Tag: court of arbitration for sport

Understanding FIFA’s ‘No Court’ Rule

The ‘Giwa vs. Pinnick’ battle for the Nigeria Football Federation (NFF) Presidency has resumed and resurrecting with it is an order of the Federal High Court, Jos Division, which set aside the NFF election of 30th September, 2014 that brought the Amaju Pinnick-led board into office. On 11th April, 2016, FIFA issued a letter to Mr. Pinnick – whom it recognizes as the President of the NFF – warning that the implementation of the court decision “would likely be considered as an interference in the internal affairs of the NFF” (contrary to FIFA regulations), as a result of which sanctions would be considered, “including the suspension of the NFF”.

Many have reacted to the letter from FIFA with defiance, insisting that FIFA’s regulations cannot supersede Nigerian laws or judicial process. Such views are incorrect and this post aims to clarify why there is no attempt to subjugate national laws by the FIFA regulatory requirements of independence, non-interference and prohibition of recourse to regular courts.

The FIFA ‘No-Court’ Rule Explained

The FIFA Statutes prohibit members from taking disputes to regular courts of law, except where it is specifically provided for in the FIFA regulations (article 68(2)). Such exceptions include employment-related disputes as contained in the FIFA Regulations on Status and Transfer of Players.

Similarly, the NFF Statutes also include this ‘no-court’ rule in article 69(1).

It is important to understand that this rule does not deny a party with a complaint from seeking justice before a judicial body. The way the rule operates is, simply put – instead of going to a regular court, the aggrieved party should take the dispute to the Alternative Dispute Resolution (ADR) mechanism. The operation of the rule is similar to an ‘arbitration clause’ in a civil agreement, where the parties entering into a contract agree that in the event of a dispute, they will make recourse to arbitration rather than to a regular court. In fact, thIS FIFA rule must be read together with article 68(3), the latter part of which states that –

“Instead of recourse to ordinary courts of law, provision shall be made for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration tribunal recognised under the rules of the Association or Confederation or to CAS.”

The aim is simply to ensure that football disputes are taken to specialist (sports-specific) tribunals, where they will be determined not only speedily but also with proper appreciation of the governing rules and the specific nature of sports.

The Rule and National Courts

Contrary to what some have argued, the FIFA ‘no-court’ rule does not in any way imply that FIFA regulations supersede national laws or seek to undermine the national judicial process. Rather, as stated earlier, it merely operates like an ‘arbitration clause’ in a civil contract. Thus, it should be enforced just as a court would enforce an arbitration clause which stipulates that disputes arising from the contract will be settled by arbitration rather than taken to the court.

Participation in association football could be viewed as a contract between the members/stakeholders to be self-regulated and be bound by the rules of the association.

Therefore, while it is not the case that the ‘no-court’ rule seeks to strip a national court of its powers or that the court lacks jurisdiction to hear the case, the court usually enforces the agreement by directing the party to take the dispute to the relevant sports tribunal.

Just as parties are encouraged to seek ADR in commercial disputes, the business of professional sport has necessitated the recourse to sports-specific ADR for speedy and specialist resolution of sports disputes.

Suggestions

If we must put an end to the frequent recourse to courts, it is crucial that there exists a viable alternative dispute resolution mechanism within the football (and sports) industry.

This is in two levels:

Firstly, within the football administration, there must be a national Dispute Resolution Chamber (DRC).  The NFF Statutes state that NFF shall provide the necessary institutional means to resolve any internal dispute that may arise between Members, Clubs, Officials and Players of NFF – article 4(3). It is on this basis that the statutes further envisage the establishment of an Arbitration Tribunal in article 68. It would suffice to say that this tribunal needs to be a full-fledged, specialist and independent arbitration tribunal.

Secondly, for sports in general, there is the need for the establishment of a national sports arbitration tribunal. On 25th May, 2012, the Planning Committee inaugurated by the National Olympic Committee to develop the legal framework/guidelines for the establishment of a Nigerian Court of Arbitration for Sport (NCAS) submitted its report, the implementation of which is still pending.

Conclusion

It is difficult to doubt that the establishment of a standard alternative dispute resolution mechanism for football will not only curb the frequent recourse to regular courts, but will also induce the courts to see that there is indeed an effective internal mechanism within the industry, to which court-goers should be referred.

The situation is aptly depicted by Adokiye Amiesimaka (Chairman of the NCAS Planning Committee) thus: “In the absence of an independent, neutral and reliable body in the prevailing sports structure to fairly and definitively resolve sports-related disputes, it is commonplace for athletes, administrators and other participants in sports to seek redress in civil courts”.

 

Setting Up Nigeria’s Court of Arbitration for Sport

As a result of the FIFA ban on Nigeria and in line with efforts to forestall similar crisis in future, the Minister of Sports, Tammy Danagogo has stated that he will immediately set in motion machinery to encourage the Nigeria Olympic Committee (NOC) to quickly activate the Nigerian Court of Arbitration for Sport (NCAS). This specialized court would be the venue for adjudication of sports disputes, away from the regular courts –which has been a source of run-ins with the world football governing body (FIFA) in times past. It is common knowledge that FIFA prohibits the taking of sports disputes to the ordinary courts of law and sports in general globally adopts alternative dispute resolution for sports disputes. Hence, the decision of the Minister is in line with international best practices.

The Nigerian Court of Arbitration for Sport, when set up, will be the national equivalent of the international Court of Arbitration for Sport (CAS). Based in Lausanne, Switzerland, CAS was set up by the International Olympic Committee (IOC) in 1984 as the judicial body that sits over sports disputes. Its jurisdiction is mostly of international dimension, thus there is need for countries to set up their national equivalent. For instance, Sports Resolutions UK is the national body that serves the purpose of sports-specific dispute resolution in the United Kingdom, while the Arbitration Foundation of South Africa (AFSA) is the appointed dispute resolution body for sports federations in South Africa. In Nigeria, with domestic sporting disputes often finding their way to ordinary courts in times past and the consequent threat of international sanctions, the current football crisis is a repeat scenario. Consequently, setting up of NCAS has been on the front burner for quite some time.

Interestingly, there is not a lot of work left to be done with regard to the setting up of NCAS. The National Council on Sports of Nigeria had already endorsed the decision of the Nigerian Olympic Committee (NOC) to establish the Nigerian Court of Arbitration for Sport as a solution to the recurrent sports (mostly football) disputes being taken to ordinary courts. On the 9th of June, 2011 a Planning Committee comprising lawyers from different parts of Nigeria was inaugurated by the NOC to develop the legal framework/guidelines for the establishment of NCAS. The committee, which was headed by the renowned Adokiye Amiesimaka, submitted its report to the NOC during the Annual General Meeting on the 25th of May, 2012. However, since then, it is not apparent that further steps have been taken by the NOC to actually constitute and establish the NCAS.

It is commendable that the Minister of Sport has embraced the need to set up the body. Now, rather than expend time and resources in commencing the process all over, all that needs to be done is to revert to the report of the Amiesimaka-led committee. Based on available commentaries, the job done by the committee included wide consultations and comprehensive review of Nigerian law and sports regulations, all culminating in the following conclusions:

  • Under Nigerian law, there are no statutory impediments to the use of alternative dispute resolution (ADR) mechanisms for the resolution of sports disputes, rather Nigerian law encourages the use of ADR;
  • the rules and regulations of Nigerian sports federations (including the Nigeria Football Federation) need to be amended to include recognition of the jurisdiction of NCAS, which is prerequisite to NCAS assuming jurisdiction;
  • the NCAS will save time and cost, as well as enhance affable and pragmatic resolution of sports disputes in Nigeria.

Indeed, the establishment of the Nigerian Court of Arbitration for Sport will be a huge step towards averting similar problems for the development of Nigerian football in particular and sports in general.