CAS decision in the case Gundel[12] it was noted that there were extensive links between the IOC and CAS. The Swiss Federal Tribunal concluded that:
“…Certain objections with regard to the independence of the CAS could not be set aside without another form of process, in particular those based on the organic and economic ties existing between the CAS and the IOC. The IOC also bears the operating costs of this court and plays a considerable role in the appointment of its members”.[13]
Therefore, the Agreement Relating to the Constitution of International Council of Arbitration for Sport (June 1994 also known as the Paris Agreement 1994) lead to the introduction of the International Court of Arbitration for Sport[14] (ICAS)[15] and the definitive split between the CAS and IOC as two separate independent bodies.
Today, the CAS has nearly 300 arbitrators from 87 countries, chosen for their specialist knowledge of arbitration and sports law.[16] The CAS is an institution independent of any sports organization, which provides for services aimed at facilitating the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world.[17]
The CAS has very few limitations regarding the types of cases that it may consider for Arbitration provided that both parties are amenable to the arbitration process. CAS arbitration provides an independent and impartial forum for quickly and finally resolving the often-complex issues arising in athlete eligibility disputes. An international pool of arbitrators does this with specialized expertise in sports law. The CAS appeals arbitration process also provides an efficient and impartial means of adjudicating athlete eligibility issues arising in other international sports competitions. CAS awards are generally available to the public and can be viewed on the CAS website, this doesn’t apply to those awards considered private.[18]