March 18, 2020
This blogpost was written by Jernej Letnar Černič who is Associate Professor of Human Rights and Constitutional Law at the Faculty of Government and European Studies of the New University (Ljubljana/Kranj, Slovenia). He is co-author of the forthcoming book on “The Impact of European Institutions on the Rule of Law and Democracy: Slovenia and Beyond” (Oxford, Hart/Bloomsbury, 2020).
Are domestic and international sports arbitration bodies obliged to follow the rule of law and ensure at least basic procedural safeguards? Fair trial guarantees have been, for quite some time, a hot potato in (international) sports arbitration. Athletes have been, in the past, mostly unsuccessful when arguing for a violation of Article 6 (1) of the ECHR before the ECtHR (see for example Bakker v. Switzerland (26 September 2019, admissibility decision); Mutu and Pechstein v. Switzerland, 2 October 2018). Nonetheless, the Court already recognized the right to public hearings before CAS (Mutu and Pechstein v. Switzerland, para. 183). Therefore, it appears that a consensus has been increasing for fair trial guarantees to be introduced and/or strengthened both at the domestic and international levels. The Second Section of the European Court of Human Rights has on 28 January 2020 in its seminal judgement in the case of Ali Riza and Others v. Turkey confirmed the importance that sport arbitration bodies uphold basic fair trial guarantees in compulsory sport arbitration such as the right to an independent and impartial tribunal by introducing strict normative safeguards against conflicts of interests.
Five applicants submitted to the ECtHR that proceedings before the Arbitration Committee of the Turkish Football Federation (TFF) violated Article 6 (1) of the ECHR. The first applicant, Mr Ali Riza, was a professional football player for ‘Trabzonspor Kulübü Derneği’, which in January 2008 fined him for violating contractual terms (§12). The applicant later terminated his contract due to the non-payment of his salary (§14). The club later brought claims against him and Mr Riza raised counter-claims before the Dispute Resolution Committee of the TFF, which upheld on 2 December 2008 the club’s claims (§§15-17). The Arbitration Committee of the TFF, upon the objection by the first applicant, started an examination (§18), where it upheld the Dispute Resolution Committee’s findings, however, it decreased the amount owed by the applicant to the club (§19). CAS declared Mr Riza’s application inadmissible for the lack of an ‘international element’ (§22).
The second, third and fourth applicants played in the amateur football league for ‘İçmeler Belediyespor Kulübü’ (§25). Their club was accused of illegal match-fixing in the tight run-down of the season, which granted it the top spot in the league (§§26-27). The Amateur Football Disciplinary Committee of the TFF found the applicants responsible for match-fixing (§34), which was thereafter upheld by the decision of the Arbitration Committee (§§35-36).
The fifth applicant, Mr Akal, is an assistant football referee, who for 15 years refereed in two top Turkish leagues (§38). In 2015, the Central Referee Committee of the TFF downgraded him to the status of ‘provincial referee’. (§39). He appealed to the Arbitration Committee arguing that there was no legal basis for his downgrade thereby amounting to an arbitrary decision of the Central Referee Committee (§40). The Arbitration Committee on 15 July 2015 dismissed his objection and confirmed the decision of the Central Referee Committee (§44).
The Court first decided to join the second, third and fourth application and declare them inadmissible (§257) as they did not fall within ratione materiae of the Convention (§§151-157). Thereafter, it joined the first and fifth applications (ibid.). The Court first considered that the specificities of sports arbitration do not outweigh fundamental fair trial guarantees (§180). It described thereafter that proceedings before the Arbitration Committee of the Turkish Football Federation, similar as in the para. 123 of Mutu and Pechstein as compulsory arbitration proceedings, which trigger the application of fair trial guarantees under Article 6 (1) (§181). In contrast to Mutu and Pechstein, the Court distinguished proceedings before the Arbitration Committee of the TFF and those before the CAS. It noted that ‘the Arbitration Committee’s rulings were final and therefore not amenable to judicial review by any court’ (§181).
The major part of the judgment deals with the issue of whether the functioning of the Arbitration Committee of the TFF can be described as independent and impartial. The Court first clarified that the Arbitration Committee can be considered as a tribunal for the meaning of Article 6 (1) (§204). With respect to the elements of independence and impartiality, the Court found ‘the existence of a number of strong organisational and structural ties between the Board of Directors and the Arbitration Committee’ (§216). As a result, it highlighted the ‘significant level of influence that the Board of Directors enjoys over the functioning of the Arbitration Committee’ (ibid). It noted, for example, that members of the Arbitration Committee are not required to follow ‘any rules of professional conduct’ or ‘to swear an oath or make a solemn declaration before taking up their duties’ (§212). Additionally, the Court found that the tenure of members of the Arbitration Committee is connected to the tenure of the Board of Directors (§213). Further, the members of the Arbitration Committee are not obliged to disclose potential and/or actual conflicts of interest nor does there exist procedure to challenge their independence and impartiality (§215). The judgement therefore clarified and reaffirmed that members of sports arbitrations bodies are to comply with the requirements under the right to an independent and impartial tribunal.
Perhaps the most novel section of the judgment for sports law deals with the composition of the Board of Directors of the TFF which appoint all the members of the Arbitration Committee. Most Members of the TFF Board of Directors are former or current club executives, whereas other stakeholders such as players, referees and others have been only marginally represented (§219). The Court therefore found that ‘fact that the players do not enjoy the same level of representation as clubs may be considered to tip the balance in favour of clubs in proceedings before the Arbitration Committee…’ (ibid).
The Court therefore found that Turkey violated the right to an independent and impartial tribunal due to ‘the structural deficiencies of the Arbitration Committee’ (§219). It found that those systematic shortcomings in the absence of effective legal protections cast doubts on its functioning particularly given the extensive influence of the Board of Directors (ibid). The Court thereby confirmed the existence of not only potential, but also actual organisational and structural conflicts of interests between the Arbitration Committee and the Boards of Directors, which taints the fairness of arbitration proceedings.
As for the execution of this judgment under Article 46 ECHR, the Court pinpointed that this judgment revealed systematic shortcomings in the resolution of football disputes in Turkey. For those reasons, it asked Turkey to adopt general measures aimed at ‘reforming the system of settlement of football disputes under the auspices of the TFF’ and ‘at restructuring of the institutional basis of the Arbitration Committee’ in order to guarantee its normative and organisational independence. (§242).
Towards strengthening the rule of law in sports organisations?
This judgment highlights systematic and widespread deficiencies of the arbitration system under the TFF and imposes far-reaching general measures to reform its dispute resolution system. In addition, this judgment also brings to light three general points, discussed below, as to whether sports organisations are obliged to comply with fair trial guarantees. First, the Court expanded fair trial guarantees beyond Mutu and Pechstein in so far that principles enshrined in Article 6 (1) apply also before domestic compulsory sport arbitration bodies where (judicial) review of its decision is outstanding. As a result, the judgment will have wide-ranging impacts for sports arbitration at least in domestic autonomous arbitration settings. Domestic sports associations will now have to reform their dispute resolution systems in order to ensure their arbitration bodies comply with the Article 6 (1) ECHR and/or provide for judicial review of their decisions. The judgment therefore reinforces and also broadens the Court’s judgment in Mutu and Pechstein as it extends fair trial guarantees not only to quasi-judicial tribunals such as CAS but also domestic arbitration bodies without judicial supervision.
Second, the Court has not only explicitly introduced the prohibition of the conflict of interests concerning the structures and functioning of the sport’s governing bodies, but has also applied it in the concrete cases and mandated structural reforms in the domestic systems. In short, it urged sports organisations to strengthen the rule of law within their organisations. The rule of law is defended here as the absence of arbitrariness in the decision-making of governing domestic sports bodies. As a result, sports governing bodies are to ensure not only internal and external normative independence, but must insist on transparency, fairness and integrity of its members and. They will have to introduce strict rules prohibition of conflict of interest and supervision thereof. Additionally, they will have to put in place rules and practices to protect the integrity of the members of dispute resolution bodies. Reforms are therefore required not only to establish the actual independence and impartiality of such bodies but also their appearance thereof.
Third, the lack of plurality of the stakeholders in the composition of the sport governing bodies may compromise their independence and impartiality. One has to observe that even though such interpretation is welcome, the judgment’s reasoning in paras 219-220 could have been more persuasive. Here, the Court does not provide any in-depth explanation of why the current composition of the governing bodies of TFF is problematic. Nonetheless, the Court here moves away from its reasoning in Mutu and Pechstein (§157) by noting that the lack of different stakeholders in the TFF’s governing body may jeopardize the independence and impartiality of the Arbitration Committee. As a rule, it is submitted that the composition of any decision-making body, whether in sports law or elsewhere, can influence its decision-making. In human rights law, the trend to ensure pluralistic representation of different stakeholders in decision-making is usually defended not omitted. For instance, the Paris Principles relating to the status of national institutions require in the section on ‘Composition and guarantees of independence and pluralism’ plurality of its membership. Indeed, sports governing bodies are organisations of autonomous and specific nature, nonetheless, its different stakeholders are as rich as in any other profession. As a result, this judgment could create potential wide-reaching consequences for global sports resolution bodies such as CAS and in particular concerning the International Council of Arbitration for Sport (ICAS)’s mechanism for selecting CAS’s arbitrators. In this vein, the CAS’s Code of Arbitration provides in Section 14 (1) that ICAS appoints as arbitrators persons nominated ‘including by the IOC, the IFs, the NOCs and by the athletes’ commissions of the IOC, IFs and NOCs’. More detailed studies are needed on how this provision reflects in practice and on the different backgrounds of the arbitrators on the current roster of the CAS’s list of arbitrators. Another question is the balance between different stakeholders in the current composition of the ICAS, which appears not to include a single representative of active athletes (although, to be fair, it includes several retired athletes). All in all, one can therefore agree with the majority of the Court, despite its weak reasoning that in a democratic society plural views from all stakeholders should be represented in order to improve the independence and impartiality of arbitration bodies.
Calls for reform?
Ali Riza and Others illustrates that fair trial guarantees in compulsory sports arbitration are being increasingly recognized by the European Court of Human Rights particularly where the applicants do not have access to judicial appeals body. This judgment will have far-reaching consequences for domestic sports arbitration bodies in order to ensure their objective, but also independence and impartiality from governing sports bodies and external pressures. Beyond domestic fora, the obvious question is will it prompt structural changes to be made in the composition of the ICAS, which selects CAS’ arbitrators? There is no straightforward answer. Nonetheless, this judgment indirectly implies that there are systematic deficiencies and imbalances of power between various stakeholders in appointing CAS’s arbitrators. As a result, it seems that the reform in the composition of bodies selecting arbitrators is not required only at the ICAS, as the appointing organisation, but also elsewhere in other sporting bodies. The impact of the judgment on the plurality of the composition of global and regional football associations is therefore potentially tectonic. It calls for their organisational structures to become more open and inclusive so that they reflect the interests of different stakeholders involved in that sport. In conclusion, there exist several reasons for legal teams of domestic and sports associations to study this judgment and its consequences with care and to strengthen the rule of law and internal and external independence (and the appearance thereof) of their organisations.