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Self-Regulation. Is it the answer

A study of the over-arching principles that provide a Sports Federation with a justification for self-regulation.
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  Mihai Georgescu, LLB Self-Regulation. Is it the answer?  A study of the over-arching principles that provide a Sports Federation with a justification for self-regulation Preface International Sports Law is a discipline that is self governing, to the effect that the rules do notconflict with that of the Law. There is a fine line between a breach of the rules and what it istraditionally considered a breach of law and socio-econoic policy.In this essay, I will endeavor to e!plore how the athletes are affected by the fact that the "ederationsare self regulating and the various recourse ethods available to the. It is also necessary toe!plore whether the Governing Bodies and their rules are in line with the ethical and socio-econoical policies of the States. # secondary introspection will allow e to consider the scope of the $one rule for all% principles& benefits and disadvantages in sport. Sports are internally governed and e!posed to an aalga of norative rules, playing andadinistrative rules, unwritten values and agreeents inforally developed and codes of ethicswhich are put in place to challenge the deficiencies in the behavior controlled by this norativestructure.The rules are overseen by international federations which organise and regulate the sports throughthe creation of a coon law, copletely inherent of national regulations ade through thetraditional legal syste. #ong these "ederations, we find the "I"# and the I'(, as two of theost significant federations in ters of social attention. Sport&s e!ternal regulation has always been provided by olding the law to account for the freedevelopent of the Sports, but it was not until )*++, when dward Grayson established hiself asthe $"ounding "ather% )  of Sports Law with his wor $Sport and the Law% in which he identifies andrecognies the need to account for law developed especially for this type of social interaction. Self-Governance # /ational Governing Body is a $typically independent, self-appointed organisation that governsthe sport through coon consent of the sport.% 0 , therefore the athletes ust adhere to the rulescreated by the. 1owever, in breaching those rules, the athletes are potentially sub2ected to penalties including dis3ualifications, fines or teporary and definitive access restrictions to thegae. ) . $Sports Law%, Third dition, written by Sion Gardiner, Mar 4aes et al, 0556 0 . 7efintion e!tracted fro paraphrasing the definition of /GBs as found at the lin8 $http899www.sportengland.org9our-wor9national-wor9national-governing-bodies9sports-that-we-recognise9%, #ccessed ): of #ugust 05);  Mihai Georgescu, LLB <hen a player sees to access recourse, he has a nuber of eans that could include #lternative7ispute =esolution - Mediation, #rbitration and a direct outsource to (ivil courts.1owever, an athlete&s conduct will be governed by a bilateral contract between hiself and a (lub,or the "ederation. The choice for #lternative 7ispute =esolution ethods does not alwaysnecessarily arise fro a contractual condition included in the contract itself, which provides greater fle!ibility to choose their eans of #rbitration. "ederations, or Governing Bodies, provide internal and e!haustive dispute procedures, which theathletes or clubs are re3uired to resort to when sub2ected to a conflict, before seeing retributionwith an e!ternal Tribunal.Many sports coentators have suggested that whilst #rbitration can provide a good reedy, its procedures can be costly, and therefore Mediation is becoing a ore popular eans of disputeresolution. The reason for the growing popularity of Mediation is that it provides a cost effective and privateeans of negotiation outside of the public eye. Many clubs and athletes do not desire to have their  private atters outed in the open, due to the social responsibility that is soeties iposed ontothe to avoid certain types of behavior, as stated in suary by /eil Goodru. : Arbitration The 4urisdictional recognition of the (ourt of #rbitration for Sport, or (#S for short, isacnowledge by all 'lypic International "ederations and in 055*, the Tribunal&s 2urisdiction has been e!tended to include the <orld #nti-7oping (ode&s scope# re3uireent for subission of a case to the (#S is an arbitration agreeent between the partieswhich specifies recourse to the (#S. #ccording to rule 6) of the 'lypic (harter, all disputes inconnection with the 'lypic Gaes can only be subitted to (#S.The Tour de "rance high profile cycling copetition brought with it ultiple scandals which havecopelled "rance to introduce #nti-7oping Legislation. The doino effect of anti-dopingcooperation hit urope in the )*+5s, but it wasn&t until )*** with the Lausanne (onference that it becae a global concern and brought with it #nti-7oping to the forefront of the world stage andwas ade an international responsibility. #ppeals on the (#S decisions can be forulated to the"ederal Supree (ourt of Switerland where the (#S has its seat, but the success rate is very lowand liited to procedural atters related to public policy incopatibility.: . /ews article as seen at the lin89articles9regulation-a-governance9ite9ediation-in-sports-disputes-lessons-fro-the-u , #ccessed ):   of #ugust 05);  Mihai Georgescu, LLB The >rocedural =ules of the (#S (ode, establish a very clear definition on what the #rbitrationfees when applying to the Tribunal are and the tie liits are very clear and defined. #nother iportant fact about the re3uest to open an #rbitration procedure with the (#S is the privacy with which every case is approached, being only appeal cases that find theselves published in the Tribunal&s 'fficial 4ournal. ?en "oster argues that the thical principles of the gae are what represent the spirit, the essenceof the gae. This very wording of gae $spirit% has been ipleented into the core of the"undaental =ationale for the <orld #nti-7oping (ode @  and is what drives the "ederations to$reserve their own sphere of regulation% ; Sports Law discrimination The world of sport reains a highly segregated one, ostly between en and woen and thosewho are fully able and the disabled. 1owever, with the invent of the >aralypics, disabilitydiscriination sees to have been addressed. Siilarly, ore professional fro the #fro-(aribbean and the #sian counities have seen pathways into the sport but still a lac of woen.The 05)5 3uality act cae into effect consolidating the previous discriination laws and withinthis act there are * >rotective (haracteristics which include ageA disabilityA gender reassignentA pregnancy and aternityA raceA religionA se!A se!ual orientationBeatrice (apbell suaried that whilst racis is being tacled on global scale, se!is is still achallenging for of discriination and this can been seen ostly and ost iportantly in the behavior of footballers towards woen, behavior which still has not been penalied by (lubanageent or federations. 'ne of the probles in the echanis for achieving e3ual pay for en and woen is that #rticle); of the T"C and the 3ual >ay #ct re3uire the applicant to identify a ale coparator. The proble arises when physical perforance is being put under scrutiny.Secondly, woen still have alost no representation or recognition in certain sports, one of whichis the highly regarded and capital generating sport of "ootball. The lac of representation andsupport fro the "ederations leads to an alost non-e!isting copetition syste for this section of society, thus generating a ore coplicated issue of (opetition Law. A!A" the orld Anti-!oping Agenc# In <#7#&s #nti-7oping code, doping is described as being fundaentally contrary to the spirit of the sport. The principles on which the code are constructed are of strict liability. The logic was@ . <#7# (ode, Introduction, >age :8 https899wada-ain- prod.s:.aa9resources9files9wadaDcodeD055:Den.pdf    , #ccessed ): of #ugust 05); ; . $Is there a Global Sports LawE%, ?en "oster, http899www0.warwic.ac.u9fac9soc9law9el29esl29issues9volue09nuber)9foster.pdf    , #ccessed ): of #ugust 05);  Mihai Georgescu, LLB upheld in (#S )**@9)0* $CS# Shooting F uigley v CIT% 6  that whilst a lac of intention could beconsidered unfair, a litigation would be too costly and y ight cripple $the "ederations% andespecially those who run on odest budgets.Soe lawyers have suggested that the strict liability provisions of any sports governing bodies arefundaentally un2ust, which was also the opinion of Mr Blacburn in Gasser v Stinson and#nother, )*++ in which he does not see why the orally innocent $ay have to suffer in order toinsure that the guilty do not escape%.=ecently, the uropean (ourt of "irst Instance and on appeal the uropean (ourt of 4ustice, wasased to rule on the anti-doping rules of the International 'lypic (oittee HI'(, their ipleentation by the "ederation Internationale de /atation and whether or not they werecopatible with uropean Cnion HC copetition laws, following the case of 7avid Meca-Medinaand Igor Ma2cen, two long distance swiers who tested positive for the banned anabolic steroid -nandrolone following a <orld (up event in Brail and were initially banned for a period of four years, with a reduction to two post an appeal to the (#S. The ost relevant outcoe of this case was that it was established that uropean Cnioncopetition laws were not violated by anti-doping procedures and furtherore had a legitiate purpose. The acnowledgeent of a purpose, subse3uently represented that the this coplicatedatters did not fall outside copetition rules, but it erely e!panded the.In this case the court stated8 $Therefore, even if the anti-doping rules at issue are to be regarded as a decision of anassociation of undertaings liiting the appellantsJ freedo of action, they do not, for all that,necessarily constitute a restriction of copetition incopatible with the coon aret, within theeaning of #rticle +) (, since they are 2ustified by a legitiate ob2ective. Such a liitation isinherent in the organisation and proper conduct of copetitive sport and its very purpose is toensure healthy rivalry between athletes.%  In 055+, Mr >etacchi +  tested positive for a dosage of an #stha drug in his bloodstrea,Salbutaol, which is nown to iprove anaerobic power. It was an accepted fact that Mr >etacchioverused his inhaler on the day of the test. Cnder noral circustances, the use of Salbutaolwould represent the direct dis3ualification fro any sporting event, as stated in #rticle 0.). of the<#7# (ode 055:, due to its secondary effect, but there is a clause in effect fro #thletes whichsuffer fro #stha and re3uires the to produce a edical certificate to prove the necessary use of the drug.6 . (#S )**@9)0* $CS# Shooting F uigley v CIT% #s seen at the lin8 http8992urisprudence.tas-cas.org9sites9(aseLaw9SharedK057ocuents9)0*.pdf , #ccessed ): th  of #ugust 05);  . Meca-Medina, 0556 (4 (L LIS ::, para. @;. + . /ews article, as seen at the lin89news.phpEidnews9055+9ay5+9ay56news0   , #ccessed ): th  of #ugust 05);  Mihai Georgescu, LLB The Italian 'lypic (oittee H('/I had previous nowledge of this re3uireent, but stilldecided to pursue charges for doping against Mr >etacchi, since the level of Salbutaol that he presented clearly surpassed the approved threshold of )555 nanogras per illiliter, albeit due toaccidental ingestion of the drug while inhaling it. $ompetition law" broadcasting and pla#er ownership Third >arty 'wnership of #thletes has recently been banned by "I"# and C"#,due to the fact thatit threatens the integrity of the sport and it creates conflict of interest. *  Third >arty 'wnershipentitles that a player is owned by ore than two parties, one of which is usually an investor.Transfer of a player that holds this status is not considered to be conflictive with the uropeanCnion (opetition Law, but due to the self-regulatory aspect of the "ederations, aes theenforceent of this decision definitive, until further notice.The #rbitration $(#S 05):9#9:)*@ S.(. ".(. Cniversitatea (lu2 S.#. v. =oanian "ootball"ederation H="" F =oanian >rofessional "ootball League H=>"L% )5 , whose award was grantedon )+ /oveber 05): is a case that involves an issue of a refusal to grant a license for a participation in the "ootball =oanian /ational (hapionship to "( (lu2 due to an insolvencyissue. The ruling states that the (lub finds itself in a state of insolvency, and it is established so, by the=oanian Insolvency Law. It also states that the =oanian "ootball "ederation was in its lawfulright not to grant the tea access to the /ational (hapionship. "ro y point of view and researching =oanian Insolvency related cases, it is reasonable to saythat not resorting to the traditional civil court syste to establish this atter is appropriate,considering the facts that this case presents. I will venture further away and say that it is not asituation of establishent of state of accounts, because it is already established that in bothsituations, civil court or #7=, the state of the accounts reains the sae, that there is a declaredinsolvency to deffer payents. If anything, the courts would have a coplicated tie inestablishing the copetency and 2urisdiction of the court to rule, which would translate into aonuental waste of capital and tie.In the #rticle $#n #ccident of 1istory8 <hy the 7ecisions of Sports Governing Bodies are /ot#enable to 4udicial =eview%, written by 4ac #nderson, fro the Cniversity of Law at ueen&sCniversity Belfast, argues that $given the contractual relationship between the parties involved, thenglish courts have long preferred to decide sporting disputes on a private law basis upon whicheffective actions for a declaration, an in2unction or daages can be based without resort to 2udicialreview% )) . Mr #nderson arguent is based on the fact that according to his opinion, GoverningBodies are hybrid public authorities, therefore share a governental responsibility and relationship. * . #s seen at the lin8 http899www.asser.nl9SportsLaw9Blog9post9sport-and-eu-copetition-law-new-developents-and-unfinished-business-by-ben-van-ropuy   , #ccessed ): #ugust 05); )5 . $ (#S 05):9#9:)*@ S.(. ".(. Cniversitatea (lu2 S.#. v. =oanian "ootball "ederation H="" F =oanian >rofessional "ootball League H=>"L% #s seen at the lin8 http8992urisprudence.tas-cas.org9sites9(aseLaw9SharedK057ocuents9:)*@.pdf , #ccessed ): #ugust 05);
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