Friday, September 23, 2011

Lex Sportiva versus Lex Imperium: Part 1, Background

On Wednesday September 28 the Court of Arbitration for Sport will hold a hearing to arbitrate a dispute between FC Sion, a Swiss football club, and UEFA, the international association that governs European football.  Meantime, in a separate venue UEFA president Michel Platini has been called to testify before a Swiss court on the matter.  The outcome of this dispute, has potentially profound implications for the governance of international football and sport more broadly.  This post provides some general background and a subsequent post will discuss the particulars of the dispute between FC Sion and UEFA.

Recent decades have seen a growing body of policies, rules, jurisprudence and institutions related to sport, which has been characterized by Lorenzo Casini of the University of Rome as follows (PDF):
Sports law . . . is made of norms enacted not only by States, but also by central sporting institutions (such as IOC, IFs and WADA) and by national sporting bodies (such as National Olympic Committees and National Anti‐Doping Organizations); furthermore, sport norms directly address and regulate individuals, such as athletes.
An important part of these governance mechanism is what has come to be called lex sportiva, or what Casini calls, "transnational law produced by sporting institutions" and what others have called "international sports law."

For instance, European football is governed by UEFA, the Union des Associations EuropĂ©ennes de Football or the Union of European Football Associations.  As an association of associations (currently with 53 members), UEFA is one of six such organizations that are members of FIFA (called "confederations" --  FIFA thus might be thought of as an association of associations of associations).  Like FIFA, UEFA is incorporated in Switzerland under the provisions of Swiss law.

As an association, membership in UEFA is determined by the guidelines set for the the UEFA statutes, an administrative document that outlines the policies and procedures of the organization (available here in PDF). One of the requirements that UEFA places upon its membership is acceptance of UEFA policies and decisions (Article 59):
Each Member Association shall include in its statutes a provision whereby it, its leagues, clubs, players and officials agree to respect at all times the Statutes, regulations and decisions of UEFA, and to recognise the jurisdiction of the Court of Arbitration for Sport (CAS) in Lausanne (Switzerland), as provided in the present Statutes.
UEFA explains that when a dispute arises within a national context under the association's statutes the conflict is to be resolved through a process of arbitration rather than under national laws (Article 60):
Associations shall include in their statutes a provision under which disputes of national dimension arising from or related to the application of their statutes or regulations shall, subject to their national legislation, be referred in the last instance to an independent and impartial court of arbitration, to the exclusion of any ordinary court.
Similarly, at the international level, UEFA requires that any dispute be handled through arbitration under the provisions of the Court of Arbitration for Sport, which was created in 1981 by the International Olympic Committee to serve as an "arbitral jurisdiction devoted to resolving disputes directly or indirectly related to sport."  

UEFA has delegated to the CAS exclusive jurisdiction for appeals to its decisions (Article 62):
Any decision taken by a UEFA organ may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, to the exclusion of any ordinary court or any other court of arbitration.
Excluded from CAS jurisdiction are disputes involving the Laws of the Game (which are the province of the International Football Association Board), minor disciplinary actions of players or issues of a national nature that have been arbitrated at a national level.

UEFA also explains (Article 64):
These Statutes shall be governed in all respects by Swiss law.
 And this is where all of the trouble begins.

Part II will discuss the dispute between FC Sion and UEFA and its implications for lex sportiva.

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