Sport and its courts
With a massive year ahead for New Zealand and international sport, Craig Sisterson takes a closer look at the quiet revolution that is sports dispute resolution

In a little over a week, New Zealanders will look on as our snow and ice athletes compete against the best in the world at the Vancouver Winter Olympics. Later this year, we’ll cheer on as many other Kiwis do the same at the Commonwealth Games, and be transfixed as the All Whites step onto the biggest stage of all at the FIFA World Cup. In between, there will be many more events in many more sports, from elite competitions watched by hundreds of thousands like the Super 14 and NRL, to social and local competitions played by hundreds of thousands of amateur enthusiasts across the country every weekend. As barrister Paul David says, “New Zealand is a country where many people have a passion for sport, it is part of our culture, always has been.”

Like anything where the stakes are high, whether financially or emotionally, differences of opinion can escalate into legal disputes as those involved seek to protect their interests or ‘rights’. “A glimpse at the newspapers or a moment listening to the radio is a daily reminder of how the law and sport are increasingly connected,” says Maria Clarke, founder of specialist sports law firm Maria Clarke Lawyers. “The law’s role in sport is also increasingly important in the way sport is run.”

Along with being really important to people, both at an amateur participatory level and an elite level, sport is also becoming more sophisticated, which likewise increases the need for legal advice and involvement when disputes arise, says David. “The thing that makes the role of law in sport fascinating is that legal disputes will often cover several areas of law and may also involve wider social and policy issues.”

Law and sport
Back in 1992, David wrote an article entitled “Sport and the Law – A New Field for Lawyers?” (1 New Zealand Law Review 80). Well before that time, he says now, it was clear that the economic development of sport, combined with its ever-increasing importance for individuals and societies, meant there would be growing opportunities for lawyers in this area.

Clarke sees several reasons why the law has become increasingly important in the sporting context over the past couple of decades. “The growth in the number and types of sports becoming professional has brought an increase in the range of disputes, such as employment, contractual, sponsorship, intellectual property, and IT matters,” she says. “The nature of the interface between sport and the law, which existed in a largely amateur sporting environment (eg misconduct hearings), has grown to include these more commercial issues.” The sophistication and complexity of some of these issues underlines the need for lawyers to advise sportspeople and organisations, says David.

Along with the shift of some sports towards professionalism, Clarke identifies a number of other reasons why the law is playing a key role in the sports world. These include:

• The need for sports organisations to secure the significant financial backing required to hold major events and run competitions has resulted in broadcasters, media moguls, and wealthy individuals having a greater say in the organisation and delivery of sport. This has in turn forced sports to change the way they deliver their product – whether it be when it is played (eg night games) or the format of the game (eg Twenty20 cricket).
• Athletes who are full-time within ‘amateur’ codes (such as athletics, bowls, netball), and who are lucky enough to source sponsorship and/or Government funding to support them, are giving up everything to reach their goals and are therefore prepared to do all they can to realise them, including taking legal action.
• The need for professionalism and accountability in sport has also increased legal issues. The days of being appointed to the board of a sports organisation as a result of years of service are increasingly over. Sponsors, funders, and governments are requiring accountability for their investment – be it in medals, financial stability, or improved capability. Contracts recording these arrangements are no longer made by handshake; complex contracts are now required. With more contracts have come more disputes.
• The development of a proliferation of rules by many sports bodies (international and national federations) covering all manner of issues from athlete eligibility and selection to athlete’s agents, transfer obligations, anti-doping, and match-fixing.

Clarke believes athletes and sports organisations, like many others in modern society, are now more willing to fight for their rights, including by way of legal action.

Doing it for themselves
Historically, Courts had been somewhat reluctant to rule on the decisions of sporting bodies, says David. The costs and time frames involved with taking disputes through the courts, along with the uncertainty as to the availability of legal redress, discouraged many athletes from trying to challenge decisions of sporting bodies. In a paper presented at a Legal Research Foundation conference last November, David noted that in the past a grievance was unlikely to go beyond a decision by a sporting governing body, or by a domestic tribunal established by the sporting organisation. “Generally, the cases which did reach courts tended to be those which involved significant economic interests in contractual disputes … the restraint of trade doctrine and, more recently, competition law principles, in the sporting context” (11 November 2009, “The Hearing of Sporting Disputes – A Quiet Revolution?”).

This background played a part in sport developing specialist tribunals with their own rules, dedicated to sports-specific matters such as selection and doping, says David. “The Court of Arbitration for Sport was set up because sports perceived that they weren’t getting what they wanted from national legal systems. There wasn’t a lot of consistency in the way that sports issues were dealt with.”

Originally established as an initiative of the International Olympic Committee in 1984, the Switzerland-based Court of Arbitration for Sport (CAS) hears and determines sports-related disputes either at first instance or on appeal from a sporting tribunal. It languished relatively unused for its first decade, before some international sporting federations began using it for doping appeals in the mid 1990s. However, it wasn’t until CAS was designated as the mandatory appeal tribunal for international athletes under the World Anti-Doping Code 2003 that its workload, and influence, really began to grow. CAS also sits in its ad hoc division at major sporting events such as the Olympics, Commonwealth Games, and FIFA World Cup, urgently determining disputes that arise during the course of the event.

David, who has authored a textbook on the WADA Code (A Guide to the World Anti-Doping Code: A Fight for the Spirit of Sport (Cambridge University Press, 2010)), calls the growth of sports-specific tribunals “a quiet revolution” – an appropriate term when you consider the recent case of American cyclist Floyd Landis, who was stripped of his 2006 Tour de France victory and banned from cycling due to a doping violation. When Landis wanted to dispute the lab findings against him, his key day in court wasn’t in the US courts, but before CAS. “Now that’s quite an extraordinary development really,” says David. “In other areas, the US has been reluctant to sign up to international justice. But what’s happened is that sport is really linked to the international movement towards arbitration.”

The Sports Tribunal of New Zealand
That movement can also be seen here, where the Sports Tribunal of New Zealand (originally called the Sports Disputes Tribunal) was established in 2003, one of the first national specialist sports tribunals worldwide. The Tribunal is an independent body that hears and decides upon disputes including:

• Anti-doping violations;
• Appeals against decisions made by national sports organisations or the New Zealand Olympic Committee (where the rules of such bodies allow); and
• Other sports-related disputes that all of the parties agree to refer to the Tribunal.

The Tribunal was established to have a primary focus on assisting national sports organisations to avoid lengthy and costly legal battles; ensure quality and consistent decision making for athletes in New Zealand sport; add credibility to the operation of elite sport in New Zealand; and provide for appeals to CAS.

The establishment of the Tribunal and CAS has created a specialist legal jurisdiction for sport which is now well recognised, accepted, and understood, says Clarke. “Generally, the procedures are more flexible and faster, and the members of the Tribunal have significant legal expertise and understanding of sport, including the complex legal framework in which it operates.”

David, who often appears before the Tribunal on behalf of various sporting clients and is also counsel for Drug Free Sport New Zealand, says that the availability of such a body with low-level fees and procedural requirements of a straightforward nature has meant that cases are now brought which would not have been taken to the courts in the past. “In the past, you’d have to bring either a contractual or a judicial review case to the courts if you had a selection issue. Now, because of what’s effectively in my view an arbitration clause in most selection criteria, a clause that says you refer disputes to the Sports Tribunal, you have a right that is signposted and athletes make use of that right.”

In his paper for the Legal Research Foundation, David gave as an example the fact that prior to the establishment of the Tribunal, no dispute over selection for Olympic teams had reached a hearing in the courts of New Zealand. The Tribunal, which is made up of nine members selected for their legal and sporting experience, has since heard several cases in relation to selection disputes, and developed legal principles around the consideration of selection disputes. Athletes and organisations appearing before the Tribunal have the right to be represented by a lawyer if they wish, and the Tribunal has also established a pro bono lawyer scheme, which ensures parties have access to high-quality, affordable legal representation on a low-cost or sometimes no-cost basis, if needed.

Clarke believes that without the establishment of the Tribunal, the increasing nexus between law and sport and the rising stakes for athletes, would have led to more sporting disputes ending up in the New Zealand courts, resulting in huge time and financial costs to sport. Other countries have followed New Zealand’s lead, with Germany and the United Kingdom recently establishing similar tribunals.

And as Clarke says, “These tribunals have also made sports organisations and athletes realise that they do need to act more professionally, as their actions can be (and are being) held to account, and that is not a bad thing”.