Promoting transparency in the field of sports

Introduction

The presence of laws governing the manner of conduction of activities is of high relevance in ensuring the smooth running of a country’s affairs. The modes of government are undergoing a significant transformation over the years, with the adoption of better means of performance. Most countries in different parts of the world have now implemented the implementation of rules that define the expected pattern of behavior among the citizens. Breaking of any element in a country’s laws is considered to be a criminal offense. The existence of rules hence contributes to a reduction in illicit operations among citizens due to the fear of the consequences that follow  the breaking of particular laws. The constitution is the primary reference for a country’s doctrine. Different sections of the constitution define laws relevant to specific settings in life. Occasional amendments can be introduced in a country’s constitution to provide newer descriptions of specific rules. The field of sports is a crucial sector in any country’s economy. Sports activities not only serve recreational purpose but also contribute tothe generation of a country’s revenue. The different activities need to be in a transparent manner to ensure that individuals receive awards for purely genuine efforts. However, there has been a rapid increase in the rate of occurrence of sports offenses to increase the chances of victory during competition. Sports arbitration is an aspect of law concerned with sports offences and focuses on promoting transparency in the field of sports through intervening appropriately in case of sports offences.

History

Increase in occurrence of sports disputes made it necessary for various countries to apply judicial elements in management of sporting activities through sports arbitration. The manner of conduction of activities in sports arbitration courts is very distinct from the pattern of activities in other criminal courts. The legal matters have evolved greatly over the years since the launch of the Court of Arbitration for Sports CAS, in 1982 (McLaren, 2010). The international committee for Olympic Games participated substantially in the establishment of an independent court that purely deals with concerns from athletes relevant to their line of work and sports offences. The court has flourishedin the field of justice due to the policies applied in promoting justice and transparency in the sports industry (McLaren, 2010). The government of Switzerland contributed significantly in ensuring independence of the sports arbitration court through the infinite efforts made in promoting the efficiency of the activities after the Australian government set a challenge on the Swiss justice in sporting activities. The tribunal put forward by the Swiss government contributed immensely to improvement of the court’s operations. The tribunal directed the speed of the court’s activities and the necessary interventions given for specific appeals made by athletes to the court (McLaren, 2010).  The sports industry in Australia was among the earliest to implement the executive and judicial activities relevant in the welfare of athletes (McLaren, 2010). The efficiency of the CAS enabled solving of the conflict between two Australian athletes that were competing for a chance to participate in the annual Olympic competition. The success of the court’s intervention in providing a solution to the conflict permanently changed the sports laws by ensuring involvement of the CASin any sports related conflict (McLaren, 2010).

Expansion of the sports arbitration field resulted in diversion of the Olympic related conflicts from the national criminal courts to international levels. Involvement of various nations in coming up with an international court improved the process of justice in sporting activities. Concerns from athletes in diverse regions would be rapidly addressed and quick solutions provided for any conflicts brought to the international court (Reilly, 2012). The global sports committee trusts the involvement of the CASthrough the effectiveness of the court in the international contracts related to both Olympic Games such as marathons and non-Olympic games such as football. Although concerns were set in the late 20th century with regards to the independency of the CASby the Swiss government, the international committee for Olympic Games managed to effectively intervene in support of the independent operations (Reilly, 2012). The cause of concern was a conflict that involved a horse rider from Germany, with a perception that the rider did not receive the required justice following intervention by theCAS. However, involvement of the International Committee for Olympic Games enabled the declaration of independence of the court’s operations in the year 2003 (Reilly, 2012). Currently, all Olympic organizations and non-Olympic organizations acknowledge the CASas the final platform for any solicitation involving international concerns, without any involvement of the country’s courts in the appealing process.

Even though the CASis greatly involved in the sports appeals for various countries, some nations prefer application of their own independent judicial departments in solving Olympic concerns. The sports leagues in the North American region apply their distinct judicial policies in the sports activities without involvement of the CAS(Reilly, 2012). However, most countries greatly commend the interventions offered by the court and thus greatly involve the court in any conflicts related to sporting activities.  The United States, Canada, New Zealand and Great Britain are the developed nations that mainly engage the court in solving most of the international disputes in the Olympic Games that involve some athletes from their countries (Findlay, 2005). The Court puts forward very strict policies that govern against occurrence of any offence in the sports industry. Such offences include use of drugs and supplements to boost an individual’s level of performance in the Olympic Games. The most commonly abused supplements by athletes who participate in marathons is use of erythropoietin to boost the level of red blood cells and thus an enhanced oxygen carrying capacity of the blood (Findlay, 2005). Improved oxygen carrying capacity prevents early exhaustion during the marathon attributed to a reduction in oxygen supply which causes lactic acid production from anaerobic respiration. The rapid increase in such offences led to suspension of athletes from participation in Olympic Games, following orders given by theCAS. Introduction of such punishments to those who were found to be guilty has contributed to the significant reduction in the occurrence of such incidents over the years.

Mechanism

There exist specific rules that govern the conduction of activities in the sport-specific arbitration court. Any form of appeal presented to the court undergoes systematic processing through various processes until the verdict is made (Reilly, 2012). The procedure is always followed irrespective of the social class or the influence of the appealing individuals, an element that has promoted the great honors given to the court’s interventions. The code for the Court of Arbitration for Sports renders four unique forms of procedures. These are; the ordinary sports arbitration procedure, the appeal sports arbitration process, the meditation and the Specific Sports arbitration process (Reilly, 2012). Each procedure entails application of interventions that are distinct to the concerns presented to the court under every process. The ordinary sports arbitration process deals with first hand-sport concerns which entails issues such as licensing of sports organizations, media rights for sports firms, outsourcing of funds from the relevant sponsors and rights to broadcast sporting activities on various television and radio channels (Reilly, 2012). All cases with such characteristics are tackled by the court’s ordinary level division.

The appeal arbitration division tackles issues related to appeals from various sports bodies. Such issues include compensation for any damage incurred during sports competition, forms of misconduct in the sports industry such as the use of boosters to improve on performance levels and hence increasing the chances of achieving victorious at the end of various competition. There are necessary levels of achievement that athletes and other participants in non-Olympic games such as footballer require to have attained to gain approval for participation in the international Olympic competitions and the World-Cup football competitions respectively (Reilly, 2012). Some individuals forge documents that confirm their previous achievements to improve their chances of selection to participate in international competitions in the sports industry. A compulsory suspension is given to any individuals that are found guilty for such offences in case such concerns are presented to the CAS(Reilly, 2012).

All concerns that happen during the sports competition are addressed under the specific division of CASprocedures. The matters presented to this division are given the priority of timely hearing since they involve issues that require urgent interventions. A 24 hour period is the period limit for provision of the necessary interventions in any concerns presented through the ad hoc segment (Reilly, 2012). This mainly tackles concerns involving the primary sports competitions such as the international games and concerns that arise during the world cup. A panel of the judicial employees on call are quickly summoned to actively engage in suggesting the probable interventions and coming up with the final verdict within the allocated time period. The final division in theCAS; mediation is rarely used to provide interventions in sports-related conflicts. However, it can be applied in some incidences, prior to involvement of the ordinary division in the appeals presented (Reilly, 2012). This involves weighing of the nature of the offence and deciding if the individuals that have presented with the appeal need to go forward with their concern to the ordinary level of the court. Provision of the necessary intervention can be made at this level if the concern is deemed to be very minor in nature.

Scenario

            During the 2017 Olympic Games, Morris Washington, a 35 year old renowned marathon athlete from japan was involved in a scandal of a sports misconduct, through the allegation of use of supplements to improve his level of performance in the Annual OlympicGames in Tokyo. Since his childhood, the athlete actively engaged in various competition during his primary school and secondary school periods, enabling the discovery of his talent. He always emerged victorious in many competitions that he participated in and his level of performance kept improving as the years progressed by. Immediately after his high school education, he joined the national organization of sports in Japan and has been actively involved in various national and international competitions ever since. He participated in the 2015 and managed to win a silver medal after emerging among the top three finalists in the 25 kilometers marathon. He holds various wards and has several trophies given as awards for excellent performance in various competitions.

Throughout the years, he always passed the tests applied in assessment of specific drugs in body fluids from athletes such as urine. It was hence obvious that Morris would never be involved in a sports misconduct since he also actively campaigned against use of supplements by various athletes to improve on their performance levels. It was a great blow for him and his fans when the international Sports organization made the announcement that the great legend in the sports industry had been involved in a sports misconduct. His country was eagerly awaiting for his participation in the 2017 Olympic and his coach was very confident about his chances of winning the 25 kilometer marathon since he had undergone serious training in preparation for the same. Morris denied the allegations, stating that he was probably being framed by a rival since he would never engage in such. Even so, this did not affect the decision that had been made by the International Sports Organization against his participation in the Olympic competitions since what he had committed was considered as a great offence. The great star tried his level best to appeal for his participation in the Olympics but his efforts were all in vain. Morris then decided to seek justice by presenting his appeal to theCAS.

Discussion

            Morris presented his case to one of the arbitrators in the Court of Arbitration for Sports in Sweden. There are over 300 arbitrators in the judicial list of the court’s arbitrators. He charged the international Sports Organization with falsely accusing him and putting his career in Jeopardy. The twelfth chapter of the Swiss Private Intercountry Law was applied for the arbitration since Morris is not a Swiss citizen (Davanloo, 2017). His appeal was included in the list of similar appeals that had been presented to the court and he was granted that the charges will be handled in the required way to ensure that he gets his justice. The domestic court in Switzerland was not applied in summoning of the defendant’s witnesses since there were no witnesses in this case. The domestic court is always involved to ensure protection of witnesses in case an appeal presented in the Court of Arbitration for Sports with relevant witnesses for the conflict being addressed. Morris had his personal lawyer and the International Sports Organizations involved a panel of lawyers, who were summoned at different occasions to represent the organization in the court’s procedures relevant to Morris’ case. The convention concerned with rating of International Federal operations approves the Swiss Court of Arbitration for sports involvement in sports activity concerns (Davanloo, 2017).

One party may be involved in appointing the preferred arbitrators to handle the matter in court. However, the court’s policy ensures that appropriate changes can be made in the choice of arbitrators through random selection of the arbitrators to be involved in a particular case to reduce bias on one of the participants, and hence ensure transparent and just operations in the court proceedings (Davanloo, 2017). The Court of Arbitration appointed specific arbitrators to participate in the panel for the case during the court proceedings. Neither Morris nor the international sports organization was involved in the choice of arbitrators. All the arbitrators selected had a great command for language with great understanding of English and French since this are the commonly used languages in the European countries. The management of the Court of Arbitration for Sports procedures also incorporates translators with great comprehension of other foreign languages such as Spanish, German, Chinese and Korean in case translations are needed for the purpose of the audience during the court proceedings (Davanloo, 2017). The court proceedings for hearing of Morris’ case started one month after presentation of his appeal to theCAS.

After the first hearing, the judge recommended that laboratory tests should be performed on Morris to assess for his innocence or guilt in the charges. However, the panel of arbitrators greatly opposed this move by the judge, stating that two moths had passed since the last urine test on supplements was performed on the client. According to them, the results from the laboratory test may not be an accurate way to determine his innocence. Morris had been accused of testing positive for erythropoietin supplements through the results that the urine test procedure for drug analysis reflected. Morris’ lawyer was in agreement with the judge’s suggestions and he insisted that a repeat analysis of his client’s blood and urine should be performed. Supplements used in boosting performance in sports may remain detectable in fluids for several months before reflecting trace levels and finally completely disappearing from body fluids (Aicinena, 2010). Proposals were then given by the judge to involve the jury in voting either against or towards the suggestion for repeated laboratory tests on the client. Majority of the jury were for repetition of the laboratory test on the client’s samples, with very keen follow up on the laboratory operations for the test.

Challenging of the arbitrator’s decision is allowed depending on various settings. This policy is put forward to ensure all operations and decisions towards a client are free and fair and thus involvement of the client can be considered through challenging of the suggestions made by the arbitrators (Davanloo, 2017). According to the 34th article in the Court of Arbitration proceedings, an arbitrator may be disputed if the setting results in creation of doubts along the arbitrator’s independence in making of the decisions, without possible influence from a third party. Asides the InternationalCAS, the Swiss national judicial court is also in support of disputing the arbitrator’s decision in relevant circumstances that result in questioning of his independence. This is in accordance with part c of the first paragraph in the 180th article of the country’s constitution (Davanloo, 2017). Events following disputingof arbitrators determines the involvement of the specific arbitrator in the subsequent proceedings of the same case. In case the international organization for sports arbitration confirms the relevance of the challenge, the arbitrator is dismissed and a different arbitrator is appointed to handle the next proceedings (Davanloo, 2017). However, in case the international organization for sports arbitration dismisses the dispute, the same arbitrator(s) will continue preceding over the subsequent court proceedings that involve the conflict of interest. Approval of challenges rarely occurs since the International Organization for sports arbitration mostly dismisses the challenges.

Morris’ case is among the few cases which the challenging of arbitrators was approved, resulting in selection of a new panel of arbitrators to take charge of the subsequent case proceedings. The international sports Organization greatly challenged Morris’ lawyer stating that the organization would never accuse any individual falsely since all the decisions made are based on the results received from the lab. However, Morris’ Sports Lawyer also heavily defended him, giving lengthy discussions about his client’s history in the sports industry and insisting that his client will never engage in such an offence. Even though the defendant’s lawyers discussed of the possibility of Morris’ involvement in the offence, their effort did not affect the client’s lawyer in any way since he constantly stood firm in the defense of his client’s innocence, despite the efforts made to influence his judgement. The judge in the Court of Arbitration for sports always ensure that the parties are given adequate time to air their discussions to ensure that the verdict is made after keen analysis of the discussions from both sides (Rigozzi, 2013).

Morris underwent the laboratory testsfollowing approval of the challenge and the results turned to be negative. The test was conducted under strict follow up of the laboratory procedure on the samples given to ensure that no interference with the sample or reagents take place as this would result in alteration of the accuracy of final results. All the test procedures were done with close monitoring by officials from theCAS. The policies of the court advocate for effective follow up of any external activities relevant to the case that are conducted following decision by the judge (Rigozzi, 2013). Three other court proceedings were conducted after the results, all aimed at conducting discussions that will influence the final verdict for the case. Both the representatives of the two parties actively participated in the discussions and all the points given were taken by the arbitrators as they would influence processing of the appeals that would be relevant for the case. The verdict was given on the final court proceeding, five months after presentation of the case in court, with a declaration that the client was innocent and the International sports organization was required to offer adequate compensation for the inconvenience cost. Morris was to be suspended from participation in the Olympic Games for four years but this decision was revoked and the suspension cancelled. Even though he could not participate in the Olympics, in 2017, he continued to be actively involved in national competitions after the hearing and secured a chance to participate in the Olympic competitions the next year, in 2018.

There are various advantages attributed to presentation of appeals relating to sports conflicts to theCAS. The issue of privacy is greatly respected in the Courts operations since the jury are required to apply the principle of confidentiality in any operations conducted in the court for various appeals (Lenskyj, 2018). Prior to allocation of various designated duties in theCAS, the arbitrators and other court officials take an oath pertaining adherence to the confidentiality principle in the court’s operations. This principle is enforced to ensure that no external influence due to leakage of the court’s proceedings affects the conduction of other proceedings in court (Lenskyj, 2018). There was no form of leakage during the 6 court proceedings involved in hearing of Morris’ case and the discussions regarding the case only became common in the public after declaration of the athlete’s innocence. An athlete’s request for public involvement in hearing of the court proceedings through various media platforms is among the unique circumstances that might break the confidentiality norm in the court operations (Rigozzi& McAuliffe, 2015). Cost effectiveness is linked to the charges imposed on the different services performed in theCAS. The nature of affordability of the services ensures that all athletes and other individuals who engage in diverse sports activities have the privilege to access justice through a fair hearing in the Court of Arbitration for Sports (Lenskyj, 2018). Morris incurred only $300 dollars to pay for the various expenses related to the services provided in the court. However, most of his expenses were due to the involvement of a private sports lawyer as his principal defender during the operations. The court of arbitration for sports always provides lawyers working in the public defense field to provide necessary defense for clients in court (Lenskyj, 2018). Individuals who present various issues in the court are also given the alternative to involve their personal preferred lawyers during the court proceedings.

Timeliness in conduction of operations and giving the verdict is a great attribute of theCAS. The sports industry is faced with the challenge of increased frequency of disputes brought up only a few weeks or months prior to occurrence of great competitions (Findlay 2005). Timely hearing of the issues is thus important to ensure that the interventions made may influence a client’s participation in the international competitions depending on the verdict. Morris case presented only two Months prior to the start of the annual Olympic competitions in 2017. Even though he did not participate in the Olympics, the verdict was given within a period of less than 6 months. Independent professional adjudicator’s are involved in all of the Court of Arbitration for Sports operations. This ensures that the jury clearly understands the law and all judgements made on various decisions are in accordance to the different judicial specifications and the policies relevant to court proceedings (Findlay, 2005). The adjudicators listen keenly to the discussions from both parties, to ensure that all the parties have a fair hearing during the trial.

Moreover, flexibility in the court’s operations is also a commendable element about the Court of Arbitration for Sports. The adjustments made on the decisions made contribute to fairness in the trials conducted by the court (Lenskyj, 2018). The panel of arbitrators can be challenged, resulting in revoking of the decisions made in case the International Sports organization for the court of Arbitration approves the challenge made by one of the parties to dispute the arbitrators’ decision. Morris’ case court proceedings involved disputing the arbitrators’ decision. His verdict would have turned out differently incase no chances were given to challenge the decision made since there would be no other way he could prove his innocence other than from the repeat laboratory tests that were done.

Conclusion

            Application of laws in the running of various affairs in a nation is necessary in ensuring effective performance of activities and reduction in the rate of criminal offences. The judicial arm of the government in making and implementation of the laws. Increased incidence of sports offences and other disputes in the field of sports made it necessary to come up with an independent branch of the Judiciary that deals with conflicts in the field of sports. Sports arbitration are the relevant law proceedings that govern various disputes in the field of sports. The hearing of sports appeals is conducted through the Court of Arbitration for sports that acts effectively in providing solutions to sports disputes. The court is involved in handling sports conflicts at international levels. Its effectiveness in handling diverse matters has contributed to increased growth and popularity of the court since the year of its establishment. The conflicts may involve participants in the Olympic Games or individuals participating in other sports activities such as football and other ball games.

References

Aciena, S. (2010). Sport as War or a Means to Peace? Thomas Hobbes’ Laws of Nature. International Journal of Business and Social Science, 1(1), 11-26

Davanloo, M. R. (2017). The procedural rules of the court of arbitration for sport. Journal of Politics and Law, 10(4), 156. doi:10.5539/jpl.v10n4p156

Findlay, H.A (2005).Rules of a Sport- Specific Arbitration Process as an Instrument of Policy Making. Marquette Sports Law Review, (6)1, 73-100

Lenskyj, H. (2018). Sport exceptionalism and the court of arbitration for sport. Journal of Criminological Research, Policy and Practice, 4(1), 5-17. doi:10.1108/jcrpp-01-2018-0002

Louise Reilly, L. (2012).  Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in International Sports Disputes. Journal of Dispute Resolution. (2)1, 1-21

McLaren, R.H. (2010). Twenty-Five Years of the Court of Arbitration for Sport: A Look in the Rear-View Mirror. Marquette Sports La W Review, 20(2), 306-336.

Rigozzi, A. (2015). Sports Arbitration under the CAS Rules. Arbitration in Switzerland – The Practitioner’s Guide, 936-1082..DOI: 10.13140/RG.2.1.3105.9928

Rigozzi, A., & McAuliffe, W. (2013). Sports Arbitration.The European, Middle Eastern and African Arbitration Review, 15-30

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