Power, Legal Authority and Legitimacy in the Regulation of International Sport

POWER, LEGAL AUTHORITY AND LEGITIMACY IN THE REGULATION OF INTERNATIONAL SPORT

Lloyd Douglas Freeburn

ORCHID Identifier: orcid.org/0000-0001-8050-4337

Degree Submitted for: Doctor of Philosophy (PhD)

Submission Date: 8 September 2017

University of Melbourne Law School

Submitted in total fulfilment of the degree

ABSTRACT

This thesis challenges the conventional conception of the private law regulatory regime of international sport. That conception is that regulatory authority in international sport is consent- based and exercised by voluntary associations acting through private law contracts. This orthodox conception is untenable. It involves a basic conflict with the categorical nature of regulatory power claimed and exercised in international sport. Further, the incidence of direct contracts between the regulatory bodies and those subject to regulation only covers a small minority of those whose activities are regulated and is inadequate to support the characterisation. Resort to ‘indirect’ contractual links and other legal fictions is also inadequate to support the characterisation.

This thesis argues that on proper analysis, international sports governing bodies principally exercise arbitrary de facto private power which is made possible by their monopoly position in sport’s hierarchies and their unique capacity to enforce their own sanctions without requiring support from state legal systems. This de facto power is also supported by the arbitral regime of the Court of Arbitration for Sport. This arbitral regime is permitted to operate by state legal systems in the absence of an arbitration agreement between international federations and those over whom they exercise regulatory power, this concession based on manifestly inadequate justifications.

It is also argued that the assumption implicit in the conventional consent-based conception that the de facto power of international sports governing bodies represents the exercise by those bodies of their individual liberty as voluntary associations is incoherent: the scope of individual liberty cannot extend to include non-consensual de facto power over others as this would be defeating of all liberty.

The implications of these inadequacies in the conventional conception are amplified by the fact that the regulatory regime of international sport is afflicted by a fundamental legitimacy deficit in that power is exercised by institutions that are neither representative of nor accountable to those who are regulated. In addition to the moral and legal issues raised by the reality of the regime being based on de facto power, institutional corruption in sport is argued to be one consequence of the absence of proper legal and democratic legitimacy.

The concern is not that there is private regulatory power in international sport, but that this regulatory power is neither legitimate, nor is it legally sound. Securing a legitimate and legally

sound regulatory framework is equally the concern of the international federations as well as those subjected to the federation’s regulatory power. Reforms are required to establish a regulatory regime that is both legitimate and legally sound. However, to be efficacious, these reforms must resolve the tension between international sport’s inherent requirement for the application of uniform and consistent, and therefore categorical regulation, with the prerequisites for the creation of obligations in private law. Reforms based on the introduction of a legitimate regulatory regime based on democracy and legally supported by an international convention are proposed.

DECLARATION

I, Lloyd Douglas Freeburn, declare that:

1. This thesis comprises only my original work towards the requirements of a PhD; 2. Due acknowledgement has been made in the text to all other material used; 3. The thesis is fewer than the maximum word limit in length, exclusive of tables, maps, bibliographies and appendices.

Lloyd Freeburn

September 2017

ACKNOWLEDGMENTS

First, it is appropriate to acknowledge that this thesis was prepared with and made possible by the support of an “Australian Government Research Training Program Scholarship”.

On a more personal level, my sincere thanks go to my academic supervisors, Hayden Opie and Prof. Richard Garnett. The value of Hayden’s tolerant, open-minded and generous encouragement along the winding path that this research has taken, as with his career-long contribution to the study of sports law, cannot be overstated. Richard’s patience and observations from outside the world of sports law have contributed significantly in shaping this paper.

I am also grateful for the support and encouragement of Prof Michelle Foster, Prof Ian Ramsay and the staff of the University of Melbourne Law School. In particular, I am grateful to the librarians of the Law School Library for their unstinting assistance and always friendly greetings, and for the assistance of the staff of the Office for Research.

Last in order, but first in importance, this research would not have been possible without the generous and unfailing support of my wife, Luci and my daughters, Isabelle and Claudia. I regret that this thesis can only ever be but a meagre return in comparison with the value of their investment. Of course, I also am grateful to the rest of my family, especially my mother, for her lifelong support and inculcation of the value of education.

Power, Legal Authority and Legitimacy in the Regulation of International Sport

TABLE OF CONTENTS

Abstract ...... 2

Declaration ...... 4

Acknowledgments ...... 5

I Fundamental Aspects of Regulatory Power in International Sport ...... 12 A Chapter Introduction ...... 13 1 The Concern ...... 13 2 Thesis Structure ...... 15 B The Structure of International Sports Governance ...... 17 1 Sport’s Pyramid(s) ...... 17 (a) International Federations ...... 18 (b) The International Olympic Committee ...... 19 (c) The World Anti-Doping Agency ...... 20 (d) The Court of Arbitration for Sport ...... 22 2 Functions of International Federations ...... 24 3 Contractual Rules/Regulations of Sports Governing Bodies ...... 25 C The Nature of Regulatory Power in International Sport ...... 27 1 The Conventional Contract-Based Conception ...... 27 2 The Limited Extent of Express Contracts ...... 30 3 The Categorical (Not Contractual) Claim to Regulatory Authority ...... 32 4 The Structure of Sport and Monopoly Power ...... 35 5 The Consistency Imperative of International Sport ...... 37 6 The Contractual Characterisation and Sports Law ...... 39 D The Democratic Legitimacy Deficit in International Sport ...... 41 1 The Democratic Deficit in International Federations ...... 41 (a) The Undemocratic, Unrepresentative, International Olympic Committee ...... 43 (b) Recognition of the Democratic Deficit ...... 46

E The Legitimisation of Regulatory Power in International Sport ...... 48 1 Power and Authority ...... 48 2 The Requirement for Legitimacy ...... 50

II The Contractual Authority of Sports Governing Bodies – The Real and The Fictional 54 A Chapter Introduction ...... 55 B The Contractual Basis of Regulatory Authority – Conceptual Issues ...... 56 1 The Formal Requirements of a Contract and the Contractual Premise ...... 56 2 Quasi-legislative Rules ...... 58 3 The Exercise of Regulatory Power and Transactions ...... 59 4 The Incompatibility of an Overriding Regulatory Power with Contract-Based Power ...... 62 (a) A Contractual Power? ...... 63 (b) The Paradox of the Incorporation by Reference by a Contract of a Power to Override the Contract ...... 63 (c) Self-Enslavement Contracts ...... 64 (d) The Regulation of Members and Non-Members by Associations ...... 65 5 Certainty and Contractual Intention in Contracts Incorporating Variable Sports Governing Bodies’ Rules ...... 66 (a) Certainty ...... 67 (b) Contractual Intention ...... 68 (i) The Relevance of the Form of the Rules as Indicating Contractual Intention ...... 69 (ii) Implied Affirmation ...... 70 C Indirect ‘Contractual’ Devices ...... 71 1 The Incorporation of Regulatory Power by Reference ...... 71 2 Chains of Contracts in Sport ...... 72 (a) What is the ‘Chain of Contracts’ Theory? ...... 72 (b) The Mischaracterisation of Cases ...... 73 (c) The ‘Chain’ as an Indirect Relationship ...... 76 (d) The ‘Chain’ as Multipartite Contracts ...... 77 D Implied Contracts in Sport ...... 83 E The Vice of the Contractual Characterisation ...... 84

III The De Facto Power of Sports Governing Bodies ...... 87 A Chapter Introduction ...... 88 B The Foundations of the De Facto Power of Sports Governing Bodies ...... 89 1 Monopoly Power of Sports Governing Bodies ...... 89 (a) Judicial Identification of the Monopoly Power of Sports Governing Bodies ...... 90

(i) Monopoly Power and the ‘Right to Work’ ...... 90 (ii) Monopoly Power and Labour Market Restraints ...... 91 (iii) Monopoly Power and Judicial Review ...... 93 (iv) Monopoly Power in Other Contexts ...... 94 (b) Commentator Identification of the Monopoly Power of Sports Governing Bodies ...... 96 2 Self-Enforcing Sanctions ...... 99 3 De Facto Power and the Contractual Characterisation ...... 100 C The Extent and Function of Consent in the De Facto Power of Sports Governing Bodies . 101 1 De Facto Power and Contracts ...... 102 (a) The Coincidence of Contractual and De Facto Powers ...... 102 (b) Forced Consent ...... 103 (i) Forced Consent and De Facto Power ...... 104 (c) The Effect of Judicial Support of De Facto Power in the Form of Forced Consent ...... 104 2 De Facto Power and Consent ...... 106 (a) The Role of Participant Knowledge of Sports Governing Bodies’ Rules ...... 106 (i) Knowledge, Consent and the Veneer of Legitimacy for De Facto Power ...... 109 (b) Participation as Agreement ...... 109 (c) Conduct Bringing Individuals Within the Scope of Regulatory Authority ...... 111 (d) De Facto Power, Consent and Estoppel ...... 111 D Chapter Conclusion ...... 113

IV The De Facto Jurisdiction of the Court of Arbitration for Sport ...... 114 A Chapter Introduction ...... 115 B The ‘Myth’ of Consent in Sports Arbitration ...... 116 1 Arbitration in Sports Governing Bodies’ Rules ...... 119 2 Practical Considerations Supporting Sports Arbitration ...... 120 3 CAS’s Mandatory Jurisdiction ...... 121 (a) CAS Rules ...... 121 (b) CAS Practice ...... 123 (c) The Approach of the Swiss Federal Tribunal ...... 126 C The Inadequate Justification of Non-Consensual Arbitration ...... 131 1 The Justifications of Non-Consensual Arbitration in Sport ...... 131 2 The Selective Application of the Functional Justifications ...... 131 3 The Objective of an Effective Dispute Settlement Regime ...... 132 (a) Avoiding Jurisdictional Problems ...... 133 (b) Facilitating Consistency ...... 134 4 The Fairness of the Process ...... 134

5 Legitimacy of Arbitration and the Problem of the Absence of Agreement ...... 136 6 The Rule of the Rules of International Sport Governing Bodies ...... 139 (a) De Novo Review or the Fresh and Independent Application of Arbitrary Power? ...... 139 (b) Inequality ...... 142 (c) Substantive Arbitrariness ...... 143 7 Pro-Arbitration Policy ...... 144 D Chapter Summary ...... 145

V Individual Liberty and De Facto Power ...... 148 A Chapter Introduction ...... 149 B Individual Liberty and De Facto Regulatory Power ...... 149 1 Assumption of Validity of De Facto Power ...... 150 (a) Governmental Power, Individual Liberty and De Facto Power ...... 151 (b) De Facto Power and Individual Equality ...... 152 (i) The Limits to Individual Liberty ...... 153 (ii) Individuals Acting in Their Own Interests ...... 154 (c) De Facto Power and the Rule of Law ...... 156 (i) Rule of Law Principles and Governmental Power ...... 157 (ii) The Rule of Law and Private Arbitrary Power ...... 158 (iii) Different Types of Arbitrariness ...... 159 C Chapter Summary ...... 161

VI Legitimacy and the Justification of the Regulatory Power of International Sports Governing Bodies ...... 162 A Chapter Introduction ...... 164 B Democratic Legitimisation of the Governance Regime of International Sport ...... 166 1 Legitimacy and Representative Democracy ...... 166 (a) Why Democratic Legitimacy? ...... 166 (b) Public Law Principles and Analogies ...... 168 2 The Pragmatics of Representative Democracy in International Sport ...... 170 (a) Democracy in Globalised Sport ...... 170 3 Legislative Support of Democratic Regulatory Structures in Sport ...... 173 (a) Good Governance and Governmental Regulation of International Sports Governing Bodies ... 177 4 Democracy as Good Governance ...... 178 (a) Democracy and Corruption in International Sports Governing Bodies ...... 180 C Democratic Legitimacy and International Sports Arbitration ...... 182 1 De Facto Power and the Role of CAS ...... 184

(a) A Consent-Based Arbitral Form for a Non-Consensual Regulatory Function ...... 184 (b) Arbitration and Sport’s Consistency Imperative ...... 186 2 Democratic Legitimisation of Arbitration Without Consent ...... 187 D Conferring Legality on the Regulation of International Sport–the Need for an International Treaty ...... 189 1 The Limited Benefits of Democratic Legitimacy ...... 189 2 An International Treaty ...... 192 3 The Contents of a Convention on the Governance of International Sport ...... 193 (a) World Sports Regulatory Authority ...... 193 (i) The Regulation of Sport to Be Democratically Based ...... 195 (ii) Democratic Organisational Structures ...... 195 (b) Giving Effect to the Consistency Imperative ...... 198 (i) Arbitral Tribunal or Court? ...... 200 (ii) The Compulsive Scope of Rules ...... 201 (iii) Non-Essential Rules ...... 202 4 The Impetus for Reform ...... 204 (a) Conditional Governmental Support ...... 206 E Conclusion ...... 208

Bibliography ...... 209 A Articles/Books/Reports ...... 209 B Cases ...... 247 1 Australia: ...... 247 2 Belgium: ...... 252 3 Canada: ...... 252 4 Court of Arbitration for Sport ...... 253 5 European Union: ...... 256 6 France: ...... 257 7 Germany: ...... 257 8 New Zealand: ...... 257 9 Singapore: ...... 258 10 South Africa: ...... 258 11 Switzerland: ...... 258 12 United Kingdom: ...... 260 13 United States: ...... 269 14 West Indies ...... 272

C Legislation ...... 272 1 Australia: ...... 272 2 Brazil: ...... 272 3 China: ...... 272 4 Canada: ...... 273 5 France: ...... 273 6 Germany: ...... 273 7 Hungary: ...... 273 8 Italy: ...... 273 9 Japan: ...... 273 10 Korea: ...... 273 11 New Zealand: ...... 273 12 Scotland: ...... 273 13 Spain: ...... 274 14 Switzerland: ...... 274 15 United Kingdom: ...... 274 16 United States: ...... 274 D Treaties ...... 274 E Other ...... 275

I FUNDAMENTAL ASPECTS OF REGULATORY POWER IN

INTERNATIONAL SPORT

A Chapter Introduction ...... 13 1 The Concern ...... 13 2 Thesis Structure ...... 15 B The Structure of International Sports Governance ...... 17 1 Sport’s Pyramid(s) ...... 17 (a) International Federations ...... 18 (b) The International Olympic Committee ...... 19 (c) The World Anti-Doping Agency ...... 20 (d) The Court of Arbitration for Sport ...... 22 2 Functions of International Federations ...... 24 3 Contractual Rules/Regulations of Sports Governing Bodies ...... 25 C The Nature of Regulatory Power in International Sport ...... 27 1 The Conventional Contract-Based Conception ...... 27 2 The Limited Extent of Express Contracts ...... 30 3 The Categorical (Not Contractual) Claim to Regulatory Authority ...... 32 4 The Structure of Sport and Monopoly Power ...... 35 5 The Consistency Imperative of International Sport ...... 37 6 The Contractual Characterisation and Sports Law ...... 39 D The Democratic Legitimacy Deficit in International Sport ...... 41 1 The Democratic Deficit in International Federations ...... 41 (a) The Undemocratic, Unrepresentative, International Olympic Committee ...... 43 (b) Recognition of the Democratic Deficit ...... 46 E The Legitimisation of Regulatory Power in International Sport ...... 48 1 Power and Authority ...... 48 2 The Requirement for Legitimacy ...... 50

A Chapter Introduction Almost as a rule, legal academic works dealing with sports law begin with a recitation of facts illustrating the social, political and economic importance of sport, perhaps serving as a justification for the expenditure of intellectual capital in study of the interaction of law and sport, as opposed to a subject more ‘worthy’. This work, however, assumes awareness that sport occupies a significant position in modern society, if this is not self-evident. Here, the focus is on the important legal issue of the role of the private international federations that govern sport internationally. There is no question that these bodies exercise significant private power; power that is significant both in terms of the areas of activity that it affects and in terms of the population over whom it is applied. The source and nature of that power is therefore an elemental issue. Accordingly, the particular focus here is on the system of governance and regulation of the people and entities within the scope of the international federations’ activities. Such a system of regulation is essential, but, as in other areas of societal activity, that system of governance and regulation must rest on a sound legal foundation.

The private, non-governmental and international nature of international sports federations, their membership and activities has led observers to the conclusion that their regulatory power involves the exercise of the individual liberty of the voluntrary associations and is based on ‘contract’. This thesis examines whether, and to what extent, that conclusion is correct. It identifies and explains the role of de facto power in the governance of international sport as another and more plausible basis of the existing regulatory regime. An international convention is proposed as the best–and necessary–option to provide a superior legal foundation and other advantages for the system of governance and regulation of international sports federations.

1 The Concern The law plays a significant part in supporting the regulatory power of international sports governing bodies. The basis of this legal support is a generally accepted conception that regulatory power in sport is based on consent, that it is exercised by voluntary associations acting through private law contracts. This idea underpins a substantial supporting legal superstructure that culminates in the pervasive and largely unchallengeable authority over disputes in sport of the Court of Arbitration for Sport (‘CAS’).

This conception is virtually universal. Indeed, some appear to adhere to the belief that power in sport is always contractual, almost as an article of self-fulfilling faith – that there will always be a contract somewhere, one just needs to look hard enough to find it. This is a view

encouraged by the perspective of lawyers. Reasoning backwards, because compulsive private power clearly exists in sport, there must be a contract, otherwise compulsive private power would not be valid. The obvious need for an effective regulatory system in international sport encourages this view.

It is argued in this thesis that the conventional, consent-based foundation for regulatory authority in international sport is not merely troublesome, it is wholly untenable. Moreover, power is exercised by institutions afflicted by a fundamental legitimacy deficit: they are neither representative of nor accountable to those who are subjected to their regulatory power. The institutions that govern international sport assume power over others, but have no justifiable claim to possess it. They operate on the basis that they have a right to rule, reflecting attitudes belonging to the distant past when authority could be claimed over others ‘on the basis of personal privilege, wealth, hereditary right or superior force’.1 Yet these institutions oversee an industry worth many billions of dollars and, more importantly, exercise control over what probably amounts to millions of individuals who have no say in the governance of their sports. As will be illustrated, this control is evident in many cases, extending beyond regulation of sports competitions to include the regulation of participants’ commercial activities and significant aspects of their private lives, and proscribing their legal rights. Unsupported by contractual authority, sports governing bodies make and enforce rules and decisions that, for example, exclude participants from practising in their sports,2 restrict participants’ commercial freedoms,3 intrude into their private lives4 and, almost as a rule, proscribe access to state courts in favour of sports arbitration.5 These powers are exercised so as to override the terms of any contract actually binding a participant.6

1 Ruth W Grant and Robert O Keohane, 'Accountability and Abuses of Power in World Politics' (2005) 99 American Political Science Review 29. Examples of the ‘right to rule’ mentality in sports governance include the reaction of cricket authorities to the development of World Series Cricket in the late 1970s, and the reaction to the Bosman decision of the European Court of Justice striking down football’s transfer and retention system: see Steve Greenfield, ‘The Ties that Bind: Charting Contemporary Sporting Contractual Relations’ in Steve Greenfield and Guy Osborn (eds), Law and Sport in Contemporary Society (Frank Cass, 2000) 130. 2 See for example International Rugby Board v Troy & ARU, CAS 2008/A/1664, award dated June 2008; and discussion of this case in Ch II at note 136 below and accompanying text. 3 See for example Laurent Piau v Commission of the European Communities Case T-193/02, judgment of 26 January 2005. See Ch VI, note 145 below. 4 See for example the requirements of the Anti-Doping Administration & Management System (ADAMS) requiring athletes to log their daily location in a database: World Anti-Doping Agency, ‘ADAMS’, https://www.wada-ama.org/en/questions-answers/adams. 5 See for example Raguz v Sullivan (2000) 50 NSWLR 236 and discussion of this case in Ch II at note 121 below and accompanying text. 6 See for example Dodo v FIFA and WADA, 4A_460/2008, (SFT) judgment of 9 January 2009; and discussion of this case in Ch IV at note 61 below and accompanying text. 14

The consequence of the legitimacy deficit has another, broader dimension. The unrepresentative governance of sport has experienced many substantial breaches of good governance standards, so much so that corruption in sports has come to be regarded as institutionalised, and to typify corruption in global institutions.

To the extent that the law supports this regime, it requires reform. Acknowledging the fiction of the conventional consensual, contract-based conception is an essential first step in a reform process. It is necessary that the nature of regulatory power in international sport be accurately understood in order for it to be properly regulated by law. This is also necessary for regulatory power in international sport to be legitimised, for it to be made justifiable. The compulsive and arbitrary private regulatory regime of international sport cannot stand on the false legitimacy of the conventional conception, nor on the bare choice to participate or not, nor on other legal fictions that are deployed to sustain the regulatory authority of international sports governing bodies.

Securing a legally sound and legitimate regulatory framework is equally the proper concern of those who regulate and of those subjected to regulation.

2 Thesis Structure The structure of this argument commences with a brief outline of the governance structure of international sport. In addition to understanding the nature of the institutions involved, it is necessary to understand the nature of the power that is claimed by international sports federations. This power is both claimed to be and takes effect ‘categorically’, independently of the consent of individual participants.7 Here, the inherent and constitutive requirement in sport for uniformity and consistency in the application rules is noted, these issues posing problems for a regulatory regime that is contingent upon consent.

Next follows an examination of the limited extent of the contractual authority of international sports governing bodies. The limited extent of direct contracts that support the regulatory power of international federations over participants in sports means that various ideas of indirect ‘contractual’ connections are deployed to sustain the contractual conception. Though even these fictions are inadequate to support that conception. The examination then turns to identify the practical mechanisms that enable international federations to exercise de facto

7 ‘Categorically’ is used in this context to mean definitely and unconditionally. Chapter III deals with the suggestion that arises that participation involves consent: see the discussion below under the heading ‘De Facto Power and Consent’. 15

private power in the absence of contracts, principally the monopoly position of international sports governing bodies and their unique powers of self-enforcement. The de facto power of CAS, which operates to support the de facto power of the international federations, is separately examined.

Then, the issue of the nature of compulsive private regulatory power as an exercise of the individual liberty of voluntary associations is considered. The argument advanced is that the scope of individual liberty does not extend to include the power of private compulsion. To consider or assume that it does is incoherent; it is inconsistent with and defeating of a system based on individual liberty, contravening basic principles of individual equality. This challenge to the orthodox, assumed validity of private regulatory power does not appear to have been raised in this way previously. While it has potentially broader implications to other forms of de facto regulatory power, including de facto governmental powers, the scope of anyalysis here is restricted to sports governing bodies. The implications of the absence of a valid source of private power are considered in terms of legal arbitrariness.8 The de facto private power of sports governing bodies collides with the rule of law’s disdain for arbitrary private power and provokes a basic question as to its validity.

Finally, the effects of the democratic legitimisation of the regulatory regime of international sport is considered. Ultimately, even with institutional democratic reform of international federations, a gap would remain in the positive law legality of the private compulsive power which is necessary for the regulation of international sport. To address this, the mechanism of an international convention to support regulatory power in international sport is outlined.

The final preliminary clarification necessary at the outset is to note that this examination of regulatory power in international sport attempts to address principles of more general operation relevant to international sport. Of necessity, the approach is not all encompassing and proceeds principally with a common law focus, and in that regard, generally by reference to Australian and English principles. Nevertheless, many issues have a broader application,9 as there are commonalities in approach and issues across jurisdictions.10

8 Though this will also have other legal implications, including challenging the validity of de facto regulatory power, the basis of the application of a merely supervisory judicial approach and the basis upon which the competing interests involved in conflicts over de facto power are assessed. 9 Not only in terms of applying to other jurisdictions, but also to national and sub-national levels of sport and beyond the context of sport to to other areas involving the exercise of de facto powers. 10 See for example Rosmarijn van Kleef, 'The Legal Status of Disciplinary Regulations in Sport' (2014) 14 International Sports Law Journal 24, 42 who observes that the legal status of disciplinary regulations in the five European countries considered (the Netherlands, England, France, Germany and Switzerland) ‘is strikingly 16

B The Structure of International Sports Governance Consistent with the orthodox conception, responsibility for the governance and regulation of sport lies with the private and ‘voluntary’ sports movement.11 In most cases, this movement consists of a number of different levels within each sport that are organised into a hierarchy extending from local sports competitions through to international competition.12

1 Sport’s Pyramid(s) Individual sports are usually organised so that athletes become members of local clubs. Those clubs are then affiliated to a regional or national association. The national association in turn is a member of the international federation for the particular sport.13 Frequently a continental confederation will sit between national federations and the international federation.14 Each sport is said to have a ‘chain of interlocking associations/organisations responsible for the sport’s governance at each level’.15 Although, as a rule, membership within the sports pyramids is merely between participants and those in the immediately adjacent level individuals. Membership does not extend through the pyramid beyond this immediate relationship.

These structures can be viewed as a pyramid for each sport, with the individual clubs and athletes at the base, and the international federation for the particular sport at the peak.16 The

similar and that many issues are approached and reviewed in the same way’. See also Arnout Geeraert, Jens Alm and Michael Groll, 'Good Governance in International Sport Organizations: An Analysis of the 35 Olympic Sport Governing Bodies' (2014) 6 International Journal of Sport, Policy and Politics 281, identifying common problems of accountability and governance in 35 international federations. 11 Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury Professional, 3rd ed, 2014) [2.1]. 12 Simon Gardiner, et al, Sports Law (Routledge, 4th Edition, 2012) 162; B Bogusz, A Cygan and E Szyszczak, The Regulation of Sport in the European Union (Edward Elgar Publishing, 2007) 6. Significant exceptions at the national level include most of the major professional sports in the United States, and the Australian Football League. Some international leagues also operate differently: see for example Major League Baseball (US and Canadian teams), and the National Rugby League (Australian and New Zealand teams). It is also to be noted that while international federations typically adopt a pyramidal form by including national federations as their members, in a small number of cases, national federations are allocated differential levels or status within the international federation: see for example International Rugby Board, International Cricket Council. 13 See for example Modahl v British Athletic Foundation Ltd [2002] 1 WLR 1192, [5] (Latham LJ). In the case of the sport of athletics in that case, club membership required in order to qualify for admission to compete in competitions at all levels of the sport. The international federation involved, the IAAF, has 214 affiliated member federations, more than the number of nations who are members of the United Nations: see International Association of Athletics Federations website, About IAAF, Structure, Member Federations, http://www.iaaf.org/about-iaaf/structure/member-federations. See also Newport Association Football Club Ltd v Football Association of Wales Ltd [1995] 2 All ER 87, 90-1 (Jacob J) concerning a dispute involving the pyramid structure of European football. 14 See for example Federation Internationale de Football Association, FIFA Statutes, 27 April 2016, art 22-3. 15 Lewis and Taylor, above n 11 [A3.11]. 16 Ibid [A3.5]-[A3.13]; James A R Nafziger, International Sports Law (Transnational Publishers, 2nd ed, 2004). 7, 18. Reflecting its regional focus, the European Commission has described the system using the term ‘European Model of Sport’: European Commission, ‘The European Model of Sport’, Consultation Document of DG X, November 1998. places the clubs at the base of the pyramid, followed by regional federations, then national federations, with the top of what the Commission appears to regard as a single pyramid, being formed by the 17

rules of each international federation have the effect of organising the different levels within each sport within a single regulatory structure, requiring participation in competitions sanctioned by and conducted in accordance with the rules and under the authority of the international federations at the peak of each pyramid.17

At the national and international level at least, the structure involves only one federation for each sport: The rules of international federations ‘enshrine the principles of “one sport, one international federation”, and “one country one national federation”’.18

(a) International Federations Sports governing bodies may take different forms, from unincorporated associations,19 to limited liability companies. International sports governing bodies, however, are usually limited liability companies.20 Many take the same form as the International Olympic Committee (‘IOC’) and are non-governmental not-for-profit associations founded under and governed by Swiss national private law,21 where they are given enormous protection from scrutiny.22

In all cases, the legal status of international federations is a function of domestic laws. They are not an emanation of a state nor are they established under an international treaty. While international federations are different from typical Non-Governmental Organisations (‘NGOs’) that perform advocacy and service functions, their legal status is similar.23

European Federations. The European federations from each sport allow for only one national federation from each country. The Commission does recognise the existence of international federations. 17 Lewis and Taylor, above n 11, [A2.8]. See Gardiner, above n 12, 162. 18 Lewis and Taylor, above n 11, [A2.5]. 19 Unincorporated associations are unique to common law legal systems: Nicholas Stewart, Natalie Campbell and Simon Baughen, The Law of Unincorporated Associations (Oxford University Press, 2011) [1.04]. 20 Michael Beloff, et al, Sports Law (Hart Publishing, 2nd ed, 2012) [2.6]. World Rugby, the governing body for the sport of rugby union (formerly the International Rugby Board (IRB)) appears to be an isolated case of an international federation that is not incorporated: Lewis and Taylor, above n 11, [A3.29]. See World Rugby, World Rugby Bye-Laws, 1 January 2016, http://www.worldrugby.org/wr- resources/WorldRugbyDIR/Handbook/English/index.html#/40/. 21 Beloff, above n 20. See also Lewis and Taylor, above n 11, [A3.8], note 1. [2.7]. See Swiss Civil Code, Art 60- 79, http://www.admin.ch/ch/e/rs/2/210.en.pdf. Article 60 provides: ‘1 Associations with a political, religious, scientific, cultural, charitable, social or other non-commercial purpose acquire legal personality as soon as their intention to exist as a corporate body is apparent from their articles of association. 2 The articles of association must be done in writing and indicate the objects of the association, its resources and its organisation.’ 22 John Forster and Nigel Pope, The Political Economy of Global Sporting Organisations (Routledge, 2004); AG Scherer and G Palazzo, ‘The new political role of business in a globalized world: a review of a new perspective on CSR and its implications for the firm, governance, and democracy’ (2011) 48 Journal of Management Studies 899. See also Richard H McLaren, 'Is Sport Losing Its Integrity?' (2011) 21 Marquette Sports Law Review 553, note 5. 23 Council of Europe, Fundamental Principles of the Status of Non-Governmental Organisations in Europe and Explanatory Memorandum of 13 November 2002: The Fundamental Principles of the Council of Europe provide guidance on definition of transnational non-governmental organisations (NGOs) – they are ‘essentially voluntary 18

Most sports organizations are private, voluntary associations, as opposed to public authorities or boards exercising statutory powers. An association is a self-governing body whose members are in an ongoing contractual relationship defined by the rules, agreements and customs of the fellowship.24

These private, voluntary associations25 ‘generally grew up during the late nineteenth century as sport developed out of disparate and localised games into the codified and uniform packages that exist today.’26 Their authority is considered to be ‘entirely consensual, derived from the voluntary agreement between themselves and their members that is set out in the rulebook, and the continuing commitment of those members to abide by the rules and regulations that they issue and to submit to their jurisdiction to apply and enforce those rules.’27

(b) The International Olympic Committee One international federation is the International Olympic Committee (‘IOC’). The IOC is separate from the hierarchical structures in each sport. The IOC is the ‘supreme authority’28 of the Olympic Movement, headquartered in Lausanne, Switzerland. It is an ‘international non- governmental non-profit organization of unlimited duration, in the form of an association with the status of a legal person, recognized by the Swiss Federal Council.’29

The governance structure of Olympic sport is prescribed by the constituent document, the Olympic Charter.30 The Olympic Charter claims authority for the IOC over the Olympic Movement.31 The Olympic Movement consists of ‘organisations, athletes and other persons

self-governing bodies … [and] not therefore subject to direction by public authorities’: Principle 1. Few international law rules regulate NGOs’ international status eg European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations, signed 24 April 1986, ETS No 124 (entered into force on 1 January 1991). 24 John Barnes, Sports and the Law in Canada (Butterworths, 3rd ed, 1996) 70 (references omitted). 25 Beloff, above n 20, [2.23]: ‘They are, whatever legal form they take, and whatever their origins, voluntary organisations’. 26 Gardiner, above n 12, 89. 27 Lewis and Taylor, above n 11, [A2.13]. Somewhat begging the question, Lewis and Taylor at [C1.10], after noting ‘the most obvious relationship’ between an individual or a club and a governing body being a contractual one, observe: ‘That said, in relation to individuals, the relationship may not always be found in a contract between the governing body and the individual, and may have to be found elsewhere, for example through participation.’ 28 International Olympic Committee, Olympic Charter, 2 August 2016, rule 1. 29 Ibid rule 15. 30 Ibid Introduction to the Olympic Charter, which ‘governs the organisation, action and operation of the Olympic Movement’. The Olympic Charter is ‘a basic instrument of a constitutional nature’, serves as the statutes for the International Olympic Committee’ and ‘defines the main reciprocal rights and obligations of the three main constituents of the Olympic Movement, namely the International Olympic Committee, the International Federations and the National Olympic Committees, as well as the Organising Committees for the Olympic Games, all of which are required to ccomply with the Olympic Charter.’ 31 Ibid rules 1.1, 1.4, and 2. 19

who agree to be guided by the Olympic Charter’,32 the three main constituents being the International Olympic Committee (‘IOC’), the International Sports Federations (‘IFs’) and the National Olympic Committees (‘NOCs’).33 In addition, the Olympic Movement includes the Organising Committees for the Olympic Games (‘OCOGs’), national associations, clubs and persons belonging to the IFs and NOCs, particularly athletes, as well as judges, referees, coaches and other sports officials and technicians and other organisations recognised by the IOC.34 All persons belonging to the Olympic Movement are bound by the Olympic Charter and required to comply with decisions of the IOC.35

‘The IOC owns the rights to the Olympic Games and governs their operation. Each nation is represented by an IOC-recognized national olympic committee, and the national committees in turn recognize a national governing body (NGB) for each sport.’36 Olympic sport can be regarded as a separate pyramid to those existing in each sport, though it is connected with each as a consequence of the international federation for each sport being part of the ‘Olympic Movement’ with recognition under the Olympic Charter and responsibilities within Olympic sport.

(c) The World Anti-Doping Agency Another body that requires explanation when considering the governance structure of international sport is the World Anti-Doping Agency (‘WADA’). WADA oversees the implementation and enforcement of the World Anti-Doping Code (‘WADC’). WADA’s Board (its supreme decision–making body) and Executive Committee are comprised of an equal number of representatives of the Olympic Movement and governments37 and is described as a public-private partnership.38

WADA was an initiative of the IOC following the Festina doping scandal in professional road cycling in 1998. The agency was established on 10 November 1999 in accordance with the Lausanne Declaration on Doping in Sport39 to promote and coordinate the international fight

32 Ibid rule 1.1. 33 Ibid rule 1.2. 34 Ibid rule 1.3. 35 Ibid rule 1.4, Fundamental Principle of Olympism 7. 36 Michels v US Olympic Committee 741 F 2d 155, 156, CA Ill, 1984. 37 See World Anti-Doping Agency, ‘Foundation Board’, www.wada-ama.org. The Olympic Movement representatives are a combination of IOC members, IOC office holders (including IOC Athlete Commission representatives) and representatives of international federations and National Olympic Committees. 38 Marcus Mazzucco and Hilary Findlay, Re-Thinking the Legal Regulation of the Olympic Regime: Envisioning a Broader Role for the Court of Arbitration in Sport, (2010). 39 First World Conference on Doping in Sport, 2-4 February 1999, Lausanne, Switzerland. 20

against doping. It is a Foundation that is established in accordance with the Swiss Civil Code,40 with its seat in Lausanne, Switzerland.41 It is part of the Olympic regime because its rules are mandatory for the Olympic movement by force of the Olympic Charter.42 The WADC has also been adopted by most sports.

It is important to appreciate that WADA is not a sporting organisation and does not directly regulate any sport. Even its anti-doping functions are not directly administered but depend on and are applied through the rules of the sporting organisations. The WADC is a private instrument and only binds sporting organisations; it cannot bind governments. Compliance with the WADC is a contractual obligation for signatories to the Code.43 However, this contractual obligation exists as between the signatory sports governing body and WADA – the WADC does not give rise to contractual obligations in relation to other parties.44

Because of its status as a private instrument, implementation of the WADC is facilitated by the UNESCO International Convention Against Doping in Sport,45 which provides for states to align their anti-doping rules with the WADC and to facilitate national testing programs. The Convention provides a legal framework for governments to address anti-doping in areas outside the competence of the private sporting organisations. The Convention is framed in terms of complementary responsibilities between public authorities and organisations responsible for sport and the need for cooperation between these bodies. It is not a framework for the private sporting organisations.46 Neither the UNESCO Anti-Doping Convention, nor any other international instrument, either confers or restricts any powers of sporting organisations.47

40 See Swiss Civil Code, Arts 80 et seq. 41 World Anti-Doping Agency, Constitutive Instrument of Foundation of the Agence Mondiale Antidopage World Anti-Doping Agency, July 2014, Art 1, 2. WADA’s headquarters are in Montreal, Canada. 42 Olympic Charter, above n 28, art 25, 27.2.6, 40. 43 The signatories are sports governing bodies and government funded national anti-doping agencies: see World Anti-Doping Agency, Code Signatories, https://www.wada-ama.org/en/code-signatories. 44 United States Olympic Committee v International Olympic Committee, CAS award dated 4 October 2011; British Olympic Association v World Anti-Doping Agency, CAS 2011/A2658, award dated 30 April 2012. 45 UNESCO International Convention Against Doping in Sport, opened for signature 19 October 2005, 2419 UNTS (entered into force 1 February 2007). See also the Council of Europe Anti-Doping Convention, opened for signature 16 November 1989, CETS 135 (entered into force 1 March 1990), and the Copenhagen Declaration on Anti-Doping in Sport, 3 January 2003, (https://www.wada-ama.org/en/resources/world-anti-doping- program/copenhagen-declaration). The purpose of the Copenhagen Declaration was to articulate a political and moral understanding among participants to recognise WADA, support the WADC, sustain international intergovernmental cooperation and to establish a process to lead to the development of an international convention: art 2. 46 See UNESCO, International Convention Against Doping in Sport, http://www.unesco.org/new/en/social-and- human-sciences/themes/anti-doping/international-convention-against-doping-in-sport/. 47 The provisions of the Convention and the World Anti-Doping Code only become part of the law of states through and subject to domestic legislation to that effect: see Hird v CEO ASADA (2016) 227 FCR 95, [142], [143], describing the relevant parts of these international instruments as ‘aspirational rather than normative’ (adopting 21

The WADC, and most international federations, invest CAS with jurisdiction to determine doping-related disputes in sport.48

(d) The Court of Arbitration for Sport CAS is headquartered in Lausanne, Switzerland. It is an arbitral body that provides a specialised body of experts to determine a broad range of sports-related disputes. The creation of the tribunal (some 15 years prior to the formation of WADA) was a response to the need of international sports competition for a legal system consisting of an independent international tribunal ‘with specialised sports law expertise that renders final and binding decisions having global recognition and effect.’49

CAS was conceived by the International Olympic Committee (IOC) at the beginning of the 1980s with the objective of becoming the ‘Supreme Court’ for world sport.50 It offered the benefits of a method of dispute resolution that resolved problems with the existing, internal, sports-dispute resolution methods. It was to occupy a position at the apex of a hierarchy of sports-related dispute resolution, providing an effective mechanism of resolving disputes related to sport and serving as an alternative to, and a method of avoiding, litigation in national courts.

Rather than a court, and despite its confusing name, CAS was established and commenced operation in 1984 as an arbitral tribunal – with powers to resolve disputes between private parties by the process of arbitration. At the time of the creation of CAS, a number of sports were using arbitration as an alternative dispute resolution (ADR) method. In addition, ‘arbitration’ offered the ‘ready-made’ benefit of already being recognised as a legitimate ADR system that was supported by an international treaty-based regime under international law through the New York Convention51 and by corresponding national laws in most (150) countries.52 By adopting arbitration, the IOC could make use of a dispute resolution procedure

language from AMS v AIF (1999) 199 CLR 160, 180) ‘or too imprecise to give more guidance than this in construing the legislative scheme governing the outcome of this appeal’. 48 World Anti-Doping Agency, World Anti-Doping Code, 1 January 2015, art 8.5, 13. 49 Matthew J Mitten and Hayden Opie, ‘“Sports Law”: Implications for the Development of International, Comparative and National Law and Global Dispute Resolution’ (2010) 85 Tulane Law Review 269, 285. 50 The formation of CAS was first mentioned in 1982: see ‘Speech delivered by Mr Juan Antonio Samaranch’ (1982) 176 Olympic Review 314, 317, referring to work within the IOC to investigate the development of ‘a kind of Hague Court in the sports world’. 51 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), opened for signature 10 June 1958, 330 UNTS 38; 21 UST 2517; 7 ILM 1046 (1968), (entered into force 7 June 1959) 52 See New York Arbitration Convention, List of Contracting States, . 22

that was familiar to many involved in sport and deploy this existing, internationally recognised system.

Notwithstanding the relevance of a number of the commonly recognised advantages of arbitration to the settlement of disputes in international sport, the development of the CAS arbitral regime was the principal–if not only–feasible choice available to the International Olympic Committee as a private law alternative to litigation in national courts.53 The development of CAS was not prompted simply to remove disputes from national jurisdictions, or because of the advantages of arbitration in comparison with litigation. Rather, the experience was that litigation before state courts was ineffective in resolving disputes in international sport.54 An internationally effective alternative was required. Then, and as continues to be the case now, the real choice was between national litigation or international arbitration.55 In the absence of an international court, an initiative that was beyond the sole competence and autonomy of the IOC, requiring the intervention of states, international arbitration provided the only feasible alternative to avoid the jurisdictional difficulties experienced in the litigation of sports disputes in state courts.56

Whether or not as originally envisaged, CAS now forms a fundamental element within a complex and interlocking system of international institutions, and institutional rules, although the system continues to evolve.57 Within this system, CAS operates as an almost universal, exclusive dispute resolution tribunal for Olympic and other sports, but with some exceptions.58

53 Antonio Rigozzi, L’arbitrage International, en Matiere de Sport (2005), 214, cited by Andrea Marco Steingruber, 'Sports Arbitration: How the Structure and Other Features of Competitive Sport Affect Consent as It Relates to Waiving Judicial Control' (2009) 20 American Review of International Arbitration 67, attributes the use of arbitration in sport to the desire of sports governing bodies for autonomy, the financial risks associated with litigation in national courts, and the reluctance of the state to become involved in the resolution of sports disputes. None of these reasons involve the inherent attributes of arbitration as a form of dispute settlement. 54 See Court of Arbitration for Sport, ‘History of the CAS – Origins’, http://www.tas-cas.org/en/general- information/history-of-the-cas.html; Gilbert Schwaar, ‘The Solution of Disputes through Arbitration: A New Institution - The Court of Arbitration for Sport’, copy obtained by the author from the Court of Arbitration for Sport, Lausanne. Schwaar was the first Secretary General of CAS. 55 Alan Redfern, J Martin Hunter, Nigel Blackaby, Constantine Partasides, Redfern and Hunter on International Arbitration (Oxford University Press, 5th ed, 2009) 26. 56 See P Lalive, J F Poudret, C Reymond, Le droit de l’arbitrage interne et international en Suisse (1989), Lausanne: Editions Payot, 271: cited by Andrea Marco Steingruber, Consent in International Arbitration (Oxford University Press, 2012) [2.12], note 38, as authority for the argument that it is misconceived to refer to international arbitration as removing disputes from the ordinary jurisdiction of state courts on the basis that one of the essential purposes of arbitration is to prevent potential conflicts between jurisdictions and the extreme uncertainty that can prevail as between different jurisdictions. 57 See Richard H McLaren, Twenty-Five Years of the Court of Arbitration for Sport: A Look in the Rear-View Mirror, (2010) 20 Marquette Sports Law Review 305; Richard H McLaren, The Court of Arbitration for Sport: An Independent Arena for the World’s Sports Disputes, (2001) 35 Valparaiso University Law Review 379; James A R Nafziger, International Sports Law (2nd ed. 2004) 40-3, 48-61; Ian S Blackshaw, Robert C R Siekmann and Janwillem Soek (eds), The Court of Arbitration for Sport 1984 - 2004 (T M C Asser Press, 2006) 440. 58 For example, professional United States-based leagues do not use CAS. 23

The various types of dispute determined by CAS include disciplinary proceedings for alleged misconduct on and off the field, including doping and match-fixing offences; disputes over eligibility to compete and selection; and financial disputes between clubs and managers, clubs and other clubs, clubs and players, clubs and agents, or players and agents’.59

Significantly, this system is virtually a closed system, with limited (if not illusory) rights of appeal and access to judicial review.60 While CAS awards may be appealed to the Swiss Federal Tribunal (‘SFT’), this right is essentially limited to the grounds of lack of jurisdiction, violation of elementary procedural rules (eg violation of the right to a fair hearing) or incompatibility with public policy.61 All but one challenge to the substantive merits of a CAS award have failed due to the deference paid to CAS awards by the SFT.62 Even manifestly wrong applications of rules of law and obviously incorrect findings of fact are insufficient bases for successful challenges to CAS awards.63 National courts have also been reticent to review CAS awards, even where these awards displace national laws.64

2 Functions of International Federations ‘The responsibilities of sports governing bodies (SGBs) are so varied that they appear not so much a two faced Janus as a many-headed hydra.’65

Within this governance structure, international federations are responsible for promoting their respective sports, establishing the ‘laws of the game’, organising competitions, providing disciplinary structures for international competitions, and regulating the sport at the international level. They make the rules that govern the relationship between the international

59 Beloff, above n 20, [8.130]. 60 See Matthew J Mitten, 'Judicial Review of Olympic and International Sports Arbitration Awards: Trends and Observations' (2009) 9 Pepperdine Dispute Resolution Law Journal 65; Antonio Rigozzi, 'Challenging Awards of the Court of Arbitration for Sport' (2010) Journal of international Dispute Settlement 217; Alexandra Veuthey, 'Re-Questioning the Independence of the Court of Arbitration for Sport in Light of the Scope of Its Review' (2013) (4) International Sports Law Review 105. 61 Swiss Private International Law Act, art 190(2). For a summary of the fundamental substantive public policy right that have been recognized by the SFT, see Andrea Marco Steingruber, ‘De facto unlimited prohibition to work as a football player as a violation of public policy’, (2012) 3-4 International Sports Law Journal 39, 42. 62 Antonio Rigozzi, ‘Available Remedies Against CAS Awards’, in M Bernasconi & A Rigozzi, (eds), Sport Governance, Football Disputes, Doping and CAS Arbitration (Editions Weblaw, 2009); James A R Nafziger, 'The Principle of Fairness in the Lex Sportiva of CAS Awards and Beyond' (2010) (3/4) International Sports Law Review Pandektis 3. Between 1989 and 2009, all 142 substantive public policy challenges that were made in that period were rejected: Steingruber, above n 61, 42. The one successful challenge was in FIFA v Matuzalem, Judgment of the Swiss Federal Tribunal 4A_558/2011 of 27 March 2012, in which the SFT annulled a CAS award that facilitated the imposition of a ban unlimited in time and applying world-wide to any activities connected with football as incompatible with public policy. Prior to Matuzalem, only six other challenges to CAS awards on procedural grounds had been successful. 63 N, J, Y, W v FINA, 5P.83/1999 (2d Civil Court, Mar 31, 1999) 779. 64 See for example Gatlin v USADA, 2008 WL 2567657 (ND Fla 2008); Raguz v Sullivan (2000) 50 NSWLR 236. 65 Beloff, above n 20, [2.23]. 24

federation and their members at the national level, as well as the relationship between the members and each other. They require the national federations and the members of those national federations to submit to the authority of the international federation and to mandatory arbitration within the national federation. All parties are required to observe the rules of the international federation. International federations ratify and enforce decisions of national federations worldwide and act as an appellate body for appeals against decisions of national federations. International federations are also responsible for ensuring the safety of competitors and spectators. They also engage in commercial activities such as sponsorship attraction and management, and the sale of broadcasting rights. They make regulations about ‘a host of issues of obvious public interest, such as those relating to the integrity of the sport (including doping, match-fixing, and financial regulation) and the safety of its participants (including on-field discipline and child-safeguarding)’.66 They regulate not only the on-field conduct of participants, but also the commercial transactions which they may conduct, their employment relationships, personal behaviour and drug use.

All of this means that the regulatory powers of international sports governing bodies involve significant intrusions into the lives of participants in sports, they impose restrictions on their ability to earn a living through sport, and limit their access to legal remedies in the case of disputes.67 While many of these activities would normally be performed by the state, ‘it must be remembered that, for the most part, sports governing bodies are private associations’.68

3 Contractual Rules/Regulations of Sports Governing Bodies As private associations, the regulatory regimes of international sports, and the manifestation of the sports governing bodies’ claims to regulatory jurisdiction, are set out in the rules made by the international federations.69 The regulatory rules of international federation include the constitutions of the associations as well as other rules, such as the game laws, disciplinary codes and codes of ethics.70

66 Lewis and Taylor, above n 11, [A2.11]. 67 Andrew Byrnes, ‘Human Rights and the Anti-Doping Regime’ in Ulrich Haas, Deborah Healey (eds), Doping in Sport and the Law (Hart Publishing, 2016) 82–3. 68 Gardiner, above n 12, 89. See also Lewis and Taylor, above n 11, [A3.1]; Beloff, above n 20, [2.6]. 69 See for example, FIFA, FIFA Statutes, above n 14, art 2(d), 8; Union Cyclist Internationale, Constitution, 14 October 2016, art 2; International Association of Athletics Federations (IAAF), Constitution, 1 January 2017, art 4. 70 For example, the official documents of the FIFA include the ‘FIFA Statutes’, the ‘FIFA Code of Ethics’, the ‘FIFA Disciplinary Code’ and the ‘Laws of the Game’. The rules of the Union Cycliste Internationale (‘UCI’) include the organisation’s constitution and various regulations. The International Association of Athletics Federations (IAAF) has a constitution, rules and regulations. 25

The constitutions of international federations typically establish the organisations’ legal form71 and purposes,72 their internal organisational structure,73 decision-making bodies, processes, and office holders74 the rights and responsibilities of members,75 dispute resolution processes, including the role of CAS,76 and provide a power to make regulations including setting the laws of the game.77

As incorporated bodies, the constitutions (or articles of association) of sports governing bodies form the terms of a contract between the company and every current member.78 Members have a contractual right to have a company’s affairs conducted in accordance with its rules,79 and there is no need to show an equitable interest or a restraint of trade.80 However, there are two limitations to the extent of the direct contractual application of the rules of these bodies.81

First, and obviously, this membership-based contractual application of the rules of sports governing bodies only directly binds members and does not extend to non-members. Typically, the majority of those governed by the sports, the participants, are not members of the international federations. Indeed, it is a significant feature of the regulatory landscape of sport

71 Such as an association established in accordance with the Swiss Civil Code, art 60ff: see FIFA Statutes, above n 14, art 1(1); UCI, Constitution, above n 69, art 1(2). See also IAAF, Constitution, above n 69, art 2 noting that the IAAF is established as an association under the laws of Monaco (Act No. 1072 of 27 June 1984). 72 See for example, FIFA Statutes, above n 14, art 2, 4; UCI, Constitution, above n 69, art 2; IAAF Constitution, above n 69, art 4. 73 Ibid. See for example, FIFA Statutes, above n 14, art 22, grouping members into ‘Confederations’; UCI, Constitution, arts 23-6 also establishing ‘Continental Confederations’; IAAF, Constitution, art 5.11, 5. 12. 74 Ibid. See for example, FIFA Statutes, art 21-55; UCI, Constitution, Chapters IV-VII establishing the UCI Congress, the UCI Management Committee, the UCI Executive Committee, and the President, and Chapter IX- XI relating to Sub-Committees, the Administrative Service and the UCI Treasurer; IAAF, Constitution, art 6-11. 75 Ibid. See for example, FIFA Statutes, art 10-20; UCI, Constitution, Chapter II; IAAF, Constitution, art 5. 76 Ibid. See for example, FIFA Statutes, art 57-9; UCI, Constitution, Chapters XIII and XVI; IAAF, Constitution, art 20. 77 Ibid. See for example, FIFA Statutes, art 2(c), 7; UCI, Constitution, art 46; IAAF, Constitution, art 7(11)(c). 78 See for example Corporations Act 2001 (Cth), s 140(1); Companies Act 2006 (UK) s 33. See Rayfield v Hands [1960] Ch 1; McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470, [106]; Ryan v Kings Cross RSL Club Ltd [1972] 2 NSWLR 79; Zusman v Royal Western Australian Bowling Assoc (Inc) [1999] WASC 86; Henderson v Kane [1924] NZLR 1073; or through Royal Charter in England: see Thompson v British Medical Association (NSW Branch) [1924] AC 764, 771. See also Beloff, above n 20, [2.44]; Lewis and Taylor, above n 11, [C1.13], [D2.94]; Mark James, Sports Law (Palgrave Macmillan, 2nd ed, 2013) [2.2]; David Thorpe, Antonio Buti, Chris Davies, Saul Fridman, Paul Jonson, Sports Law (Oxford University Press, Second ed, 2013) 42. 79 See for example Rose v Boxing NSW Inc [2007] NSWSC 20, [57]; Miller v Australian Cycling Federation Inc [2012] WASC 74. In the United States, sports governing bodies have a contractual obligation to their members to adhere to their rules and by-laws: Gilder v PGA Tour Inc 727 F Supp 1333 (D Ariz 1989), affirmed 936 F 2d 417 (9th Cir 1991). 80 Though not every dispute will be justiciable, for example if there in no detriment to the plaintiff: Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344; or the dispute may be too trivial to justify judicial intervention: Re Maggacis [1994] 1 Qd R 59; or the court may defer exercising jurisdiction pending the exhaustion of remedies internal to an association: see J R S Forbes, Justice in Tribunals (Federation Press, 4th ed, 2014) [16.1]–[16.4]. 81 Further, the ‘contract’ based on corporations’ law is a ‘special contract’ that falls within corporations rather than contract law: see Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399, 434-40 (McHugh and Gummow JJ). 26

that international federations and many other sports governing bodies do not have the participants as members, the membership of such bodies being confined to other sports governing organisations.

Second, even in respect of members, not all rules made by an incorporated sports governing body necessarily take effect as terms of the membership contract.82 The terms of a body’s constitution will have contractual effect, but other, non-constitutional rules will not necessarily operate contractually.83 It is necessary to examine the particular rules to determine whether the parties agreed that the rules would be enforceable in a court as a contract.84 Every contract is an agreement; but not every agreement– where there is one–is a contract.85 As will be seen, the application of the rules of an international federation as terms of a direct contract involving the international federation and a non-member participant is particularly problematic.86

C The Nature of Regulatory Power in International Sport

1 The Conventional Contract-Based Conception According to the conventional conception, in most countries (France being an exception), the authority of sports governing bodies is purely consensual, arising from the membership agreement between the organisation and its members.87 It is claimed that the ‘very essence of

82 For example, by-laws made pursuant to a power in a constitution: Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421; BC9507133, 8 (Young J). See also Miller v Australian Cycling Federation Inc [2012] WASC 74; Park Promotion Ltd (t/a Pontypool Rugby Football Club) v Welsh Rugby Union Ltd [2012] EWHC 1919 (QB). Cf Rush v WA Amateur Football League [2007] WASCA 190. 83 Section 140 of the Corporations Act 2001 (Cth) makes the provisions of the incorporated body’s constitution of contractual effect as between the members and the company and as between the members. ‘Constitution’ under s 140 means only a company’s constitution. See the definition of ‘constitution’ in s 9, Corporations Act 2001 (Cth). Similarly, see Companies Act 2006 (UK) ss 17, 33. A company’s constitution is its articles and some special resolutions and agreements: see Companies Act 2006 (UK) s 29. In relation to incorporated associations, see for example Associations Incorporation Reform Act 2012 (Vic), s 46. 84 Scandrett v Dowling (1992) 27 NSWLR 483, 503-4 (Mahoney JA); Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421; BC9507133, 9 (Young J): ‘Ordinarily the parties to the consensual compact have agreed to be bound by the guidelines and have agreed that they will behave according to the guidelines but have never agreed that one or other of them can sue each other or sue each other for damages if there is a breach. See also Lloyd v Loaring (1802) 6 Ves Jun 773, 777; 31 ER 1302, 1304; Cameron v Hogan (1934) 51 CLR 358, 373, 376; Elford v Buckley [1969] 2 NSWLR 171: rules not contract of employment therefore restraint of trade doctrine did not apply; overturned by Buckley v Tutty (1971) 125 CLR 353, regarding the application of restraint of trade but not in relation to the non-contractual effect of the rules. 85 Samuel Williston, A Treatise on the Law of Contracts (Walter H E Jaeger ed, 3d ed, 1957) §§ 2, 6. 86 For example, in Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, [40], Latham LJ considered that the IAAF, ‘bearing in mind its purpose and constitution, was unlikely to have intended to create contractual relationships with individual athletes in the absence of some express contract.’ Although, the basis of Latham LJ’s observation is unclear as the court was not provided with a copy of IAAF or BAF constitutions and was only given a general description of both: see [49] (Latham LJ), [91] (Mance LJ). 87 See for example: Beloff, above n 20, [2.24], [2.26], [2.37]; James, above n 78, [2.2.1]; Lewis and Taylor, above n 11, [A2.13]; Forbes, above n 80, [3.1]; Alan Sullivan, 'The Role of Contract in Sports Law' (2010) 5(1) Australian and New Zealand Sports Law Journal 3. 24; John C Weistart and Cym H Lowell, The Law of Sports 27

the construction of modern sport is rooted in classic liberalism, notably in the freedom of association’.88 Voluntariness is a definitional prerequisite in the concept of a voluntary association, the application of the rules of associations to members being founded on the voluntary membership relationship between the association and its members.89

This conception is reflected in the frequently cited judicial statement that the authority of private or domestic tribunals is ‘derived solely from contract, that is, from the agreement of the parties concerned.’90 This orthodox conception leads to the view that:

there can be no doubt that the law of contract is the cornerstone on which ‘Sports Law’ has been built and which is of primary importance in most areas where there is an interface between

(Bobbs-Merrill, 1979) 196, § 3.01; Steve Cornelius, 'Liability of Referees (Match Officials) at Sports Events' (2004) 1-2 International Sports Law Journal 52 [3.1]; 88 Geeraert, at al, above n 10, 282, citing Stefan Szymanski, 'A Theory of the Modern Evolution of Sport' (International Association of Sports Economists, November 2006). See Szymanski at 33–4. 89 See for example Forbes v Eden (1866-69) LR 1 Sc & Div 568, 581; Rigby v Connol (1880) 14 Ch D 482, 487; Cameron v Hogan (1934) 51 CLR 358, 370-1. The position would appear to be the same in civil law jurisdictions, whether or not a contractual theory (the Vertragstheorie) in which the relationship is based on a contract between the parties; or an institutional theory (Normentheorie) in which an association’s articles of association ‘are an “objective law” based on the freedom of association’ that are not like negotiated contractual terms, but represent an ‘attempt to establish an order of social life that ensures the achievement of a super-individual purpose’, is applied: see van Kleef, above n 10, 31. In the Normentheorie sense, international sports governing bodies present as a form of ordering of social relations similar to that described by Fuller as through ‘association by common aims’: Lon L Fuller, 'The Forms and Limits of Adjudication' (1978) 92 Harvard Law Review 353, 358–9. Both theories require a form of agreement to or acceptance of the articles of association by the member of the association: the contractual theory requires contractual consent and the institutional theory requires the submission of the members to the articles of the association. Both depend on membership, which involves an initial membership contract. See also van Kleef, above n 10, 43, noting that ‘the assertion that the relationship between a club or a player and FIFA has its source in association law is fundamentally problematic as the club or player has no real opportunity to influence the formation of social will that is imposed’, and citing C Aguet, ‘La sanction disciplinaire infligee par une federation internationale a l’encoutre d’un non-membre a-t-elle une source de droit de l’association? – Reflexions a la lumiere de l’arret du Tribunal federal No 4P.240/2006’ (2007) Jusletter 16 April 2007. Available at http://www.weblaw.ch. It is also to be noted that the court in Union Royale Belge des Societes de Football Association v Jean-Marc Bosman [1995] ECR I-04921, [80] held that rules laid down by sporting associations that restricted the freedoms of football players could not be seen as necessary to ensure enjoyment of the football associations’ freedom of association, ‘by the clubs or by their players, nor can they be seen as an inevitable result thereof.’ At [81] the court said that private associations were not free to adopt rules that restricted rights conferred on individuals by the Treaty. 90 R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864, 882 (Lord Parker CJ); 884 (Diplock LJ). See also Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302, 1307 (Lawton LJ), 1309 (Fox LJ), 1312 (Slade LJ); Lee v Showmens Guild [1952] 2 QB 329; Abbott v Sullivan [1952] 1 KB 189 (CA); Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762 (Ch); Davis v Carew-Pole & Others [1956] 1 WLR 833 (QB) 844 (Pilcher J); R v Disciplinary Committee of the Jockey Club; Ex parte Aga Kahn [1993] 1 WLR 909, CA, 924 (Thomas Bingham MR), 928-9 (Farquharson LJ), 931 (Hoffmann LJ); R v Football Association of Wales; Ex parte Flint Town United Football Club [1991] COD 44; R v Jockey Club; Ex parte RAM Racecourses Ltd [1993] 2 All ER 225, 248 (Simon Brown J); Wilander v Tobin [1997] 2 CMLR 346, 357 (Lord Woolf MR); R (on the Application of Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin), [30] (Stanley Burton J); Australian Football League v Carlton Football Club [1998] 2 VR 546, 550 (Tadgell JA); McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759, [92]-[95], [109]; Clements v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1144; Lawson v Hewell 118 Cal 613, 50 Pac 763 (1897); Anthony v Syracuse University 224 App Div 487, 231 NY Supp 435 (1928); Mayer v Journeymen Stonecutters’ Ass’n 47 NJ Eq 519, 20 Atl 492 (Ch 1890). See also Elizabeth Hospital Inc v Richardson 167 F Supp 155 (WD Ark 1958), aff’d 269 F 2d 167 (8th Cir), cert denied 361 US 884 (1959). 28

sport and the law. Whether sport is being played at an elite level or at a more humble one there is always a contract working somewhere. Usually it is an enforceable one.91

The significance of the existence of contracts in sports arises from the requirement – at least in theory–for there to be a relationship between a sports governing body and the person or club said to be subject to the jurisdiction of the governing body that allows the lawful and practical enforcement of that jurisdiction. A voluntary association’s disciplinary authority is derived from the association’s rules.92 Where a person is not a member, disciplinary authority may exist if there is a separate contract to that effect. A body cannot give itself power.93 Even in respect of its members, there is no inherent power in an association to take disciplinary action in the absence of authority under the association’s rules.94 Then, where there are express disciplinary powers, those powers must be exercised strictly in accordance with the applicable rules.95

The theory is that if the exercise of regulatory power by a sports governing body is not underpinned by a contract,96 and no other legal right is established, an arrangement will lack legally binding force,97 and a person may ‘snap their fingers at the association’98 and do as they please.99

91 Sullivan, above n 87. 92 Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329. 93 Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762; Davis v Carew-Pole [1956] 1 WLR 833, 844 (Pilcher J). 94 Dawkins v Antrobus (1879) 17 Ch D 615. 95 Young v Ladies Imperial Club Ltd [1920] 2 KB 523. See also: Davis v Carew-Pole & Others [1956] 1 WLR 833 (QB) 833, 837-8 (Pilcher J). See also Aberavon & Port Talbot RFC v WRU Ltd [2003] EWCA Civ 584; Towcester Racecorse Ltd v Racecourse Association [2002] EWHC 2141; Meggson v Burns [1972] 1 Lloyd’s Rep 223. Voluntariness leads to the rules of an association taking effect as a contract between the association and each member, in which every member has a contractual right to have the affairs of the association conducted according to the rules: Forbes, above n 80, [3.61], citing Rose v Boxing NSW Inc [2007] NSWSC 20, [57]; Miller v Australian Cycling Federation Inc [2012] WASC 74, and others (see note 246). On the nature of the status of association rules as terms of a private contract, see Lloyd v Loaring (1802) 6 Ves 773 (Ch) 776 (Lord Chancellor); Cullen v The Duke of Queensberry (The case of the Ladies’ Coterie) 1 B PC 396 (Lord Thurlow). 96 See Davis v Carew-Pole [1956] 2 All ER 524. See also Roach v Football Association [2001] 9(3) SATLJ 26, discussed in Lewis and Taylor, above n 11, [C1.20]. 97 Binding force is also known as the ‘sanctity of contracts’ and is widely recognised as a general principle of law: see Sir David Hughes Parry, The Sanctity of Contracts in English Law (Sweet & Maxwell, 1959); French Civil Code art. 1134.1; C-277/05 Societe thermale d’Eugenie-les-Bains v Ministere de l’Economie, des Finances et de l’Industrie [2007] ECR I-6415, [24]. See J Chitty and H G Beale, Chitty on Contracts (Sweet & Maxwell, 31st ed, 2012) [1-036]. 98 Thompson v British Medical Association (New South Wales Branch) [1924] AC 764, 769 (Lord Atkinson). 99 Clements v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1144, [44]. The Tribunal cites Lewis and Taylor (eds), Sport: Law and Practice, (2nd ed, 2008) at [A2.10]: ‘Jurisdiction over both the person and the subject matter is required for a governing body to exercise its disciplinary function ... there must be a relationship between the governing body and the person or club that allows the lawful and practical enforcement of that jurisdiction: if there is in fact no basis on which the person or club can be constrained, a claim to jurisdiction is hollow. In short, there must be some reciprocity in relation to jurisdiction as between the person or club and the governing body.’ 29

Without such a prior legal relationship there would be no foundation for the sporting body’s punitive powers, with the consequence that any disciplinary proceedings and any penalty imposed, would be wholly void in the same way as would be a ‘trial’ of an alleged burglar detained by a self-appointed group of vigilantes, conducted in the back garden of one of them.100

In other words, ‘[o]utside the regular courts of this country, no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it.’101

It follows that it is not sufficient to support the validity of the conventional, contract-based characterisation that there be a ‘contractual nexus’ or some other consensual or ‘contract-like’ arrangement that falls short of being a contract.102 Such an arrangement cannot lead to legally binding obligations and cannot legally authorise the exercise of regulatory power. For regulatory authority to be contractual, its legal status must derive from a contract, and this involves not only that there must be a contract, but also that the terms of that contract must authorise the regulatory power.103 To the extent that regulatory power extends beyond the scope of any contract, then it ceases to be legally authorised by that contract and cannot be described as contractual.

2 The Limited Extent of Express Contracts International federations make some use of direct, express contracts with non-member participants as the basis of their regulatory authority. Express contracts with non-members may be made through such mechanisms as competition entry forms,104 licensing processes,105 on

100 Beloff, above n 20, [7.3]. 101 Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329, 341. See also Abbott v Sullivan [1952] 1 KB 189. 102 See Nagle v Fielden [1966] 2 QB 633, 652-3 (Salmon LJ). 103 M P Furmston, Cheshire, Fifoot and Furmston's Law of Contract (Oxford University Press, Fifteenth ed, 2006) 36: the two questions are: ‘Is there a contract’? and ‘What are the terms of the contract?’ 104 See for example Earl of Ellesmere v Wallace [1929] 2 Ch 1 (CA). 105 See for example Stretford v The FA [2006] EWHC 479 (Ch) Morritt C; [2007] EWCA Civ 238 (Clarke MR, Waller and Sedley LJJ). 30

the basis of agency,106 or be implied through conduct.107 However, the scope and extent of this is limited.

In the international sphere, the IOC utilises direct contractual relations as the basis for its regulatory control over participants in the Olympics and this procedure is formalised.108 Nevertheless, the IOC’s procedures are limited to participation in the Olympics and do not apply to any other form of international sport. While some other international sports governing bodies appear to also utilise this direct contracting method, at least in relation to entry to some international competitions,109 in most sports, participants do not contract directly with the

106 The possibility that a sports governing body such as a national federation could be characterised as acting as agent for all its members as well as in its own capacity when entering into a membership contract with its international federation is more often speculated upon than actually applied. An agency arrangement is reported as having been envisaged as a possibility, though not determined by Toulson J in Walker v UKA and IAAF, 3 July 2000, unreported: see Lewis and Taylor, above n 11, [D2.103], note 3. However, now, see IAAF, ‘IAAF Constitution’, art 4.10 specifying that no agency arrangement can arise through membership. In different circumstances, agency was an alternative basis for the contractual finding of the trial judge, in Haron bin Mundir v Singapore Amateur Athletic Association [1994] 1 SLR 47, 58. An agency basis is rarely accepted as a source of direct contractual relationships between participants in sport and governing bodies situated higher up the sport’s hierarchy. The reason for this is likely to be that the application of principles of agency raise a number of difficulties in the sports context. These difficulties include that, to make a contract on behalf of a principal, an agent must contract on behalf of a principal who is then ascertainable. An agent must also intend to enter into the contract on the principal’s behalf and the principal must in some way consent. In the absence of express authority, obvious difficulties arise in considering a participant such as an athlete for example, to have authorised a national federation to act as the participant’s agent in entering into a membership contract with an international federation. On these issues arising in the context of an agreement made by a trade union, see Ryan v Textile Clothing and Footwear Union of Australia [1996] 2 VR 235, 243 (Brooking JA), 266-8 (Hayne JA, with whom Tadgell JA agreed). See also Burton Group Limited v Smith [1977] IRLR 351. In addition, it would normally be difficult to regard membership contracts between a participant and a club, or between a national governing body and an international federation, as being anything other than contracts entered into by and between those parties. The agency argument requires it to be accepted that a membership contract between an international federation and a national federation has a dual character: the national federation is required to be viewed as contracting directly on its own behalf as a member, and as agent for others in an entirely different capacity. 107 See for example Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192. 108 The Olympic Charter establishes conditions for entry and participation in the Olympic Games: Olympic Charter, above n 28, rule 44(2) provides that only National Olympic Committees recognised by the IOC can submit entries to the Olympic Games. Bye-law 4 to rule 44 makes it a condition precedent to participation in the Olympic Games that every competitor complies with all of the provisions of the Olympic Charter and the rules of the relevant International Federation. The NOC that enters participants is responsible for ensuring that every competitor is aware of and complies with the Olympic Charter and the WADC. bye-law 6 to rule 44 of the Olympic Charter requires that all participants in an Olympic Games must sign an entry form as prescribed by the IOC Executive Board. That entry form includes express agreement by all participants to comply with the Olympic Charter, the WADC, the IOC Anti-Doping Rules, the IOC Code of Ethics and other IOC guidelines: see for example TeamUSA, ‘Eligibility Conditions Form – National Olympic Committee’ Sochi.ru 2014, Team USA.org, clause 2. Clause 9 of that form further provided an acknowledgement from the participant that participation in the Olympic Games was conditional on acceptance and compliance with all conditions of the form. 109 See for example Busch v WADA, 4A_358/2009, Judgment of 6 November 2009, SFT, which involved an abortive attempt by the International Ice Hockey Federation to establish authority over individual athletes, including for out-of-competition drug testing, through conditions on a competition entry form signed by participants. In football’s World Cup, member associations rather than individual players are the entrants to the competition: FIFA, ‘Regulations 2018 FIFA World Cup Russia’, March 2015, http://resources.fifa.com/mm/document/tournament/competition/02/59/22/68/regulationsfwc2018russia_short_e _v210415_neutral.pdf, regs 4, 16. Players are also required to complete entry forms and sign declarations (reg 4(1)(g)), though the content and requirements of any such declarations are not publicly published. The Regulations 31

relevant international federation.110 The principal contracts binding participants are those between players and their clubs or between clubs and the immediately hierarchically adjacent regulatory body.111

In these circumstances, where international federations generally do not directly contract with the participants in the sports over whom the international federations purport to exercise regulatory authority, the issue as to the contractual basis of this authority arises. Indeed, the limited use of direct contracts between international federations and those over whom they exercise regulatory power is a significant obstacle for the conventional conception, begging the question as to the nature of this regulatory power. In the absence of widespread direct contracts, the conventional conception appears a manifestly inadequate explanation of the federations’ compulsive regulatory power. This is highlighted by the categorical nature of that power.

3 The Categorical (Not Contractual) Claim to Regulatory Authority The ‘authority’ of international federations is self-proclaimed. There is no delegation or authorisation by an international agreement or any mandate by the state or the community of states.112 Typically, international federations proclaim themselves the world governing bodies

make each participating member association responsible for ensuring that all members of the association’s delegation comply with the FIFA Statutes, regulations, directives, guideline and circulars and decisions taken by FIFA bodies: reg 4(1)(h). This is also a requirement of other regulations: reg 4(2), 5(4), 12(4). See also IAAF, ‘IAAF Competition Rules 2016-2017’, 1 November 2015, http://www.iaaf.org/about-iaaf/documents/rules- regulations, rule 4.1(d) requiring the execution of a specific agreement in a form determined by the IAAF to the IAAF’s rules as a condition of eligibility to compete in international competitions. 110 In football, other than perhaps for some periodic international competitions such as the World Cup: see FIFA, ‘Regulations 2018 FIFA World Cup Russia’, March 2015, where players compete as national rather than club representatives, players are not contracted to international or national federations: Mark Doldge and Thomas F Carter, ‘How UEFA could leave FIFA and launch its own World Cup’, The Conversation, 2 June 2015, http://theconversation.com/how-uefa-could-leave-fifa-and-launch-its-own-world-cup-42629 .In some sports such as cricket and rugby union, some players contract with their sport’s national federations, though not the international federation: see Cricket Australia, ‘Contracted Players’, http://www.cricketaustralia.com.au/cricket/contracted-player-list. See also Adam Smith, ‘Cricket Australia considers return to longer term contracts’, The Australian, 2 May 2015; South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others; SA Rugby Pty Limited v South African Rugby Players Union and Another (CA 10/2005) [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) (12 May 2008); Simon Thomas, ‘Welsh rugby's ground-breaking deal: What the new dual contracts for Wales stars mean for the future of our game’, WalesOnline, 19 November 2014, http://www.walesonline.co.uk/sport/rugby/rugby-news/welsh-rugbys- ground-breaking-deal-what-8131573. 111 R v Jockey Club; Ex p Aga Kahn [1993] 1 WLR 909 is an example of direct contracting between a national governing body and participants in the sport. See 915 (Thomas Bingham MR), 928 (Farquarson LJ), 933 (Hoffmann LJ). Participants in individual sports are more likely to contract directly with more senior regulatory bodies than team sports, though this is not the case in athletics for example: Lewis and Taylor, above n 11, [C1.13]; Modahl v BAF [2002] 1 WLR 1192. National federations rather than individuals are the members of international federations, even in individual sports. 112 Klaus Dieter Wolf, 'The Non-Existence of Private Self-Regulation in the Transnational Sphere and Its Implications for the Responsibility to Procure Legitimacy: The Case of the Lex Sportiva' (2014) 3 Global 32

of the sports over which they assert control.113 These claims to authority are asserted generally; the claims are not made in any contractual context, as standard form contracts, restricted to the organisations’ members, nor limited to any authority that may derive from contracts.

This general claim to authority is more than mere declaratory assertion: it is mirrored in the form of the rules made by the organisations, the rules that are then said to be contractual terms. These rules govern the organisation, and the conduct of and participation in the particular sports.

International federations claim authority both directly by requiring their members to comply with their rules and decisions114 and indirectly by requiring those members, in turn, to require their members or other persons over whom they exercise control to also comply with the

Constitutionalism 275, 294. Cf Marcus Mazzucco and Hilary Findlay, Re-Thinking the Legal Regulation of the Olympic Regime: Envisioning a Broader Role for the Court of Arbitration in Sport (trans, 2010) 5-6; and Abbas Ravjani, 'The Court of Arbitration for Sport: A Subtle Form of International Delegation' (2009) 2 Journal of International Entertainment & Media Law 241, who argues that states signing the New York Convention and the adoption of the WADC are ‘two major acts of international delegation’ by states that ‘demonstrate the acceptance of the CAS as the venue of choice for international sports disputes.’ Even if this is accepted, arbitral jurisdiction under the New York Convention depends upon an arbitration agreement between the parties to a dispute. Further, acceptance of the WADC does not entail the compulsion of arbitration. On the false logic of inferring state delegation from states allegedly choosing not to intervene see: Gunther Teubner, ''Global Bukowina': Legal Pluralism in the World Society' in Gunther Teubner (ed), Global Law without a State (Dartmouth Publishing Company, 1997) 3, 18: states cannot authorise non-state law, only choice of law. In no way does non-action include permission to create a new law outside any legal order. See also H L A Hart, The Concept of Law (Oxford University Press, 3rd ed) 47-8; Delphine Verheyden, 'The Organization of Sports in France' (2010) (1/2) International Sports Law Journal 27: ‘The notion of a given delegate having a certain scope of expertise or jurisdiction is a legal fiction, because in fact and in law the power to organize sports tournaments has always been held by the federations, outside of any State involvement’. The logic supporting the inference also supports the opposite conclusion in light of the numerous examples of state legislation that protects the IOC’s intellectual property rights but which does not confer any regulatory authority on the IOC – an implied rejection of such authority? 113 For example, the International Olympic Committee (‘IOC’) invests itself with ‘the supreme authority and leadership’ of the ‘Olympic Movement’: Olympic Charter, above n 28, rule 1.1. The Olympic Movement ‘encompasses organisations, athletes and other persons who agree to be guided by the Olympic Charter’ (rule 1.1). The three main constitutents of the Olympic Movement are the IOC, the International Sports Federations (‘IFs’) and the National Olympic Committees (‘NOCs) (rule 1.2) in addition to the Organising Committees for the Olympic Games, the national associations, clubs and persons belonging to the IFs and NOCs, particularly athletes, as well as judges, referees, coaches and other sports officials and technicians (rule 1.3). See also FIFA Statutes, above n 14, art 2(d); IAAF Constitution’, above n 69, art 2.1, 4.1, 4.5; Federation Internationale de Basketball (‘FIBA’), ‘FIBA General Statutes’, 5 May 2017, art 1.2, 4.1(a); International Hockey Federation (‘IHF’), International Hockey Federation Statutes, 12 November 2016, art 1.3, 1.4(a); Federation Internationale de Volleyball (‘FIVB’), ‘Constitution’, 31 October 2014, art 1.2.1, 1.4, 1.5.1, 1.5.2; Badminton World Federation (‘BWF’), ‘Badminton World Federation Constitution’, 20 May 2017, art 1, 3; Federation Internationale de Natation (‘FINA’), ‘FINA Constitution’, 22 July 2017, art C1, C7.5; UCI Constitution, above n 69, art 2(a). 114 FIFA Statutes, above n 14. See for example FIFA Statutes art 8.1, 11.4, 14.1(a), 60; IAAF Constitution, above n 69, art 5.8(b) and (c); FIBA General Statutes, above n 113, art 1.4, 7.5; FIH Statutes, above n 113, art 4.1; FIVB Constitution, above n 113, art 2.2.3; BWF Constitution, above n 113, art 8.5, 8.6, 8.8; FINA Constitution, above n 113, art C8.2.2; UCI Constitution, above n 69, art 6. 33

international federation’s rules and decisions.115 For example, the members of the international federation that governs football, the world’s biggest sport, the Federation Internationale de Football (‘FIFA’), are variously required to comply with the rules and decisions of FIFA,116 as are bodies and persons controlled by those members.117 In particular, the statutes of the members of FIFA are required to contain a mandatory provision requiring members to ‘always to comply with the Statutes, regulations and decisions of FIFA and of its Confederation’.118 Members are also required ‘to ensure that their own members comply with the Statutes, regulations, directives and decisions of FIFA bodies’.119

International federations also assert jurisdiction over non-members, generally all those who participate in a sport.120 The FIFA Statutes for example, provide that ‘[e]very person and organisation involved in the game of football is obliged to observe the Statutes, regulations and the principles of fair play’.121 Any violation of these requirements ‘will be punished in compliance with the FIFA Disciplinary Code’.122 Some federations even purport to require ‘agreements’ or to ‘deem’ the agreement of participants to the international federations’ regulatory powers.123 They also require all disputes within the sports to be dealt with

115 See for example FIFA Statutes, above n 14, art 14(1)(d), 15(e) and (f), 59(3), 60(2); FIBA General Statutes, above n 113, art 9.2; FIH Statutes, above n 113, art 4.2; FIVB Constitution, above n 113, art 2.2.4; BWF Constitution, above n 113, art 8.3, 8.9, 30.3; FINA Constitution, above n 113, art C8.2.5, 8.2.9. 116 FIFA Statutes, above n 14, art 8.1, 11.4, 14.1(a) and 60. 117 Ibid art 14.1(d), 60(2). 118 Ibid art 11(4)(a). See also art 14(1)(a) that imposes an obligation on members of FIFA ‘to comply fully with the Statutes, regulations, directives and decisions of FIFA bodies at any time as well as the decisions of the Court of Arbitration for Sport (CAS) passed on appeal’. 119 Ibid art 14(1)(d). 120 See for example FIFA Statutes, above n 14, art 8(3); FIBA General Statutes, above n 113, art 9.1(d), 12.7; FIH Statutes above n 113, art 4.1; FIVB Constitution, above n 113, art 1.5.2, 2.1.2.2; BWF Constitution, above n 113, art 8.9, 29, 30; FINA Constitution, above n 113, art C12.1, C12.4. See also UCI, ‘UCI Cycling Regulations, Preliminary Provisions’, 24 September 2015, reg 1, 3, 5; IAAF, Competition Rules 2016-2017, 1 November 2015, rules 7, 20. 121 FIFA Statutes, above n 14, art 8(3). See also art 60(3) and FIFA, ‘Regulations Governing the Application of the Statutes’, reg 3, which assert jurisdiction to regulate match agents and regulation 4 which asserts jurisdiction to regulate player’s agents. 122 Ibid art 61. See also FIFA, FIFA Code of Ethics, 2012, arts 1 and 2, which purports to apply to all officials, players and match and players’ agents in relation to ‘to conduct that damages the integrity and reputation of football and in particular to illegal, immoral and unethical behaviour’. 123 For example, the Statutes of the International Hockey Federation (‘FIH’) prescribe that ‘all persons participating in any way in activities controlled and/or sanctioned by the FIH … shall be deemed to have agreed and acknowledged that: the FIH has sole ultimate authority over the governance, regulation, and playing of Hockey’: FIH Statutes above n 113, art 4.1. This deemed ‘agreement’ also provides that participants will not become members of any competitor organisation (art 4.1(b)), that they are bound by and must comply with the FIH’s statutes, regulations and decisions (Art 4.1(c)) and that they submit to the FIH’s disciplinary regime (art 4.1(d)). See also FIVB Constitution, above n 113, art 2.2.4; BWF Constitution, above n 113, art 30; UCI, UCI Cycling Regulations, Preliminary Provisions, 24 September 2015, reg 5. 34

exclusively by arbitration, ultimately invoking the jurisdiction of CAS to the exclusion of state courts.124

Examples of where legal limits of a sports governing body’s regulatory power appear to be recognised within the body’s rules, such as where the rules require a specific written agreement, only serve to highlight the discrepancy between the actual claim to power and the formal legal foundation that may attach to the regulatory power.125 Clearly, the regulatory authority and the operation of the bulk of the rules over non-members are not predicated and do not rely upon express consent or formal agreement. More significantly, the source of regulatory power in a case where rules made by a sports governing body require the execution of an ‘agreement’ to submit to that power is not the ‘agreement’; another pre-existing source of power underpins the rule that requires the agreement.

At least part of the explanation for the rules of international federations taking this form is the position of those bodies within the sport’s hierarchy.

4 The Structure of Sport and Monopoly Power Monopoly power is an inherent and essential characteristic of the pyramid structure of sports. At the peak of each organisational pyramid, there is a single governing body with ‘authority’ to govern the sport, setting the rules that are to operate throughout the pyramid.126 The monopoly power of sports governing bodies is accordingly, an accepted attribute of those organisations. Indeed, the ‘vital importance’ of the monopolist structure of sport involving ‘one international federation’ and ‘one national federation’ is said to be ‘obvious’,127 and this

124 FIH Statutes above n 113, art 4.1, 14.3. For other examples of the conferral of jurisdiction on CAS, see: FIFA Statutes, above n 14, art 11.4, 14.1(a), 57-9; IAAF Constitution, above n 69, art 20; FIBA General Statutes, above n 113, art 9.5, 40; FIVB Constitution, above n 113, art 1.5.7, 2.7.5; BWF Constitution, above n 113, art 8.7, 30.2.7, 30.2.8; FINA Constitution, above n 113, art 12.11, 26; UCI Constitution, above n 69, art 71-5. 125 See for example IAAF, ‘IAAF Competition Rules 2016-2017’, 1 November 2015, rule 4(1)(d). See also rule 30(3). 126 Lewis and Taylor, above n 11, [A3.7]: international federations exist ‘to provide a uniform set of rules for the sport and to ensure these are enforced’. Monopoly power is also a typical characteristic of other forms of sports governance structures. For example, the major league sports in the United States which do not share a pyramidal form (the National Football League, National Basketball Association, Major League Baseball, National Hockey League, Major League Soccer, Professional Golf Association), are all operated as effective monopolies: see Matthew J Mitten, at al, Sports Law and Regulation (Wolters Kluwer Law & Business, 3rd ed, 2013) 456-7. Similarly, professional sporting leagues in Australia, that share characteristics of the traditional European pyramid model of sport and some of the commercial structures characteristic of US sport, are operated by monopolist governing bodies: e.g. Australian Football League, National Rugby League, Football Federation Australia’s A League (soccer). 127 Lewis and Taylor, above n 11, [A2.5]. See Commissioner van Miert, [1996] OJ C217/87, 12 April 1996: ‘it is generally acknowledged that the most effective institutional structure for promoting sport is the creation of a single federation in each Member State and a single international federation for each sport’; van Kleef, above n 10, 25, describing the Ein-PlatzPrinzip principle entailing only one federation per sport at the national and 35

monopoly position has been justified on both constitutive and effectiveness or efficiency grounds. It is said that effective governance in sport depends on the absence of competing governing bodies128 and that it is deleterious for there to be more than one governing body.129

The role of international federations as the sole, exclusive governing body of their sports (as well as the role of national federations) is, therefore, at least partly, a function of the pyramid structure.130

Of course, the pyramidal structure of sport stands wholly apart from the mechanism of contract as a means of exercising power. Contract relies upon agreement between the contracting parties, whereas the position of a sports governing body–FIFA for example–as the supreme governing body at the peak of football’s pyramid, is not contingent or predicated upon participants at each level of the hierarchy agreeing by contract (or agreeing in any other form) to FIFA’s role.131

Concerns have been raised in relation to the pyramid structure of sport. For example, it has been observed that other forms of governance exist for the organisation of sports,132 indicating

international level and citing German case law as examples of this principle in German law: BGH 23 November 1998-II ZR 54/98-BGHZ 140,74; BGH, 02.12.1974-II ZR 78/72, BGHZ 63, 282. 128 Ibid [A2.5]. See also Nafziger, above n 16, 7, 21. 129 See European Union Commissioner van Miert, [1996] OJ C217/87, 12 April 1996: ‘[I]t is generally acknowledged that the most effective institutional structure for promoting sport is the creation of a single federation in each Member State and a single international federation for each sport’; Neale, ‘The Peculiar Economics of Professional Sports’ (1994) 1(1) Quarterly Journal of Economics 9: ‘Only a single league can produce that most useful of joint products, the World Champion’; Hendry v World Professional Billiards and Snooker Association [2002] ECC 8, [95]: a split sport is not in the public interest. On the effects of a fragmented governance structure in a sport, see Rafael Tenorio, ‘On the competitive structure in professional boxing, or why the very best boxers seldom fight each other’ in Wladimir Andreff, Stefan Szymanski, Handbook on the Economics of Sport (Edward Elgar Publishing, 2007), 364-8, who describes the deleterious effects of boxing having four different governing bodies. See also R Andrzej, The Sport without Governance - the Thrills of Boxing's Wild West, (SB Nation, 2016): ‘Professional boxing isn’t governed; it is fought over’. See also divisions in the organisation of professional rough riding: McCarthy v Australian Rough Riders’ Association Inc [1987] FCR 391; (1988) ATPR 40-836. See also disputes concerning the organisation of professional road cycling: Lloyd Freeburn, 'A Breakaway League in Professional Cycling: Issues for the Governance and Organisation of the Sport' (2013) 13(3/4) International Sports Law Journal 193. More generally, on why it is important for there to be only one institution doing justice in a territory’, see Jeremy Waldron, 'Special Ties and Natural Duties' (1993) 22(1) Philosophy & Public Affairs 3, 22–3: As violence can ensue from competition or disputes over resources, even more serious violence could be engendered through competition between competing institutions, citing Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1984) 12-7. In addition, and more relevant to the sports context, Waldron at 23–4 cites the advantage of having only one institution in providing the assurance necessary to achieve effective cooperation amongst many in a large-scale project in a society and in the resolution of other coordination problems. 130 Albeit perhaps not ‘natural monopolies’: Stephen F Ross, 'Monopoly Sports Leagues' (1989) 73 Minnestoa Law Review 716-17. See generally William J Baumol, ‘On the Proper Cost Tests for Natural Monopoly in a Multiproduct Industry’ (1977) 67 American Economic Review 809, 810. 131 On the hierarchical structure of sport as compared with horizontal contractual relations, see Canas v ATP Tour 4P.172/2006 (2007) (Swiss Federal Tribunal) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep. 65, [4.3.2.2]. 132 See for example James A R Nafziger, 'A Comparison of the European and North American Models of Sports Organisation' (2008) International Sports Law Journal 100. 36

that the pyramid and its attendant monopolist governing body is neither inevitable nor necessary for the organisation of sport. Further, it has been questioned whether, even if a monopoly pyramidal governance structure is accepted as appropriate, it necessarily follows that sports governing bodies need possess the extent of regulatory powers that they claim for themselves,133 that the pyramid structure of sport and the monopoly power of sports federations within it is ‘an exaggerated view of what is necessary for the proper organisation of the sport’.134 Much of the exercise of monopoly power has commercial implications and ‘the currently constituted pyramid structure is inadequate to allow proper representation of and participation by all affected interests.’135

Whilst this is significant, regulatory power in sport is characterised by more than a pyramidal structure that culminates in a monopolist governing body–regulation of sport requires consistency.

5 The Consistency Imperative of International Sport The regulation of sport possesses a consistency imperative, which is the unyielding requirement for consistent and uniform categorical rules and disciplinary processes to apply across a sport, regardless of geographic boundaries. This is an essential characteristic of international sport.

In this sense, the rules of international federations possess a relatively unique ‘constitutive’ characteristic: they not only regulate the particular activity, they are constitutive of it.136 The constitutive rule-making power is a special feature (if not unique) of sports governing bodies; it transcends the rule-making function of an ordinary voluntary association, such as a social or sporting club. Sports governing bodies are not merely involved in making rules for their members or in setting the conditions upon which individuals may be admitted as members and access the benefits of membership: the rules of sports governing bodies both constitute and regulate a field of activity.

It is true that a group of individuals could, for example, take a football to a field and proceed to play a ‘game of the sport of football’. But the distinction between informal sport and

133 See Stephen Weatherill, 'Is the Pyramid Compatible with EC Law?' (2005) (3-4) International Sports Law Journal 3. 134 Ibid 5. 135 Ibid 3. 136 Gardiner, above n 12, 65-72, describe categories of rules as including constitutive rules which include rules regulating the dynamics of play and rules for safety, codes of ethics, administrative rules and informal ‘playing culture rules’. 37

organised competition is that organised sport takes place within a common, rule-based structure. The existence of sports leagues is a necessary condition for the conduct of sport: ‘(w)ithout the league, professional football becomes a pursuit no more substantial than a group of finely-tuned athletes travelling haphazardly about, in search of playing competition’.137

The organisational necessity for a league has been extended to the leagues’ role in establishing uniform rules. A CAS Panel expressed the view that:

The principle of uniformity in sport is a defining characteristic of organised sport – particularly at international level. For, in order to be able to compare sports performances internationally, competitive sport must be performed in accordance with the same and uniform rules. The consistency of rules and decisions is therefore an essential feature of international sport.138

‘In sports, which are international by nature, it is essential that all athletes be treated in the same way.’139 It is meaningless then, to talk about competitive sport separate from the structure of the particular competition and the rules that constitute it.140 The monopoly position of sports governing bodies universalizes this observation, so that, for example, to refer to football competition is to refer to football competition conducted in accordance with the rules of FIFA.141

This constitutive aspect of the consistency imperative operates in addition to the requirement for consistency in the dispute settlement regime of international sport. Of course, consistency in dispute settlement is essential for the integrity of the system.142 But sport’s consistency

137 Los Angeles Memorial Coliseum Commission v National Football League 726 F 2d 1381, 1408 (9th Cir), cert. denied, 469 US 990 (1984) (Williams J). See also 1407-8: ‘The product distributed by the member clubs is not analogous to ball bearings because stripped of the [league] rules, participation in a regulated draft, orderly schedules and league standings, professional football is indistinguishable from sandlot follies’ (references omitted). 138 Stichting Anti-Doping Autoriteit Nederland (NADO) and the Koninklijke Nederlandsche Schaatsenrijders Bond (KNSB) v Wesley Lommers, CAS 2010/A/2311, 2312, award of 22 August 2011. 139 Steingruber, 'Sports Arbitration’, above n 53, 60. See also S Netzle, 'Jurisdiction of Arbitral Tribunals in Sports Matters: Arbitration Agreements by Reference to Regulations of Sports Organisations' in Arbitration of Sports- Related Disputes, (November 1998) 11 ASA Special Series 45, [5], [2.2]: ‘In international sports, [fairness and equal opportunity] can only be achieved through an arbitration instead of different national or even local court decisions’. 140 On the legal definition of ‘sport’, see Gardiner, above n 12, 18-22. 141 Van Kleef observes that ‘[b]y its nature, sport is not a national affair. The best athletes and clubs compete on an international level of aspire to do so’: van Kleef, above n 10, 25. 142 See Gabrielle Kaufmann-Kohler, 'Arbitral Precedent: Dream, Necessity or Excuse?' (2007) 23 Arbitration International 376; Ulrich Haas, 'Role and Application of Article 6 of the European Convention on Human Rights in Cas Procedures' (2012) (3) Inernational Sports Law Review 43, 53; Matthew J Mitten, 'Judicial Review of Olympic and International Sports Arbitration Awards: Trends and Observations' (2009) 9 Pepperdine Dispute Resolution Law Journal 65, who argues that the need for uniformity in sport justifies narrow appeal rights from arbitral awards. On the need for consistency for the integrity of a legal system, see Ronald Dworkin, Law's Empire (Belknap Press, 1986); Lon L Fuller, The Morality of Law (Yale University Press, 1964) 31–41; Matthew Kramer, Objectivity and the Rule of Law (Cambridge University Press, 2007) ch 2; Matthew H Kramer, In Defense of 38

imperative is more than the need to avoid inconsistency in dispute settlement so as to retain integrity in the dispute settlement process. Consistency in the application of rules is required to establish and preserve the nature of international sport.

This defining characteristic presents problems for the usual principles of the consent-based source of private law obligations and concepts of individual liberty. The notion of compulsive private power is inconsistent with a liberal democratic legal order that respects individual liberty. Private power is based on consent and the imposition of private law obligations cannot be compelled.143 The consistency rationale produces an inherent incompatibility in the application of consent-based regulatory forms (such as contract-based regulatory power or international arbitration) to international sport. The problem is more than mere practical difficulties of implementing consent-based legal forms across jurisdictions and over a multitude of participants; the consistency imperative means that sports’ rules must be categorical, not contingent upon participant agreement.

This then, is the conundrum produced by sport’s private law regulatory regime: mandatory obligations are necessary in a private law system in which the usual source of obligations is consent. The effects of this conundrum are experienced in both establishing the legitimacy and in the legality of the regime. Indeed, this conundrum may explain most of the fictions adopted to support the regulatory power of sports governing bodies.

6 The Contractual Characterisation and Sports Law There have been many debates about the application of law to the field of sport, the principal debate concerning the existence and content of ‘sports law’.144 While relevant to those debates,

Legal Positivism (Oxford University Press, 1999) 142-6; Michel van de Kerchove and Francois Ost, Legal System Between Order and Disorder (Clarendon Press, 1994) 135; Ben Chigara, Legitimacy Deficit in Custom: A Deconstructionist Critique (Ashgate, 2001) 113: ‘Inconsistency in the application of rules of law blurs the distinction between valid and invalid rules’. 143 In private law, contracts are the form of legally recognised voluntary undertaking that create obligations. Remedial rights may also arise from legally recognised rights under tort law that are designed to protect person and property, though the remedial rights in respect of tortious wrongs are not productive of the underlying relationship in the same way that consent creates the relationship underpinning contracts: tortious wrong depends upon a prior obligation. The normative basis of obligations arising under the law of unjust enrichment need not concern us here: see Zoe Sinel, 'The Methods and Madness of Unjust Enrrichment' in Andrew Robertson, Michael Tilbury (ed), Divergences in Private Law (Hart Publishing, 2016) 179, 181. 144 There are those who deny the existence of a discrete sports law: see for example Edward Grayson, Sport and the Law (Tottel Publishing, 3rd ed, 1999) xxxvii; and C Woodhouse, ‘The lawyer in sport: some reflections’ (1996) 4 Sport and the Law Journal 14. Others argue to the contrary: see for example: Barnes, above n 24, 2–3 Beloff, above n 20, [1.13]–[1.19], [1.29]; Gardiner, above n 12, 86; James, above n 78, 6; Richard H McLaren, 'Sports Law Arbitration by Cas: Is It the Same as International Arbitration?' (2001) 29 Pepperdine Law Review 101; Nafziger, above n 16; Tim Kerr, 'Disciplinary Regulation of Sport: A Different Strand of Public Law?' in B Bogusz, A Cygan, E Szyszczak (eds), The Regulation of Sport in the European Union (Edward Elgar Publishing, 2007) 97, 100; Lewis and Taylor, above n 11, [D1.4]–[D1.5]; Michael Lenard, 'The Future of Sports Dispute 39

this thesis does not turn on the adoption of any particular definition or concept of sports law. Rather, it involves an examination of the basis of rule-making and enforcement in international sport. This is important because common to the different definitions and concepts of sports law that have been debated is the assumption that the regime is a private, contractual order: that power is exercised pursuant to contracts.145 It is a curiosity that aspects of non-contractual operation of the regulation of international sport have been identified, but that these observations have not shaken the conventional contractual characterisation.146

The characterisation of the disciplinary powers involved in sports disputes as contract-based has contributed, at least in part, to the claims that there is no such thing as ‘sports law’, it being argued that ‘sports law’ is merely the application of ordinary legal principles, such as contract law, in the context of sport.147 Indeed, one commentator has taken issue with a description of the WADC ‘as a kind of international law of sport in the anti-doping area’,148 instead contending that the WADC is ‘in truth, … simply a contract, albeit one of enormous importance to very many athletes and sporting organisations.’149

Resolution' (2009) 10 Pepperdine Dispute Resolution Law Journal 173, 179–80; Hayden Opie, 'Sports Associations and Their Legal Environment' in M McGregor-Lowndes, K Fletcher and S Sievers (ed), Legal Issues for Non-Profit Associations (Law Book Company, 1996) 77 . On definitions, see Robert C R Siekmann, 'The Etyology of the Termini Technici Lex Sportiva and Lex Ludica: Where Do They Come From?' (2011) 3-4 International Sports Law Journal 153; Cf Michael Beloff, 'Is There a Lex Sportiva?' (2005) (3) International Sports Law Review 49, and Allan Erbsen, 'The Substance and Illusion of Lex Sportiva' in Blackshaw et al, above n 57, 441, who criticize the use of latin terminology; Ken Foster, 'Is There a Global Sports Law?' (2003) 2 Entertainment Law 1, 2–3, and Ken Foster, 'Lex Sportiva: Transnational Law in Action' (2010) (3-4) International Sports Law Journal 20, who distinguishes between ‘international sports law’ and ‘global sports law’; James, above n 78, 3, who defines various terms including ‘global sports law’ and ‘international sports law’. See also 3–4, referring to lex sportiva, lex ludica and lex Olympica; Lorenzo Casini, 'The Making of a Lex Sportiva by the Court of Arbitration for Sport' (2011) (3-4) International Sports Law Journal 21, 22; Timothy Davis, 'What Is Sports Law?' (2000) 11 Marquette Sports Law Review 211; Robert C R Siekmann, 'What Is Sports Law? Lex Sportiva and Lex Ludica: A Reassessment of Content and Terminology' (2011) 3-4 International Sports Law Journal 3; Allan Erbsen, 'The Substance and Illusion of Lex Sportiva' in Blackshaw et al, above n 57, 441; Franck Latty, 'Transnational Sports Law' (2011) (1-2) International Sports Law Journal 34. 145 Foster, 'Is There a Global Sports Law?', above n 144, 7: ‘Global sports law’s’ ‘chief characteristics are that it is a contractual order, with its binding force coming from agreements to submit to the authority and jurisdiction of international sporting federations, and second that it is not governed by national legal systems’. See also Foster, 'Lex Sportiva’, above n 144, 21. Foster describes the legitimacy of global sports law as being based on contract; Allan Erbsen, 'The Substance and Illusion of Lex Sportiva' in Blackshaw et al, above n 57, 441. 146 See for example: Beloff, above n 20, [1.15] ‘more than mere private law’, [1.17] normative underpinning from international agreements, [2.23] – [2.24] consensual authority and monopoly power; Foster, 'Lex Sportiva’, above n 144, 21: international federation rules are quasi-legislative source of norms. 147 See for example F Grayson, Sport and the Law (2000) London: Butterworths, p xxxvii; C. Woodhouse, ‘The lawyer in sport: some reflections’ (1996) 4(3) Sport and the Law Journal 14; Sullivan, above n 87, 3. ‘[S]port is not a law unto itself. Rather, participation in sports is regulated by the same contractual rules and principles as any other activity’: 25. 148 Paul David, A Guide to the World Anti-Doping Code: A Fight for the Spirit of Sport (Cambridge University Press, 3rd ed, 2017) 63. 149 Sullivan, above n 87, 4. Cf Steingruber, above n 56, [2.52], who describes the scheme of the WADC as de facto compulsorily providing for arbitration. 40

This idea, that ‘there is always a contract working somewhere’,150 requires closer scrutiny. It is an assumption that is not correct, and one that leads to a mischaracterisation of the regulatory arrangements in sport – a mischaracterisation that avoids a proper understanding of the nature of the regulatory regime of international sport. The significance of this mischaracterisation cannot be considered in isolation. Its importance becomes central to the regulatory regime of international sport because of the absence of democratic legitimacy. The absence of contractual legitimacy means that there is no counter to the democratic legitimacy deficit in sports’ regulation.

D The Democratic Legitimacy Deficit in International Sport

1 The Democratic Deficit in International Federations In the last several decades, there has been unprecedented growth in the size and influence of sport internationally and of the influence of sport’s international federations, the IOC and WADA.151 With this globalisation, the legal regulation of international sport has been shifted towards the private authority of these international sport bodies.152 This development is problematic, as these organisations are not democratically accountable to those over whom they exercise regulatory power.153

As has been described, international federations are only representative of national federations. National federations are then representative of their members, which are regional associations or clubs. Regional associations may then be representative of sub-regional associations or clubs. Individual membership generally only exists at club level. There are generally no membership rights in international federations for athletes, clubs or other participants at higher levels in the pyramidal sporting hierarchy, other than the national federations. This form of structure means that international federations are only notionally democratic because they are fundamentally unrepresentative.154

150 Sullivan, above n 87, 4. 151 Stefan Szymanski, 'A Theory of the Modern Evolution of Sport' (International Association of Sports Economists, November 2006 2006); Forster and Pope, above n 22, chapter 1 and 2; Sunder Katwala, Democratising Global Sport (The Foreign Policy Centre, 2000) chapter 2. 152 Geeraert, at al, above n 10, 283–4. 153 Forster and Pope, above n 22, ch 1: ‘A lack of clear mandates and non-accountability as well as self- perpetuation of bodes are seemingly generic to these sports bodies’. 154 The concept of democracy is underpinned by a principle of ‘social reflexivity’ involving the ethical necessity that virtually all of those to whom a given set of rules applies be allowed to participate in the creation of those rules: ibid 161; Ulrich Beck, Anthony Giddens and Scott Lash, Reflexive Modernization, Politics, Tradition and Aesthetics in the Modern Social Order (Polity Press, 1994); Jurgen Habermas, Between Facts and Norms (trans William Rehg, Polity Press, 1996) 449: ‘the modern legal order can draw its legitimacy only from the idea of self- 41

Yet, there is a misplaced, implicit assumption within the conception of the pyramid structure of sport that there is connection and linkages from the bottom to the top, including representative interconnectedness.

The pyramid structure is based on the assumption that decisions about the game are taken after a more-or-less intense process of consultation, but the dialogue is formally limited to actors who are adjacent in the pyramid. So clubs have a voice via their national associations. … decisions taken about the running of the sport percolate downwards in the pyramid to continental and national associations, and are then applied to the clubs participating in the several national and international competitions. Clubs that refuse to comply can be penalised – ultimately they can be excluded from competition.155

While some democratic structures exist within international federations, the ‘bureaucratic distance’ between the regulated and the rule-makers that is the function of the pyramid is so great as to entirely dilute any representative democracy.156 The difficulty is not simply in identifying chains of delegation stretching from those subjected to regulatory powers and the regulatory bodies, ‘but rather that at some point the impact of the popular will on how political power is used becomes so attenuated as to be merely nominal.’157

In addition:

the few governing bodies of sport that do provide a voice for athletes do so either through limited membership of the body’s decision-making forum or through the formation of an “athletes committee/commission” linked to the main forum, but safely quarantined from any significant decision-making opportunities.158

Then, there is the problem that in many cases, the rules of international federations are imposed through employment contracts between participants and their clubs. In these cases, there is no membership relationship or representative democracy at all, and the attenuation of popular will through the different levels of sport’s hierarchies is irrelevant.

determination: citizens should always be able to understand themselves as authors of the law to which they are subject as addressees.’ 155 Weatherill, above n 133, 5. Weatherill accepts that the pyramid structure operates well as a basis for shaping the basic pattern of sport but argues that a number of commercial issues are not necessary elements: 7. 156 See Allen Buchanan, Robert O Keohane, 'The Legitimacy of Global Governance Institutions' (2006) 20 Ethics & International Affairs 405, regarding global governance institutions. 157 Ibid 414. 158 B Houlihan, 'Civil Rights, Doping Control and the World Anti-Doping Code' (2004) 7 Sport in Society 420, 421–2. Geeraert, at al, above n 10, 294, finding that only 4 of 35 Olympic sport international federations gave athletes a very limited decision-making power. Clubs were similarly denied participation. 42

Last, from the perspective of representative democracy, it is to be observed that international federations are dominated by Europeans, and that the executive bodies of international federations are characterised by a gross under-representation of women.159

The consequence of this structure, and the far reaching regulatory authority that international federations claim for themselves over persons who are not their members, is a democratic deficit: regulatory power is exercised over persons who are not represented within the governance structures of the international federations.160 The democratic deficit is particularly acute in relation to the IOC.

(a) The Undemocratic, Unrepresentative, International Olympic Committee The governance of the ‘Olympic Movement’ is not conducted through a structure in which the governing bodies and those bodies’ members are appointed by and accountable to those in the ‘Movement’. It has been observed that the IOC ‘does not seem to be accountable to anyone, other than perhaps its members and the National Olympic Committees’161–although neither National Olympic Committees nor international federations are members of the IOC. In effect, the Olympic Movement has developed a sort of international cartel under the authority of the Olympic Charter and the IOC.162 The IOC though, is effectively a self-selecting private club, albeit one that makes a pretence of democratic governance.

The supreme decision-making body in the governance of Olympic sport is the IOC Session, a general meeting of the members of the IOC.163 It is the IOC Session that has power to, amongst other things, amend the Olympic Charter, to elect members of the IOC, to elect the members of the IOC Executive Board, to allocate the site of each Olympics to a host city, and to

159 As at 2014, individuals from European nations on the executive bodies of international federations out- numbered those from the rest of the world combined by more than two to one. 71% of presidents and 74% of general secretaries of international federations were European. No president of any international federation came from the United States, the world’s most dominant sporting nation. In terms of size and sporting performance, China is grossly under-represented whereas Switzerland in grossly over-represented on the executive bodies of international federations: Geeraert, at al, above n 10, 296-7. 160 The rule-makers in global arbitration regimes are private actors who are a different group to those to whom the rules are applied: William W Park, ‘The Procedural Soft Law of International Arbitration: NonGovernmental Instruments’ in Loukas A Mistelis and Julian D M Lew (eds), Pervasive Problems in International Arbitration (Kluwer 2006) 141-54. See Geeraert, above n 10, 294: the undemocratic structure of sports governing bodies ‘seems paradoxical and somewhat ironic, as sporting rules and regulation often have a profound impact on athletes’ professional and even personal lives’. 161 Ian Blackshaw, 'Regulating Sport Globally' (2000) 150 New Law Journal 617. See also David J Ettinger, 'The Legal Status of the International Olympic Committee' (1992) 4 Pace International Law Review 116; Ryan Gauthier, The International Olympic Committee, Law, and Accountability (Routledge, 2017). 162 James A R Nafziger, 'Sports Law: A Replay of Characteristics and Trends' (1992) 86 The American Journal of International Law 489, 502. 163 Olympic Charter, above n 28, rule 18. 43

recognise members of the Olympic Movement. Its decisions are final.164 As it is the IOC Members who exercise this substantive power, to appreciate the unrepresentative nature of the governance of Olympic sport, it is therefore necessary to understand the membership of the IOC, and how IOC Members are elected.

With one exception, IOC Members are not drawn from or elected by the members of the Olympic Movement who are regulated by the IOC. IOC Members are natural persons.165 Of the maximum number of 115 IOC Members, a majority of 70 ‘are not linked to any specific function or office’.166 The exception is that up to 15 Members may be active athletes, up to 15 may be persons holding senior positions within international federations, and up to 15 may be persons holding senior positions within National Olympic Committees.167 This exception gives a misleading impression of some form of minority, representative character to the IOC membership.

What makes this impression of representativeness false is that, first, there is no independent election of members of the IOC. It is the existing IOC Members who decide who may join their ranks, not the members of the Olympic Movement. New IOC Members are elected by the existing IOC Members, as the members of a private club determine who should be admitted as a new member.168 This is true even of those candidates nominated by virtue of being ‘elected’ by Olympic athletes to the IOC Athletes Commission.169

Second, the IOC Members who are selected from the ranks of athletes, office holders in international federations and National Olympic Committees are not representatives of those groups. The obligation and role of all IOC Members is to represent and promote the interests of the IOC and of the Olympic Movement, not to act as the representative of the countries or the groups from which they were chosen.170

Third, even were they to have a representative role, the IOC Members chosen from the particular areas of the Olympic Movement constitute a minority of the total number of IOC

164 Ibid. 165 Ibid rule 16.1.1. 166 Ibid rule 16.1.1.1. There is to be no more than one such member from any given country. 167 Ibid rule 16.1.1. These Members cease to be Members when they cease to hold the office of the category in which they were appointed: rules 3.6 and 3.7. 168 Ibid rule 18.2.2. Members are elected for eight year terms and can be reappointed for further terms: rule 16.1.7. See also bye-law 2.5 to rule 16. 169 Ibid bye-law 2.2.2 to rule 16. 170 Ibid rule 16.1.4. The oath of office for new IOC Members includes the undertaking to ‘serve the Olympic Movement’ and ‘to promote in all circumstances the interests of the International Olympic Committee and those of the Olympic Movement’: rule 16.1.3. 44

Members.171 There is no apparent proportionality or other objective criteria underpinning the specification of up to 15 members from each group.

Fourth, before persons from the specific groups can be considered for ‘election’ by the existing IOC Members meeting in Session, they must be evaluated by the IOC Members Election Commission,172 and then be proposed for election by the IOC Executive Board.173 Indeed, no person can stand for election without the approval of the IOC Executive Board. Again, this is true even of those candidates ‘elected’ by Olympic athletes to the IOC Athletes Commission.174 The anti-democratic effects of this pre-approval process are plain.175

It is difficult therefore to view the apparent concessions to any form of representative governance structures in the governance of Olympic sport as anything other than pretence.176 For example, while the Olympic Charter requires the inclusion of athlete representatives on National Olympic Committees,177 the Charter denies those athlete representatives voting rights within the Committees–unless the IOC Executive Board grants specific approval. The effect of this is to preserve voting power within National Olympic Committees for the National Federations of individual sports.178 Another example is the Olympic Congress, which includes representatives of the constituents of the Olympic Movement. Unfortunately, the role of the Olympic Congress is merely consultative.179

The principal entity charged with the management of Olympic sport, the members of the IOC, cannot lay any claim to legitimacy derived from a representative, democratic structure. Instead, and notwithstanding the public importance of the Olympic Movement in modern society and

171 Ibid. The maximum number of each group is 15 members of a total membership of 115. It is also to be noted that if elected, the tenure of these Members from specific areas is also less secure than other IOC Members in that these persons only remain IOC Members while they hold their position in the group from which they came, notwithstanding that these persons technically are not the representatives of those groups. 172 Ibid bye-law 2.3 to rule 16. IOC Members who are active athletes must first be elected to the IOC Athletes Commission: rule 16.1.1.2, bye-law 2.2.2 to rule 16. Members of the Athletes Commission are elected by athletes participating in the Olympic Games: bye-law 1 to rule 21. 173 Ibid bye-law 2.4 to rule 16. The IOC Executive Board is elected by the IOC Session: rule 19.2. The terms of office of Executive Board members is four years and members may only serve two terms: rule 19.2.2. The IOC Executive Board has overall responsibility for the administration and management of the IOC: rule 19.3. 174 Ibid bye-law 2.2.2 to rule 16. See also bye-law 2.4.1 to rule 16. 175 In light of this position, it appears hypocritical for the IOC to declare that the athlete representatives on the Foundation Board and Executive Committee of WADA must be elected rather than appointed: see International Olympic Committee, ‘Declaration of the IOC Executive Board’, 17 March 2017, ‘principle 2’, https://www.olympic.org/news/declaration-of-the-ioc-executive-board-1. 176 Ibid. Even the IOC Athletes Commission only has an advisory role and is unable to even meet without the permission of the IOC President: rule 21. 177 Ibid rule 28.1. The proportion of such representatives is not specified, which would be superfluous in any event, given that these representatives are denied voting rights. 178 Ibid rule 28.3. 179 Ibid rule 4. 45

any high ideals that it may espouse,180 the governance of Olympic sport resides in an unrepresentative, undemocratic, self-appointed and self-perpetuating private club.

Of course, there is no problem with the IOC operating as a private club–except for the fact that it has anointed itself with ‘the supreme authority and leadership’ of the Olympic Movement181 when none of the members of that Movement are entitled to a democratic voice within the organisation. That some members of the Olympic Movement may be bestowed with IOC membership is beside the point when, amongst other reasons, this privilege is at the caprice of the existing members of the IOC and not an entitlement pursuant to a democratic structure.

(b) Recognition of the Democratic Deficit Some commentators have recognised the legitimacy deficit present in the governance structure of international sport. Duval for example, observes that the legitimacy of the lex sportiva is compromised by the monopolisation of political power by a few, that the rule-making power is largely in the hands of a small number of executive committees who are not elected through general elections or subject to public scrutiny, producing a structural bias in favour of a small, very influential elite which does not meet a threshold of inclusive democratic government or governance.182 Gardiner et al note that ‘[i]t is often hard to justify actions that affect parties outside of the association’s membership structure – or argue that the public interest is being served’183 and consider that there is warrant for great concern over the extent to which the self-

180 Ibid See for example Fundamental Principle of Olympism 1 which proclaims an objective of Olympism ‘to create a way of life based on … social responsibility and respect for universal fundamental ethical principles’, Fundamental Principle of Olympism 2 which makes it a goal of Olympism to use sport to preserve human dignity, Fundamental Principle of Olympism 4 declaring the practice of sport to be a human right free from discrimination, and Fundamental Principle of Olympism 6 which avers ‘discrimination of any kind such as race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth or other status’. In addition, rule 2 makes it the mission of the IOC to ‘place sport at the service of humanity and thereby promote peace’ (rule 2.4), to act against any form of discrimination affecting the Olympic Movement (rule 2.6), to promote women in sport ‘with a view to implementing the principle of equality of men and women’ (rule 2.7), and to ‘support a responsible concern for environmental issues’ (rule 2.13). 181 Ibid rules 1.1, 2. 182 Antoine Duval, 'Lex Sportiva: A Playground for Transnational Law' (2013) 19(6) European Law Journal 822, 832. Kolev also makes the point that the lack of democracy in international sport compromises the credibility of the lex sportiva and handicaps its development: Kolev, above n 120. 183 Gardiner, above n 12, 92. See also Weatherill, above n 133. 46

regulation of sport is subject to scrutiny.184 The IOC185 and FIFA186 have been specifically criticised as lacking legitimacy and accountability.187

The need for legitimacy in the governance structures of international sport is recognised.188 It has also been observed that deficiencies with lex sportiva and the requirement for mandatory submission to arbitration for players and clubs ‘could threaten the recognition of CAS as a valid arbitration system and not in any manner contribute to the ideal of an objective, just, transparent, self-integrated and universally accepted international sports law or Lex Sportiva.’189

Although this perspective is not unanimous: Lewis and Taylor consider that sports governing bodies arrive at rules which reflect a consensus amongst those involved in the sport, that the interests of all those involved must be balanced. ‘The sport will not function without rules. The governing body is held accountable by the general obligations that it owes.’190

However, the idea that the unilaterally made rules of sports governing bodies reflect a consensus amongst those involved in sport may come as something of a surprise to those who are regulated by the rules but who stand outside the rule-making and governance structures of those bodies. It is a proposition that conflicts with the unrepresentative structures of the

184 Gardiner, above n 12, 93. 185 See Andrew Jennings, The Lords of the Rings: Power, Money and Drugs in the Modern Olympics (Simon & Schuster, 1992).; Andrew Jennings, The New Lords of the Rings: Olympic Corruption and How to Buy Gold Medals (Pocket Books, 1996). The IOC’s democratic failings are striking given the organisation’s seeming hypocritical insistence on autonomy and democracy within Olympic family. 186 See John and Tomlinson Sugden, Alan, FIFA and the Contest for World Football: Who Rules the Peoples’ Game? (Polity, 1988). 187 In relation to the IOC, the United States Congress, following its investigation of the Olympics site selection process following the 2002 Salt Lake City bribery scandal, recommended that: A substantial majority of IOC members by the [National Olympic Committee] for the country of which they are citizens, by the [international federations] and by the other constituent organizations. There should be athlete members selected by athletes. There should be increased members from the public sector who represent the interests of the public.’ The US Congress also recommended that ‘IOC members and leaders should be subject to periodic re-election with appropriate term limits’, and that the ‘meetings of the IOC and its committees should be open to the public whenever possible’: United States Congress: ‘The Olympics Site Selection Process: Hearings before the Subcommittee on Oversight and Investigations of the House Committee on Commerce’, 106th Congress, 1, GPO.gov, 1999, http://www.gpo.gov/fdsys/pkg/CHRG-106hhrg60363/pdf/CHRG-106hhrg60363.pdf, 285. For criticism of the IOC’s response to this scandal, see Thomas A Hamilton, 'The Long Hard Fall from Mount Olympus: The Salt Lake City Olympic Games Bribery Scandal' (2010) 21 Marquette Sports Law Review 219. 188 See: ‘The Rules of the Game, Europe’s first conference on the governance of sport’ (Brussels, February 2001), Advance Conference Paper, 2: ‘The role, legitimacy and power of governing bodies depends on the confidence of their stakeholders on their institutional structures, governance arrangements, rules and dispute mechanisms’. See also Kolev, above n 120, 61; Katwala, above n 151, 13-16; and Beloff, above n 20, [1.11]: ‘The central place of sport in civil society makes it important to ensure that it is properly regulated and justly administered.’ The importance of a professional regulatory body such as a sports governing body maintaining the confidence of the public has also been recognised by the UK courts, justifying restrictive rules: Bolton v Law Society, [1994] 2 All ER 486; Bradley v Jockey Club, [2005] EWCA 1056, [24]. 189 Kolev, above n 120, 62. 190 Lewis and Taylor, above n 11, [C1.17] note 1. 47

associations. And, even were it the case that a governing body could be held accountable by the members of the association, analysis of the nature of the de facto power of international sports governing bodies, and the regulation of that power, illustrates the dearth of substantive obligations owed to others who are subjected to the imposition of de facto power. At best, any such obligations are largely procedural. The legal vacuum that arises where no contract exists gives the lie to the idea of accountability to those outside the governing bodies.191

This problem is not unique to sport: there is a well-recognised lack of democratic accountability more generally in transnational regimes.192 The democratic deficits in the making, interpretation and enforcement of transnational law and governance remain crucial issues for the legitimacy and acceptability of these regimes.193 This problem is exacerbated by the failure of the traditional accountability mechanisms of domestic and international law to keep pace with the shift in regulatory authority and activity from the domestic to the global.194

E The Legitimisation of Regulatory Power in International Sport Perhaps more than in any other area, the development of international sport’s modern regulatory regime has outstripped the accountability mechanisms of domestic and international law through its capacity to ride roughshod over the premise that ‘non-State actors can only bind themselves.’195 The de facto regulatory regime of international sport shows clearly that this premise is wrong. This then adds profound importance to the need for the legitimisation of the regime. The legitimacy of a regulatory regime that operates to bind non-consenting parties must be regarded as fundamental.

1 Power and Authority It is also essential to recognise that the claims of international sports governing bodies to private regulatory authority involve more than mere assertions of power. These bodies not only exercise global power, they claim authority.

191 See authorities cited in Chapter II, note 152 below. 192 Cotterrell, above n 35, 516. 193 Carrie Menkel-Meadow, Why and How to Study Transnational Law [Comments], (2011) 119. 194 Benedict Kingsbury, Nico Krisch, Richard B Stewart, 'The Emergence of Global Administrative Law' (2005) 68(3/4) Law and Contemporary Problems 15, 16, referring to an ‘accountability deficit’. See also A Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (Cambridge University Press, 2003) 242: The orthodox conceptions of the basis of regulatory authority in international sport ‘are incapable of capturing the significance of nonstate actors, informal normative structures, and private, economic power’, referring to the deficiencies of traditional Westphalian-inspired assumptions about power and authority and state-centric theories in supplying a satisfactory explanation of transnational merchant law. 195 Andreas L Paulus, 'Commentary to Andreas Fischer-Lescano & Gunther Teubner the Legitimacy of Internatioanl Law and the Role of the State' (2004) 25 Michigan Journal of International Law 1053: ‘As soon as public interests are at stake, only public decision-making appears legitimate’. 48

The significance of the fact that sports governing bodies claim authority is that while ‘power’ involves the ability to compel compliance, ‘authority’ involves a right to rule and a corresponding moral obligation to comply.196 Even de facto authority includes a claim to legitimacy and is distinguished by this from de facto power.197 An essential question is embodied in the claims of international federations to private de facto regulatory authority – what is the basis of the authority that legitimises the exercise of private power, and what is mere, naked power?

It is true that legitimacy is more than a question of legal validity.198 In considering legitimacy, the question is the right of international sports governing bodies to rule, how the rule of these bodies may be defended with logic or justification.199 Further, the concern is with whether the regime should be regarded as legitimate (a normative question) and not only whether it is regarded as legitimate.200

However, here, questions of legality and legitimacy interact. The conventional view that the governance regime of international sport is contract-based, and therefore legal, encourages the

196 Scott Shapiro, 'Authority', in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2002) 385: ‘A gunman has power, but he does not have authority. He can coerce his victim to cooperate by threat of force, but he is unable to impose the moral obligation to comply.’ See also Joseph Raz, The Morality of Freedom (Oxford Scholarship Online, 1986) 23, 26; Nicole Roughan, 'Mind the Gaps: Authority and Legality in International Law' (2016) 27 The European Journal of International Law 329, 332. 197 Raz, The Morality of Freedom, above n 196 25-6; Joseph Raz, The Authority of Law (2nd edn, Oxford University Press, 2009) 8-11. 198 See Jules L Coleman, 'Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence' (2007) 27 Oxford Journal of Legal Studies 581, 585, noting that H L A Hart’s point that the law is one thing, its morality another was ‘designed primarily to call attention to the need to resist the inference from legality to legitimacy – a warning not to infer the legitimacy of laws from their status as laws’; Allen Buchanan, 'The Legitimacy of International Law' in Samantha and John Tasioulas Besson (ed), Philosophy of International Law (Oxford University Press, 2010) 79, 80; Julia Black, 'Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes' (2008) 2 Regulation & Governance 137, 144–5. 199 Thereby satisfying the principle of political legitimacy: John Rawls, Political Liberalism (Columbia University Press, 2005) 224. See also Thomas Nagel, Equality and Partiality (Oxford University Press, 1991) 330. Focussing on legal validity ‘will often be irrelevant, or at least unproductive’: Black, above n 198, 144-5. Unlike legality, which is not scalable, a system may be more or less legitimate: Stephen Perry, 'Political Authority and Political Obligation' in Leslie Green and Brian Leiter (eds), Oxford Studies in Philosophy of Law (Oxford University Press, 2013) vol 2, 1, 12; Thomas Schultz, 'The Concept of Law in Transnational Arbitral Legal Orders and Some of Its Consequences' (2011) 2 Journal of International Dispute Settlement 59. There are different theories on what it means for a regime to have a right to rule: see Black, above n 198, 145–6, who describes the four main groups of theories as: constitutional claims; justice claims; functional or performance claims; and democratic claims; Franck, above n 205, 15-17; Buchanan, above n 198, 79. 200 Black, above n 198, 144–5. Buchanan, above n 198, 79-80. See also Perry, above n 199, 6–7, referring to the ‘problem of justification’: When, and under what circumstances, do states ever hold the legitimate moral authority that they claim for themselves?; Raz, The Morality of Freedom, above n 196, 26; Allen Buchanan, Robert O Keohane, 'The Legitimacy of Global Governance Institutions' (2006) 20 Ethics & International Affairs 405, 407; Antoine Duval, 'Lex Sportiva: A Playground for Transnational Law' (2013) 19 European Law Journal 822, 831. 49

perception that the regime is legitimate.201 Similarly, it is also implicit in the conventional conception that as private law associations, the decisions of sports governing bodies are legally binding because, as private associations, sports governing bodies have what is loosely (and inaccurately) described as the freedom to do whatever is not proscribed. This view also promotes an assumption of legitimacy.

In this sense, international federations are ‘self-constituting public authorities, that is, bodies whose public legal nature is not owed to any positive constitutive source such as a statute, but to the fact that their decisions are regarded as legally binding’.202 Yet, that the system of governance of international sport may be widely believed to be legal, or legitimate, does not mean that it is either. The extent to which the regulatory regime is contract-based and the extent to which the actions of sports governing bodies may be considered valid as exercises of individual liberty are therefore fundamental questions of both legality and legitimacy.

This thesis argues that the scope of the contract-based regulatory authority of international federations is far narrower than the extent to which authority is claimed and power is exercised. Further, the scope to which the actions of international sports governing bodies are authorised by consent or valid as exercises of individual liberty is also far narrower than the extent of authority claimed. This calls the legally binding quality of their actions into question both from the perspective of individual legal systems (relative legality), and from an absolute perspective.203 It also fundamentally challenges the legitimacy of the regime.

2 The Requirement for Legitimacy There are also more prosaic grounds for attempting to avert the ‘crisis of legitimacy’ presaged by what has been described as the inadequacy of the orthodox conceptions of power and authority in explaining the non-state regulatory regime of international sport.204 Mere practical

201 Neil MacCormick, 'Norms, Institutions, and Institutional Facts' (1998) 17 Law and Philosophy 301, 329: ‘Yet popular legitimacy is a powerful source of political power. Human beings are led by opinion more than by force, and the opinion that power is being exercised under law is a notable inducement to accept as legitimately in authority those who do in fact exercise effective political power over the state’s claimed territory. So law can contribute to power perhaps almost as much as power contributes to law, wherever there is an ideology that proclaims the value of rational government under law.’ 202 David Dyzenhaus, 'Accountability and the Concept of (Global) Administrative Law' (2009) Acta Juridica 12. 203 See Thomas Schultz, Transnational Legality: Stateless Law and International Arbitration (Oxford University Press, 2014) 87, who distinguishes between relative and absolute legality of legal systems, the conclusions of state legal systems on the legality of other systems being relative: ‘What public legal system X says about system Y is relevant for public legal system X. Nothing more and nothing less.’ Absolute legality involves the conclusions of an external observer; an analytical and descriptive position based in legal science, not politics. 204 A Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (Cambridge University Press, 2003) 241–2, 249. Gauthier, above n 161, 33-4, considers that the IOC and the Olympic Games, and (at 37) sport more generally are currently facing a crisis of legitimacy. 50

power is insufficient to sustain any regulatory regime, and sport is no exception. Coercive or dominant power is likely to be successful in securing habitual observance only in the short term; other characteristics are necessary for long term viability.205

Because the unauthorised and unsanctioned rule by one group of citizens over others that is entailed in the de facto system of sports governance is contrary to fundamental principle, the regime is both destined to be subjected to on-going, disparate challenges in state legal systems and, more cripplingly, to the inevitable erosion of the support of the participants within the sports, support which is essential for their continued survival.206 The regime is only entitled to claim support by satisfying the criteria of legitimacy.207

Further, legitimacy in international sport is essential to answer the question of ‘who is to watch the watchmen’?208 Without legitimacy, the regime operates to exclude the legitimate legal

205 Thomas M. Franck, The Power of Legitimacy among Nations (Oxford University Press, 1990) 15–16, citing non-coercive factors such as Dworkin’s ‘fairness, justice and integrity’, and Habermas’ discursive validation. See also Allen Buchanan, Robert O Keohane, 'The Legitimacy of Global Governance Institutions' (2006) 20 Ethics & International Affairs 405, 410: legitimacy provides a moral or content-independent reason for an institution to be supported and is ‘more stable than a system supported only out of self-interest or fear of coercion’; Buchanan, above n 198, 80–1; Black, above n 198, 148-9; Neil MacCormick, 'Norms, Institutions, and Institutional Facts' (1998) 17(3) Law and Philosophy 301, 329. See also Black, above n 198, 144; J Habermas, Communication and the Evolution of Society 178-9 (T McCarthy trans. 1979): ‘Legitimacy means a political order’s worthiness to be recognized’; Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice, (trans, Oxford University Press, 2012), 144-5. 206 See authorities cited in n 205 above. See also: Moller, above n 74, 934–5, outlining athlete dissatisfaction with sport’s anti-doping regime and describing the system as ‘an unreliable institution with pseudo-despotic tendencies’. More generally, see: Enrico Augelli and Craig Murphy, ‘Gramsci and International Relations: A General Perspective with Examples from Recent US Policy Toward the Third World,’ in Stephen Gill, Gramsci, Historical Materialism and International Relations, (Cambridge University Press, 1993) 127, 132, cited by A Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (Cambridge University Press, 2003) 257. Gramsci contends that internal support and consent is necessary to maintain a system, otherwise it is bound eventually to fail. Hegemony based upon fraud is unsustainable. See also Shapiro, above n 196, 397, who credits Weber with describing how political power must always seek at least the appearance of moral power if it is to be secured and maintained; Thomas M Franck, 'Legitimacy in the International System' (1988) 82(4) The American Journal of International Law 705, 706, who contends that the perception of a rule as legitimate by those to whom it is addressed is a crucial factor when there are no other compliance inducing mechanisms; and Franck, above n 205, 116. In relation to sport specifically, see Kolev, above n 120, 61 who identifies that the voice of sportsmen and women is not heard in the rule-making process and that this democratic deficit produces mistrust and suspicion on the part of clubs and athletes towards their federations. This suspicion then supplies the incentive for disputes to be referred to the courts. See also 60, commenting that structural coherence is only possible in sport if the rule-making becomes a result of a transparent and democratic process representing, safeguarding and balancing the interests of all stakeholders, citing Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition, (Harvard University Press, 1983) 354. 207 Allen Buchanan, Robert O Keohane, 'The Legitimacy of Global Governance Institutions' (2006) 20 Ethics & International Affairs 405, 407: ‘If these institutions lack legitimacy, then their claims to authority are unfounded and they are not entitled to our support’, referring to global governance institutions. 208 Foster, 'Is There a Global Sports Law?', above n 144, 17: ‘Until the independent legitimacy and validity of lex sportiva is complete, we cannot have arrived at a global sports law correctly so called. Until then, lex sportiva is a dangerous smoke screen justifying self-regulation by international sporting federations and the danger is that their customs and practices will be accepted as legitimate. Quis custodiet ipsos custodies? [Who will watch the 51

orders of nation states from which it is granted autonomy – legitimate laws are prevented from operating in favour of illegitimate ones. Without legitimacy, it becomes accurate to describe the regime as having mutated from its origins in the law of voluntary associations into ‘a legal Frankenstein [that] no longer partakes in the same basis of legitimacy and formal standards of pertinence’.209

The issues of legality and legitimacy that arise in the regulation of international sport are obstacles to the suggestion that ‘[t]he intellectual case could be made that this is an internally coherent system, which responds to the special interests of sport, and which should not be invaded by differently motivated, alien systems.’210 The issues of legality that arise mean that the system is not coherent; in fact, it is arbitrary. The problems of legitimacy that arise mean that the system does not respond to the needs of sport. It responds to the needs of the sports governing bodies. One does not need to be a Marxist to recognise the validity in this context of the criticism that ‘[y]our jurisprudence is but the will of your class made into a law for all.’211 Immunising the regime from legal control becomes a dangerous suggestion.

Of course, the most significant form of legitimacy of sport judicial activity is said to be consensus212 and this brings us to the fundamental question of the true extent of the purported consensus upon which the sports governance regime is based. Evocatively, it is said that contract law ‘is the most important determinant of the content of variable legal relationships in sport. It is the legal tool with which the stage designers of sport create the scene; and it contains the script used by the sporting actors to play to the public.’213 But appropriating this literary analogy, Coleridge suggested that a reader would suspend judgment concerning an unlikely or implausible story if a writer could imbue it with ‘human interest and a semblance of truth sufficient to procure for these shadows of imagination that willing suspension of disbelief for

watchmen?]’ (This Latin phrase quoted by Foster was used by the 1st century Roman poet Juvenal, Satires (Satire VI, lines 347-8) and translates as ‘Who will guard the guards themselves?’) 209 Georges Abi-Saab, 'Fragmentation or Unification: Some Concluding Remarks' (1999) 31 New York University Journal of International Law and Politics 926. 210 Stephen Weatherill, 'Do Sporting Associations Make 'Law' or Are They Merely Subject to It?' (1998) (July/August) European Business Law Review 220. 211 K Marx, and F Engels, (1888) The Communist Manifesto, translation by S Moore (Oxford University Press, 1992) 21. 212 Lorenzo Casini, 'The Making of a Lex Sportiva by the Court of Arbitration for Sport' (2011) (3-4) International Sports Law Journal 21. 213 Beloff, above n 20, [2.36]. See also Sullivan, above n 87, 3: ‘contract is the cornerstone on which “Sports Law” has been built and which is of primary importance in most areas where there is an interface between sport and the law.’ 52

the moment’.214 The following discussion of the contractual characterization illustrates that it is necessary to suspend disbelief to subscribe to it.

214 Samuel Taylor Coleridge, Biographia Literaria, 1817, (London) Chapter XIV. This suggestion has come to be known as the ‘suspension of disbelief’, explaining human attraction to fictional entertainments such as movies and novels. 53

II THE CONTRACTUAL AUTHORITY OF SPORTS GOVERNING

BODIES – THE REAL AND THE FICTIONAL

A Chapter Introduction ...... 55 B The Contractual Basis of Regulatory Authority – Conceptual Issues ...... 56 1 The Formal Requirements of a Contract and the Contractual Premise ...... 56 2 Quasi-legislative Rules ...... 58 3 The Exercise of Regulatory Power and Transactions ...... 59 4 The Incompatibility of an Overriding Regulatory Power with Contract-Based Power ...... 62 (a) A Contractual Power? ...... 63 (b) The Paradox of the Incorporation by Reference by a Contract of a Power to Override the Contract ...... 63 (c) Self-Enslavement Contracts ...... 64 (d) The Regulation of Members and Non-Members by Associations ...... 65 5 Certainty and Contractual Intention in Contracts Incorporating Variable Sports Governing Bodies’ Rules ...... 66 (a) Certainty ...... 67 (b) Contractual Intention ...... 68 (i) The Relevance of the Form of the Rules as Indicating Contractual Intention ...... 69 (ii) Implied Affirmation ...... 70 C Indirect ‘Contractual’ Devices ...... 71 1 The Incorporation of Regulatory Power by Reference ...... 71 2 Chains of Contracts in Sport ...... 72 (a) What is the ‘Chain of Contracts’ Theory? ...... 72 (b) The Mischaracterisation of Cases ...... 73 (c) The ‘Chain’ as an Indirect Relationship ...... 76 (d) The ‘Chain’ as Multipartite Contracts ...... 77 D Implied Contracts in Sport ...... 83 E The Vice of the Contractual Characterisation ...... 84

A Chapter Introduction ‘Fictions arise from the law, and not law from fictions.’1

This chapter examines the extent to which the regulatory authority of international federations may validly be described as contractual. It describes two types of problem for the conventional contract-based conception.

The first type of problem consists of conceptual difficulties that arise in conceiving of regulatory power in sport as contractual, the basic nature of regulatory power not being compatible with consent-based contracts. Issues of contractual certainty and intention also arise from the nature of the claims of sports governing bodies to regulatory authority.

The second type of problem arises from the limited extent of direct contracts between the bodies exercising regulatory power in sport and the participants who are subjected to that power. To sustain the contractual conception in the face of this problem, it is claimed that the regulatory authority of sports governing bodies is derived ‘indirectly’ from contracts. These indirect devices are the incorporation by reference of the rules of the governing bodies into contracts between other participants in sport, or through ‘chains of contracts’. Of course, the notion of an indirect source of contractual authority is troubling by definition, as if the flavour of a contract would be enough.2 In any event, on analysis, the actual scope of the effective contractual operation of these indirect mechanisms is limited.

Finally, the implication of contracts in sport is examined. Whatever propensity courts may have for the implication of contracts in sport, this is also an inadequate foundation to support a contractual characterisation of the power of sports governing bodies.

Ultimately, the real extent of the contract-based regulatory authority of sports governing bodies justifies only a portion of the regulatory power actually exercised. Yet, the effect of the maintenance of the contractual characterisation is to appropriate a false veneer of contractual legitimacy and to obscure the proper identification of the nature of the power exercised.

1 Legal maxim - ‘Les fictions naissent de la loi, et non la loi des fictions’: see Par M Y Duval, Revue des revues de droit publiees a l’etranger: recueil trimestriel (Librairie Polytechnique, 1845) vol 7, 5. 2 See Nagle v Feilden [1966] 2 QB 633, 652 (Salmon LJ). 55

B The Contractual Basis of Regulatory Authority – Conceptual Issues It is clear, historically, that one reason many liabilities were described by courts as contractual despite not arising from a promise or agreement is that the judges could not find any other legal category in which to place them.3

The general, quasi-legislative, regulatory form and function of the rules of sports governing bodies poses significant conceptual difficulties for the characterisation of those rules as ‘contractual’, those these difficulties have largely been ignored.

These conceptual difficulties are different to the objection that the contractual characterisation involves the imposition of ‘an inappropriate legal structure on what for many will be recreation’.4 Nor is it contended that regulatory arrangements, by their nature, can never form the basis of an enforceable contract.5 The problem is that regulatory relationships are distinct from commercial transactions, raising issues of compatibility with contract law theory.

1 The Formal Requirements of a Contract and the Contractual Premise On its own terms, difficulties arise in the contractual characterisation of the regulatory power of sports governing bodies.

As a technical or formalistic issue, for a contract to exist, the prerequisites prescribed by the law for the creation of a contract must be met.6 Traditionally, these prerequisites have included offer, acceptance, consideration (for common law countries) and intention to be legally bound. These formal requirements are the preconditions set by the law to distinguish between obligations that the law will enforce and other, non-enforceable obligations.7 However, it is difficult for exercises of regulatory authority in sport to satisfy the formal requirements of contract law.

3 Patrick S Atiyah and Stephen A Smith, Atiyah's Introduction to the Law of Contract (Clarendon Press, 2005) 31. 4 Modahl v British Athletics Federation [2002] 1 WLR 1192, [51] (Latham LJ). 5 Raguz v Sullivan (2000) 50 NSWLR 236 appears as an example of this. See [67] where the court referred to the issues relating to finding offer and acceptance in relations in sport. 6 ‘Imposing liability on the parties before the formal requirements are met would be contradictory to the very existence of those requirements’: Nili Cohen, ‘Pre-Contractual Duties: Two Freedoms and the Contract to Negotiate’, in Good Faith and Fault in Contract Law (Clarendon Press, 1995) 27. 7 Roger Brownsword, Chapter 1, ‘General Considerations’, in Michael Furmston (ed), The Law of Contract (LexisNexis, 4th ed, 2010) [1.2]. See also Sir Jack Beatson, Andrew Burrows, John Cartwright, Anson's Law of Contract (Oxford University Press, 29th ed, 2010) 3-5; Jeannie Paterson, Andrew Robertson, Arlen Duke, Principles of Contract Law (Thomson Reuters (Professional), 3rd ed, 2012) 51; N C Seddon, R A Bigwood and M P Ellinghaus, Chesire and Fifoot Law of Contract (LexisNexis Butterworths, 10th Australian ed, 2012) [1.2], [1.16]. 56

Whilst contracts relating to business-type arrangements in sport such as media, sponsorship and marketing contracts ‘can be adequately accommodated within the orthodox approach’,8 other important contracts in sport such as selection disputes and disciplinary proceedings cannot.

But this problem is not unique to sport. The problem of the application of the formal rules of contract formation are well-known.9 Difficulties in applying the classical rules of contract law are well recognised in a wide range of activities, including:

sales at auction; supermarket purchases; boarding an omnibus; purchasing a train ticket; tenders for the supply of goods; offers of rewards; acceptance by post; warranties of authority by agents; manufacturers' guarantees; gratuitous bailments; [and] bankers' commercial credits.10

Further difficulties have been identified in the application of the traditional contractual requirements of offer, acceptance and consideration to ongoing business relationships11 and in multilateral arrangements.12

Nevertheless, recognition of the practical problems of the formal rules of contract formation does not lead to the presumption that ‘there is always a contract at work somewhere’, and that accordingly, the usual rules of contract formation are somehow ‘inadequate’. Like an article of

8 Alan Sullivan, 'The Role of Contract in Sports Law' (2010) 5(1) Australian and New Zealand Sports Law Journal 3, 9. 9 See for example Atiyah and Smith, above n 3, 22; Seddon, et al, above n 7 [3.5]. See Farmers’ Mercantile Union and Chaff Mills Ltd v Coade (1921) 30 CLR 113, 125 (Higgins J); Integrated Computer Services Pty Ltd v Digital Equipment Corp (Australia) Pty Ltd (1988) 5 BPR 97326, 11,117-8 (McHugh JA); Marist Brothers Community Inc v Shire of Harvey (1994) 14 WAR 69; Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd [1998] 4 VR 559, 567 (Buchanan JA with whom Ormiston and Callaway JJA agreed); Port Sudan Cotton Co v Chettiar [1977] 2 Lloyd’s Rep 5, 10 (Lord Denning MR); Butler Machine Tool Co v Ex-Cell-O Corp [1979] 1 WLR 401, 404 (Lord Denning MR); Boulder Consolidated Ltd v Tangaere [1980] 1 NZLR 560 (NZCA), 563-4 (Cooke J). 10 See New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154, 167 (Lord Wilberforce). See also MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125, 136-7 (Stephen J); Gibson v Manchester City Council [1978] 1 WLR 520, 523-4 (Lord Denning MR). Reversed on appeal [1979] 1 WLR 294; Integrated Computer Services Pty Ltd v Digital Equipment Corp (Australia) Pty Ltd (1988) 5 BPR 97326, 11,117-8 (McHugh JA); Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32, 79-83 (Ormiston J); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (Full Court Federal Court), 525 (Allsop J); Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; Pobije Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105, [1] (Mason P), [71] (Heydon JA). See also American Law Institute, Restatement of the Law of Contracts, Second, § 22(2): ‘A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined.’; Seddon et al, above n 7, [3.4]-[3.5]. 11 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110, 11,118 (McHugh JA), a case concerning the purchase of computers. See also Hillas & Co V Arcos Ltd (1932) 147 LT 503, 514 (Lord Wright). Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, [71]-[80] (Heydon JA): while conduct occurring after the inception of a contract may be admissible to show contractual intention:, such conduct must ‘necessarily’ lead to the inference that agreement had been reached and was not merely consistent with an agreement. See also [115]-[117], [160] (McColl JA). 12 See for example J Chitty, H G Beale, Chitty on Contracts (Sweet & Maxwell, 31st ed, 2012) 2-111; M P Furmston, Cheshire, Fifoot and Furmston's Law of Contract (Oxford University Press, 15th ed, 2006) 39. 57

faith, this premise is maintained notwithstanding that arrangements in sport do not fit within the usual parameters of contract law. Rather than these difficulties causing the presumption to be questioned, various strategies are adopted to preserve it, as if the normal rules of contract formation were mere technical obstacles to be overcome in order support the pre-determined conclusion that relationships in sport are contractual.

It is one thing to contend that certain arrangements should be legally enforceable – if that in fact was the contention. It is another thing entirely to say that this must mean that those arrangements are therefore contractual, the arrangements being construed to be consistent with this outcome. It is inconsistent and illogical to first characterise the field as contractual but then to acknowledge that the requirements of contract law cannot in fact be satisfied and need to be relaxed or ignored in some way to ‘accommodate’ the contractual characterisation. The proper question is: what are the dealings between an international federation and a participant in sport who is subjected to the regulation of the international federation that, in their totality, objectively support the finding of a contractual relationship?

2 Quasi-legislative Rules The first obstacle to the objective characterisation of regulatory arrangements in sport as contractual is that the general claim to authority of sports governing bodies and the quasi- legislative nature of their regulatory rules are not consistent with the basic theory of the law of contract in which obligations are typically self-imposed, rather than externally imposed.13 Freedom of contract means that the parties to a contract create their own legal rights and obligations.14 But the categorical nature of the regulatory powers of sports governing bodies15 is inconsistent with this power being self-imposed and contractual, notwithstanding that a contract may purport to require compliance with those rules. The requirement of international

13 Atiyah and Smith, above n 3, 1, 28; Stephen A Smith, 'Towards a Theory of Contract' in Jeremy Horder (ed), Oxford Essays in Jurisprudence, (Oxford University Press, 4th ed, 2000) 107, 108. The voluntary nature of contractual obligations is largely undisturbed by the different theories of contract law: see Paterson, et al, above n 7, Chapter 1. See also Colin A Cooke, 'Legal Rule and Economic Function: Competition and Restraint of Trade' (1936) 46(181) Economic Journal 21, 21-2: ‘The common law basis of most of ordinary business life is its conduct by free contracts freely entered into between competing offers on one side and competing acceptances on the other. The principle lies behind the economic theory developed by Ricard, Mill, Jevons and Marshall and of the interactions of supply, demand, value and price just as it lay behind the jurisprudence of Bentham, Austin and Holland.’ 14 Charles Fried, Contract as Promise: A Theory of Contractual Obligation (Harvard University Press, 1981); Chitty, above n 12, [1-027], [1-029]; Richard Stone, The Modern Law of Contract (Taylor and Francis, 2013) [1.4]; Brian H Bix, Contract Law: Rules, Theory, and Context, (Cambridge University Press, 2012) [11, 110]. See also Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 848 (Lord Diplock); Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424, 457. 15 See discussion in Chapter I, D ‘The Nature of Regulatory Power in Sport’. 58

sport for uniform and consistent rules applies and is given effect to regardless of the content of any contract; by its terms and in its practice, it is incompatible with a form of regulatory authority that depends upon the agreement of contracting parties as the basis for jurisdiction.

Analogously, if not a reflection of this principle, a relationship dictated by legislation is not contractual.16 Similarly, the compulsory nature of some types of contract such as where there is a statutory obligation to supply and little or no power to negotiate may be considered to be incompatible with being contractual.17 It has also been argued that the power relationship between international sports federations and individual athletes is so unbalanced as to suggest that the legal form of the relationship should not be contractual.18

The fundamental principles of contract law are challenged further by the nature of the power of sports governing bodies. This power consists of the collective action of the members of the bodies, in contrast to the solitary position of the individual over whom power is exercised. This collective dimension of the power is difficult to incorporate within contract law’s individualistic legal framework.19

3 The Exercise of Regulatory Power and Transactions ‘A contract is a promise of a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.’20.

16 Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; (2005) 148 FCR 168, [190]. 17 Read v Croydon Corp [1938] 4 All ER 631; Norweb plc v Dixon [1995] 1 WLR 637; Oceangas (Gibraltar) Ltd v Port of London Authority (The Cavendish) [1993] 2 Lloyd’s Rep 292; Rushton v Worcester City Council [2001] EWCA Civ 367; R (on the application of Data Broadcasting International Ltd) v Office of Communications [2010] EWHC 1243 (Admin) [88]–[94]. See also Pfizer Corp v Minister of Health [1965] AC 512; Allen v Bloomsbury HA [1993] 1 All ER 651; Swain v Law Society [1983] 1 AC 598, 608. See: Jack Beatson, 'Finessing Substantive 'Public Law' Principles into 'Private Law' Relations' in Daniel Visser (ed), The Limits of the Law of Obligations (Juta & Co, 1997) 1, 25: ‘Although a relationship resulting from a degree of legal compulsion can be contractual if the parties have freedom to regulate its incidents, where those incidents are substantially pre- ordained it will not be’. 18 See for example Ken Foster, 'Is There a Global Sports Law?' (2003) 2 Entertainment Law 1, 16. Unlike the areas of consumer law and employment law that are also characterized by one-sided power relationships and which have, consequently, attracted legislative intervention, sports regulation remains predominantly unregulated by statute. 19 See Steve Greenfield, ‘The Ties that Bind: Charting Contemporary Sporting Contractual Relations’ in Steve Greenfield and Guy Osborn (eds), Law and Sport in Contemporary Society (Frank Cass, 2000) 133. 20 American Law Institute, Restatement of the Law of Contracts, Second. See Chitty, above n 12, [1-106] describing the two main competing definitions of a contract under the common law as ‘a promise or set of promises which the law will enforce’ and a ‘contract is an agreement giving rise to obligations which are enforced or recognised by law’. 59

The second conceptual obstacle to the contract characterisation is that contract law is transaction based,21 the idea of a bargain being fundamental to the conception of a contract.22 In contrast, regulatory arrangements in sport do not necessarily involve any transaction, commercial or otherwise.

Regulatory functions exercised pursuant to quasi-legislative rules that apply generally across a sport, world-wide, independently of any contract, are fundamentally different to transaction- based interactions. To insist that these arrangements are nevertheless contractual requires the relationships involved in the governance of sport to be retrospectively and artificially recast in the mould of a commercial transaction. An artificial, commercial exchange is superimposed on a different, regulatory relationship.

For example, a commercial-like exchange is fabricated by the invocation of an implication that an athlete enters a competition conducted according to rules administered by a third-party sports governing body in exchange for an implied promise by the sports governing body to properly administer those rules.23 This artificially constructed ‘exchange’ is then taken to incorporate a contractual meeting of minds on the application of an entire regulatory and disciplinary framework that culminates in the conferral of exclusive arbitral jurisdiction on CAS.

There is a patent artificiality involved in this approach.

First, the reasoning overlooks the conclusive objection that governing bodies are under an obligation to administer their rules properly and fairly anyway, regardless of the existence of a contract.24 Accordingly, this cannot be a promise that forms the basis of a contract.

21 See P S Atiyah, The Rise and Fall of Freedom of Contract (Clarendon Press, 1979); Lajos Vekas, Landmarks in the Development of the Contractual System (Akademiai Kiado, 1986); Atiyah and Smith, above n 3, 28: ‘the law of contract might plausibly be defined as the law of “exchange” or the law of “market transactions”’; Geoffrey Samuel, Law of Obligations (Edward Elgar, 2010) 17-8. 22 Furmston, above n 12, 37; See also Chitty, above n 12, [1-017]; Brownsword, above n 7, [1.1]. 23 See Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, [50] (Latham LJ). See also Adam Lewis and Jonathan Taylor, Sport: Law and Practice (Bloomsbury, 3rd ed, 2014) [D2.103]: ‘In circumstances where a player takes steps to compete in the knowledge that the sport is subject to rules, and the sports governing body that administers the rules facilitates his or her so competing, it is a relatively small step to conclude that he or she implicitly agrees by so doing to abide by the rules in return for (amongst other things) the commitment of the governing body to administer the rules properly and fairly.’ 24 See for example Russell v Duke of Norfolk [1949] 1 All ER 109; Breen v Amalgamated Engineering Union [1971] 2 QB 175, 189-91 (Lord Denning MR); Denver Rockets v All-Pro Management 325 F Supp 1049 (CD Ca 1971); Linseman v World Hockey Association 439 F Supp 1315, 1322 (D Conn 1977); McInnes v Onslow-Fane [1978] 1 WLR 150 (Megarry J); Los Angeles Memorial Coliseum v National Football League 726 F 2d 1381, 1397 (9th Cir 1984); Colgan v Kennel Club (2001) unreported, 26 October (Cooke J); Modahl v British Athletic Federation Ltd (No 2) [2002] 1 WLR 1192. 60

Second, it is only possible to construct an exchange of contractual promises by ignoring the real nature of the claim to regulatory authority that sports governing bodies make. Sports governing bodies make no commitment to administer their rules properly and fairly in exchange for athletes agreeing to abide by their rules. The rules are expressed to apply over an area of activity and are not expressed in the form of an offer to be consummated by conduct manifesting acceptance of the offer. There is therefore no correspondence between the rules as an offer and the conduct of participation as the acceptance of that offer.25 No offer is made in exchange for the participation, nor is the participation carried out in exchange for an offer.26 The point is more than that there is no correspondence between the rules and the participation: there is simply no offer from the sports governing body. It does not offer to do (or to forbear from doing) something if a participant does (or forbears from doing) something. The obligations of a sports governing body under its rules exist by virtue and by force of the rules themselves: those obligations do not come into existence only when accepted by a participant, either expressly, or by conduct.27 This is so whether construed as a bilateral contract with the participant making a promise in exchange for the undertaking of the sports governing body, or as a unilateral contract where the participant makes no promise in exchange for the undertaking of the sports governing body.28 The rules of the sports governing body are not made, nor applied, as part of any exchange relationship, but as quasi-legislative rules.29

The regulatory bodies claim complete and exclusive regulatory authority over their sports and command obedience to their rules and decisions, whatever they determine them to be and regardless of what individual participants may contract or otherwise agree to do. As described above, the categorical nature of regulatory power is an inherent feature of in international sport.30 Only by ignoring these features and, instead, substituting a much narrower form of claim that can then be moulded to be consistent with a contractual characterisation does it

25 See Beatson, et al, above n 7, 40; Chitty,above n 12, [2-030], [2-032]. 26 Tinn v Hoffman (1873) 29 LTR 271, 279 (Blackburn J); R v Clarke (1927) 40 CLR 227, 233; Tracomin SA v Anton C Nielsen [1984] 2 Lloyd’s Rep 195, 203. See Forbes and Bundock v Australian Yachting Federation Inc (1996) 131 FLR 241, 283. Cf Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, [50] – [53] (Latham LJ), and [103], [105] (Mance LJ) implying a contract that would have enabled an athlete a personal right to enforce a national federation’s rules. No contract was implied in respect of the international federation giving similar rights. 27 New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154, 168; Williams v Carwardine (1873) 4 B & Ad 621. 28 See Chitty,above n 12, [2-078]; Furmston, above n 12, 75. 29 This argument is to be distinguished from an argument based on the doctrine of consideration to the effect that there is no consideration provided by a sports governing body doing what it is under an existing obligation to do anyway. 30 See discussion in Chapter I, ‘The Nature of Regulatory Power in International Sport’ above. 61

become possible to conceive of these circumstances as contractual. If this reasoning can be said to be a small step in discovering an exchange of contractual promises,31 this can only be because the reasoning commences a long way down the road being travelled.

A further conceptual issue in considering the regulatory power of international federations to be contractual arises from the nature of those powers in overriding the terms of the contract said to give effect to those powers.

4 The Incompatibility of an Overriding Regulatory Power with Contract-Based Power A typical example of the nature of regulatory power claimed by international federations is provided by the rules of FIFA in the sport of football. FIFA’s ‘Professional Football Player Contract Minimum Requirements’ set the minimum conditions for contracts between professional football players and their employing clubs.32 The minimum requirement relating to the regulatory power of football’s governing body variously requires players and clubs by their contracts to comply with the ‘Statutes, Regulations, including the Code of Ethics, and Decisions of FIFA, Confederation, the Member Association and, where applicable, the Professional League’.33 Compliance with these rules and decisions, which exist outside the formal contract document, is an overriding obligation that takes precedence over the terms of the formal contract.34

It must first be observed that, while an agreement may validly provide for machinery whereby a third party may determine a term of the agreement,35 there is an essential difference between

31 See authorities cited in note 23 above. 32 Federation Internationale de Football Association, ‘Professional Football Player Contract Minimum Requirements’, FIFA Circular no. 1171, 24 November 2008. The minimum requirements were adopted by the FIFA Executive Committee. They are not technically mandatory, it being ‘finally up to the parties (clubs and players) or their representative organisations to agree on a final wording’, FIFA encourages all of its members to adopt the minimum conditions. 33 Ibid clause 4.11. See also clauses 11.2 and 5.3. 34 See for example Football Association Premier League Limited, ‘Premier League Handbook 2015/16 Season’, 2015. Rule T.10 of the Premier League Rules requires contracts between players and clubs to be in Form 26 (188). Clause 3.1.9 of Form 26 in turn provides that Players agree to observe the statutes and regulations of FIFA and UEFA, the FA Rules, the League Rules, the Code of Practice (between the League and the Players’ Association) and the Club Rules (273). (See definitions in clause 1.1). Club Rules are expressly limited to apply only to the extent ‘that they do not conflict with or seek to vary the express terms’ of the contract. This would indicate that it is intended that the operation of the other rules is not similarly limited and, accordingly, may conflict with and vary the express terms of the contracts. This conclusion is supported by clause 6.1.1, which provides that the statutes and regulations of FIFA and UEFA, the FA Rules, the League Rules, the Code of Practice (between the League and the Players’ Association) override any inconsistent club rules in relation to the obligations of the clubs under their contracts with players. See also Euroleague Basketball, ‘Euroleague Bylaws’, 9 September 2016, Euroleague Regulations, Appendix II, Appendix to the Contract Between the Club and the Player/Coach. 35 See for example Axelson v O’Brien (1949) 80 CLR 219; Prior v Payne (1949) 23 ALJ 298; Halpern v Halpern [2007] EWCA Civ 291, [50]; Heathrow Airport Ltd v Thames Water Utilities Ltd [2009] EWCA Civ 992. 62

an agreement providing for a specific term to be determined by a third party (such as the determination of the price of an object by an expert valuer) and participants in sport agreeing to submit to the unbounded regulatory power of a sports governing body, the exercise of which may conflict with and override the express terms agreed between the parties.36

(a) A Contractual Power? This form of overriding power would be problematic if possessed by one of the parties to the contract: contractual obligations are not created by a promise that the promisor is free to disregard,37 and a ‘purported agreement which leaves the content of the agreement entirely at the discretion of one party is not contractual in nature.’38 The power of international federations to override the express terms of the contract necessarily involves this form of power.

(b) The Paradox of the Incorporation by Reference by a Contract of a Power to Override the Contract Unlike the position in other areas,39 submitting to the rules and decisions of an international sports governing body does not merely involve the incorporation of specific terms set out in a

36 See for example FIFA v Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô, CAS 2007/A/1370 & WADA v Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô, CAS 2007/A/1376, award of 11 September 2008, (‘Dodo (CAS)’). The validity of post-contract variations effected by third parties applying in employment law where the relevant terms of a collective agreement specifically incorporated into individual contracts will be those contained in the current collective agreement appears more related to the identification of which particular terms are incorporated into the contract rather than a general acceptance of the regulatory authority of a third party: see National Coal Board v Galley [1958] 1 WLR 16, 23 (Pearce LJ). See also Chitty,above n 12, [39-046]. Similarly, the rationale of Gibbs J in Godecke v Kirwan (1973) 129 CLR 629, 646-7, in suggesting that different considerations apply as between terms set by a party to the contract as compared with terms set by a third party is limited to the specification of particular terms. Cf WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 20 WAR 489 (Ipp J, Kennedy and White JJ agreeing). 37 Cooke v Oxley (1790) 3 TR 653; Stevenson v Ellis (1912) 29 WN(NSW) 52. The difficulty that arises in cases where a contracting party has an unlimited discretion to unilaterally determine the terms of the contract is the potentially illusory nature of the party’s promise: no contract would arise as the contracting party would be left with a discretion as to whether to carry out the purported promise: Godecke v Kirwan (1973) 129 CLR 629, 642- 3 (Walsh J with whom Mason J at 648 agreed), 646-7 (Gibbs J) citing Thorby v Goldberg (1964) 112 CLR 597; Loftus v Roberts (1902) 18 TLR 532; Placer Development Ltd v The Commonwealth (1969) 11 CLR 353, 359- 61; Meehan v Jones (1982) 149 CLR 571, 581; Beattie v Fine [1925] VLR 363 and dicta in Foster v Wheeler (1888) 38 Ch D 130, 132-3. See also Taylor v Brewer (1813) 1 M&S 290; Ikin v Cox Bros (Aust) Ltd (1930) 25 Tas LR 1, 5 (Clark J); Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889, [111] (North J). 38 Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889, [111] (North J). Further, a promise that is entirely at the discretion of the promisor is not good consideration: Stabilad Ltd v Stephens & Carter Ltd (No 2) [1999] 2 All ER (Comm) 651, 659. 39 Such as the incorporation of conditions in a bill of lading in shipping: Parker v South Eastern Railway Co (1877) LR 2 CPD 416, 422; Tradax Export v Amoco Iran Oil Amoco Company, ATF 110 II 54, (1986) 11 YBCA 532; Energy Transport Ltd and Cabot v Oilman, 10 December 2004, United States District Court, Southern District of New York, no 03 Civ 4193 in (2005) 30 YBCA 1006; Continental Insurance Co v Polish Steamship Co 346 F 3d 281, 283 (2d Cir 2003); Import Export Steel Corp v Mississippi Valley Barge Line Co, 351 F 2d 503, 505-506 (2d Cir 1965); Matter of Arbitration Between Keystone Shipping Co. and Texport Oil Co, 782 F Supp 28, 31 (S D N Y 1992); Continental U.K. Ltd. v Anagel Confidence Compania Naviera, S.A, 658 F Supp 809, 813 (S D N Y 1987); or relating to a chain of contracts in building construction: Commercial Union v Gilbane 63

separate document into a contract. The parties are not merely agreeing to comply with particular rules made by the international federation for the parties’ own purposes. The substance and effect of a term of a contract between parties at the base of a sporting hierarchy, such as a contract between a player and the player’s club, by which those parties agree to comply with the rules and the decision-making power of an international federation involves a general submission to the regulatory power of the federation. The federation makes its rules and decisions independently of the contracting parties.

It is then both highly artificial and a mischaracterisation for this regulatory power of a third- party to be viewed as power that emanates from the contract. The reason for this is that it is illogical and a paradox to consider the power of the international sports governing body to be contractual when that authority may be exercised wholly inconsistently with, and in precedence to, the terms of the contract that is said to confer the authority: a river that rises above its claimed source must in fact have another source. Rather than conforming to a contractual source, the nature of international sports federations’ regulatory power is inconsistent with– and begs the question–as to its source.

(c) Self-Enslavement Contracts Further, while it is not suggested that contracts between parties in sports that invoke a general submission to the regulatory power of international federations are contracts of enslavement, the form of the regulatory power of sports governing bodies means that it shares features with self-enslavement contracts:40 it is ‘open-ended’ and ‘irrevocable’.41 It is open-ended in the sense that the limits of the international federation’s powers are undefined and not limited by any agreement between the contracting parties. The power of international federations is ‘irrevocable’ in the sense that those who are regulated cannot quit or escape the regulation, other than perhaps by breaking their own contract and ceasing to participate in the regulated activity.

Building 992 F 2d 386 (1st Cir 1993); United States Fidelity & Guaranty Co v West Point Constr Co 837 F 2d 1507 (11th Cir 1988) and Exchange Mut Ins Co v Haskell Co, 742 F 2d 274 (6th Cir 1984); Simaan General Contracting Co v Pilkington Glass [1988] 1 All ER 791; or in relation to insurance contracts: Progressive Casualty Insurance et alia Co v CA Reaseguradora Nacional De Venezuela, 30 September 1992, United States District Court, Southern District of New York, No 91 Civ 4580 (CSH) and 6 April 1993, United States Court of Appeals (2d Cir), (1994) 19 YBCA 825, 834; and Century Indemnity v Certain Underwriters at Lloyd’s, 2009 584 F 3d 513 (3d Cir 2009). 40 Parsons v Trask (1858) 7 Gray 473, 478, (Thomas J); Archer v Society of the Sacred Heart of Jesus (1905) 9 OLR 474, 490 (Garrow JA); Peonage Cases (ED Ark 1905) 136 F 707, 708; Pollock v Williams (1994) 322 US 4. 41 Stephen A Smith, 'Future Freedom and Freedom of Contract' (1996) 59(2) The Modern Law Review 167, 169. 64

Self-enslavement contracts that possess these characteristics are considered legally uncertain, not in language, but in substance and intent. They are ‘against the policy of our institutions and laws’.42 The law does not:

permit a person to surrender or to transfer in advance all of the duties and obligations of organized society, which inherently attach by law to every member of such society, into the keeping of another, and especially will it not allow under the name of service a servility which even if voluntary is in effect neither more nor less than slavery.43

The line between self-enslavement contracts and contracts in sport that confer general regulatory power on an international federation appears to be a distinction of degree rather than substance.

Another consideration also tends against a reference to the rules of an international federation being contractual. The normal limitations that apply to the power of a party to a contract to vary the contract’s terms do not apply to the effective variation power of a third-party international sports federation.

(d) The Regulation of Members and Non-Members by Associations There are a number of contrasts between the position of non-member contracting parties who accede to the regulatory authority of a third-party sports governing body on the one hand, with the position of members of those bodies on the other. In the case of associations, an association may validly amend its rules and these amended rules operate as between members of the association. However, in respect of members, this power is not unlimited: rule changes must be made in conformity with the rules of the association and a member of an association has a right to challenge the validity of a rule where the rule was not made or amended in accordance with the constitution of the association.44 In addition, the justification for allowing for subsequent alterations to the rules of voluntary associations to operate over members of the associations is that the members join ‘subject to the contingency that the rules may be altered’ by majority in accordance with the procedures established by the rules.45 Even where a rule

42 Parsons v Trask (1858) 7 Gray 473, 478 (Thomas J). In that case a Swedish woman agreed to serve a US citizen, ‘his executors and assigns’, ‘honestly and obediently in all things, as a good servant ought to do’ for five years in exchange for $10 and board and lodging. 43 Archer v Society of the Sacred Heart of Jesus (1905) 9 OLR 474, 490 (Garrow JA). 44 Dawkins v Antrobus (1881) 17 Ch D 615. See also Art 75 of the Swiss Civil Code, which provides: ‘Any member who has not consented to a resolution which infringes the law or the articles of association is entitled by law to challenge such resolution in court within one month of learning thereof.’ 45 Thellusson v Viscount Valentia [1907] 2 Ch 1, 6-7 (Lord Cozens-Hardy MR); Burke v Amalgamated Society of Dyers [1906] 2 KB 583, 591 (A.T. Lawrence J): ‘The real ground on which the power of the majority to make an alteration rests is that the original contract entered into between the society and each of its members contained a 65

change is adopted by an association in conformity with its rules, alterations may not effect fundamental changes to the objects of associations.46 Then, ultimately, members of voluntary associations who are dissatisfied with valid rule alterations made by the association can choose to resign their membership.47

In contrast, where a third-party international federation assumes power to override contracts in sport, none of these membership-based rights or protections, nor any comparable alternatives, are available to a non-member party over whom power is exercised.48 Non-members have not agreed to the application of the rules as a conditions of membership, they have had no input into the formation of the rules, there are no limitations on the rule-making body’s power to alter its own rules by reference to the interests of a non-member, nor may the non-member escape the application of the rules by resigning from membership.

The nature of regulatory power in sport also raises issues of certainty and contractual intention.

5 Certainty and Contractual Intention in Contracts Incorporating Variable Sports Governing Bodies’ Rules To attract legal force as a contract, the terms of an agreement must be expressed with sufficient certainty by the contracting parties.49 In addition, whether or not a particular term forms a

power of alteration of the rules by the stipulated majority. That power is a fundamental part of the constitution of the society, and no member can claim the benefits while ignoring the existence of the rule’. See also the Swiss Civil Code, which provides that resolutions of associations are to be passed at general meetings of the members of associations (art 66), at which all members have equal voting rights (art 67(1)). 46 Thellusson v Viscount Valentia [1907] 2 Ch 1, 6-7 (Cozens-Hardy MR). The rule change deleting pigeon shooting from the objects of the association was not considered fundamental. See also Doyle v White City Stadium Ltd [1935] 1 KB 110, 120-1 (Lord Hanworth MR). See also art 74 of the Swiss Civil Code which provides: ‘No member may be forced against his or her will to accept a change in the objects of the association.’ 47 Article 70(2) of the Swiss Civil Code provides a legal right to resign by providing notice. 48 An international federation independently adjusts its rules and makes decisions; it does not do so for the purpose of setting a term in another contract and it would not be under any constraint. 49 ‘An agreement may lack contractual force because it is so vague or uncertain that no definite meaning can be given to it without adding further terms.’: Chitty,above n 12, [2-141] citing as an example G Scammell & Nephew Ltd v Ouston [1941] AC 251. Paterson et al, above n 13, [6.10] describe the rules as ‘no binding contract can be made unless the parties have reached agreement on all the terms, or, least all of the essential terms of the contract’, citing as an example Thorby v Goldberg (1964) 112 CLR 597, 607. See also Restatement of the Law of Contract (2d) 33(2); Principles of European Contract Law (Kluwer Law International, 2000) 146, art 2:103. An agreement may be contractually uncertain in two ways: it may not be possible to ascribe meaning to an essential term of a contract: see for example Re Vince; Ex parte Baxter (1892) 2 QB 478; G Scammell & Nephew Ltd v Ouston [1941] AC 251; or the agreement may be incomplete in that the agreement or a term of the agreement requires further negotiation and agreement: see for example Rossiter v Miller (1878) 2 App Cas 1124, 1151; G Scammell & Nephew Ltd v Ouston [1941] AC 251; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600, 604. 66

contractual obligation requires that the contracting parties intended to create legal relations, the manifestation of intention being objectively assessed.50

A number of issues arise concerning both the certainty and the contractual intention requirements for an agreement to submit to the general regulatory authority of a sports governing body, and some of these issues are relevant to both requirements. Is an agreement to comply with the rules and decisions of an international federation, however the rules may be varied and whatever decisions may be made, contractual?51

(a) Certainty It is difficult to understand how the terms of such a contract could be said to be definite in that the terms can be ascertained at any particular time.52 Again, the position here is not comparable with a contract that may be unilaterally varied by one of the contracting parties.53 Even if the contract is made subject to a direct or implied term that the rules are to be observed as they may be in force from time to time, thereby establishing a form of certainty,54 the power of a

50 The classic authority on the objective test of contractual intention is Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256. See also Gissing v Gissing [1971] AC 886, 906 (Lord Diplock); Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441, 502 (Lord Diplock); British Airways Board v Taylor [1976] 1 WLR 13; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, 549 (Gleeson CJ); Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, [25]: intention is what ‘would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties’; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45, [10]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179. Most European systems, France being an exception, also apply an objective test of intention: Beatson, et la, above n 7, 32, 71. 51 See FIFA ‘Professional Football Player Contract Minimum Requirements’, note 32 above, which requires players and clubs to comply with the FIFA ‘Statutes, Regulations including the Code of Ethics, and Decisions of FIFA, Confederation, the Member Association and, where applicable, the Professional League’ (clause 11.2) and which also includes an acknowledgement that these regulations ‘may change from time to time’: clause 11.3. This conception of the valid nature of an agreement to comply with rules as they may be varied from time to time appears to be the view adopted by the court in Doyle v White City Stadium Ltd [1935] 1 KB 110. See also Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd [1989] 2 Lloyd’s Rep 570, 589, 592 and 594: London Metal Exchange entitled to change its rules so as to affect the rights of non-members (under contracts made with members) where they had agreed to be bound by its rules. 52 An analogy with contracts that are expressed to be subject to the law of a particular jurisdiction is imperfect here as unlike the interpretation of a contract in accordance with a specified jurisdiction, a contract in sport that is subject to the rules and decisions of an international federation is not merely interpreted in accordance with those laws as they may be from time to time. The rules and decisions of an international sports federation prescribe the substantive terms of the contract. 53 See Seddon et al, above n 7, [10.27]: ‘It is no objection that incorporated terms are in a form that is subject to unilateral alteration from time to time, although the power to vary them may, like other contractual powers, be subject to an implied obligation to act in good faith’. Of course, a third-party cannot be made subject to any implied obligation of good faith. 54 See for example Lewis and Taylor, above n 23, [C1.26]: ‘this is a valid obligation to impose and to undertake, and it is probable that the principle of certainty is not offended by it, since the rules change would have to be in accordance with the wider constitution of the governing body.’ The authors cite Doyle v White City Stadium Ltd [1935] 1 KB 110. 67

third party to make rules and decisions that are wholly inconsistent with the parties’ contract produces a form of uncertainty that is more acute and fundamental than issues of temporality.

Accordingly, the better view is that the parties’ agreement is uncertain in being at the discretion of a third party, a discretion which may be exercised wholly inconsistently with and regardless of the terms of the contract. The issue does not appear to have been considered in these terms, and any argument of uncertainty would need to overcome the reluctance of the courts to invalidate contracts on that ground.55 Nevertheless, these problems of certainty provoke no obvious response. They are also compounded by similar issues of contractual intention.

(b) Contractual Intention The contractual intention question that arises is whether an agreement to comply with the general regulatory power of a sports governing body is capable of being interpreted as an agreement that was intended to be enforceable as a contract.

In general terms, doubts have been expressed that a reference to the rules of an international federation comprehends contractual intention,56 these rules being directed mainly at national federations, rather than at the individual participants said to be contracting parties.57

Further, the nature of such submissions to regulatory power makes them more difficult to fix with a contractual intention than promises to comply with a specific, limited set of rules, even where these rules may be subsequently varied. The exposure of the contracting parties to having their agreement altered by the unilateral decisions of third-parties militates against an intention to create legal relations.58 It becomes more difficult to conclude that an athlete or other contracting party was agreeing to comply with whatever rules or decisions may be determined by the international federation. This issue would need to be overcome by the party

55 Courts are reluctant to conclude that a contract is void for uncertainty or incompleteness and will attempt to give effect to the reasonable expectations of the parties and to uphold agreements: Beatson, et al, above n 7, 62. The authors cite Scammell v Dicker [2005] EWCA Civ 405, distinguishing G Scammell & Nephew Ltd v Ouston [1941] AC 251. See for example Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503, 512 (Lord Tomlin); Trustees Executors & Agency Co Ltd v Peters (1960) 102 CLR 537; Upper Hunter County District Council v Australian Chilling and Freezing Co (1968) 118 CLR 429, 436-7 (Barwick CJ); GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631, 634 (McHugh JA). See also Hawthorn Football Club Ltd v Harding [1988] VR 49. 56 Gasser v Stinson (15 June 1988, unreported) (Scott J, Queens Bench Division) (LEXIS, England and Wales Reported and Unreported Cases); Modahl v British Athletic Federation Ltd [2002] 1 WLR 1192, [40] (Latham LJ), [106] (Mance LJ): ‘The IAAF rules can … be viewed as directed primarily, national federations’. See also Buckley v Tutty (1971) 125 CLR 353; Kemp v New Zealand Rugby Football League [1989] 3 NZLR 463, 469-70 (Henry J); Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242, 265 (Wilcox J). 57 Modahl v British Athletic Federation Ltd [2002] 1 WLR 1192, [106] (Mance LJ). 58 See for example Forbes and Bundock v Australian Yachting Federation Inc (1996) 131 FLR 241, 285 (Santow J). 68

asserting the existence of an implied contract as it is that party who is required to prove contractual intention.59

(i) The Relevance of the Form of the Rules as Indicating Contractual Intention

In addition to this problem, the possibility of attaching contractual intention to a reference to the rules and decisions of an international federation appears to rely heavily upon a problematic assumption: that if the rules that are referred to by a contract are expressed in contractual language, this indicates that the parties are more likely to have intended that those rules would take effect contractually.60

First, in respect of this assumption, whether the rules of an international federation are expressed in contractual language purporting to impose rights and obligations will generally be otiose. Apart from anything else, the rules form part of the contract between the associations and their members. Otherwise, in respect of non-members, they are intended by their authors to operate quasi-legislatively. In this context, examining the form of particular rules really only involves assessing whether those specific rules have been drafted effectively so as to be capable of imposing obligations, rather than shedding light on the contractual intention of other parties who make reference to the rules.61

Further, a difficulty with extrapolating an intention to contract from the form of the rules–that the rules of sports governing bodies are drafted with the intention of imposing rights and

59 Modahl v British Athletics Federation [2002] 1 WLR 1192, [102] (Mance LJ). Contractual intention is essential: see for example Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty (1985) 2 NSWLR 209. An argument that an implied contract existed was rejected due to lack of contractual intention in Baird Textile Holdings Ltd v Marks & Spencer plc [2001] EWCA Civ 274, [20]. Cf Attrill v Dresdner Kleinwort Limited [2012] EWHC 1189 (QB), [134] et seq where contractual intention was found. In the case of an express agreement made in a commercial context, the onus of proving a lack of contractual intention lies on the party who claims no contractual intent, which is a heavy onus: Edwards v Skyways Ltd [1964] 349, 355; Esso Petroleum Co Ltd v Commissioners of Customs and Excise [1976] 1 WLR 1. 60 See for example Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192 [97]-[101], [103], [105], [109], [111] (Mance LJ): ‘While the courts should avoid inventing contracts, they should not be unduly hesitant about giving contractual effect to a continuous, long-term relationship based on a programme and rules couched in language of a contractual character and purporting to impose mutual rights and obligations’; Buckley v Tutty (1971) 125 CLR 353, 374-5. 61 It is also to be noted that the courts have come to inconsistent conclusions on the implications to be drawn from particular rules, albeit in the rules of national or sub-national governing bodies: see Buckley v Tutty (1971) 125 CLR 353, 375, where the court considered that rules that provided that the League was the final court of appeal in all matters of dispute and which gave a Committee of the League sole power interpret its rules, pointed against contractual intention. In contrast, in Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192 [92], Mance LJ considered a rule that required athletes to submit ‘to the jurisdiction of the federation on all questions which may arise concerning the application, construction, meaning or effect of the rules of the federation’ to ‘point to a contractual analysis’ [98]. Applying a circular logic, Mance LJ considered that if there was no contractual nexus, the athlete would not be required to comply with the governing body’s rules. Both Latham and Mance LJJ focused on particular rules, in particular the anti-doping rules of the governing body, rather than a more general acceptance of regulatory authority: [6]–[8], [50]–[52] (Latham LJ), [92]–[93] (Mance LJ). 69

obligations–is the fact that contracts are not the only form of written expression that entails the imposition of rights and obligations. Legislation, of course, is one example of non-contractual expression imposing rights and obligations. Collective agreements between employers and employees are another example of documents drafted to impose rights and obligations but which are not contractual and only binding industrially, in honour.62 As has been described, the rules of international federations are drafted and intended by the third-party international federations to operate as quasi-legislative instruments, wholly independently of the contractual status of those subject to them. Therefore, even if these rules are capable of forming the subject- matter of a contract,63 it does not follow from the form of the rules that this was what was intended by the contracting parties. The quasi-legislative form of the rules does not support contractual intention; it tends against it.

(ii) Implied Affirmation

The problems of certainty and contractual intention produced by the power of the third-party international federation to unilaterally make decisions and rules that override the contract are not ameliorated by the contention that participants will be taken to have affirmed post-contract decisions or rule changes by not withdrawing from the contract.64 This contention is unsound in the sporting context.

The proposition depends on a participant possessing the right to withdraw from the contract. However, post-contract decisions or rule alterations by the international federation by themselves do not give rise to any right to withdraw from the contract. Nor do contracts binding participants in sport typically enable a party to terminate their contract prior to its expiry.65

62 Ford Motor Co Ltd v AEU [1969] 2 QB 303; Ryan v Textile Clothing and Footwear Union of Australia [1996] 2 VR 235. See also Taylor v Brewer (1813) 1 M & S 290; Treitel, in Chitty,above n 12, [2-178], comments that this ‘case is more often distinguished than followed, but its reasoning would still be applied if the wording made it clear that the promise was not intended to be legally binding’ (references omitted). See also Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55, [7], [71]; Appleson v Littlewood Ltd [1939] 1 All ER 464. See also the authorities cited in n 17 for examples of instruments that impose rights and obligations but which are not contractual. 63 As the majority concluded in Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192. 64 Lewis and Taylor, above n 23, [C1.126]. 65 See for example Federation Internationale de Football Association, Regulations on the Status and Transfer of Players, 2016. Art 13 provides that ‘a contract between a professional and a club may only be terminated upon expiry of the term of the contract or by mutual agreement’ and Art 16 that ‘a contract cannot be unilaterally terminated during the course of a season’. Otherwise, a contract may only be terminated by just cause: Art 14. Art 15 provides for when a professional may terminate a contract prematurely on the grounds of ‘sporting just cause’, which relates to the frequency of selection of the player by his or her club. Art 17 provides for the payment of compensation and the imposition of sporting sanctions where a contract is terminated without just cause. 70

The issue of the proper publication of rule alterations is also an irrelevant diversion in this context: the knowledge or otherwise of an athlete as to changes to a sports governing body’s rules that occur after the making of a contract cannot be relevant to the issue of the certainty or contractual intention.66 More significantly, the effect of the decision in Doyle v White City Stadium Ltd67 appears to be that notice of post-contract rule alterations is irrelevant in any event: providing the rule alterations are contemplated by and made pursuant to the contract, then they will apply.

C Indirect ‘Contractual’ Devices Because of the limited use of direct contracts by international federations as the mechanism to secure their regulatory power, the defence of the contractual conception relies upon contracts that do not involve the international federations. It is contended that regulatory power is contractual by virtue of being incorporated into contracts between other parties. A separate contention is that the power is contractual by being imposed through a succession of separate, linked contracts – a chain of contracts. These ‘fictions’ are considered in turn.

1 The Incorporation of Regulatory Power by Reference The international federations’ powers are said to be contractual because obligations to comply with the rules and decisions of those bodies are incorporated into contracts made by other participants in the respective sports. For example, it is contended that an athlete may be bound by the rules of a sports governing body with whom the athlete is not in a contractual relationship because of the requirement of the athlete’s contract with her club.68 This is so even though international federations are not involved in and typically would not even have any knowledge of the multitude of contracts between participants that incorporate the federations’ rules.

The principal obstacle to the characterisation of this incorporation by reference mechanism as conferring contractual powers on international federations is that it is, at most, only indirect.

66 Cf Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192 [103]–[104] (Mance LJ) who considered that the sports governing body’s rules contained ‘a framework of rights and duties of sufficient certainty’. There is also the fact that a long-term relationship may equally impliedly negative contractual intention: Baird Textile Holdings Ltd v Marks & Spencer plc [2001] EWCA Civ 274. 67 Doyle v White City Stadium Ltd [1935] 1 KB 110. 68 See for example the ‘Agreement regarding the minimum requirements for standard player contracts in the professional football sector in the European Union and in the rest of the UEFA territory’, 19 April 2012, an agreement between European football’s governing bodies and the player’s union (UEFA, EPFL, ECA and FIFPro Division Europe) to establish the minimum conditions for professional football player/club contracts in Europe (art. 1), provides in art 13.2: ‘The Club and the Player must comply with the statutes, regulations, and decisions of FIFA, UEFA, the national association as well as the professional league (if existing) which form an integral part of the Contract – the Player and the Club acknowledge this through their signature.’ Art 13.3 includes an acknowledgment that the regulations may change from time to time. 71

In the example just mentioned, the athlete is contractually bound by the rules of the federation, but the athlete’s contractual obligations are owed to the other contracting party, not the international federation. It is the athlete’s club that has the power under the contract to require compliance with the international federation’s rules. The third-party international federation does not obtain any contractual authority over the contracting parties by virtue of the contract.69 Therefore, to the extent that the international federation can be said to possess any contractual power to enforce its rules against the athlete, this power is indirect and limited to the possibility of a right to enforce contracts to which the international federation is a party where those contracts may require others to exercise contractual powers over the athlete’s club to require the club to enforce its contract with the athlete.

This leads to the chain of contracts theory.

2 Chains of Contracts in Sport

(a) What is the ‘Chain of Contracts’ Theory? According to the ‘chain of contracts’ theory,70 obligations to comply with rules made by bodies higher up in a sports hierarchy–ultimately an international federation’s rules–are imposed contractually, by the ‘chain of contracts’, on those individuals and clubs at the base of the hierarchy. 71 In this way, it is said that an athlete is bound by the contract that the athlete has with his or her club and this contract effectively imports the contractual obligation to observe rules established by third parties–the international federations and WADA – notwithstanding that those rules are usually incorporated by reference, or by successive multiple references, and which may depend on other agreements made between other parties further up the sporting

69 See notes 104 and 105 below and accompanying text. 70 Also known as the ‘club basis’ for a sports governing body’s jurisdiction. The ‘club basis’ was put to the court in Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, by the athlete in support of her argument that a contract existed. It was described, but not determined by Latham LJ: [26]. Jonathan Parker LJ dismissed this argument as the basis for the creation of a contract between an athlete and the national governing body: [74]-[75]. 71 An international federation’s rules may require its member national federations to incorporate the international federation’s rules. See for example Federation Internationale de Football Association, FIFA Statutes, 27 April 2016, art 14(1)(d), which makes it an obligation of FIFA members ‘to ensure that their own members comply with the Statutes, regulations, directives and decisions of FIFA bodies’. See also art 59(3) requiring FIFA members to ensure, including ‘by imposing a binding obligation’ on their members, preventing recourse to the ordinary courts in favour or arbitration. Similarly, see Union Cycliste Internationale, Constitution, 14 October 2016, art 6(3) and (4); International Association of Athletics Federations, IAAF Constitution, 1 January 2017, art 5(8)(d), and Competition Rules 2016-2017, rule 30(2) which requires the rules of each member and area association to ‘specifically provide that all Athletes, Athlete Support Personnel and other Persons under its jurisdiction shall be bound by the Anti-Doping Rules and Regulations’. See for example in relation to the International Rugby Board’s rules: Williams and Cardiff RFC v Pugh, interim injunction proceedings, 23 July 1997 Popplewell J; 1 August 1997, CA; application for stay hearings 17 March 1998 Buckley J, [1999] Eu LR 195 (referred to by Lewis and Taylor, above n 23, [D2.98], note 1.) 72

hierarchy. By these chains of contracts, international federations use their jurisdiction over their members to achieve control, or ‘jurisdiction’ over other participants.72 This ‘chain’ is described as having the ‘nature of interlocking contracts’ with the effect of extending the parties to a dispute beyond the parties to a contract.73 Indeed, one unusual consequence of this extension is that the parties to the contract that forms the asserted basis of jurisdiction may be on the same side of a dispute opposing an international federation who is a third party.74

(b) The Mischaracterisation of Cases In contrast to the prevalence of the theory, actual cases where an international federation has sought to enforce its purported ‘contractual’ regulatory power through the different levels of the sporting hierarchy, are almost non-existent.75 Further, it is difficult to identify cases in which a chain of contracts has been upheld as the basis for the regulatory jurisdiction of a sports governing body, although a number of cases are misleadingly cited as supporting the chain of contracts theory.76

For example, Haron bin Mundir v Singapore Amateur Athletic Association (‘Mundir’)77 has been cited as an illustration of the chain of contracts in sport.78 Yet the facts of Mundir do not

72 Michael Beloff, et al, Sports Law (Hart Publishing, 2nd ed, 2012) [2.54]-[2.56]. For a description of contracts up the chain see [2.51]–[2.55]. See also Jack Anderson, '"Taking Sports out of the Courts": Alternative Dispute Resolution and the International Court of Arbitration for Sport' (2000) 10 Journal of Legal Aspects of Sport 123, 124-5; Lewis and Taylor, above n 23, [C1.16], [D2.98]; Mark James, Sports Law (Palgrave Macmillan, 2nd ed, 2013) [2.2.1], [2.3.3.2]. In this sense, it is to be distinguished from the ‘indirect’ consensual power of the Jockey Club described by Hoffmann LJ in R v Disciplinary Committee of the Jockey Club; Ex parte Aga Kahn [1993] 1 WLR 909, 931, referring to the Jockey Club’s power to exclude individuals from race courses that it licensed by virtue of the agreements between the Jockey Club and the licensee occupiers of the race courses. 73 Beloff, et al, n 72 above, [2.54] 74 Ibid. See for example FIFA v Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô, CAS 2007/A/1370 & WADA v Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô, CAS 2007/A/1376, award of 11 September 2008, (‘Dodo (CAS)’); USA Shooting & Quigley v UIT, CAS 1994/129, I CAS Digest 187; Lehtinen v FINA CAS 95/142, I CAS Digest 226; ITF v Gasquet; WADA v ITF and Gasquet, CAS 2009/A/1926 and 1930, 17 December 2009. 75 A contractual basis for the subjection of an athlete to IAAF arbitration was argued but not determined in Walker v UKA and IAAF, 3 July 2000, unreported, Toulson J; 25 July 2000, unreported and no judgment, Hallet J; IAAF Arbitral Tribunal Award 20 August 2000 reported at [2001] 4 ISLR 264. See also [2000] 2 ISLR 41. Discussed in Lewis and Taylor above n 23, [D2.104]. 76 Cases that have been cited as supporting theory include Haron bin Mundir v Singapore Amateur Athletic Association [1994] 1 SLR 47, CA; Jones v Welsh Rugby Union (unreported) High Court (QBD), 1997 WL 1103802, Ebsworth J, 27 February 1997, upheld on appeal in 1997 WL 1103674, Thorpe LJ, Potter LJ; Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192; Bradley v Jockey Club [2004] EWHC 2164 (Richards J), [2004] All ER (D) 11, [51]-[62]; and International Rugby Board v Troy & ARU, CAS 2008/A/1664, award dated June 2008. Forbes cites Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159, 178: J R S Forbes, Justice in Tribunals (The Federation Press, 4th ed, 2014) 44 [3.61]. 77 Haron bin Mundir v Singapore Amateur Athletic Association (‘Mundir’) [1994] 1 SLR 47. 78 Beloff, et al, n 72 above, [7.4]. 73

fit within this characterisation.79 In Mundir, the trial judge inferred a contract between the athlete and the relevant sports governing body, the Singapore Amateur Athletic Association (‘SAAA’). The contract was implied because of direct dealings between the parties.80 No chain of contracts was relevant.81

Similarly, Jones v Welsh Rugby Union82 also involved a direct contract, which was established by the player’s registration form with the Union (the governing body in the case) in which the player agreed to observe the rules of the Union. The registration form created a direct link with the governing body.83 In this respect, Jones v Welsh Rugby Union84 was considered to be similar to R v Jockey Club; Ex p Aga Kahn,85 and not an example of contractual obligations arising as a result of some chain of contracts.86

Modahl v British Athletics Federation Ltd87 has also been described as a case in which a chain of contracts ‘was used to establish the contractual link between’ the athlete and the governing body.88 Again, this case does not support this contention. The judges in the majority on the question of whether a contract existed,89 Latham LJ and Mance LJ, relied on the fact that the athlete submitted to the rules and jurisdiction of the governing body through her direct conduct in entering competitions and not upon any chain of contracts between the athlete, her club and

79 Further, the case concerned breaches of natural justice, so the existence or otherwise of a contract was not necessarily material: Davis v Carew-Pole [1956] 2 All ER 524 - the Court has power to issue declarations regardless of the existence of a contract. See also Nagle v Feilden [1966] 2 QB 633, 646 (Lord Denning MR); Abbott v Sullivan [1952] 1 KB 189; Dixon v Esperance Bay Turf Club (Inc) [2002] WASC 110, [113]. 80 Mundir [1994] 1 SLR 47, 58. 81 Ibid 59. 82 Jones v Welsh Rugby Union (unreported) High Court (QBD), 1997 WL 1103802, (Ebsworth J), 27 February 1997, upheld on appeal in 1997 WL 1103674 (Thorpe LJ, Potter LJ). 83 Ibid Potter LJ citing Aga Kahn and upholding the finding of Ebsworth J of a contract between the player and the Union. 84 Ibid. 85 R v Jockey Club; Ex p Aga Kahn [1993] 1 WLR 909. 86 Cf James, above n 72, [2.2.1]. 87 Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192. 88 James, above n 72, [2.2.1]. James refers to the ‘club basis’ on which a contractual link between a governing body and an athlete can be established ‘through a chain of mutually interdependent contracts.’ This ‘club basis’ was one of the three bases on which Modahl submitted that a contract could be construed: see Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, [25]-[26]. James describes the chain as commencing from the contract between the athlete and her club, then moving to the club’s contract with the relevant national governing body, and finally to the contract between the national governing body and the relevant international federation. James states that ‘This basis was used to establish the contractual link between Modahl and the BAF’: [2.2.1]. 89 All three judges concluded that there was no unfairness in the outcome of the disciplinary process However, Jonathan Parker LJ, unlike Latham LJ and Mance LJ, was not convinced that a contract arose: Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, [72]-[83]. 74

the governing body.90 Modahl then does not support the ‘chain of contracts’ theory or the ‘club basis’ on which a contract may be inferred in a sports case.

Bradley v Jockey Club91 is another case misleadingly described as one in which a chain of contracts provided a link between a bloodstock agent and the sports governing body, the Jockey Club.92 The contract found in Bradley v Jockey Club93 did not arise from a chain of contracts but rather from direct dealings between Bradley and the Jockey Club.94

Another example is Finnigan v New Zealand Rugby Football Union Inc,95 cited as supporting the proposition that where a district club is affiliated to a state body which is affiliated to a national body that ‘a member of a district club may be entitled, by virtue of a “chain of contracts”, to challenge a decision of the over-arching organisation’.96 However, while a ‘chain of contracts’ was a factor taken into account by the court in Finnigan in relation to the standing of members of local clubs to bring a challenge, it is not correct that the court reached this conclusion after finding that the plaintiffs were members of the national governing body, the New Zealand Rugby Union (‘NZRU’).97 While ‘a hierarchy based on a structure of interlocking contracts’ was a factor supporting the grant of standing,98 the court in Finnigan determined that the plaintiffs’ membership of local clubs distinguished them from ‘mere followers of the game or other members of the public’.99 The court only ever explicitly determined that the plaintiffs had standing, not that they were members of the NZRU.100 Indeed, the court expressly rejected

90 Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, [50], [52] (Latham LJ); and [105], [108], [110] (Mance LJ). Both judges noted the lack of relevant evidence: see for example [49] (Latham LJ), [91] and [111] (Mance LJ). See also [74] (Jonathan Parker LJ). However, as Jonathan Parker LJ points out, the relevant competition, which the alleged doping infraction was detected was not organised by the BAF and the BAF exercised no control over the event, making it difficult to draw inferences as to the relationship between the athlete and the BAF: [76]. 91 Bradley v Jockey Club [2004] EWHC 2164 (Richards J); decision affirmed [2005] EWCA Civ 1056 (Lord Phillips MR, Buxton LJ, Scott Baker LJ), (2005) Times, 14 July. 92 James, above n 72, [2.3.3.2]. 93 Bradley v Jockey Club [2004] EWHC 2164 (Richards J). 94 Bradley v Jockey Club [2004] EWHC 2164, [55]-[56] (Richards J). Further, there was jurisdiction in the court to grant a declaration and injunction independent of any contract: [35]. 95 [1985] 2 NZLR 159, 178. 96 Forbes, n 76 above, 44 [3.61] (references omitted). 97 Ibid 64, [5.9]: ‘Once it was decided (however implausibly) that they were, the Finnigan court could claim jurisdiction on a ground no more remarkable than the corporate character of the defendant’ (reference omitted). 98 Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159, 178. Seven other factors were also cited by the court: 178-9. 99 Ibid 178. 100 Ibid 180 where the court, in confirming standing, noted the plaintiffs’ membership of their clubs, this being a factor that weighed in favour of standing. The court did not find standing on the basis that the plaintiffs were members of the NZRU. 75

the implication of any contract between the plaintiffs and the NZRU, describing this as ‘quite untenable’.101

If the cases said to support the theory do not establish the ‘chain of contracts’ as a source of jurisdiction, the outstanding question is: what purpose, if any, is actually performed by ‘chains of contracts’ in sport? There are two distinct explanations of the legal effect of the chain of contracts theory. The first describes the theory as a device through which the rules of sports governing bodies are applied to persons who are not in a contractual relationship with the body that made the rules. The second explanation describes the chain of contracts as leading to a direct contractual relationship – a ‘multipartite contract’.

(c) The ‘Chain’ as an Indirect Relationship According to the first of the explanations of the ‘chain of contracts’ theory, the regulatory jurisdiction of a sports governing body derived through a ‘chain of contracts’ is not a ‘direct contractual relationship’, but an indirect legal relation that supports jurisdiction.102

This explanation of the ‘indirect’ chain of contracts theory accepts that there is no contractual relationship between those at the base of the sporting hierarchy and the governing bodies at the peak who make and promulgate the rules. Those rules do not apply as a matter of contract between the peak governing body and the individual participants (unless a multipartite contract can be implied).103 This, of course, is a consequence of the doctrine of privity of contract in common law countries,104 and of the doctrine of relative effect in civil law countries.105

101 Ibid 177. 102 Beloff, et al, n 72 above, [7.4], [2.55]; Lewis and Taylor, above n 23, [C1.15], [C1.19]. 103 See for example Forbes v New South Wales Trotting Club Ltd (1978-1979) 143 CLR 242, 270 (Gibbs J). 104 Only a person who is a party to a contract can benefit from it, and only the parties to the contract are bound by it. A person who is not party to the contract cannot sue on it to enforce the contract’s obligations: Price v Easton (1833) 4 B & Ad 433; Tweddle v Atkinson (1861) IB & S 393; 121 ER 762 [1861-73] All ER Rep 369; Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co [1915] AC 847, 853, (Viscount Haldane). See also Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460, 478, (Barwick CJ); Decision of the Federal Tribunal 4A_627/2011 of 8 March 2012, con. 3.2. See Mayer v Journeymen Stonecutters’ Ass’n 47 NJ Eq 519, (Ch 1890): because he or she is not a party to the contract, a non-member has no legally enforceable rights. Privity of contract was also a factor underlying the form of the integrated contractual scheme in Raguz v Sullivan (2000) 50 NSWLR 236, [67]-[82]. 105 According to the principle of relative effect, a contract only produces effects as between the parties. While Swiss law does not recognize ‘privity of contract’ in those terms, it recognizes the ‘principle of relative effect’: Bénédicte and Denis Mazeaud Fauvarque-Cosson, European Contract Law: Materials for a Common Frame of Reference: Terminology, Guiding Principles, Model Rules (European Law Publishers, 2008), 442, citing P. Engel, Traité des obligations en droit suisse (Dispositions générales du CO), Staempfli éditions SA Berne, 2nd ed. 1997, 103. See also ‘Swiss Code of Obligations’, Swiss Civil Code of 10 December 1907, Part 5 re contracts: Art 1 requires the mutual expression of intent by the parties, which may be express or implied, in order to conclude a contract. The parties must consent on every basic term of the contract. Less important terms may be left open. The principle of the relative effect of contracts is also recognised by many European national laws eg French Civil Code, Art. 1165; Italian Civil Code, Art. 1372; Spanish Civil Code, Art. 1257; It is also recognised under 76

What then is the legal character of a ‘relationship equivalent to contract’106 or ‘other link’107 that is said to be produced by this indirect relationship arising from the chain of contracts? The ‘flavour of contract in the relations between’ parties does not give rise to legally binding contractual obligations. 108 To be clear, a sports governing body that has no direct contractual rights against participants would be unable to enforce the contract that actually binds the participant.109 At its highest, the chain of contracts theory merely describes a mechanism by which regulatory power may be indirectly enforced. This limited form of indirect contractual nexus is clearly inadequate to support the conventional conception of the basis of the regulatory authority of international sports governing bodies.

(d) The ‘Chain’ as Multipartite Contracts The alternative explanation of the chain of contracts theory is to regard it as leading to the implication of a binding contract where there is ‘no direct contract between the relevant parties’.110 It is contended that ‘often, the contract involved is not one which is readily identifiable by resort to the traditional notions of “offer and acceptance” but rather needs to be identified on a more complex basis by reference to successive but interlocking agreements between various parties’.111 The proposition is that ‘[u]sually, in such circumstances, the

German and Dutch law, though there is no provision in the Civil Codes of those countries’. For English law, see Contract Law (Rights of Third Parties) Act 1999 (UK), which has reduced the scope of application of the doctrine of privity of contract. Third parties may enforce a contract where the contract expressly confers this capacity and where a contract is entered into for the benefit of the third party. 106 See for example James, above n 72, [2.2.1]: The legal right of sports governing bodies to govern their sports is derived from the agreement of their members to be bound by the governing bodies’ rules ‘Thus, there must be in place a contract, or a relationship equivalent to that created by contract, capable of binding all relevant parties to’ the governing bodies’ rules (emphasis added). However, it is not clear whether James considers the ‘club basis’ to be a method through which courts imply a contract or whether he considers this an example of a ‘relationship equivalent to that created by contract’. 107 Lewis and Taylor, above n 23, [C1.25] refer to ‘another link’: ‘The basis for the application of rules to a participant is that the rules either form part of a contract to which the participant is a party, or that there is some other link as a result of which the participant is effectively bound by the rules.’ (emphasis added) Elsewhere, the authors acknowledge that no contract arises: [D2.98]. 108 Nagle v Feilden [1966] 2 QB 633, 652 (Salmon LJ). A classic example being Cameron v Hogan (1934) 51 CLR 358. 109 Unless, in the unlikely event that it could unless it could establish some form of third party right, such as that it was a third-party beneficiary or perhaps through some form of estoppel. Even where the rules of an association provide that a benefit of the association is to be provided to a third party, such third parties do not accrue a right to be considered a member, to become a member or to have any claim over the association: In re Buckinghamshire Constabulary Widows’ and Orphans’ Fund Friendly Society (No 2) [1979] 1 WLR 936 (Ch). See Nicholas Stewart, Natalie Campbell and Simon Baughen, The Law of Unincorporated Associations (Oxford University Press, 2011) 45 [2.92]. 110 Sullivan, above n 8, 10, referring to Raguz v Sullivan (2000) 50 NSWLR 236. Sullivan also cites Rose v Boxing NSW Inc [2007] NSWSC 20, [46]-[51], [11]; and International Rugby Board v Troy CAS 2008/A/1664 reported in (2009) 4(1) ANZSLJR 1 as examples of the ‘same process of interlocking documents evidencing a multipartite contract’. 111 Ibid 11. See also Steve Cornelius, 'Liability of Referees (Match Officials) at Sports Events' (2004) International Sports Law Journal 52, [3.1] who has also observed that contracts may be multilateral and that a matter may be 77

relevant “contract” will be found in several interlocking documents entered into by different parties but which may, nevertheless, evidence or constitute a multipartite contract.’112

First, it is noted that a confusion of terminology arises in the description of multipartite contracts as ‘indirect’. Multipartite contracts are formal contracts with contractual obligations owed directly by each of the parties to each other. To describe these contracts as ‘indirect’ involves the use of that term to mean a contract that is ‘implied’, rather than ‘express’.

Further, while multipartite contracts may be inferred from conduct,113 whether a series of related agreements do amount to a multipartite contract will depend upon the application of the principles relating to the implication of contracts to the particular facts.114 The true position is that it is usually not practical to construct a multiparty contract ‘because of the difficulties of designating who does what and who can complain in the event of non-performance.’115 This is supported by the fact that not many cases involving the implication of multipartite contracts in sport can be identified.

A multipartite contract was found in only two of three cases cited by Sullivan in support of the ‘multipartite contract’ theory,116 and neither case offers support for the implication of a multipartite contract as the product of a hierarchical, successive, chain of independent contracts. A ‘chain of contracts’ may be a relevant factor to be assessed in determining the existence of a multipartite contract; it is not determinative.117 The third case cited by Sullivan

regulated by more than one contract: ‘The terms of their contractual relationship may be contained in various instruments that will have to be considered as a whole to determine the extent of the parties’ rights and duties. Contractual relationships in sport are probably some of the most complex that people regularly get involved in. Not only is it virtually impossible to divide the parties into sides, but these contractual relationships are usually regulated by a hierarchy of instruments, some of which contain international elements, so that the rules of conflict of laws become relevant.’ 112 Sullivan, above n 8, 9. 113 Furmston, above n 12, 81. See Clarke v Earl of Dunraven [1897] AC 59. See also Rayfield v Hands [1960] Ch 1; Meggeson v Bums [1972] I Lloyd's Rep 223; Aldwell v Bundey (1876) 10 SALR 118. Cf Kingscroft Insurance Co Ltd v Nissan Fire and Marine Insurance Co Ltd [2001] 1 All ER (Comm) 272, 291. 114 The possibility of divergent results is illustrated by a comparison of two yachting cases, Clarke v Earl of Dunraven [1897] AC 59; and Forbes and Bundock v Australian Yachting Federation Inc (1996) 131 FLR 241. 115 Seddon, et al, n 53 above, [3.6]. See for example GB Energy Ltd v Protean Power Pty Ltd [2009] WASC 333. 116 Multipartite contracts were found in Raguz v Sullivan (2000) 50 NSWLR 236, and Rose v Boxing NSW Inc [2007] NSWSC 20. 117 See for example Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, [105] (Mance J) who considered the athlete’s membership of a club merely as one factor leading to the ‘necessary’ implication of a two-party contract: ‘In my judgment, the necessary implication of the appellant's conduct in joining a club, in competing, national and international level on the basis stated in the [BAF’s] rules and in submitting herself to both in and out of competition doping tests, is that she became party to a contract with the respondents subject to the relevant terms of the rules. … I would prefer to view the appellant's submission in 1994 to the jurisdiction of the respondents' Disciplinary Committee (and thereafter to the Independent Appeal Tribunal) as confirming the existence of a prior contract, although, if necessary, I would regard it as the final step bringing one into existence.’ 78

did not involve a finding of a multipartite contract118 and raises the problematically expansive view that is taken of the jurisdiction of CAS, which is dealt with in Chapter IV.

The correct position appears to be that cases in which multipartite contracts have been found ‘are based on the assumption that all the parties to the alleged multilateral contract were willing to agree to the same terms’.119 For example, in Clarke v Earl of Dunraven, a contract was implied on the basis that the competitors in the race agreed to be bound by rules ‘to the knowledge of each other’ and ‘those rules indicate[d] a liability on the part of the one to the other’. 120 In Raguz v Sullivan,121 a contract was implied on the basis of an interlocking and integrated scheme. The case involved parties who signed agreements on the same terms, in the knowledge of each other,122 and those agreements referenced each other123 and were part of a ‘regime’124 or ‘integrated scheme’125 in which the separate documents formed a single agreement.126 Indicative of the integrated nature of the scheme, the court noted that privity of contract issues were anticipated by the drafters of documents to secure legal adherence from athletes with the selection regime which was initially only agreed as between the Australian Olympic Committee and the sport of judo’s national governing body.127 The arrangement in no way resembled any of the formulaic bases in which it is contended a contract may be implied: a chain of contracts, participation or a submission to authority.

Nor does the case of Rose v Boxing NSW Inc,128 cited in support by Sullivan for his contentions about multipartite contracts in sport, offer any support for the proposition that a chain of contracts leads to a multipartite contract. While an apparently multipartite contract was found,

118 No multipartite contract was found in International Rugby Board v Troy CAS 2008/A/1664 reported in (2009) 4(1) ANZSLJR 1 (see note 136 below and accompanying text). 119 Chitty,above n 12, [2-111], noting that ‘where one of the negotiating parties had refused to accept one of the terms of the proposed contract, no multilateral contract would arise between that party and any of the others, unless the others agreed to be bound to that party on terms excluding the one rejected by him’, citing Azov Shipping Co v Baltic Shipping Co [1999] 2 Lloyd’s Rep 159, 165. See also Ellesmere v Wallace [1929] 2 Ch 1; 120 [1897] AC 59, 63 (Lord Herschell) See also the Canadian case of Progas Ltd v AEC West Ltd 2001 ABQB 549, 296 AR 127, [2001] AJ No 881, [35] (Alta QB): ‘the parties to the action entered into virtually identical contracts with a central party. The parties were aware of each other and the obligations that they each had. The parties understood their interrelated relationship and responsibilities’; Forbes and Bundock v Australian Yachting Federation Inc (1996) 131 FLR 241, 285. 121 (2000) 50 NSWLR 236. 122 Ibid [80]. 123 Ibid [67]-[82]. See for example clause 1 of the Athlete Nomination Form referring to the AOC/JFA Selection agreement and clause 2 referring to the Australian Olympic Team Membership Agreement: [5], [14]. Both athletes signed a Nomination Form in these terms: [74]. 124 Ibid [77]. 125 Ibid [80]. 126 Ibid [78]-[79]. 127 Ibid [72]. 128 [2007] NSWSC 20. 79

the case did not concern a chain of contracts where the rules of a club or sports body required persons covered by those rules to comply with the rules of an organisation at the peak of a sports hierarchy. The rules of the unincorporated body lower in the sport’s hierarchy were not considered, nor even referred to.129 The decision of the court was made by reference to the rules of the state body: ‘there is a deemed contract on the terms of [the state association’s] Constitution.’130 Rather than turning on consideration of an integrated contractual scheme between separate sports governing bodies as in Raguz v Sullivan,131 the case involved the implication of a direct contract involving the state association on the one part and the members of unincorporated bodies identified in the rules of the state body on the other.132

Further, the conclusion of the court in Rose v Boxing NSW Inc,133 is problematic.134 The court was clearly concerned to fashion a remedy in circumstances where, if no membership arrangement did exist, ‘one would have the situation that [the referee’s] ability to carry on his activities and affairs in the boxing sphere could be affected by an organisation of which he was not a member and to which he had not subscribed, yet could determine his ability to participate in boxing affairs.’135

Finally, International Rugby Board v Troy and ARU (‘Troy’)136 is cited as an example of the ‘process of interlocking documents evidencing a multipartite contract’ through which the provisions of the WADC become binding upon ‘even amateur sports persons playing a sport

129 Ibid [45]-[60]. 130 Ibid [57]. The reasoning for this was that the unincorporated association had no independent legal existence; it could not be a member of the state peak body. Instead, the reference in the state peak body’s constitution to the unincorporated association was taken to be a reference to the members of the unincorporated body: [49]. 131 Raguz v Sullivan (2000) 50 NSWLR 236. 132 There could not have been a chain of contracts between the unincorporated club and the state body as the unincorporated body lacked legal capacity to be a party to any contract. It is then not clear how the contracts of the members of the unincorporated club with each other could have comprised the first ‘link’ in a ‘chain’, as this membership arrangement was, in conjunction with the rules of the state association, the same contractual arrangement that gave rise to the contractual relationship involving the state association. 133 [2007] NSWSC 20. 134 It is difficult to understand how the rules of the state association could, by themselves, give rise to a contractual relationship as between the state association and persons not members of the association, regardless of what jurisdiction the rules may have claimed for themselves. Brereton J relies upon Finnigan v New Zealand Rugby Football Union Inc [1985] NZHC 102; [1985] 2 NZLR 159 as reaching a ‘similar conclusion’: [50]. However, the conclusion in Finnigan [1985] NZHC 102; [1985] 2 NZLR 159, on the contractual relationship of the parties was entirely different. The court there expressly rejected as ‘quite untenable’ a contention that there was any implied contract between the individual members of the clubs and the governing body: [7]-[8]. See also Buckley v Tutty (1971) 125 CLR 353, 375: ‘the rules leave in some obscurity the question who are the members of the League, and this circumstance makes it more difficult to conclude that it was intended that the rules should form part of a binding contract between, inter alios, the many thousands of persons who are members of the district clubs’. Even if significance is afforded to the fact that all parties acted at the relevant time as if the referee was a member of the state association, in combination with the terms of the state association’s rules (see [2007] NSWSC 20 [53]), such conduct is of limited relevance as it occurred subsequent to the formation of any relevant contract. 135 Ibid [58]. 136 International Rugby Board v Troy & ARU, CAS 2008/A/1664, award dated June 2009. 80

at a relatively humble level.’137 Troy is clearly an example of the terms of the WADC being imported into a contract binding a player at a lower level in the sporting hierarchy. It is much less clearly an example of a ‘multipartite contract’. The case involved an appeal to CAS by the international federation for the sport of rugby, the IRB, against an internal disciplinary decision of the Australian national governing body, the Australian Rugby Union (‘ARU’). The player who was the subject of that disciplinary decision had signed a membership agreement with the ARU specifically agreeing to observe the ARU’s Anti-Doping By-Laws.138 While the ARU was also presumably a party to an agreement with the IRB, that agreement was not referenced at all by CAS. The Panel did not make any finding nor discuss whether, or how, any contractual relationship existed between the player and the IRB, which was the appellant in the case.139 There was no finding of a multipartite contract. The contractual status of the IRB (and WADA) was never explained. CAS simply proceeded on basis that it possessed jurisdiction to determine the IRB appeal.140 Rather than present as some finding of a multipartite contract or some derivation of a chain of contracts, the approach of the CAS panel begs the question as to the contractual basis for CAS’s jurisdiction.141

The conclusion that follows is that the authorities do not support the proposition that multipartite contracts are frequently implied in sport. The normal principles of contract law operate over sport and, under these general principles, multipartite cases are best considered as exceptions to the general requirement for offer and acceptance.142 Otherwise, inconsistencies would arise with cases in which it was held that there was no contract because of the absence of offer and acceptance and with ‘those in which the terms of the contract have been held to depend on the analysis of negotiations into offer, counter offer and acceptance’.143 In particular, the limited circumstances in which multipartite contracts may be implied144 do not support a

137 Sullivan, above n 8, 11. 138 International Rugby Board v Troy & ARU, CAS 2008/A/1664, award dated June 2009, [38]-[41]. 139 The CAS panel held that the IRB’s appeal had been lodged in time, but that an attempted appeal by WADA against the ARU decision was out of time: ibid [17]. 140 As provided for in the CAS Code, art 47. 141 Cf Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7, [14]–[17], [154]–[157] in which a sports governing body’s ‘compulsory powers’ clearly derived from the contractual regime governing the relationship between the sports governing body (the Australian Football League) and players and club personnel. The obligations on players and officials were voluntarily accepted upon becoming a player or official. 142 Chitty,above n 12, [2-112]. 143 Ibid [2-112]. See Ellesmere v Wallace [1929] 2 Ch 1 where it was held that there was no contract between persons who had entered horses in races organised by the Jockey Club; the entrants had contracted only with the Jockey Club. For a case concerning a yacht race in which the court came to the opposite conclusion to Clarke v Earl of Dunraven, see Forbes and Bundock v Australian Yachting Federation (1996) 131 FLR 241 (Santow J). 144 Where the parties agree to the same terms as part of an integrated scheme: see notes 119-121 above. 81

chain of contracts theory, let alone mean that all competitors in sports events do enter into contractual relations with each other by virtue of mere participation in competition, or that the terms of any such contracts require observance of the rules of the competition as a matter of contract.145

If the chain of contracts does not overcome privity of contract or lead to the implication of a multipartite contract, the question of the legal effect of a ‘chain of contracts’ persists. No further ‘legality’ or force is given to the contract that operates at the base of the pyramid and the existence or otherwise of any chain of contracts is irrelevant to the contractual obligations of the participant. If it is the contract between a participant and the participant’s club or association that requires the participant to observe the rules of the international federation, the ‘chain’ adds nothing.

This contractual characterisation involves a confusion between the proximate mechanism of contract that is used to exercise power, with the actual source or nature of that power. It is not necessarily the case that a regulatory body obtains power by virtue of any contract. The absence of a direct contract between an athlete and a governing body means that no contractual rights arise.146 That a chain of contracts or references may exist in some cases or, even if it existed in all cases (though this is clearly not the case), is coincidental, not jurisdictionally determinative. It does not operate to make the regulatory jurisdiction of international federations contractual. The chain of contracts theory works to obscure a proper consideration of the nature of regulatory authority of sports governing bodies.

Before examining how sports governing bodies are able to exercise regulatory power in the absence of contracts, it is necessary to discount the implication of contracts as a foundation for the conventional conception.

145 See for example Ellesmere v Wallace [1929] 2 Ch 1; Forbes and Bundock v Australian Yachting Federation (1996) 131 FLR 241, 285 (Santow J): ‘that proposition depends upon the analysis required to be made in each case of whether the essential elements for contract are made out. So the apparent breadth of that proposition must be qualified.’ Cf Stein v Exec-U-Fit Personal Fitness Training Centres Inc [2007] OJ No 1827, [12] (Ont SCJ): ‘Participants in a sporting or recreational activity may, by signing releases, enter a contractual relationship not only with the event organizers but also with the other participants’, citing Clarke v Earl of Dunraven [1897] AC 59 (HL). 146 See for example Cowley v Heatley, The Times, 24 July 1986, (Browne-Wilkinson VC). 82

D Implied Contracts in Sport ‘Frequently, both in law and in moral discourse we appear to determine whether there should be an obligation first, and then decide how the language should be construed afterwards.’147

It has been said that the courts will not invent fictitious contracts between individual participants and sports governing bodies: ‘All through the centuries courts have given themselves jurisdiction by means of fictions; but we are mature enough, I hope, to do away with them’.148

In the face of this admonishment, two separate and contrasting motivations to find legally consequential obligations by the implication of contracts where there is no express contract may be identified in the operation of the law to sport.

The first is the desire to uphold the regulatory authority of sports governing bodies:

If there is no express contract supporting the decision of a tribunal which purports to be binding the courts will in an appropriate case imply one, and again the decision may be declared by the courts to be ineffective to the extent to which it is inconsistent with what the courts take to be a consensual arrangement entered into by the party whom the tribunal’s decision purports to bind.149

This motivation is most obviously discernible in awards of the CAS and other arbitral tribunals.150

The second motivation to imply a contract is a desire on the part of courts to find a basis to exercise supervisory jurisdiction over the regulatory activities of those bodies, so that it has

147 PS Atiyah, 'Contracts, Promises, and the Law of Obligations' in Essays on Contract (Clarendon Press, 1986) 10, 23. 148 Nagle v Feilden [1966] 2 QB 633, 646 (Lord Denning) who went on to state that ‘[t]he true ground of jurisdiction in all these cases is a man’s right to work.’ The cases Lord Denning was referring to were Abbott v Sullivan [1952] 1 KB 189, Davis v Carew-Pole [1956] 1 WLR 833, and Byrne v Kinematograph Rentals Society Ltd [1958] 1 WLR 762. See also Nagle v Feilden [1966] 2 QB 633, 652-3 (Salmon LJ) dismissing the argument that the publication of the rule by the jockey club and its acceptance by the applicant could lead to a contract. See also Enderby Town Football Club Ltd v Football Association [1971] Ch 591, 606; Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159, [7]-[8]; Gasser v Stinson (15 June 1988, unreported)(Scott J, Queens Bench Division) (LEXIS, England and Wales Reported and Unreported Cases); Stevenage Borough Football Club Ltd v Football League Ltd (1996) 9 Admin LR 109, 115 (Millett LJ). 149 Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, 550 (Tadgell JA). 150 See for example Overvliet v IWF, CAS 2011/A/2675, award dated 25 May 2012, [7.26]: ‘Sport requires for all competitors a level playing field, both in a literal and in a metaphorical sense, without which it would not be true sport.’; DESG v ISU, CAS 2009/A/1912-1913, award dated 25 November 2009, [98]-[99]: ‘In the Panel’s view, anti-doping rules are as necessary to ensure a “level playing field” as, for example, the racing rules … When they accede to competition, athletes cannot pick and choose the rules they like’; USADA v R, CAS 2008/A/1577, award dated 15 December 2008, 5; Ohlsson v WRU, NADP Appeal Tribunal award dated 6 January 2009, 10; ITF v Karatantcheva, Anti-Doping Tribunal decision dated 11 January 2006, 47, affirmed on appeal, CAS 2006/A/1032, award dated 3 July 2006; CCES v Galle, SDRCC Doping Tribunal decision dated 23 April 2009, 22. Telecom Egypt Club v Egyptian Football Association (EFA) CAS 2009/A/1910, award of 9 September 2010, 9. 83

been observed that ‘courts have shown a greater willingness to find a contractual relationship in order to confer effective rights on players and participants who have been supposedly badly treated at the hands of a sports governing body.’151

While these motivations may be based on opposing objectives – one to support the private regulatory authority of sports governing bodies and the other to provide a jurisdictional basis for a court to supervise or restrain that authority – both have the tendency to encourage the implication of contracts. Whatever motivation may apply in a particular case, the implication of contracts in sport has not been identified as some special category of case in contract law. The implication of a contract in sport must therefore conform to the generally applicable legal requirements applying to the implication of contracts.

Accordingly, the possibility of a court implying a contract between a participant and an international sports governing body in a particular case provides an entirely uncertain and inadequate foundation for the exercise of regulatory jurisdiction by that body. No sports governing body could sensibly proceed to govern their sport on the mere contingency that a court may imply a contract that supports its regulatory authority. It also follows from the contingent nature of implied contracts that it is not possible for the mere possibility of the implication of a contract to support the contractual characterisation of regulatory power in sport. The problem of the lacuna caused by the absence of contracts as a source of judicial jurisdiction over disputes in sport152 stands as clear evidence that the implication of contracts is, at most, a peripheral or occasional basis of jurisdiction.

E The Vice of the Contractual Characterisation The bulk of participants who are subjected to the regulatory powers of international sports governing bodies are not in direct contractual relations with the international federations. This alone ought to be enough to cause the conventional contractual characterisation of the source of the regulatory power of sports governing bodies to be questioned. Instead, the contract-based conception is maintained by resort to theories of ‘indirect’ contractual relationships, as if

151 Lewis and Taylor, above n 23, [D2.1011]. See for example: Modahl v British Athletics Federation [2002] 1 WLR 1192, [105] (Mance LJ) referring to the ‘colder comfort’ of the remedies that would be available in the event that no contract was implied; Rose v Boxing NSW Inc [2007] NSWSC 20 [58]. 152 See for example Simon Gardiner et al, Sports Law (Routledge, 4th ed, 2012) 186, 206, 208; William Wade and Christopher Forsyth, Administrative Law (Oxford University Press, 2009) 540; 546, 561; Lord Harry Woolf, et al, De Smith's Judicial Review (Sweet & Maxwell, 2013) [3-047]; Gordon Borrie, 'The Regulation of Public and Private Power' [1989] Public Law 562. 84

something less than a contract – a ‘contract-like’ relationship – is enough to qualify a power as ‘contractual’.

The dangers of legal fictions153 are apparent in the contractual characterisation of regulatory power in the context of sport. A ‘result-oriented’ form of reasoning is applied. It is thought that a sports governing body should have authority, or a claimant should possess a legal remedy against a governing body’s exercise of power. Accordingly, a contractual remedy is justified by reasoning backwards.154

A misplaced veneer of contractual legitimacy for the exercise of regulatory power that lacks contractual authority is produced with the conception of the relationships in sport as ‘contractual’ operating as a legitimating fiction. 155 It is inaccurate and artificial to consider, for example, that a regulatory body obtains authority not by virtue of any contract with the player directly but by virtue of indirect contractual links.156 The maintenance of a legal fiction to secure legal enforceability of the authority of sports governing bodies has the effect of enlisting the legal system in aid of the enforcement of private regulatory power in circumstances where the justification for this is not explicit and where, in fact, an adequate justification may be missing. A legal fiction is a poor basis to allow the individual rights to be circumscribed by the exercise of power by unauthorised, self-appointed, private organisations.

A legal fiction is also a tenuous basis for regulatory authority. Where that authority is justifiable and therefore legitimate, it deserves to be supported. But the adoption of a legal fiction as the basis of the private regulatory authority of sports governing bodies avoids consideration and

153 Atiyah and Smith, n 3 above, 70-1: ‘they stand in the way of the proper organization, understanding, and application of the law. A fiction hides the truth, which is always a dangerous thing. It is therefore important that fictions be identified as such and, where possible, discarded’; Nagle v Feilden [1966] 2 QB 633, 653 (Salmon LJ): ‘[t]oday fictions in our courts are unnecessary. They are dangerous, too, for any fallacy can be conclusively proved to be true if but one false hypothesis be conceded’. 154 Atiyah and Smith, n 3 above, 41: ‘if the claimant is to be given a legal remedy we must hold that there was a contract; but in order to hold that there was a contract, we must first hold that the defendant’s conduct amounted to an offer (or an acceptance). Therefore we hold that the defendant’s conduct did amount to an offer (or an acceptance).’ 155 The freedom of contract ideal informs the justification of the enforcement of contracts and consequentially, the regulatory regime of sport, to the extent that it too is conceived to be contract-based: Bix, above n 14 132; Stephen A Smith, 'Towards a Theory of Contract' in Jeremy Horder (ed), Oxford Essays in Jurisprudence, Fourth (Oxford University Press, 2000) 107. See also A Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (Cambridge University Press, 2003) 243: who observes that some contractual relationships operate coercively and through their nature as contractual and therefore consensual and private, they are characterised ‘as neutral and apolitical, inhibiting the development of a critical understanding of private international law’. 156 Beloff, et al, n 72 above, [2.55]: ‘It follows that a player or coach may be subject to the disciplinary jurisdiction of a sporting body with which he or she is not in a contractual relationship. The body may exercise jurisdiction by virtue of its contract with the player’s club, and the player may owe a contractual obligation to the club to submit to the disciplinary jurisdiction of the sporting body.’ 85

identification of the circumstances in which the legal system should support that authority. In other words, in the absence of a formal contract, what minimum conditions should apply to justify both legal enforceability and the interference with the rights of citizens by private regulatory bodies? Ultimately, the adoption of the false premise of contractual authority hinders the development of such an understanding of the regulatory power of sports governing bodies that could foster a greater legitimacy for their claims to ‘authority’, rather than mere ‘power’.

Consideration of both of these perspectives can only proceed from an understanding of the nature of the real or de facto power of sports governing bodies. This is the subject of the following chapter.

III THE DE FACTO POWER OF SPORTS GOVERNING BODIES

A Chapter Introduction ...... 88 B The Foundations of the De Facto Power of Sports Governing Bodies ...... 89 1 Monopoly Power of Sports Governing Bodies ...... 89 (a) Judicial Identification of the Monopoly Power of Sports Governing Bodies ...... 90 (i) Monopoly Power and the ‘Right to Work’ ...... 90 (ii) Monopoly Power and Labour Market Restraints ...... 91 (iii) Monopoly Power and Judicial Review ...... 93 (iv) Monopoly Power in Other Contexts ...... 94 (b) Commentator Identification of the Monopoly Power of Sports Governing Bodies ...... 96 2 Self-Enforcing Sanctions ...... 99 3 De Facto Power and the Contractual Characterisation ...... 100 C The Extent and Function of Consent in the De Facto Power of Sports Governing Bodies . 101 1 De Facto Power and Contracts ...... 102 (a) The Coincidence of Contractual and De Facto Powers ...... 102 (b) Forced Consent ...... 103 (i) Forced Consent and De Facto Power ...... 104 (c) The Effect of Judicial Support of De Facto Power in the Form of Forced Consent ...... 104 2 De Facto Power and Consent ...... 106 (a) The Role of Participant Knowledge of Sports Governing Bodies’ Rules ...... 106 (i) Knowledge, Consent and the Veneer of Legitimacy for De Facto Power ...... 109 (b) Participation as Agreement ...... 109 (c) Conduct Bringing Individuals Within the Scope of Regulatory Authority ...... 111 (d) De Facto Power, Consent and Estoppel ...... 111 D Chapter Conclusion ...... 113

‘Courts create a lot of problems for our anti-doping work, but we say we don’t care in the least what they say. We have our rules, and they are supreme.’1

A Chapter Introduction The regulatory power of sports governing bodies is unsupported by the delegation of governmental power and the conventional contract-based conception is an inadequate explanation of the basis of that power. Yet, this power is pervasive:

A striking feature of modern sport is the degree to which national and international governing bodies control all activities in their own sport. It is impossible, for example, to play soccer in this country (England) above the level of a kickabout in the park or the street except under the auspices of the Football Association, and indirectly the Federation Internationale de Football Associations (FIFA) to which all national football association (sic) are affiliated. If you don’t do what they say, you don’t play. No contract is needed. There isn’t any other practical way of organising leagues and teams and obtaining referees for properly competitive amateur or professional games. The possibility of rival competitions or associations operating outside the establish structure of national and international football associations is fanciful.2

It is important then, to understand how this private ‘de facto’ regulatory power is nevertheless made both practically and legally effective.3 How is it that an individual may be required to comply with the rules and decisions of sports governing bodies when those rules lack any ‘visible means of legal support’?4

This chapter proceeds in two main parts. The first part describes how the private de facto regulatory power of sports governing bodies is made effective, principally through two

1 The vice-president of the International Amateur Athletics Federation (‘IAAF’), explaining why the IAAF refused to recognise the jurisdiction of the US courts, in Reynolds v IAAF [1992] 841 F Supp 1444, 1452 (S D Ohio); quoted in J B Jacobs and B Samuels, ‘The Drug Testing Project In International Sports: Dilemmas In An Expanding Regulatory Regime’, (1995) 18 Hastings International & Comparative Law Review 557, 583. 2 Nicholas Stewart, ‘Restraint of Trade in Sport’ [1998] 6(3) Sport and the Law Journal 41, 42. See also Michael Beloff, et al, Sports Law (Hart Publishing, 2nd ed, 2012) [2.23] who note that the prospect of a rival football authority ‘exercising any influence in the field of football would be nugatory’; J A R Nafziger, 'Lex Sportiva' (2004) International Sports Law Journal 3, 7: ‘Rules and Principles of the Olympic Charter govern decisions of [international federations] and [National Olympic Committees] to which regional, domestic and eventually local sports authorities defer. In that way, applicable rules and procedures of international sports law eventually permeate purely domestic competition as well’; and James A R Nafziger, International Sports Law (Transnational Publishers, 2nd ed, 2004) 7: Olympic processes influence even ‘schoolyard and sandlot activities’. 3 In another context, the term de facto power is used to describe the non-statutory, common law discretionary power of Ministers of the Crown in England to carry out incidental activities required for the activities of central government: see Lord Harry Woolf, et al, De Smith's Judicial Review (Sweet & Maxwell, 2013) [5-022]; Peter Cane and Leighton McDonald, Principles of Administrative Law: Legal Regulation of Governance (Oxford University Press, 2nd ed, 2012) [3.4.1.2]. It was also the term used by Donaldson MR in R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815, 826 and 828 to describe the powers of the Panel on Take- overs and Mergers. 4 R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815, 824 (Donaldson MR). 88

institutional features of the sports governance regime itself: monopoly power and self- enforcing sanctions. These institutional features combine with the nature of regulatory power in sport5 to support the modern regulatory regime of international sport.

The second part considers, and discounts, the role of consent as a basis for the de facto powers of sports governing bodies. The fact of de facto power means that consent is a secondary issue– at best. Questions of consent, which arise in the context of contract-based powers, such as the oxymoronic ‘forced consent’, and the significance of the knowledge of participants of the rules of their sports and of the act of participation in supporting conclusions of consent to regulatory authority are identified as operating to obscure proper consideration of the de facto nature of regulatory power in international sport.6

B The Foundations of the De Facto Power of Sports Governing Bodies

1 Monopoly Power of Sports Governing Bodies ‘If you do not like the terms, you simply go elsewhere. It is only when the potential purchaser cannot go elsewhere that a problem arises.’7

The monopoly power of sports governing bodies is an institutional characteristic of the sports pyramid,8 and a feature of other forms of professional sport.9 This monopolistic character is hardly a novel observation – it has been recognised by courts and commentators in various contexts.

5 Described in Chapter I above. 6 See Andrew Byrnes, ‘Human Rights and the Anti-Doping Regime’, in Ulrich and Deborah Healey (eds) Haas, Doping in Sport and the Law (Hart Publishing, 2016) 93, who observes that the law of contract/associations and sports arbitration, involving limited review rights, ‘has been the primary source of individual obligation and regulatory power. They have operated to produce a legal exclusion zone in which there is relatively little formal scope for the direct intrusion and application of human rights standards and the scrutiny that goes with them’. 7 Patrick S Atiyah and Stephen A Smith, Atiyah's Introduction to the Law of Contract (Clarendon Press, 2005) 17, referring to standard form contracts and corner stores. 8 See discussion in Chapter I under the heading ‘The Structure of Sport and Monopoly Power’. 9 See Stephen F Ross, ' Antitrust Options to Redress Anticompetitive Restraints and Monopolistic Practices by Professional Sports Leagues' (2001) 52 Case Western Reserve Law Review 155, who describes the ‘monopoly power possessed by the clubs in each sports league’ as the ‘fundamental cause of consumer exploitation’, and that ‘[b]arriers to entry make new entry a plausible but unrealistic option’, citing Roger G Noll, ‘Major League Team Sports’ in W Adams (ed), The Structure of American Industry (5th ed, 1977), and Thomas A Piraino Jr, 'An Antitrust Rationale for the Expansion of Professional Sports Leagues' (1996) 57 Ohio State Law Journal 896-8. Antitrust law, along with contract and labour law, is an elemental component of the approach to the regulation of governance of professional sport in the United States: see for example Paul C Weiler, Gary R Roberts, Roger I Abrams, Stephen F Ross, Sports and the Law (Thomson Reuters, 4th ed, 2011) 92; Matthew J Mitten, et al, Sports Law and Regulation (Wolters Kluwer Law & Business, 3rd ed, 2013) 386, 403. 89

(a) Judicial Identification of the Monopoly Power of Sports Governing Bodies The presence of monopoly power has supported judicial intervention in some cases, but in others it has been regarded as insufficient to justify intervention. These contexts include the ‘right to work’ cases such as Nagle v Feilden,10 by other cases involving the ‘extension’ of the restraint of trade doctrine where there is no contract,11 cases that have extended the availability of the remedies of declaration and injunction in the absence of contracts,12 and by cases involving (unsuccessful) applications for judicial review of decisions of domestic bodies where there was no contractual relationship.13

These cases have arisen relatively recently – over the last 60 years–in a period that has witnessed the graduation of sport from a recreational activity to an economic one,14 during which, the actions of sports governing bodies have assumed a new significance.15 In these cases, the fact of monopoly power has been what has engaged the courts in considering whether and, if so, how to fashion legal remedies for those subjected to the monopoly power of sports governing bodies.

(i) Monopoly Power and the ‘Right to Work’

In Nagle v Feilden,16 the plaintiff, Nagle, had trained race horses in England for many years but she had consistently been refused a trainer’s licence by the Jockey Club, the sport’s governing body, because she was a woman.17 The effect of being denied a licence was to exclude her from the sport throughout the country.18

Lord Denning and Salmon LJ in the English Court of Appeal both noted a distinction between the situation of a person excluded from a social club19 and situations involving contractual

10 [1966] 2 QB 633. See also United States v EL du Pont de Nemours & Co 351 US 377, 394 (1956): ‘When a product is controlled by one interest, without substitutes available in the market, there is monopoly power’. 11 See for example Eastham v Newcastle United Football Club Ltd [1963] 3 All ER 139, [1964] Ch 413; Buckley v Tutty (1971) 125 CLR 353. 12 See for example Newport v Football Association of Wales [1995] 2 All ER 87; Stevenage Football Club Ltd v The Football League Ltd (1996) The Times, 1 August; Bradley v Jockey Club [2004] EWHC 2164 [35]; Mullins v McFarlane and the Jockey Club [2006] EWHC 986 [39]. 13 See for example R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd-Mundy [1993] 2 All ER 207; R v Jockey Club; Ex parte RAM Racecourses [1993] 2 All ER 225. 14 Beloff et al, above n 2, [2.28]. See Simon Gardiner, et al, Sports Law (Routledge, 4th ed, 2012) 36, 37, 40-8. 15 See Gardiner et al, above n 16, 33, 37, 40-8, 179; Mark James, Sports Law (Palgrave Macmillan, 2nd ed, 2013), [2.1]. 16 [1966] 2 QB 633. 17 Though the Jockey Club had granted licences to male employees of Nagle. 18 Nagle v Feilden [1966] 2 QB 633, 642 (Lord Denning MR). 19 Ibid 644 (Lord Denning MR) and 653 (Salmon LJ): ‘There can be no doubt but that is it permissible to exclude anyone for any reason or no reason from membership of a social club, just as anyone (unless he has a statutory right of entry) may be excluded from one’s home.’ 90

rights and questions as to a right to work, ‘or, more precisely, his right not to be capriciously and unreasonably prevented from earning his living as he wills.’20 Because of the nature of the monopoly power exercised by the Jockey Club, the Court determined that relief could be available, even in the absence of a contract.21 It is important to note that in the context of the Nagle v Feilden ‘right to work’, monopoly power was not attacked by the court as a per se evil, but it was the source of the power of private bodies to inflict ‘injustice and oppression’ on individuals.22

(ii) Monopoly Power and Labour Market Restraints

Similarly, in restraint of trade cases such as Eastham v Newcastle United Football Club Ltd,23 it was because of the extent of the control exercised by the governing body, in combination with the employing football clubs, that the rules of the sport’s governing body were effective in interfering with the rights of players, even after the expiry of their contracts of employment.24 In Buckley v Tutty,25 the rules of the sports governing body permitted clubs to retain rugby league players after the expiry of their contracts of employment and thereby prevented them from playing, not just in New South Wales, but elsewhere in Australia, as well as in New

20 Ibid 644, 647 (Lord Denning), 653-5 (Salmon LJ). See also 651 (Danckwerts LJ). See also Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329, 343 (Denning LJ); Eastham v Newcastle Football Club Ltd [1964] 1 Ch 413, 428 (Wilberforce J); Breen v Amalgamated Engineering Union [1971] 2 QB 175, 190 (Lord Denning MR). Further, see Nicholas Stewart, ‘Stevenage Borough FC v The Football League’, [1996] 4(3) Sport and the Law Journal 110 at 117 who comments that the Football League, the sports governing body involved in Stevenage Football Club Ltd v The Football League Ltd Unreported, Transcript, 23 July 1996, Carnwath J; [2006] International Sports Law Review 128, was not a social club and that the personality of the football clubs that were subjected to the restraint ‘was obviously a matter of indifference to the League – whatever they had come to feel about one or other of the chairmen!’ 21 Ibid 644, 646-7 (Lord Denning MR: ‘When those authorities exercise a predominant power over the exercise of a trade or profession, the courts may have jurisdiction to see that this power is not abused.’), 651 (Danckwerts LJ), and 653-5 (Salmon LJ). In Abbott v Sullivan [1952] 1 KB 189, 197-8, Lord Denning, as part of his reasoning on remedy, also noted that the committee exercised ‘a monopoly in an important sphere of human activity, with the power of depriving a man of his livelihood,’ See also 205. See T R S Allan, Law, Liberty, and Justice (Clarendon Press, 1993) 178. 22 More recently, in Bradley v Jockey Club [2004] EWHC 2164, [34]- [35], upheld on appeal: [2005] EWCA Civ 1056 (Lord Phillips MR, Buxton and Scott Baker LJJ), Richards J applied Nagle v Feilden determining that the court had ‘a settled jurisdiction to grant declarations and injunctions in respect of decisions of domestic tribunals that affect a person’s right to work’. 23 [1964] Ch 413. 24 Ibid 430 (Wilberforce J). The ban from playing for other clubs extended not just throughout England, but throughout the world to all countries where association football was played (curiously, except Australia): 416-17. 25 Buckley v Tutty (1971) 125 CLR 353. 91

Zealand and England. 26 These rules, in combination with the power of the governing body to give effect to its own regulations, constituted the restraint.27

In Adamson v New South Wales Rugby League Ltd, Gummow J referred to the involuntary effect of the combination that controlled the affairs of the league and the clubs and the power of that combination to impose conditions on third-parties.28 The court in R v Jockey Club; Ex parte RAM Racecourses, 29 similarly recognised the monopoly power of the Jockey Club of issuing licences and controlling fixtures’ as supporting the basis of a potential restraint of trade.30

In a different context, the European Court of Justice in Union Royale Belge des Societes de Football Association v Jean-Marc Bosman,31 found the rules of sporting organisations that restricted player transfers32 and imposed nationality restrictions33 in European football to contravene the Treaty Establishing the European Economic Community (‘Bosman’).34 In a different context again (antitrust law), United States’ courts have invalidated employment restrictions imposed through the rules of sports governing bodies.35

26 Ibid 357 and 370. The court said: ‘If valid, the rules prevent a professional player who is a member of one club, even if he is not contractually bound to play for it, from becoming employed as a professional footballer by another club, except with the concurrence of the former club or the Qualification and Permit Committee. This is plainly a fetter on the right of a player to seek and engage in employment’: 373. 27 Ibid 373. The governing body could apply the restraint against the players by compelling compliance with its rules without needing to resort to the processes of the law, although the player needed to resort to the courts to escape from the restraint: 382. The court expressly agreed with the decision in Eastham v Newcastle United Football Club Ltd [1964] Ch 413 on this issue. See also Greig v Insole [1978] 3 All ER 449, 495; Hall v Victorian Football League [1982] VR 64; Hughes v Western Australia Cricket Association (Inc) (1986) 19 FCR 10, 49-50; Barnard v Australian Soccer Federation (1988) 81 ALR 51; Avellino v All Australia Netball Association Ltd (2004) 87 SASR 504, 522 [91]; D’Souza v Royal Australian and New Zealand College of Psychiatrists (2005) 12 VR 42, 67 [222]. Cf Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242, 260. 28 Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242, 288 (Gummow J). See also 267 (Wilcox J, agreeing with observations of the trial judge, Hill J) and 268. Cf Goutzioulos v Victorian Soccer Federation Inc [2004] VSC 173, [20] (Warren CJ) where her honour considered that the plaintiffs could be taken to being prepared to submit to the rules of the governing body. ‘It seems illogical, therefore, on the one hand to say the players wish to join the VSF and transfer to one of its VPL or State One clubs, but, on the other hand, to say they are entitled to do so only on their terms.’ The issue and significance of monopoly control exercised by the governing body does not appear to have been argued before the court. 29 [1993] 2 All ER 225. 30 Ibid 229, 243 and 246 (Stuart-Smith LJ) and 247 (Simon Brown J). No restraint was made out. 31 [1995] ECR I-04921 32 Ibid [99]-[100]. 33 Ibid [119]. 34 Treaty Establishing the European Economic Community (‘EEC Treaty’), signed 25 March 1957, 298 UNTS 3, (entered into force 1 January 1958), art 48. The rules of the football governing bodies were applied by national associations and clubs: Bosman, ibid, [6]-[24]. 35 See for example Smith v Pro Football Inc 593 F 2d 1173 (1978) involving an antitrust challenge to the player selection system or ‘draft’ imposed by the rules of the National Football League. These rules restricted the right of players to negotiate with prospective employers to only one designated club: [5]. This was an unreasonable restraint of trade: [23]. 92

In each of these cases, a restraint was only able to be made effective by the monopoly or controlling power exercised by the sports governing body, either alone or in combination with other controlling bodies within the sport’s hierarchy. Non-contractual rules accompanied by the power to exclude the participant from the relevant sport or field of activity (or any significant part of it), were effective in restraining the participant’s freedom of action.

(iii) Monopoly Power and Judicial Review

Monopoly power has also featured in English decisions concerning the application of judicial review to the decisions of sports governing bodies. In R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd-Mundy,36 Roch J described the monopoly powers of the Jockey Club, which had only just over 100 members but which controlled the entire sport of horseracing. Because of this, but for contrary authority, the judge would have found the Jockey Club to be subject to judicial review.37

Judicial review is not available under English law as the mere existence of monopoly power is not equated with the performance of public functions and is therefore insufficient to make a body subject to judicial review.38 Nevertheless, even in R v Jockey Club; Ex p Aga Kahn, 39 where the court rejected the application of judicial review to the decisions of sports governing bodies, the court recognised the dominant position of the sports governing body that enabled it to operate without the need to enter into contracts with those over whom it exercised control. By means of its rules and its market domination, the Jockey Club could control all of the sport without relying upon contracts.40

36 [1993] 2 All ER 207. 37 Ibid 222. The earlier authorities were Calvin v Carr [1980] AC 573; and Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300. 38 R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864; Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300; R v Disciplinary Committee of the Jockey Club; Ex parte Aga Kahn [1993] 1 WLR 909; R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 WLR 23. A similar position is observed in Australia: Shepherd v South Australian Amateur Football League Inc (1987) 44 SASR 579, 584-5; Dixon v Australian Society of Accountants (1989) 95 FLR 231; R v Wilson; Ex parte Robinson [1982] Qd R 642; D’Souza v Royal Australian and New Zealand College of Psychiatrists (2005) 12 VR 42. 39 [1993] 1 WLR 909. 40 Ibid 915. See also 931 (Hoffmann LJ). See also; Ex parte Football League Ltd [1993] 2 All ER 833, 848 (Rose J) accepted that the FA had ‘virtually monopolistic powers’; and R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197, [31]. In contrast, in R v Football Association of Wales; Ex parte Flint Town United Football Club [1991] COD 44 (Farquharson LJ and Nolan J) the applicant football club was seeking to leave one league (a Welsh league) and join another (an English league). In those circumstances, it is difficult to consider that the club was wholly constrained by a monopolist regulatory body. Cf Gardiner et al, above n 14, 98. See also Green Cycle Associates AB v Amaury Sports Organisation Tribunal de Commerce (Liege) 23 April 2007, [2008] ECC 1, [31], where a Belgian court found that where an undertaking has a dominant position over access to a sport it has to treat actual and potential claimants in an objective, transparent, fair and non-discriminatory manner. See Adam Lewis and Jonathan Taylor Sport: Law and Practice (Bloomsbury Professional, 3rd ed, 2014) [D1.22] note 5. 93

(iv) Monopoly Power in Other Contexts

The monopoly position of sports governing bodies has also been recognised in other legal contexts. For example, the monopoly control and the effect of a sports governing body’s decisions has justified the imposition of natural justice obligations.41

Monopoly or near monopoly power has also been suggested as the basis of the exception to the common law right to refuse to contract in the case of common carriers and innkeepers who are obliged to accept all comers on a reasonable basis.42 ‘What is important is that the refusal is made by a person or organization which exercises monopoly power in the area of work which it controls’.43

A further influence of monopoly power arises in the United States in different standards of deference shown by the courts to the actions of sports associations, and to the sports body’s interpretation of its own rules.44 The monopoly position of sports governing bodies has been given as a reason to impose a higher level of judicial supervision. ‘Where an organization has achieved such a “stranglehold,” rigid adherence to a “hands off” policy is inappropriate’.45

The monopoly control of sports governing bodies is also relevant in the application of competition law to the question of whether the regulatory body occupies a dominant position

41 Russell v Duke of Norfolk [1949] 1 All ER 109, 128. See also Enderby Town Football Club Ltd v Football Association [1971] Ch 591: monopolistic control and serious consequences justify imposition of natural justice on sports governing bodies. 42 B Wyman, ‘The Law of the Public Callings as a Solution to the Trust Problem’ (1903-1904) 17 Harvard Law Review 156, 217. See Clarke v West Ham Corp [1909] 2 KB 858, 879, 882. See also Christopher Forsyth, 'Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review' (1996) 55(1) Cambridge Law Journal 122. 43 Jack Beatson, 'Finessing Substantive 'Public Law' Principles into 'Private Law' Relations' in Daniel Visser (ed), The Limits of the Law of Obligations (Juta & Co Ltd, 1997) 1, 11. 44 STP Corporation v United States Auto Club 286 F Supp 146, 150-1 (S D Ind 1968): ‘a court should interfere only if it finds that the powers were exercised in an unlawful, arbitrary or a malicious fashion and in such a manner as to affect the property rights of one who complains’; Mayfield v NASCAR 674 F 3d 674 (4th Cir 2012). 45 Koszela v National Association of Stock Car Auto Racing Inc 646 F 2d 749, 754 (2d Cir 1981). See also Crouch v National Association of Stock Car Auto Racing Inc 845 F 2d 397, 400 (2d Cir 1988). Although the scope of this allegedly ‘higher’ standard is not clear: Koszela, 754-8: while considering a ‘hands off’ approach to be inappropriate, the court nevertheless deferred to the decisions of the sports body and determined the case by reference to the rules of that body (though these were contractual rather than de facto rules). In Crouch v National Association of Stock Car Auto Racing Inc 845 F 2d 397, the court held that it would not intervene merely because ‘unreasonableness’ was shown (401) Deference to the actions of private associations would be shown unless they were ‘in contravention to the laws of the land or in disregard of the charter or bylaws of the association’ and ‘where the association had failed to follow the basic rudiments of due process of law’ (following Charles O Finley & Co v Kuhn 569 F 2d 527 (7th Cir) cert den 439 US 876 (1978). The court required bad faith or unlawfulness to be shown before reviewing an organizations interpretation of its own rules: 403. How this standard of review is materially higher than the contract-based standard in STP Corporation v United States Auto Club 286 F Supp 146, 150-1 (S D Ind 1968) (see note 44 above) is not obvious. Further, it does not equate to a form of administrative or judicial review. 94

in a market.46 In International Skating Union v Claudia Pechstein,47 the German Federal Court of Justice found that the international sports governing body for the sport of skating, the International Skating Union (‘ISU’) occupied a monopoly position.48

The monopoly or dominant position of international federations has also featured in a number of contexts in decisions of the SFT. In Canas v ATP Tour,49 the SFT considered that the position of the professional men’s tennis tour body, the ATP Tour, in representing all the top male tennis players in the world and in organising lucrative competitions was such that it could effectively compel the players to sign a waiver of a right to appeal. The court considered that the ATP possessed sufficient power to support compulsion, even though it was not in an absolute monopoly position. Whilst not a monopoly, the ATP could nevertheless effectively compel compliance with its rules.50

In Matuzalem v FIFA,51 while not using the term ‘monopoly’, the same court stated that the power of federations to issue sanctions that gravely impacted the personal right to economic development would be limited when the federation ‘is the body of reference for the public in the profession or the economic branch concerned’.52

In France, the monopoly position of sports federations has been argued to justify the French state’s regulation of those bodies.53 The monopoly power of sports associations is recognised as preceding the statutory recognition of the associations. The ‘monopoly of national sports organisations to organise competitions and regulate their discipline on the national territory

46 See for example Hendry v World Professional Billiards and Snooker Association [2002] ECC 8, [92]-[98], [112]; See also Wilander v Tobin (No 2) [1997] 2 CMLR 346; Adidas-Salomon AG v Draper [2006] EWHC 1318. See Stephen F Ross, 'Monopoly Sports Leagues' (1989) 73 Minnestoa Law Review. See also Consolidated Version of the Treaty on the Functioning of the European Union, [2012] OJ C 326/01, (‘TFEU’) art 101, 102; Sherman Anti Trust Act, 15 USC §§ 1-2 (1890); Competition and Consumer Act 2010 (Cth) s 46. 47 German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15. 48 International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15, [45]. The court overturned the lower court decision that the ISU had abused its dominant position in a market: see Pechstein v Deutsche Eisschnelllauf-Gemeinschaft e.V. (DESG) and International Skating Union (‘Pechstein’) Case U 1110/14Kart 37 O 28331/12 Munich Regional Court, 15 January 2015. The monopoly was found ‘in the relevant market of the organization of speed skating world championships’. However, ‘a comprehensive evaluation of the interests of both parties’ by the Federal Court of Justice did not reveal any abuse of its dominant position: [47]. Cf Canas v ATP Tour 4P.172/2006 (2007) (Swiss Federal Tribunal) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep 65, [4.4.2] in which arguments were dismissed as irrelevant in light of the market power of the international federation to compel ‘agreement’ to a waiver of appeal. 49 4P.172/2006 (2007) (Swiss Federal Tribunal) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep. 65. 50 Ibid [4.4.2]. 51 4A_558/2011, judgment of 27 March 2012. 52 Ibid [4.3.3]. 53 Rosmarijn van Kleef, 'The Legal Status of Disciplinary Regulations in Sport' (2014) 14 International Sports Law Journal 24, 35 citing G Simon, Puissance sportive et ordre juridique etatique (1990) (diss Bourgogne) LGDJ, Paris, 152, 181 and 244. 95

already existed before the French state intervened. The state in fact delegated a competence that it did not develop or ever exercise’.54

Yet, despite these recognitions of monopoly power as the source of the power of sports governing bodies, this factor has not led to a more general reconsideration by the courts of the assumed voluntary, contract-based jurisdiction of these bodies. Commentators similarly continue to subscribe to the voluntary conception of regulatory power in sport in the face of the monopoly power of sports governing bodies.

(b) Commentator Identification of the Monopoly Power of Sports Governing Bodies Some important recognitions of monopoly power may be identified in the orthodox academic commentary that typically characterises sports governing bodies as voluntary associations exercising power consensually through the mechanism of contracts. Somewhat strangely and inconsistently, these recognitions have not risen to disturb the conventional contract-based characterisation.

An example of the monopoly power of sports governing bodies being recognised, but afforded relatively inconsequential significance in the characterisation of the nature of these bodies’ regulatory power, is provided by one of the pre-eminent sports law texts. In their work, Beloff et al say that sports governing bodies are:

whatever legal form they take, and whatever their origins, voluntary organisations. They were not created by or under statute (although as a matter of basic constitutional principle they could be regulated or even abolished by statute) … Contract is the means by which they exert control over their members. Over non-members, they cannot exert control directly by contract, but do so by having a monopoly or near monopoly over a particular sport or competition.55

Because they are voluntary bodies, the basis of the authority of sports governing bodies is considered to be ‘consensual’.56 The authors do not expressly address the apparent conflict in this characterisation between the view of sports governing bodies as voluntary organisations exercising consensual authority, with the control by those bodies over non-members through the exercise of monopoly power (that they also acknowledge).57 Instead, the effect of the

54 Ibid 35, citing M Maisonneuve, L’arbitrage des litiges sportifs (diss Paris I) (2011) LGDJ, Paris, 161-8; and J- P Karaquillo, Le droit du sport (2011) Dalloz, Paris, 33-4. 55 Beloff et al, above n 2, [2.23]. 56 Ibid [2.24]. 57 Albeit it is the author’s objective to provide ‘something like a theoretical foundation for sports law’: ibid [1.27]. The authors also note the monopoly power of sports governing bodies in the governance of their sports as enabling 96

exercise of monopoly power is credited as a reason for courts to apply public law standards of review to the private sports governing bodies.58

A similar approach to the exercise of monopoly power by sports governing bodies is that of Lewis and Taylor.59 In their substantial work, Lewis and Taylor describe sports governing bodies exercising power over non-members by the exercise of the governing bodies’ control of their sports.60 In the absence of a contract, ‘the existence of monopoly power in the hands of the governing body which has an effect on the ability of the claimant to earn a living (and this constrains him in his trade)’ is the basis for the requirements on a sports governing body to act lawfully, fairly and in a non-arbitrary way.61 The authors describe a ground of review arising from a sports bodies ‘control of sport’.62 On this approach, the significance ascribed to the exercise of monopoly power gives rise to a ground of review, but does not cause any more general reflection on the character of the powers of the sports governing bodies.

Yet, concerns have been expressed. For example Gardiner et al,63 observe that many sports governing bodies possess monopoly power and that those who wish to be involved in the sport them to compel participants in sport to submit to sports arbitration: [8.135]. The implications of this are not developed. 58 Ibid [2.24]. At [2.7]: ‘Governing bodies are treated in most legal systems as private authorities but exercising quasi-public functions, particularly where they exercise monopoly power over a particular sport’. Whilst referring to national rather than international governing bodies, the point nevertheless applies as most participants governed by national sports governing bodies are not members of those bodies, as they are not members of the international federations. The author’s view forms part of ‘the on-going debate that NGBs [national governing bodies] should be subject to the judicial review procedure’: James, above n 15, [2.3.1]. James states that ‘all potential lines of argument now appear to have been closed’, noting that aggrieved parties may invoke the supervisory jurisdiction of the court, by claiming breach of contract, or a restraint of trade. 59 Lewis and Taylor, above n 40. 60 ‘Grounds for review arising out of control of the sport’ is one of six causes of action to challenge the actions of a sports governing body, the others being the widely recognised causes of action of contract, tort, common law restraint of trade, and competition law, and the sixth being the European Union specific ‘free movement’ rules: see Lewis and Taylor, above n 40, Chapter D2. The ‘control of sport’ ground of review is derived from the ‘Court of Appeal’s approval of Richards J’s decision in Bradley v Jockey Club [2004] EWHC 2164, upheld on appeal [2005] EWCA Civ 1056, and the cases that have followed’: ibid [D2.1]. the subsequent cases listed include Flaherty v National Greyhound Racing Club [2004] EWHC 2838; on appeal [2005] EWCA Civ 1117; R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197; Mullins v McFarlane and the Jockey Club [2006] EWHC 986; Fallon v Horseracing Authority [2006] EWHC 1989; Dwain Chambers v British Olympic Association [2008] EWHC 2028; McKeown v British Horseracing Authority [2010] EWHC 508; Park Promotion Ltd (t/a Pontypool Rugby Football Club) v Welsh Rugby Union Ltd [2012] EWHC 19119. See also [C1.18]. 61 Ibid [D2.7] citing Nagel v Feilden [1966] 2 QB 633; Fisher v National Greyhound Racing Club, 31 July 1985, 6 (Oliver LJ) of the Lexis transcript; Pett v Greyhound Racing Association [1969] 1 QB 125, 128 (Lord Denning MR). It is not necessary to show monopoly power where there is a contract: ibid [D2.8]. See also Beloff et al, above n 2, [7.6]: ‘Even without any element of contract at all, where a sporting body asserts control over a particular sport or particular competition, and the accused is a participant, or potential participant, in that sport or in such a competition, the accused ought in principle to be entitled to, at least, a declaration to enforce the duties of fairness, and the other common law obligations, of the disciplining body by virtue of its control over the sport or competition concerned, and its subjection of participants to disciplinary rules applying to the activity in question.’ 62 Lewis and Taylor, above n 40, [C1.17] – [C1.18], [D2.3]–[D2.4], [D2.7], [D2.41]. 63 Gardiner et al, above n 14. 97

have no choice but to submit to the authority of the regulatory body.64 Similarly, the monopoly position of sports governing bodies is also recognised in some general administrative law commentary, in particular in relation to the application of judicial review.65 It is observed in De Smith’s Judicial Review66 that monopoly power cannot be equated with the performance of public functions, that judicial review is not available notwithstanding that extensive power in the private sphere may be wielded over others,67 that this power may seriously impact those affected,68 the number of those affected may be large,69 and the body wielding the power may occupy a position of public importance.70

Wade and Forsyth comment that sports governing bodies ‘have no statutory basis or authority, but in practice they may operate a monopoly so that all participants in the sport must accept their control or else be excluded; and their disciplinary powers may have very serious consequences’.71 Where ‘a great deal of power is exercised in matters which have nothing to do with government, and particularly in the case of monopolies the law should be able to prevent unfairness and abuse.’72

One explicit recognition of the implications of the monopoly character of sports governing bodies is that of Foster who has argued that sport is not a free market and that sports governing

64 Like Beloff and Kerr (see Michael J Beloff and Tim Kerr, 'Why Aga Kahn Is Wrong' (1996) Judicial Review), the authors question whether it is right therefore to refuse to subject sports governing bodies to judicial review on the basis that the rules are consensual: Gardiner et al, above n 14, 186. See also Antoine Duval, 'Lex Sportiva: A Playground for Transnational Law' (2013) 19(6) European Law Journal 822, 827–8; Ryan Gauthier, The International Olympic Committee, Law, and Accountability (Routledge, 2017) 26, noting the ‘almost monopolistic governance over sport’ from the grass-roots to the elite professional level of the members of the Olympic Movement; Andrea Marco Steingruber, 'Sports Arbitration: How the Structure and Other Features of Competitive Sport Affect Consent as It Relates to Waiving Judicial Control' (2009) 20 American Review of International Arbitration 62: ‘The main characteristic of the federative movement is its monopolistic character’. 65 See for example Woolf et al, above n 3, [3-045]–[3-046]; Sir William Wade and Christopher Forsyth, Administrative Law (Oxford University Press, 2009) 545-6. 66 Woolf et al, above n 3, [3-046]. 67 R v Disciplinary Committee of the Jockey Club; Ex parte Aga Kahn [1993] 1 WLR 909, 932-3 (Lord Hoffmann LJ). 68 R v Chief Rabbi of the United Hebrew Congregation of Great Britain and the Commonwealth; Ex parte Wachmann [1992] 1 WLR 1036: seriousness of impact of decision not determinative of decision’s public law character. 69 R v Football Association Ltd; Ex parte Football League Ltd [1993] 2 All ER 833, 841 (Rose J): The Football Association’s non-contractual powers affected the lives of many hundreds of thousands. 70 Ibid 840; R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd-Mundy [1993] 2 All ER 207 (Neill LJ). 71 Wade and Forsyth, above n 65, 545-6. 72 Ibid 548. In the context of the extension of judicial review to non-statutory bodies, Forsyth has argued that the common law power of the courts to regulate monopolies and control the abuse of monopolies enables them to subject bodies that exercise monopoly power to judicial review: Forsyth, above n 42. 98

bodies are natural monopolies.73 Foster considers the question of the character of sport as a natural monopoly and what this may mean for a strategy of regulation to be ‘the central issue’.74

In terms of the analysis of the nature of the power of sports governing bodies, monopoly power is therefore to be understood as a fundamental ingredient of the de facto power of sports governing bodies. But the power of international federations does not reduce to simply a question of monopoly power. It is also important to appreciate the significance of the power of sports governing bodies to enforce their own rules and decisions.

2 Self-Enforcing Sanctions Sports governing bodies possess the relatively unique ability to enforce their own regulatory power without needing to seek the assistance of state courts.75 In other words, international sports federations have significant powers of secondary rule making that do not require national ratification to be legally effective.76

As a typical example, the rules of FIFA list the primary disciplinary measures available.77 The principal sanction in this list, and that common to other sports, is the possibility of exclusion

73 Ken Foster, 'How Can Sport Be Regulated?' in Steve Greenfield and Guy Osborn (ed), Law and Sport in Contemporary Society (Frank cass, 2000) 267, 271–2: there is only a single seller supplying the entire market; there is a unique product, leaving the consumer with no substitute; and there are substantial barriers to entry. 74 Ibid 281. 75 Canas v ATP Tour 4P.172/2006 (2007) (Swiss Federal Tribunal) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep 65, [4.3.2.1]: ‘sanctions imposed against athletes, such as disqualification or suspension, do not require any exequatur procedure in order to be enforced’, this factor counting against the possibility of exclusion of appeals from arbitral awards in sport. See for example International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15, [3]: without resorting to any outside agency, an international federation sanctioned an athlete by banning her from competition for two years, her results from the 2009 World Championships were annulled, recognition of the points, prizes and medals won by the athlete was revoked, the athlete was prevented from participating in organised training and excluded from the German national team squad for the forthcoming Olympic Winter Games. This is probably a unique characteristic of an arbitral regime, though not a wholly unique in relation to private dispute resolution regimes. See, Thomas Schultz, Transnational Legality: Stateless Law and International Arbitration (Oxford University Press, 2014), who describes the Internet Domain Name Regime (138-40, 143-5), involving the Uniform Domain Name Dispute Resolution Policy (UDRP) promulgated by the International Corporation for Assigned Names and Numbers (ICANN), and the eBay dispute resolution regime (140-3, 145-6), as examples where private institutions are able to apply the systems’ norms autonomously ie they were self-enforcing, with ‘their own powers to adjudicate’: 146. This feature distinguishes the regulation of sport from lex mercatoria: see A Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (Cambridge University Press, 2003) 142-4. See also Steingruber, above n 64, 64 referring to self-enforcement as a distinctive feature of sports arbitration, along with the parties’ limited ability to tailor the arbitral process. More broadly, the increasing incidence of global governance actors having ‘direct legal consequences for individuals or firms without any intervening role for national government action’ has been observed: Benedict Kingsbury, Nico Krisch, Richard B Stewart, 'The Emergence of Global Administrative Law' (2005) 68(3/4) Law and Contemporary Problems 15, 24. 76 Kingsbury, above n 75, 19. See also Paul S Reinsch, 'International Administrative Law and National Sovereignty' (1909) 3(1) The American Journal of International Law 1, regarding non-sport international regulatory institutions. In this sense, lex sportiva has an advantage over lex mercatoria which requires a formal act of a sovereign state in order to be transformed into law. 77 Federation Internationale de Football Associations (‘FIFA’), FIFA Statutes, 27 April 2016, art 56. 99

from competition through suspensions or bans, or in serious cases, through expulsion from the sport. This, and almost all of the other sanctions, are uniquely within the control of the sports bodies themselves, and no recourse to an outside agency is required for a sports body to implement the sanctions that it imposes on participation in activities it controls. Even those sanctions that are not entirely self-enforcing (eg monetary fines) may be supported by other sanctions that are self-enforcing (eg exclusion until a fine is paid).

Even sporting sanctions that are confirmed or determined by an arbitral award typically do not require outside assistance to be enforced. National law does not hold a monopoly over the enforcement of arbitral awards concerning disputes over the exercise of power in sport.78 This position is unlike a traditional arbitral award which has no force of itself, further steps and proceedings being required in order to enforce it in the absence of voluntary compliance.79 So, while CAS itself does not have coercive powers and, in theory, the parties are required to enforce CAS awards through national courts,80 generally, this is unnecessary for sports governing bodies as CAS awards, involving sporting sanctions, are almost always ‘self- executing’. In contrast, an athlete or club who is successful in resisting a sporting sanction would need to resort to judicial enforcement if the sports governing body involved flouted an unfavourable CAS award. The self-enforcing nature of the sanctions of the sports governance regime operates to distinguish it from a contractual regime like lex mercatoria.81

3 De Facto Power and the Contractual Characterisation The durability and influence of the view of sports governing bodies as voluntary bodies exercising consensual powers is therefore curious.82 Employing the reasoning dictated by the

78 Cf Hans-Joachim Mertens, 'Lex Mercatoria: A Self-Applying System Beyond National Law?' in Gunther Teubner (ed), Global Law without a State (Dartmouth Publishing Company, 1997) 31, 37, describing the more usual position applying in non-sport contexts where resort to national law is required for the enforcement of arbitral awards. 79 Del Drago, Cour d'appel Paris, 10 December 1901, Clunet 314 (1902). See Julian D M Lew, Loukas A Mistelis and Stefan M Kröll, Comparative International Commercial Arbitration (Kluwer Law International, 2003) [5.12]: arbitral awards are not self-executing. 80 See New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), opened for signature 10 June 1958, 330 UNTS 38; 21 UST 2517; 7 ILM 1046 (1968), (entered into force 7 June 1959), available at http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/XXII_1_e.pdf. 81 Thomas M Franck, 'Legitimacy in the International System' (1988) 82 The American Journal of International Law 705, 755: ‘In municipal law, contracts are binding because their sanctity is prescribed and enforced by the state. True, most contracts operate without recourse to state sanctions, but the sanctions remain in reserve’. 82 More generally, the imposition of contract law on associations has been described as artificial ‘unless one is to consider contract as a very much wider relational concept than has hitherto been assumed: ’N C Seddon, R A Bigwood and M P Ellinghaus, Chesire and Fifoot Law of Contract (LexisNexis Butterworths, 10th Australian ed, 2012) [5.10]. Zachariah Chafee, 'The Internal Affairs of Associations Not for Profit' (1930) 43 Harvard Law Review 993, 1007-8, who considers that the closest analogy to the position of the member of an association is in the shareholder/company or partner/partnership relationship. ‘Such relations are much more than contracts’. See 100

principle of Ockham’s Razor,83 the features of monopoly power and self-enforcing sanctions, supported by mandatory arbitration by CAS, provide a simpler–and more plausible– explanation of the nature of the regulatory power of sports governing bodies. It avoids the assumptions and fictions associated with the contract-based characterisation.84

C The Extent and Function of Consent in the De Facto Power of Sports Governing Bodies The conception of the de facto power of sports governing bodies that has been outlined involves the exercise of power independently of the consent of those against whom power is deployed. Accordingly, the presence or otherwise of consent cannot be relevant as a source of de facto power. The notion of sports governing bodies exercising consent-based private law powers is therefore fundamentally untenable. It follows that the consent of those subjected to the regulatory power of international sports governing bodies can only be supplementary to, or reinforcing of the power of those bodies where that power is otherwise effective.85 An ostensible requirement for consent in sport represents the perpetuation of a fiction, a charade that is inherently inconsistent with the nature of sport’s de facto regulatory regime.

However, in light of the prevalence and orthodoxy of the conventional conception of these bodies as voluntary associations, it is necessary to further explore the relationship between the exercise of this de facto power and consent. There are two aspects to this issue. The first relates to the relationship between de facto power and contracts in sport. The second aspect involves the effect of factors such as the real or constructive knowledge of rules of international federations and participation in sport which may fall short of establishing contractual intention

also Enderby Town Council Football Club Ltd v Football Association Ltd [1971] 1 Ch 591, 606 (Lord Denning MR); Baldwin v Everingham [1993] 1 Qd R 10, 15 (Dowsett J). 83 The principle of ‘Ockham’s Razor’ (or ‘Occams Razor’), is the philosophical idea or scientific principle that for any given set of explanations of an event, the simplest explanation is most likely to be the correct one; that among competing hypotheses, the one with the fewest assumptions should be selected as the more assumptions that have to be made, the less likely it is that the explanation is the correct one: see generally Alan Baker, 'Simplicity' in Edward N Zalta (ed) (ed), The Stanford Encyclopedia of Philosophy (Fall 2013 ed, 2013). For a discussion of the influence of Occam’s Razor in the role of the individual in the development of modern liberalism, see Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Penguin Books, 2014) 71, 310. 84 In this discussion, nothing of significance turns on any distinction between absolute monopoly power and a dominant or substantially controlling position. The relevant level of influence described here as ‘monopoly power’ is the capacity of a sports governing body to effectively impose its rules or decisions on individuals independently of any contractual relationship, including for the reason that there is no effective available alternative but to accept the authority of a sports governing body: see NCAA v Board of Regents of University of Oklahoma 468 US 85, 106 (1984): ‘[o]f course, since as a practical matter all member institutions need NCAA approval, members have no real choice but to adhere to the NCAA’s television controls’. 85 Consent cannot operate to endow a person with authority where that person had none: Joseph Raz, The Morality of Freedom (Oxford Scholarship Online, 1986) 88. 101

but which could nevertheless be argued to manifest consent to the regulatory power of sports governing bodies.

1 De Facto Power and Contracts ‘Contracts engender relations of power. Normally, however, the consent of the parties legitimates any subordination created by the contractual obligations’.86

(a) The Coincidence of Contractual and De Facto Powers Even where a contract exists, the fact of the contract does not mean that an exercise of power consistent with that contract is only contractual, that it cannot also be an exercise of de facto power.87 The contract itself may be the product of an exercise of de facto power, as in the case of ‘agreements’ required by the rules of a sports governing body.88 The insistence of an international federation on its rules being applied to all participants in a sport, and their application in fact, does not cease to be an exercise of de facto, monopoly power merely because a contract may be identified.89

The implications of the fact that sports governing bodies do not need contracts to exercise regulatory control means that it is not possible to draw a neat distinction between the nature of a sports governing body’s regulatory authority over its members or others with whom a contract exists, as distinct from its regulatory control exercised where there is no contractual

86 Hugh Collins, 'Market Power, Bureaucratic Power, and the Contract of Employment' (1986) 15 Industrial Law Journal 1. 87 Lewis and Taylor make a related point in relation to causes of action for a challenge to the actions of a sports governing body, so that ‘[i]t is not the case … that if a contract arises, the cause of action can only be contractual: there may be two causes of action, contractual and non-contractual’: Lewis and Taylor, above n 40, [D2.3]. 88 See for example International Association of Athletics Federations, ‘IAAF Competition Rules 2016-2017’, rule 4(1)(d) requiring athletes to sign an agreement to be bound by the IAAF Rules and Regulations (as amended from time to time) including an exclusive arbitration agreement in order to be eligible to compete. See also rule 30(3): to be eligible to compete at an international competition, ‘Athletes (and where applicable), Athlete Support Personnel and other Persons must have signed an agreement to the Anti-Doping Rules and regulations in a form to be decided by the (IAAF) Council’. 89 See for example Koszela v National Association of Stock Car Auto Racing Inc 646 F 2d 749, 754 (2d Cir 1981); Smith v Pro Football Inc 593 F 2d 1173 (1978). Analogously, the existence of a contract does not exclude the possibility of an abuse of market power: see Smith v Pro Football Inc 593 F 2d 1173 (1978); United Brands v European Commission [1978] 1 CMLR 429, 502; Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Co Ltd (1989) 167 CLR 177, 202 (Dawson J): ‘[t]he fact that action is taken pursuant to the terms of a contract has no necessary bearing upon whether it is the exercise of market power in contravention of [the statutory proscription in competition law]’, referring to s 46 of the then Trade Practices Act 1974 (Cth) (now retitled Competition and Consumer Act 2010 (Cth)). A similar point has been made in relation to sports governing bodies asserting contracts to seek to escape the law of restraint of trade: Stewart, above n 20, 118. Analogously, a body that ‘exercises governmental powers is not any the less amenable to public law because it has contractual relations with its members’: R v Jockey Club; Ex p Aga Kahn [1993] 2 All ER 853, 875 (Hoffmann LJ). Cf 867 (Sir Thomas Bingham MR), 871 (Farquharson LJ): ‘The fact is that if the applicant wished to race his horses in this country he had no choice but to submit to the Jockey Club's jurisdiction. This may be true but nobody is obliged to race his horses in this country and it does not destroy the element of consensuality’. 102

relationship. Where sports governing bodies possess monopoly power, this power plainly applies to non-members, but it does not miraculously cease to apply in the case of members or others who enter into a contract with the governing body. The de facto nature of sports governing bodies therefore has implications for the characterisation of the regulatory power of sports governing bodies over both members and non-members.

(b) Forced Consent The issue of ‘agreements’ that are the product of the forced consent of sports people to the regulations of sports governing bodies has been a feature in discussions of the regulatory landscape in sport. For example, it has been suggested that:

The rules making up the “contract” are presented on a “take it or leave it” or “adhesionary” basis, with no opportunity for the negotiation of terms. Individuals have no choice but to accept the terms if they wish to be involved in the sport. Thus, to refuse to subject a body to judicial review on the basis that the relationship is based on consensual agreement is questionable.90

Similarly, Blackshaw has argued that the requirement, as a condition of entry to compete at the Olympic Games, for athletes ‘in their entry form, to submit all disputes to the CAS [Ad Hoc Division] whether they wish to or not, otherwise they will not be allowed to participate’ means that the consent of athletes is not real and genuine, that it may be coerced and unlawful.91 These circumstances have been said to make consent entirely fictional.92

More broadly, it been observed that lack of genuine consent is not just an issue in sports, but is a problem for the theory of contract law.93 However, in relation to sports regulation, the

90 Gardiner et al, above n 14, 97. The term ‘contracts of adhesion’ was used as early as 1901 in France: Saleilles, De la Declaration de la Volonte (1901), cited in Sir Jack Beatson, Andrew Burrows, John Cartwright, Anson's Law of Contract (Oxford University Press, 29th ed, 2010) 171, note 6; and elsewhere as early as 1943: see Friedrich Kessler, ‘Contracts of Adhesion – Some Thoughts About Freedom of Contract’, (1943) 43 Columbia Law Review 629. See also Randy E. Barnett, 'Consenting to Form Contracts' (2002) 71(3) Fordham Law Review 627; J Chitty, H G Beale, Chitty on Contracts (Sweet & Maxwell, 31st ed, 2012) [1-034]; M P Furmston, Cheshire, Fifoot and Furmston's Law of Contract (Oxford University Press, 15th ed, 2006) 26. 91 Ian Blackshaw, 'Arbitration: Olympic Athlete Consent to CAS Arbitration' (2009) 7(11) World Sports Law Report 6. See also Jack Anderson, Modern Sports Law (Hart Publishing, 2010) [3.30], who refers to ‘reluctant claimants’. Cf Anderson’s views in Jack Anderson, '"Taking Sports out of the Courts": Alternative Dispute Resolution and the International Court of Arbitration for Sport' (2000) 10(2) Journal of Legal Aspects of Sport 123, 126: ‘The jurisdictional link of the CAS through the Olympic Charter, onto the international federations and ultimately the individual athlete is strong, authoriative and transparent. … The independence and impartiality of the CAS adjudicators has been greatly strengthened to the point of striking a welcome balance between the concerns of sports participants and the logic of the law’. 92 Jan Paulsson, 'Arbitration of International Sports Disputes' (1993) 9 Arbitration International 361. For a discussion of forced arbitration in sport, see ‘The ‘Myth’ of Consent in Sports Arbitration’ in Chapter IV below. 93 See Brian H Bix, Contract Law: Rules, Theory, and Context, (Cambridge University Press, 2012) 128 et seq. Arguments advanced for the enforcement of contracts where there is no genuine consent include ‘the importance of predictability of enforcement, the difficulty of proving (or disproving) questions of consent, avoiding incentives to stay ignorant or to lie about one’s knowledge, and so on’: 145. 103

incidence of de facto power involves additional considerations not necessarily present in other, contractual contexts.

(i) Forced Consent and De Facto Power

Where consent is forced, there is nevertheless a contract and some manifestation of technical consent, although the legal effects of that consent may be affected by it not being given freely. But as de facto power does not depend upon consent, consent need not be forced, and no manifestation of contractual consent, forced or otherwise may exist at all in order for power to be exercised. Whether consent is genuine or forced and the effect of this on the validity of a contract is therefore only determinative of the capacity to exercise power in contractual contexts, where a valid contract is required to support the exercise of a private power. Otherwise, where de facto power can be exercised whether or not a contract exists, the issue of consent operates as a distraction; the real issue in the case of de facto power is not whether a contract is valid or not, but the legal status and consequences of de facto power.

In fact, the issue of whether or not contracts of adhesion in sport should be considered valid has operated to obscure both the effects of de facto power and the consequences of the judicial support of that power.

(c) The Effect of Judicial Support of De Facto Power in the Form of Forced Consent It is misleading to view the courts in various decisions, most famously in Canas94 and more recently in Pechstein,95 but also in cases such as Stretford v The Football Association Ltd,96 as upholding the de facto power of sports governing bodies by conferring validity upon ‘agreements’ procured by force. The substantive effect of the courts’ determinations in these cases is not located in the court’s support of forced agreements, but in their support of the validity of de facto power. That a contract made by forced agreement has been regarded as valid is largely beside the point: the sports governing bodies possess de facto power and do not require the contracts to support the sanctions that they use to enforce their monopoly power – but the intervention of the court is essential for an individual subjected to de facto power.97 The

94 4P.172/2006 (2007) (Switz.) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep 65. 95 German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15. 96 [2007] EWCA Civ 238. 97 See P and Deutsche Eisschnelllauf Gemeinschaft eV (DESG) v International Skating Union (ISU) CAS 2009/A/1912 and CAS 2009/A/1913, award of 25 November 2009: The international federation, the ISU banned Pechstein from competition for two years and stripped her of points, awards and medals that she had won. These sanctions did not require the imprimatur of either CAS or a state court to be implemented. 104

refusal of that intervention is the operative decision, and the conferral of validity upon a forced agreement, if any, merely a redundant, secondary benefit for the body exercising de facto power. As the court in Buckley v Tutty observed, a case where the sports governing body disclaimed any intention to enforce its rules against an athlete, this was ‘mere sophistry; it was not necessary to invoke the processes of the law to compel the respondent to observe the rules, although it was necessary for the respondent to resort to the courts to escape from their restraint.’98

As with the ‘chain of contracts’ theory discussed above, the question then arises as to the function of the forced agreement under the law: is it necessary, and if so, why? Any distinction between the effect of a court upholding de facto power exercised through a forced agreement and the effect of a court supporting the validity of the same de facto power unadorned by any forced contract appears to be solely a question of form. While the short step from allowing ‘agreements’ to be forced, to dispensing with a requirement for agreements altogether has not yet been recognised explicitly, in substance, this is the real effect of the courts’ rejections of the challenges to de facto power. Any residual insistence on the form of a forced agreement to arbitration represents the imposition of a mere formal or procedural requirement for sports governing bodies that possess de facto power. If a court considers a forced agreement to be valid, there is no reason in logic why a court should allow a power to be exercised only under a forced contract, but not without that mere formality. This approach disguises both arbitrary private domination, and the court’s support of that unauthorised private power, under the cover of the legitimacy of the institution of contract. Fundamental issues of legitimacy and justification arise that, so far, appear to have only received cursory attention.

This issue is more than whether forced consent to arbitration in sport should be permitted. That discussion also obscures a substantive issue by focussing on arbitration as a form of dispute settlement. The substantive issue is not merely whether a complainant should be forced to accept arbitration in sport and forego their right of access to state courts. The substantive issue is that the imposition of arbitration in sport also involves the application of the arbitrarily determined rules of one of the parties to the dispute. For this reason, disputes about the form of the arbitral process appear to be beside the point.99

98 Buckley v Tutty (1971) 125 CLR 353, 382. 99 As in International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15, for example. 105

The next section deals with the role of non-contractual consent as a potential source of de facto power in sport.

2 De Facto Power and Consent It is indisputable that the conduct of sporting events entails some level of agreement on the part of participants, notwithstanding that this agreement may not amount to a contractual relationship. It is understandable then, that the concept of consent persists in the justifications of the exercise of regulatory power by sports governing bodies. In particular, significance is afforded to the real or constructive knowledge of a participant of the rules of international federations in the relevant sport as a justification for applying those rules to the participant. In addition, it is presumed that participation in a sport involves consent to the governing body’s regulatory authority.100

(a) The Role of Participant Knowledge of Sports Governing Bodies’ Rules Bound up with the concept of consent to regulatory authority in sports is the issue of the actual or presumed knowledge of participants of the rules of the sports governing body responsible for the management of the relevant sport. In the case of de facto power, the issue arises as to the relevance of actual or presumed knowledge by participants of the rules of the sports governing bodies: can knowledge of a sports governing body’s rules by a participant lead to or contribute towards an implication of consent to those rules?

It may be accepted that sports people know, or should know, the rules applying to their sports.101 Analogously, in the public law context, there is the well-known maxim that ignorance of the law is no excuse.102 But while it may be accepted that an athlete has either real or constructive knowledge of the rules applying to the relevant sport, this does not answer the question as to what legal use that knowledge may be put.

100 It is necessary to attribute knowledge and participation as giving rise to consent as it is consent that is necessary to justify the imposition of obligations in private law. Neither knowledge nor participation are recognised as giving rise to some theoretically distinct basis for the imposition of private rights. 101 Modahl v British Athletic Federation Ltd [2002] 1 WLR 1192, [92] (Mance LJ): ‘Any athlete like the claimant wishing to compete as an amateur must be taken to be familiar with the basis from time to time on which she would be permitted and able to compete’. See also [104]. See also Roberts v FIBA, 4P.230/2000, 7 February 2001, [2a]; Football Club A v Coach B & TAS, 4P.253/2003, 25 March 2004, in ASA Bull 128 (2005), [5.4]; X v Y & FIFA, 4A_548/2009, 20 January 2010, [4.1]. However, the extent of an actual consent may be limited in the particular circumstances: Busch v WADA, 4A_358/2009, judgment of 6 November 2009. 102 ‘Ignorantia juris non excusat’ or ‘ignorantia legis neminem excusat’: Black's Law Dictionary (Thomson Reuters, 10th ed, 2014). See Ostroski v Palmer (2004) 218 CLR 493, 500 (Gleeson CJ, Kirby J); R v Crosswell 2007 ONCJ 25; Bailey (1800) Russ & RY 1. Cf R v Potter (1978) 39 CCC (2d) 538, 3 CR (3d) 154 (PEISC). 106

In the private law context of sport, there are two contexts in which knowledge of rules by a participant in sport may be relevant. Knowledge may be relevant in determining whether there is agreement to rules; and knowledge may be relevant in determining the terms of an agreement.

Taking the second of these contexts first, it is a widely accepted principle of contract law that a person is to be assumed to be aware of the terms of their agreement.103 In this context, knowledge of documents such as the rules of sports governing bodies that are separate from any document directly signed by parties, is relevant for the purpose of ascertaining the terms of contracts entered into by participants. But in this context, clearly, there must be a contract– established by the application of the usual rules of contract formation–and the real or constructive knowledge of a party of terms incorporated by reference is relevant to the extent or content of the parties’ agreement, not its existence. The principle is the same, whether the relevant agreement is contractual or it falls short of that status and is merely ‘consensual’.

In relation to the knowledge of rules as a foundation for the implication of a contract, a core principle is that bargains cannot be imposed. For this reason, acceptance of an offer cannot be inferred from silence alone,104 except in the most exceptional circumstances.105 Knowledge does not constitute consent and an offeror cannot ‘arbitrarily impose contractual liability upon an offeree merely by proclaiming that silence shall be deemed consent’.106 Accordingly, mere knowledge, real or constructive, of the rules of a governing body cannot substitute for the elements required to establish an enforceable contract. Knowledge cannot be equated with consent107 and is insufficient to establish a contract – or any other form of agreement.

103 Parker v South Eastern Railway Co (1877) 2 CPD 416, 423; Howatson v Webb [1908] 1 Ch 1; L’Estrange v F Grauccob Ltd [1934] 2 KB 394; Levison v Patent Steam Carpet Cleaning Co Ltd [1978] QB 69; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, [36], [45]. 104 Allied Marine Transport Ltd v Vale do Rio Doce Navegacao SA (The Leonidas D) [1985] 1 WLR 925, 927; Raafsanjan Pistachio Producers Co-operative v Bank Leumi (UK) plc [1992] 1 Lloyd’s Rep 513, 542; Exmar NV v BP Shipping Ltd (The Gas Enterprise) [1993] 2 Lloyd’s Rep 352, 357; Vitol SA v Norelf Ltd [1996] AC 800, 812; Front Carriers Ltd v Atlantic and Orient Shipping Corporation (The Archimidis) [2007] EWHC 421, [45]– [46]; 105 Allied Marine Transport Ltd v Vale do Rio Doce Navegacao SA (The Leonidas D) [1985] 1 WLR 925, 927; Cie Frncaise d’Importation etc v Deutsche Continental Handelsgesellschaft [1985] 2 Lloyd’s Rep 592, 598; Gebr van Weelde Sheepvaart kantoor BV v Compania Naviera Orient SA (The Agrabele) [1987] 2 Lloyd’s Rep 223, 234-5. See also Empirnall Holdings Pty Ltf v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523; Manco Ltd v Atlantic Forest Products Ltd (1971) 24 DLR (3d) 194. 106 Seddon, et al, above n 82, citing Felthouse v Bindley (1862) 11 CB (NS) 869; affirmed (1863) 1 NR 401. See similarly Furmston, above n 90, 61; Chitty, above n 90, [2-070]: ‘The reason for the rule is that it is, in general, undesirable to impose on an offeree the trouble and expense of rejecting an offer which he does not wish to accept’. 107 See Bomar Oil NV v Entreprise Tunisienne d'Activités Pétrolières (E T A P), Cass 1e civ, 9 Nov 1993, 1994 Rev Arb 108, XX Y B Com Arb 660 (1995): knowledge and tacit acceptance required. 107

Knowledge by itself has not been considered a sufficient basis for the implication of contracts in sport. For example, in Korda v International Tennis Federation,108 the court implied a contract between an athlete and in international federation. Whilst the athlete’s concession that he was aware of the relevant regulations was considered relevant, it was only one of the factors taken into account.109 The constructive knowledge of an athlete of the rules of a governing body were given greater significance by the court in Modahl v British Athletic Federation Ltd.110 In that case, constructive knowledge of a sports governing body’s rules was used not only to determine the terms of the contract, but also as a significant part of the basis for the implication of the contract itself. Knowledge inferred to an athlete of a sports governing body’s rules that were considered to ‘have contractual aspects’ and to ‘contain a framework of rights and duties of sufficient certainty to be given contractual effect’111 was used to support the implication of a contract. In any event, the contract implied in Modahl, like the contract implied in Korda v ITF,112 was not implied merely on the basis of the knowledge of rules by the athlete, but on taking a range of factors into account.

Consistent with the contract law approach, knowledge, by itself, is also insufficient to establish liability in tort. In tort law, mere knowledge of a danger is insufficient to make the principle of voluntary assumption of risk, ‘volenti non fit injuria’, applicable.113

If knowledge of itself is insufficient to lead to liability in either contract or tort, then some exceptional principle would need to apply to make knowledge of the rules of a sport sufficient to have legal consequences. No judicial authority has established such an exception.

108 Korda v ITF Ltd [1999] EWHC J0129-11, [9]–[10] (Lightman J). 109 Ibid [9](b). An argument based on Interfoto Picture Library Ltd v Stiletto Visual Entertainment Programmes Ltd [1989] QB 433 to the effect that the obligations contained in the sports governing body’s rules were particularly onerous and required special measures to bring them to the athlete’s attention was rejected: [11]. See also N v FEI, Judgment of 31 October 1996, (SFT), Digest of CAS Awards 1986-1998, 585, 590: ‘Thus, it is not admissible to hold that an arbitration agreement resulting from a global reference does not bind the person who, already knowing the existence of the arbitration clause when he signs the document referring to it and thereby satisfies the requirements of the written form, makes no objection to such a clause and further demonstrates, through his subsequent behavior, that he regards himself as bound’ (emphasis added). 110 Modahl v British Athletic Federation Ltd [2002] 1 WLR 1192. 111 Ibid [103] (Mance LJ). 112 Korda v ITF Ltd [1999] EWHC J0129-11. 113 Thrussell v Handyside (1888) 20 QBD 359, 364 (Hawkins J): ‘his poverty, not his will, consented to incur the danger’. cited in Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 (HL) by Lord Reid. See also Yarmouth v France (1897) 19 QBD 647, 657 (Lord Esher MR): ‘mere knowledge of the danger will not do; there must be an assent on the part of the workman to accept the risk, with a full appreciation of its extent, to bring the workman within the maxim, “Volenti non fit injuria”’; Yarmouth v France (1897) 19 QBD 647, 660 (Lord Linley); ‘The question in each case must be, not simply whether the plaintiff knew of the risk, but whether the circumstances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by the plaintiff.’. See also Smith v Baker & Sons [1891] AC 325; Imbree v McNeilly (2008) 236 CLR 510, [79]–[81]. 108

(i) Knowledge, Consent and the Veneer of Legitimacy for De Facto Power

A further and fundamental difficulty with the approach that affords significance to a participant’s knowledge of rules as a justification for the implication of consent to comply with the rules is that the actual or constructive knowledge of the participant is, for all practical purposes, irrelevant. Knowledge would only have relevance in supporting a conclusion of consent if a participant had some choice in relation to the application of the rules. There is no such choice in sport. A participant’s knowledge of those rules has no bearing on their application.

In sport, knowledge of rules only operates in relation to the basic choice of an individual as to whether or not to participate. Knowledge may cause an individual to pursue an alternative career; but otherwise, participants are stuck with the rules. Accordingly, real or constructive knowledge of rules that apply independently of that knowledge serves no relevant purpose in supporting the implication of consent to the rules.114 The imputation of constructive knowledge is entirely otiose in terms of the applicability of the rules, except perhaps in exceptional circumstances.115 Rather, it also operates to provide a false veneer of respectability and legitimacy to the support of that power by falsely implying some form of voluntary choice and consent.

As knowledge of a sports governing body’s rules is irrelevant to their application, it cannot count as any form of support for the implication of consent to those rules. The proposition that consent to rules may be provided by knowledge of those rules, in combination with participation, must then wholly depend upon participation as the foundation for the implication of consent.116

(b) Participation as Agreement There is an overriding conceptual difficulty with the proposition that participation (or other alleged non-contractual manifestations of consent) may be effective to support de facto power. This difficulty is that if the circumstances are such that conduct said to indicate consent to

114 As legislation does not acquire greater legitimacy if those covered by a law agree with it. 115 Such as in the case of rules made and intentionally kept secret by a sports governing body on the basis that ‘secret law’ does not qualify as law; promulgation is required: See Gilbert Bailey, 'The Promulgation of Law' (1941) XXXV(6) American Political Science Review, citing Blackstone, ‘Introduction’, Commentaries, Sec II, 44; Gratian, Decretume Gratiani, c 3, dist VII; Pufendorf, Elementorum Jurisprudentiae Universalis Libri Duo (trans by WA Oldfather) Vol II, 154-5. A law is only law if people know it exists and can act based on that knowledge: see ICCPR, art 19; Malone v United Kingdom no 8691/79, 2 August 1984, [67]. 116 This duality of factors is regarded as sufficient to support the implication of arbitration agreements in sport and the jurisdiction of CAS: see discussion in Chapter IV under the heading ‘CAS’s Mandatory Jurisdiction’ below. 109

observe the rules of a sports governing body does not lead to contractual obligations, then, for the same reason, nor can it have any other legally binding consensual quality.117 Participation is not provided as part of an exchange relating to the rules of the governing body and cannot therefore be the source of power authorised by those rules. There is no meeting of minds, contractual or otherwise.

In addition, there are practical difficulties here. As with determining the terms of an implied contract, the limits of any constructed agreement based on participation must be ascertained by reference to the nature of the conduct said to constitute that agreement. It is one thing to imply agreement between those directly involved in the participation to matters such as the rules of play and perhaps other rules of direct or immediate application to the participatory conduct, but it is another step entirely to contend that merely participating in sporting competition entails wholesale acceptance of the extensive rules and complete governing authority claimed by sports governing bodies, including the rules of international federations which are not directly involved in, or even necessarily aware of the participatory conduct.118 The problems of determining the scope or terms of implied contracts discussed in Chapter II also apply in this non-contractual context and need not be repeated here.

The categorical nature of sports regulations precludes consent as the foundation from which they operate; and the action of participation cannot be confused with evidence of consent. When participants have no choice as to the application of a sports governing body’s regulations, to regard participation in a sport as consent conflates compliance with an exercise of private power, with consent to that power. Again, the only way of rationalising this conclusion is if it is to be accepted that being required to elect between either participating in a sport or pursuing an alternative career involves a ‘choice’, and therefore constitutes consent.

For these reasons, even were it possible to submit to a domestic body’s jurisdiction, presumably with legal effects, but without a contract to that effect arising,119 it is difficult to equate

117 An exception may be the relatively exceptional case where the doctrine of estoppel may apply. The operation of the doctrine of estoppel is one way in which non-contractual agreements may give rise to legal obligations: see I(d) below. 118 As the court in Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192, was unable to imply a contract between the athlete and the international federation. See [40] (Latham LJ): bearing in mind the IAAF’s purpose and constitution, it was unlikely to have intended to enter into contractual relations with individual athletes without an express contract. See also [76]–[77] (Jonathan Parker LJ): no contract with the BAF on the basis of participation; and [96]-[97], [106] (Mance LJ): IAAF rules primarily directed at national federations, but not deciding whether contract existed between athlete and international federation. 119 See R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815, 838 (Donaldson MR). See also Woolf et al, above n 3, [3-050]. Wade and Forsyth, above n 65, 544. 110

participation in sport with consensual submission to an international federation’s regulatory authority.

(c) Conduct Bringing Individuals Within the Scope of Regulatory Authority It has also been argued that individuals may act so as to bring themselves within the scope of the regulatory authority of a sports governing body,120 in reliance on the case of Stephen v Naylor.121 However, this argument has been rejected,122 and, in any event, on proper analysis, the judgment does not stand as support for this proposition. In Stephen v Naylor,123 a statutory by-law gave the Jockey Club power to exclude disqualified persons and consent was unnecessary.124 The court specifically disavowed consent as the basis of the sports governing body’s jurisdiction and it cannot therefore be correct to suggest that this case stands for the proposition that jurisdiction may arise where a person acts in a way that brings the person under the rules.125 Recognised as the product of the application of statutory by-laws, the decision in Stephen v Naylor is then able to be reconciled with cases based on private rules to which consent was required.126

(d) De Facto Power, Consent and Estoppel Authorities also exist in which the doctrine of estoppel has been used both to support the regulatory authority of a sports governing body and to resist such authority.

120 See for example: Anthony J Crocker, 'Bringing the 'Strangers' within the Rules of Racing' (2012) 7 Australian and New Zealand Sports Law Journal 33. 121 (1937) 37 SR (NSW) 127. 122 Clements v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1144. 123 Stephen v Naylor (1937) 37 SR (NSW) 127. 124 Ibid 138: ‘the right to refuse admission is involved in the terms of the statute’, rejecting an argument that the statute gave the right to regulate admission by by-law but not to refuse it. See also 139: ‘The by-law is clear enough and gives power to exclude disqualified persons. The question then is what is a disqualified person’. This was determined by reference to the Rules of Racing. 125 See Clements v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1144, [42]. VCAT notes that no authority is cited for this proposition. See also: Alan Sullivan, ‘The World Anti-Doping Code and Contract Law’, in Ulrich and Deborah Healey (eds) Haas, Doping in Sport and the Law (Hart Publishing, 2016) 71–2. 126 See for example Calvin v Carr [1980] AC 574, 589, 596; Meyers v Casey (1913) 17 CLR 90, 97, 99, 101 (Barton ACJ), 109-10, 111, 116, 119 (Isaacs J) (with whom Rich J agreed). The Privy Council in Calvin v Carr [1980] AC 574, 594, considered Meyers v Casey to be ‘a voluntary, consensual situation’. Significantly, the distinction between the contractual operation of rules and the non-consensual operation of statutory by-laws was explicitly recognized in Meyers v Casey, with rules relating to the plaintiff’s disqualification operating only contractually: 97 (Barton ACJ) and 109-10, 111, 119 (Isaacs J), but by-laws relating to the Club’s power to expel him operating statutorily: under s 13 of the Victoria Racing Club Act: 102 (Barton ACJ), 107-8, and 122 (Isaacs J). See also Clements v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1144, [72], [73]. 111

Meyers v Casey127 is an example of how estoppel may operate to support the de facto regulatory power of sports governing bodies. In that case, the legal effect of the plaintiff condoning the sports governing body’s departure from its rules was considered to operate as an estoppel.128 In similar circumstances, however, modern courts have implied contracts to support what would otherwise be de facto power.129

Estoppel has also been used against a sports governing body. In Drummoyne District RFC v NSW Rugby Union,130 the Drummoyne District Rugby Football Club Inc was a member of the Sydney Rugby Union (‘SRU’), a company incorporated by guarantee. The SRU was in turn a member of the New South Wales Rugby Union Ltd (NSWRU). A restructuring of rugby union was organised in 1991 on the basis that there would be no change in the clubs in the first-grade competition for three years. Drummoyne acted on the basis of that arrangement, incurring substantial detriment. While not in a contractual relationship with NSWRU Ltd, the principles of equity were applied by the court to require that Drummoyne be invited by the NSWRU to participate in the 1994 competition.131

Notwithstanding that estoppel may lead to the enforcement of promises or agreements that otherwise would not be considered contracts,132 estoppel nevertheless appears to be relatively little used to support regulatory authority in sport. A likely reason is the nature of the fact specific inquiry required to make out an estoppel.133 In particular, it is not clear how participation by an individual in a sport can be taken to constitute a clear and unambiguous assurance.134 Nor is it clear how, in normal circumstances, a sports governing body as the

127 (1913) 17 CLR 90. 128 Ibid 116 (Isaacs J). Isaacs J (Rich J agreeing) regarded the plaintiff’s conduct as a form of estoppel: see 117, 120. Powers J (dissenting) also considered the issue as one of estoppel: 126. Barton ACJ also arguably considered the matter as an estoppel on the basis of his reference (100) to Dines v Wolfe (1869) 16 ER 559; LR 2 PC 280, 289. Cf Bradley v Jockey Club [2004] EWHC 2164, [55]-[56] (Richards J) where a contract was implied on the basis of conduct manifested in the pursuit of an internal appeal against a disciplinary sanction. 129 See for example Bradley v Jockey Club [2004] EWHC 2164; Modahl v British Athletics Federation Ltd [2002] 1 WLR 1192. 130 (1994) Aust Contract Reports ¶90-039, 18 November 1993, Young J, Supreme Court of New South Wales. 131 See also Krabbe v IAAF and DLV SpuRt 1995, 161, decision of 17 May 1995, LG Munchen, in which an athlete who was not a member of the German athletics federation but applied for an identification card from her sports federation, and did not sign it. The athlete used the card in order to be admitted to competition. The court held that she could not now, in good faith, claim that she was never bound by the rules referred to in the identification card: John A. Faylor, 'The Dismantling of a German Champion: Katrin Krabbe and Her Ordeal with the German Track and Field Association and the International Amateur Athletic Federation (IAAF)' (2001) 17(2) Arbitration International 163, 169. 132 So that not all enforceable agreements are necessarily contracts: see Chitty, above n 90, [1-021]. 133 See Seddon et al, above n 106, [2.2]. As to the elements required to be made out by a plaintiff in an equitable estoppel case, see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428-9 (Brennan J). 134 See Reed v Sheehan (1982) 39 ALR 257; Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311, [35]-[37] (Keane JA); John Burrows Ltd v Subsurface Surveys Ltd (1968) 68 DLR (2d) 354. 112

putative promisee, could establish any, let alone a sufficient degree of detrimental reliance on an individual participant’s assurance arising through participatory conduct for estoppel to operate, as it is the detriment that leads to the inequity.135 In most circumstances an international federation whose rules are applied to a sporting competition may be unaware of the individuals participating, or perhaps even of the event taking place. It is therefore difficult to see how that governing body could be viewed as receiving any assurance from participants. It is even more difficult to understand how any detrimental reliance could be shown.

Finally, and most significantly, even if estoppel was more widely available, the principal limitation of the legal doctrine of estoppel as a basis for the regulatory authority of sports governing bodies is that estoppel operates as a form of defence to a claim and by its fact specific nature, is contingent and uncertain. It cannot therefore operate to provide a positive foundation for authority.

D Chapter Conclusion The regulatory power of sports governing bodies does not depend upon contract or consent. This de facto power is produced by the categorical, quasi-legislative nature of regulations in sport in combination with the monopoly power of sports bodies and their power to self- enforce.136

While ultimately, it becomes necessary to consider how this de facto power may be justified, the next chapter considers the de facto nature of the jurisdiction of CAS, in which the arbitral tribunal assumes jurisdiction even in the absence of an arbitration agreement between the parties ot a dispute. This jurisdiction operates to support the de facto power of international federations.

135 Seddon et al, above n 106, [2.4]. See Commonwealth v Verwayen (1990) 170 CLR 394, 410 (Mason CJ); Attorney-General for Hong Kong v Humphreys Estate (Queens Gardens) Ltd [1987] AC 114, 123-4. 136 This leads to questions as to the relevance and applicability of principles of judicial deference derived from consent-based powers and to the proper standard of judicial supervision of conflicts over exercises of de facto power which lacks either contractual or legislative authorisation. 113

IV THE DE FACTO JURISDICTION OF THE COURT OF

ARBITRATION FOR SPORT

A Chapter Introduction ...... 115 B The ‘Myth’ of Consent in Sports Arbitration ...... 116 1 Arbitration in Sports Governing Bodies’ Rules ...... 119 2 Practical Considerations Supporting Sports Arbitration ...... 120 3 CAS’s Mandatory Jurisdiction ...... 121 (a) CAS Rules ...... 121 (b) CAS Practice ...... 123 (c) The Approach of the Swiss Federal Tribunal ...... 126 C The Inadequate Justification of Non-Consensual Arbitration ...... 131 1 The Justifications of Non-Consensual Arbitration in Sport ...... 131 2 The Selective Application of the Functional Justifications ...... 131 3 The Objective of an Effective Dispute Settlement Regime ...... 132 (a) Avoiding Jurisdictional Problems ...... 133 (b) Facilitating Consistency ...... 134 4 The Fairness of the Process ...... 134 5 Legitimacy of Arbitration and the Problem of the Absence of Agreement ...... 136 6 The Rule of the Rules of International Sport Governing Bodies ...... 139 (a) De Novo Review or the Fresh and Independent Application of Arbitrary Power? ...... 139 (b) Inequality ...... 142 (c) Substantive Arbitrariness ...... 143 7 Pro-Arbitration Policy ...... 144 D Chapter Summary ...... 145

114

A Chapter Introduction The requirement for consent to sports arbitration has generated substantial legal controversy. To the extent that a requirement of consent is viewed as a mechanism to curb the de facto power of sports governing bodies, the focus in this debate on consent is perhaps misdirected.

Sports arbitration is non-consensual because there is no effective choice available. This is true even where a participant initiates arbitral proceedings, not the least because the courts’ acceptance of sports arbitration without consent excludes the possibility of alternatives.

But the possession of de facto power by sports governing bodies also means that consent becomes largely irrelevant as a pre-condition for the exercise of power. A sports governing body can implement its own rules and sanctions and need not have recourse to the arbitral regime. This is also true in relation to consent to sports arbitration – sports governing bodies do not need an arbitral award to support their exercise of power, so a participant’s consent to arbitration is of little practical relevance. Awards of the sports arbitral regime that uphold an exercise of power by a sports governing body provide only supplementary support for the exercise of de facto power. The practical value of even a successful attack on the jurisdiction of an exercise of arbitral power in the absence of consent will depend on this opening up a remedy under state law. But because of the approach of state courts to the supervision of the de facto power of sports governing bodies, this is an entirely uncertain prospect.1

It is true that international federations bind themselves to the arbitral process, and in theory impose sports arbitration as a limitation on their own de facto power. This, however, is a relatively insignificant restriction. At its highest, the international federations’ de facto power becomes liable to being curbed or limited by an arbitral award in favour of a participant who initiates arbitral proceedings to dispute an exercise of power. In this sense, sports arbitration is pro-participant.2 However, the scope of this limitation on de facto power is severely constricted. CAS determines disputes by the application of the rules of the international federations and this means that the self-imposed limitation on the de facto power of

1 As International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15, illustrates. 2 See: Gilbert Schwaar, The Solution of Disputes through Arbitration: A New Institution - the Court of Arbitration for Sport, (Court of Arbitration for Sport) 1; James A R Nafziger, 'Sports Law: A Replay of Characteristics and Trends' (1992) 86 The American Journal of International Law 489, 506; Michael Lenard, ‘The Future of Sports Dispute Resolution’, (2009) 10 Pepperdine Dispute Resolution Law Journal 173, 178. 115

international federations really only operates in cases of violations of an international federation’s own rules, or perhaps in particularly egregious abuses of power.3

Notwithstanding this, the courts’ acceptance of non-consensual sports arbitration in the form of forced arbitration and mandatory sports arbitration has led the focus of attention to issues of procedure, in particular the procedural independence and impartiality of CAS.4 That is, because the absence of consent is not accepted as a sufficient basis to challenge sports arbitration, challenges have been based on arguments that the absence of consent has led to participants being subjected to an arbitral process that was inadequate. This has obscured the more fundamental issue relating to de facto power – and the significance of the absence of consent to sports arbitration.

The real problem of non-consensual sports arbitration is not defects in the arbitral process or that CAS arbitration involves a sub-standard dispute settlement process in comparison with litigation in a state court. The problem is that arbitration without consent facilitates arbitrary private rule–the rule of rules of international federations – and it does so on inadequate functional grounds. The issue does not reduce to an assessment of the probity and rectitude of CAS arbitration, either in isolation or in comparison with the alternative of litigation in state courts. Whether CAS arbitration is procedurally unimpeachable does not disturb the defect of the non-consensual process in giving effect to arbitrary private rules.

More generally, the diversion of disputes that may otherwise be brought before the private law courts to the sports arbitral system also works to isolate sports disputes from the scrutiny of the courts. In turn, this reduces the need and opportunity for state courts to consider cases that may lead to the development of the private law in its application to de facto power, as occurred for example, in Nagle v Feilden.5

B The ‘Myth’ of Consent in Sports Arbitration Non-consensual arbitration in sport encompasses arbitration by forced consent and a form of mandatory arbitration. ‘Forced consent’ arises where the monolithic Olympic and international sports governing bodies exercise a plenary power to require athletes to submit to final and

3 In this sense, conferring jurisdiction on CAS involves only a minor relinquishing of control. Cf Jan Paulsson, 'Arbitration of International Sports Disputes' (1993) 9 Arbitration International 369. 4 For example, this was the nature of the attack in International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/1. 5 [1966] 2 QB 633. 116

binding CAS arbitration as a condition of participation.6 The problem of forced consent is well known and is a problem that does not apply just in sport.7 However, the issue of de facto power in sport also involves arbitration without consent by virtue of the application of the statutes or regulations of the sports governing bodies.8

In both cases, consent is absent.9

To assert that sports arbitration is voluntary because one can avoid it by abstaining from taking part in the sport is to take intellectual purity to an absurd extreme. Major [sports governing bodies] tend to have an absolute or near monopoly on governance of their sport, including the power to withdraw – subject to the rule of law – the right to take part in it.10

This was the substance of the decision of the SFT in Canas11 where the court observed that:

Sports competition is characterized by a highly hierarchical structure, as much on the international as on the national level. Vertically integrated, the relationships between athletes and organisations in charge of the various sports disciplines are distinct from the horizontal relationship represented by a contractual relationship between two parties . . . This structural difference between the two types of relationships is not without influence on the volitional process driving the formation of every agreement . . . [E]xperience has shown that, by and large, athletes will often not have the bargaining power required and would therefore have to submit to the federation’s requirements, whether they like it or not. Accordingly, any athlete wishing to participate in organised competition under the control of a sports federation whose rules provide for recourse to arbitration will not have any choice but to accept the arbitral clause, in

6 Matthew J Mitten and Hayden Opie, ‘“Sports Law”: Implications for the Development of International, Comparative and National Law and Global Dispute Resolution’ (2010) 85 Tulane Law Review 269, 290. 7 See discussion in Chapter III under the heading ‘Forced Consent’ above. 8 Antonio Rigozzi and F Robert-Tissot, ‘“Consent” in Sports Arbitration: Its Multiple Aspects’ in E Geisinger and E Trabaldo de Mestral (eds), Sports Arbitraiton: A Coach for other players? (2015) ASA Special Series 59, 60. See also Andrea Marco Steingruber, Consent in International Arbitration (Oxford University Press, 2012) [2.45]; Andrea Marco Steingruber, ‘Sports Arbitration: how the structure and other features of competitive sports affect consent as it relates to waiving judicial control’ (2009) 20 American Review of International Arbitration 59, 73; Antoine Duval and Ben Van Rompuy, ‘The compatability of forced CAS arbitration with EU competition law: Pechstein reloaded’, 23 June 2015, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983, [2.2.1]; Ian Blackshaw, 'Arbitration: Olympic Athlete Consent to CAS Arbitration' (2009) 7(11) World Sports Law Report; Maureen A Weston, 'Doping Control, Mandatory Arbitration, and Process Dangers for Accused Athletes in International Sports' (2009) 10 Pepperdine Dispute Resolution Law Journal 8; Daniel H Yi, 'Turning Medals into Metal: Evaluating the Court of Arbitration for Sport as an International Tribunal' (2006) 6 Asper Review of International Business and Trade Law 312. 9 See Steingruber (2012), above n 8, [2.41], [2.48]-[2.49], who divides the circumstances in which arbitration operates with a reduced consensual character into arbitration with forced consent, which is based on an arbitration agreement, and mandatory arbitration, which is based on a legislative act. An example of mandatory arbitration in the sports field is the case of Olympic sports in the United States where arbitration takes place under legislative authorisation: see Ted Stevens Olympic and Amateur Sports Act (US), § 220509. 10 Michael Beloff, et al, Sports Law (Hart Publishing, 2nd ed, 2012) [8.135]. 11 Canas v ATP Tour, 4P.172/2006 (2007) (Switz) ATF 133 III 235, translated in 1 Swiss International Arbitration Law Reports 65. 117

particular by subscribing to the articles of the sports federation in question in which the arbitration clause was inserted.12

The SFT upheld the enforceability of compelled arbitration provisions on the basis that the CAS provides a swift, independent, and impartial means of resolving international sports disputes by a specialized tribunal.13 UK courts have also dismissed arguments regarding lack of genuine consent,14 as have courts in other jurisdictions.15

In addition to this ‘prompt settlement’ justification, arbitration by compulsion in international sport is typically justified by reference to the need for uniformity and consistency in dispute settlement. ‘The main advantage of using arbitration to resolve international sporting disputes is to ensure a certain equality of treatment of athletes across borders. In sports, which are international by nature, it is essential that all athletes be treated in the same way.’16 As will be discussed, these justifications are manifestly inadequate.

12 Ibid 84-85. See also International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15, [55]: ‘Where one of the parties is in a position of such power that it is able to determine the terms of the contract more or less unilaterally, the other party may be said to have been coerced into agreeing to such terms.’ 13 Ibid 86: Though it required as a ‘counterbalance’ that an athlete must have a right to have an adverse CAS award judicially reviewed by the SFT to remedy ‘breaches of fundamental principles and essential procedural guarantees which may be committed by the arbitrators called upon to decide in his case.’ See also A v WADA, FIFA and CFA, 4A_640/2010, judgment of 18 April 2011, [3.2.2] See also [3.3.1]: ‘One should not fail to recognize that in the worldwide fight against doping the CAS is of ever more important significance. Thus an international development towards the CAS jurisdiction in doping matters is to be upheld with a view to ensuring compliance with international standards in this field’; X v Y Sarl, 4A_246/2011, judgment of 7 November 2011, [2.2.2]; X v Y and FIFA, 4A_548/2009, judgment of 20 January 2010, [4.1]; International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15, [59], [62]. 14 See Stretford v The Football Association Ltd [2007] EWCA Civ 238, [43]–[53]. This judgment has been criticised as involving a bizarre form of ‘voluntariness’: Ulrich Haas, 'Role and Application of Article 6 of the European Convention on Human Rights in CAS Procedures' (2012) (3) International Sports Law Review 43; and as ‘creating a fiction of consent’: Rigozzi and Robert-Tissot, above n 8, 69. 15 See for example: Lagat v WADA and IAAF, Cologne Regional Court, judgment dated 13 September 2006, 5– 6; USADA v Bruyneel and others, AAA Panel decision dated 7 June 2013. The AAA Panel held that the defendants were subject to the UCI rules, under which the body first discovering a doping violation had jurisdiction. Therefore, ‘when they had submitted themselves to those rules they had in effect agreed to the results management authority of an as yet unknown body and to arbitration of disputes with that unknown body under an as yet unknown arbitration system.’: Adam Lewis and Jonathan Taylor Sport: Law and Practice (Bloomsbury Professional, Third Edition ed, 2014). [C2.5], note 2. 16 Steingruber (2009), above n above n 8, 60. See also S Netzle, 'Jurisdiction of Arbitral Tribunals in Sports Matters: Arbitration Agreements by Reference to Regulations of Sports Organisations', 11(45) Arbitration of Sports-Related Disputes, ASA Special Series (November 1998) [5], [2.2]. 17 Cf Despina Mavromati, 'The Legality of the Arbitration Agreements in Favour of CAS (Pechstein, Parts 1 and 2', Law in Sport, 6 July 2016, who suggests that other types of case would be determined similarly. 118

have a wider effect than merely facilitating the settlement of disputes by arbitration. It results in the imposition of all of the rules of a sports governing body. This wider effect is neither acknowledged, nor separately justified.

1 Arbitration in Sports Governing Bodies’ Rules Sports governing bodies require disputes in sport to be dealt with by way of arbitration, to the exclusion of state courts.18 By way of example, the FIFA Statutes require the members of FIFA to:

insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in the Association or disputes affecting Leagues, members of Leagues, Clubs, members of Clubs, Players, Officials and other Association Officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to ordinary courts of law. 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.19

The member associations of FIFA are also required by the FIFA rules to ensure that this obligation is implemented within the member associations, supported by sanctions for non- compliance.20 These rules create mandatory arbitration as a principal feature of sports arbitration and the validity of this form of mandatory arbitration is supported by state courts.21

The effect of this regime of mandatory arbitration is that state arbitration legislation will protect disputes covered by an arbitration agreement from being separately pursued in state courts,22 and state courts will refuse to litigate matters determined by an arbitration agreement

18 See for example: Federation Internationale de Football Association (‘FIFA’), ‘FIFA Statutes’, April 2016, art 57-9; International Association of Athletics Federations (‘IAAF’), ‘2017 Constitution’, 1 January 2017, art 20; International Association of Athletics Federations (‘IAAF’), ‘2019 Constitution’, in force 1 January 2019, art 84; Federation Internationale de Basketball (‘FIBA’), ‘FIBA General Statutes’, 28-9 August 2014, arts 9.5, 40; International Hockey Federation (‘IHF’), Statutes, 12 November 2016, art 14.3; Federation Internationale de Volleyball (‘FIVB’), ‘Constitution’, 2014, art 1.5.7, 2.7.5; Badminton World Federation (‘BWF’), ‘Badminton World Federation Constitution’, 20 May 2017, art 30; Federation Internationale de Natation (‘FINA’), ‘FINA Constitution’, 21 July 2015, art C12.11, C26; Union Cycliste Internationale (‘UCI’), ‘Constitution’, 14 October 2016, art 82. 19 FIFA Statutes, above n 18, art 59(3). 20 Ibid. Even disputes about such sanctions are required to be ‘strictly submitted to arbitration, and not to ordinary courts of law’. 21 See for example International Skating Union v Claudia Pechstein German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15, [42]–[63]. 22 See for example International Arbitration Act 1974 (Cth), Sch 2; Arbitration Act 1996 (UK), s 9(4); Federal Arbitration Act (US), 9 USC. § 3 (2012); Arbitration Act 1991 (Canada), ss 5(4), 6; Arbitration Act 1996 (New Zealand), s 6, Schedule 1, art 5. 119

enforceable under the UNCITRAL Model Law23 and the New York Convention.24 These arbitration-related legislative regimes operate on top of policy considerations by which courts decline intervention until internal remedies are exhausted first.25

2 Practical Considerations Supporting Sports Arbitration There are also powerful practical considerations that operate to promote the use of arbitration in sport, including by those not contractually bound by the rule imposing the arbitral system. This is so even if it is open to a participant to argue that, in the absence of a contract, the rule requiring disputes to be dealt with exclusively by arbitration did not legally bind the participant, and that access to a state court was not thereby precluded.

A participant who is not in a contractual relationship with the sports governing body but who is subject to an exercise of power by the body may, because of the absence or the doubtful basis of a private law remedy, have arbitration as the only practical, certain avenue to challenge a decision. The surety of access to an arbitral hearing, in contrast to the uncertainty of the possible available private law remedies, means that there are strong reasons for parties holding a grievance to utilise the sports arbitral regime in preference to attempting an entirely uncertain application before a state court. ‘There is very little practical value, in the course of a short professional career, to start a multi-year litigation, with no certainty of success, to obtain in front of a national court eligibility to compete in sporting competitions.’26

Additionally, the submission of sports disputes to the sports arbitral regime then operates to effectively preclude subsequent challenges in state courts to the de facto power of sports governing bodies. This is because, in a veritable ‘catch 22’,27 participation in the sports arbitral process will be considered to involve the acceptance by the complainant of the validity of that

23 United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985, (as adopted on 21 June 1985 with amendments as adopted by that Commission in 2006), art 8. 24 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), opened for signature 10 June 1958, 330 UNTS 38; 21 UST 2517; 7 ILM 1046 (1968), (entered into force 7 June 1959, art II. See for example Slaney v International Amateur Athletic Federation 244 F 3d 580, 594, 601 (7th Cir 2001); Gatlin v United States Anti-Doping Agency, Inc, Order, June 24, 2008. Case No. 3:08-cv-241/LAC/EMT; 2008 WL 2567657; Raguz v Sullivan (2000) 50 NSWLR 236. 25 See J R S Forbes, Justice in Tribunals (Federation Press, 4th ed, 2014) [16.1]–[16.11]. See White v Kuzych [1951] AC 585, 601; Re Turnbull and Canadian Institute of Actuaries (1995) 129 DLLR 4th 42 (Manitoba CA). Cf Tunny v Orchard [1955] 3 DLR 15, 25; Lawlor v Union of Post Office Workers [1965] Ch 712, 733; Leigh v National Union of Railwaymen [1970] Ch 326, 334 (Goff J). Self-enforcement has also been cited as a basis for the court not intervening, additional judicial proceedings considered to be unnecessary and undesirable: R v Barnes [2004] EWCA Crim 3246, [5] (Lord Woolf CJ). 26 Duval, above n 8, 7. 27 Oxford English Dictionary, (Oxford University Press, 3rd ed, 2016): ‘a supposed law or regulation containing provisions which are mutually frustrating; a set of circumstances in which one requirement, etc, is dependent upon another, which is in turn dependent upon the first.’ 120

arbitral regime and of the rules upon which the regime is based; an aggrieved party cannot rely upon rules to the extent that they provide an avenue of appeal through arbitration, but reject the other substantive provisions of those same rules.28 This ‘catch 22’ effect is reinforced by the courts’ acceptance of sports arbitration without consent, which leaves complainants with no other alternative. Further, participation in the sports arbitral process may provide the foundation for the implication of a contract legally committing the participant to the arbitral process and involving acceptance of the rules that govern it.29 The paucity and uncertainty of private legal remedies and the relatively unrestricted access to sports arbitration thereby have the effect of transforming exercises of de facto power into de jure power, power that is subsequently supported by the ratification provided upon participation in the arbitral process. The approach of CAS to its jurisdiction deriving from the terms of the rules of international federations facilitates this effect.

3 CAS’s Mandatory Jurisdiction ‘The filching of a jurisdiction that does not belong to one is no more admirable than any other act of theft’.30

CAS exercises a form of mandatory arbitration derived only from the regulations of sports governing bodies, unsupported by a complementary agreement between the parties to arbitration or by a legislative grant of authority.31

(a) CAS Rules Indeed, the rules of CAS explicitly contradict the requirement that in theory, the arbitral jurisdiction of CAS depends upon an agreement between the parties.32 The CAS Rules are drafted to reflect two possible bases of jurisdiction: a specific arbitration agreement, and a

28 See for example Bradley v Jockey Club [2004] EWHC 2164; Korda v ITF Ltd [1999] EWHC J0129-11, (Lightman J). See also Meyers v Casey (1913) 17 CLR 90 – giving rise to a form of estoppel. Both CAS and the Swiss Federal Tribunal presume agreement to the jurisdiction of CAS if, perversely, no objection is raised upon the initiation of proceedings: Grasshopper v Alianza Lima, CAS 2008/A/1705, award of 18 June 2009, [5]; Football Federation Islamic Republic of Iran (IRIFF) v Federatioin Internationale de Football Association (FIFA), CAS 2008/A/1708, award of 4 November 2009, [4]–[5]; Egyptian Football Association v Al-Masry Sporting Club, 4A_682/2012, [4.2.2.1] and [4.2.2.2]. See Duval, above n 8, 7–8. 29 See for example Bradley v Jockey Club [2004] EWHC 2164 30 Lord Radcliffe, Book Review: Final Appeal – A Study of the House of Lords in its Judicial Capacity (1973) 36 MLR 559, 565, quoted by Michael Taggart, 'Proportionality, Deference, Wednesbury' (2008) New Zealand Law Review 424. 31 Unlike international investment arbitration: see notes 88, 89 below. 32 Nigel Blackaby, Constantine Partasides, Alan Redfern, Martin Hunter, Redfern and Hunter on International Arbitration (Oxford University Press, 5th ed, 2009) [2.01]. See also Gary Born, International Arbitration: Law and Practice, (Wolters Kluwer, 2012), §3.01[A]; See also Julian D M Lew, Loukas A Mistelis, Stefan M Kröll, Comparative International Commercial Arbitration (Kluwer Law International, 2003) [6-1]. 121

conferral of arbitral jurisdiction in the regulations of sports bodies. The latter source of jurisdiction is not expressly dependent upon a signed agreement or other form of agreement between the parties to an arbitration.

Rule R27 of the CAS Code33 provides:

These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) or may involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS (appeal arbitration proceedings).34

In relation to appeals to CAS, rule R47 provides:

An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of that body.35

Notwithstanding the opening requirement in rule R27 of the CAS Rules for the parties to have agreed to refer a dispute to CAS, the subsequent specifications36 allowing for an arbitration clause to be contained in a sports governing body’s regulations qualifies this condition. Rule 27 appears to (wrongly) assume that a reference in the regulations of a sports body is an agreement involving all of those who are regulated by the regulations. Rule 47 contains no limitation requiring the agreement to arbitration by the parties to a dispute. Accordingly, under the CAS Code, the jurisdiction of CAS when it is conferred by the regulations of a sports body is not conditioned by the requirement for agreement to those regulations.

CAS practice largely follows the scheme of the CAS Code.

33 Court of Arbitration for Sport, Statutes of the Bodies Working for the Settlement of Sports-Related Disputes, (‘CAS Code’)(2013). 34 Ibid rule R27 (emphasis added). The CAS Rules require requests for ordinary arbitration to be accompanied by ‘a copy of the contract containing the arbitration agreement or of any document providing for arbitration in accordance with these Procedural Rules’: rule R38. Conferral of jurisdiction by a document within rule R38 is required to be clear and explicit. Doubts are resolved by CAS against the tribunal assuming jurisdiction: PFC CSKA Sofia v BFU, CAS 2008/O/1694. 35 Ibid rule R47, (emphasis added). 36 Ibid: in both rule R27 relating to ordinary arbitrations and in rule R47 relating to appeals. 122

(b) CAS Practice A CAS Panel has described the initial procedure that is followed by the tribunal in relation to jurisdiction as follows:

In accordance with CAS procedure, when a request for arbitration or a statement of appeal is filed with the CAS, a preliminary examination of the file is undertaken by the CAS Court Office, in order to identify cases where there is manifestly no arbitration agreement referring to the CAS. Pursuant to articles R39 and R52 of the Code, if there is manifestly no arbitration agreement referring to the CAS, the parties are informed as such in writing by the CAS Court Office and, in the absence of an alternative agreement between the parties, the arbitration procedure is discontinued.37

If proceedings continue to arbitration, CAS Panels then determine their own jurisdiction.38 CAS requires to be shown either that the parties have explicitly agreed to submit their dispute to CAS arbitration or that the statutes or regulations of the body issuing the appealed decision foresee a possibility of appeal to CAS.39 These criteria are viewed as alternative sources of jurisdiction by CAS panels, with an examination of whether there is a specific agreement to submit to arbitration being followed by an examination of the relevant sports body’s

37 Ashley Cole v Football Association Premier League (FAPL), CAS 2005/A/952, award of 24 January 2006, [5]. A similar practice is followed by other arbitral institutions, such as the International Chamber of Commerce: Bernard Hanotiau, Complex Arbitrations: Multiparty, Multicontract, Multi-Issue and Class Actions, (Kluwer Law International, 2006) [231]. 38 CAS determines its jurisdiction in accordance with art 186 of the Swiss Private International Law Act (‘PILA’): see Ashley Cole v Football Association Premier League (FAPL), CAS 2005/A/952, award of 24 January 2006, [2[-[3]; Telecom Egypt Club v Egyptian Football Association (EFA), CAS 2009/A/1910, award of 9 September 2010, [2]-[3]; Omer Riza v Trabzonspor Kulubu Dernegi & Turkish Football Federation, CAS 2010/A/1996, award of 10 June 2010, [3]; Al-Wehda Club v Saudi Arabian Football Federation, CAS 2011/A/2472, award of 12 August 2011, [3]. Art 186 embodies the widely recognised international arbitration principle of ‘Kompetenz- Kompetenz’: Phillipe Bartsch and Angelina M Petti, 'The Arbitration Agreement' in Elliott and Nathalie Voser (eds) Geisinger (ed), International Arbitration in Switzerland: A Handbook for Practioners (Kluwer Law International, 2nd ed, 2013) 25, §3.05. 39 Ashley Cole v Football Association Premier League (FAPL), CAS 2005/A/952, award of 24 January 2006; Clube de Regatas do Flamengo and ors. v CONMEBOL, CAS 2008/A/1503, [3]; A v Caykur Rizespor Kulubu Dernegi & Turkish Football Federation, CAS 2008/A/1602, award on jurisdiction of 20 February 2009; International Rugby Board v Troy & ARU, CAS 2008/A/1664, award dated June 2009, [38]; Football Federation Islamic Republic of Iran (IRIFF) v Fédération Internationale de Football Association (FIFA), CAS 2008/A/1708 award of 4 November 2009, [2]; Telecom Egypt Club v Egyptian Football Association (EFA), CAS 2009/A/1910, award of 9 September 2010, [5.2]; Omer Riza v Trabzonspor Kulubu Dernegi & Turkish Football Federation, CAS 2010/A/1996, award of 10 June 2010; Al-Wehda Club v Saudi Arabian Football Federation, CAS 2011/A/2472, award of 12 August 2011; Persisam Putra Samarinda, Deltras Sidoardjo FC, Pelita Jaya FC, L & E. v Football Association of Indonesia (PSSI), CAS 2012/A/2688, award of 12 April 2012, [2]; Rayo Vallecano de Madrid SAD v Real Federacion Espanola de Futbol (RFEF), CAS 2013/A/3199, award of 22 October 2013, [5.2]. 123

regulations to discover a clause that confers jurisdiction. 40 While the criteria are considered separately, they are both characterised by CAS as ‘agreements’.41

In the case of appeals to CAS by international federations or WADA, some CAS panels go to the extent of finding a supporting acceptance of the regulations of the sports body that confers the appeal right on the international federation and WADA.42 Other CAS panels find no need to ascertain any such agreement, relying upon the terms of the CAS Rules and the relevant international federation’s rules.43

It has been suggested that in the case of appeals to CAS against decisions of sports governing bodies, in addition to being shown that the regulations of a sports governing body confer the tribunal with jurisdiction, CAS requires to be shown evidence that the athlete (where an athlete is involved) was aware of the rules.44 As discussed above, any such requirement is otiose and misleading.45 In any event, the issue of an athlete’s ‘acceptance’ of the applicable governing body regulation in fact attracts little attention from the tribunal.46

The approach of CAS to identifying an ‘agreement to arbitration’ has been described in terms of identifying an offer to arbitrate and an acceptance of the offer:

40 See for example Clube de Regatas do Flamengo and ors. v CONMEBOL, CAS 2008/A/1503, [3]-[5]; A. v Caykur Rizespor Kulubu Dernegi & Turkish Football Federation, CAS 2008/A/1602, award on jurisdiction of 20 February 2009, [4]-[10], 12; Omer Riza v Trabzonspor Kulubu Dernegi & Turkish Football Federation, CAS 2010/A/1996, award of 10 June 2010, [6]-[8] 41 Ibid. 42 See for example International Rugby Board v Troy & ARU, CAS 2008/A/1664, award dated June 2009, [40]; S v FINA, CAS 2005/A/830, award of 15 July 2005, [15]; Union Cycliste Internationale (UCI) v Jan Ullrich & Swiss Olympic, CAS 2010/A/2083, award of 9 February 2012, [2]; USADA v R, CAS 2008/A/1577 award of 15 December 2008, [5]; World Anti-Doping Agency (WADA) v International Ice Hockey Federation (IIHF) & Florian Busch, CAS 2008/A/1564, award of 23 June 2009, [13]-[14]. 43 See for example International Association of Athletics Federations (IAAF) v Hellenic Amateur Athletic Association (SEGAS) and Irini Kokkinariou, CAS 2012/A/2773, award of 30 November 2012, [49]-[53]; Union Cycliste Internationale (UCI) v Alberto Contador Velasco & Real Federación Española de Ciclismo (RFEC) CAS 2011/A/2384 & World Anti-Doping Agency (WADA) v Alberto Contador Velasco & RFEC, CAS 2011/A/2386, award of 6 February 2012, [1]-[4]; World Anti-Doping Agency (WADA) v Jessica Hardy & United States Anti-Doping Agency (USADA), CAS 2009/A/1870, award of 21 May 2010, [2]-[3] (though jurisdiction was not contested); Union Cycliste Internationale (UCI) v Alexander Vinokourov & Kazakhstan Cycling Federation (KCF), CAS 2008/A/1458, partial award of 23 July 2009, [1]. 44 Lewis and Taylor, above n 15, [C2.9]. 45 See discussion in Chapter III under the heading ‘The Role of Participant Knowledge of Sports Governing Bodies’ Rules’ above. The issue of the knowledge of participants of the regulations of sports governing bodies arises in a number of contexts. In circumstances where consent may validly be forced, knowledge is a curious requirement in the scheme of sports disciplinary processes. 46 Reasons for this may include that athlete appellants would not want to contest jurisdiction and perhaps on the basis that mere participation is considered by CAS to amount to ‘acceptance’ of the ‘offer’ to arbitration. Certainly, at least in respect of the anti-doping framework, claims of ignorance of the rules are given ‘short shrift’: Lewis and Taylor, above n 15, [C2.9]; See I v FIA, CAS 2010/A/2268, award dated 15 September 2011, [93]; ASADA v Atkins, CAS 2009/O/A1, award dated 4 November 2009; UK Anti-Doping v Llewellyn, NADP Appeal Tribunal decision dated 14 February 2013, [5.3]. 124

The Panel wishes to emphasize that an arbitration arising from an appeal against a federation’s decision requires the parties’ agreement to arbitrate, in other words an offer to arbitrate and an acceptance thereof. Generally, in a sports environment, federations stipulate in their statutes/regulations that any dispute shall be resolved by arbitration (the offer) and the athlete accepts such offer by signing a respective declaration or simply by participating in competitions organized by the federation. Similarly, in the context of the relationship between clubs, national federations and international federations the organization lower in the hierarchy joins the higher one as member and thereby accepts the latter’s “offer” to arbitrate.47

This characterisation of offer and acceptance only has obvious application in the case of an athlete who appeals to CAS under the authority of a provision in the rules of the athlete’s federation rather than in the case of an appeal by an international federation or WADA. In the case of appeals by athletes, the federation’s rules can plausibly be characterised as a unilateral, open offer to submit to arbitration that is accepted by the athlete through commencing proceedings in CAS. Although, the contention that an offer can be accepted ‘simply by participating’ is more problematic.48

The mandatory nature of CAS arbitration under the authority of a sports body’s regulations arises particularly in the context of the supervisory power assumed by international federations and WADA over disciplinary decisions made by other sports bodies. International federations and WADA assume an overarching regulatory role and reserve for themselves power to ‘appeal’ to CAS against decisions made by other parties in the sporting hierarchy. The exercise of this supervisory power is relatively common,49 and is justified on the basis of the need to

47 Telecom Egypt Club v Egyptian Football Association (EFA), CAS 2009/A/1910, award of 9 September 2010, [9] (emphasis added). See also Football Federation Islamic Republic of Iran (IRIFF) v Fédération Internationale de Football Association (FIFA), CAS 2008/A/1708, award of 4 November 2009, [4], referring to ‘several possibilities on how the parties can agree to arbitration before the CAS. This could take place through the statutes and regulations of the relevant federation containing an arbitration clause to which the parties have submitted’. For there to be an arbitration agreement the party making the offer must have actually intended to submit a dispute to an arbitral tribunal: Judgment of 3 May 2010, 4A_456/2009, (SFT). 48 See discussion in Chapter III under the heading ‘De Facto Power and Consent’ above. 49 See for example since 2009: World Anti-Doping Agency v Mr Juha Lallukka, CAS 2014/A/3488, award of 20 November 2014; World Anti-Doping Agency (WADA) v Lada Chernova & Russian Anti-Doping Agency (RUSADA), CAS 2013/A/3112, award of 16 January 2014; WADA v Anthony West & Fédération Internationale de Motocyclisme, CAS 2012/A/3029 award of 22 November 2013; WADA v Ivan Mauricio Casas Buitrago & GCD, CAS 2013/A/3077, award of 4 December 2013; IAAF v CBAt & Simone Alves da Silva, CAS 2012/A/2779, award of 31 January 2013; International Paralympic Committee (IPC) v I, Venezuelan National Paralympic Committee (COPAVEN), Venezuelan National Anti-Doping Organization (VNADO) & Sport Federation for Visually Impaired Athletes in Venezuela (FEPOCIVE), CAS 2012/A/2789, award of 17 December 2012 (operative part of 28 August 2012); International Association of Athletics Federations (IAAF) v Hellenic Amateur Athletic Association (SEGAS) and Irini Kokkinariou, CAS 2012/A/2773 award of 30 November 2012; Union Cycliste Internationale (UCI) v Alberto Contador Velasco & Real Federación Española de Ciclismo (RFEC) CAS 2011/A/2384 & World Anti- Doping Agency (WADA) v Alberto Contador Velasco & RFEC, CAS 2011/A/2386, award of 6 February 2012; Union Cycliste Internationale (UCI) v Roel Paulissen & Royale Ligue Vélocipédique 125

ensure consistency in the resolution of disputes across and within international sport.50 Without this overarching supervision, decisions of national or regional bodies may unfairly favour local interests rather than impartially determining disciplinary disputes.

(c) The Approach of the Swiss Federal Tribunal In normal circumstances, the jurisdictional difficulty that would arise in respect of an arbitration by CAS of supervisory appeals brought by international federations and WADA is the absence of a single written arbitration agreement to which all relevant parties are included as signatories. An arbitration clause in a sports body’s regulations is not an arbitration agreement binding a non-member of the sports body unless it is also consented to by the relevant parties.

This matter pertains to the validity rather than the scope of the arbitration agreement. The crux here is whether the non-signatory has validly agreed with the other signatories to be bound by the arbitration agreement, not whether the scope of an arbitration agreement extends to cover a non-signatory. An arbitration agreement, as is the case with any other contract, cannot bind a third party merely because it exists between two others.51

The dispensation of the requirement for consent that is applied to sports arbitration,52 and the SFT’s equation of the allowance for CAS arbitration in an international federation’s rules with consent,53 cast these principles aside.

Belge (RLVB), CAS 2011/A/2325, award of 23 December 2011; Franco Pellizotti c. Comitato Olimpico Nazionale Italiano (CONI) & Union Cycliste Internationale (UCI) CAS 2010/A/2308 & UCI v Franco Pellizotti, Federazione Ciclistica Italiana (FCI) & CONI, CAS 2011/A/2335, award of 14 June 2011; Union Cycliste Internationale (UCI) v Jan Ullrich & Swiss Olympic, CAS 2010/A/2083, award of 9 February 2012; Agence Mondiale Antidopage (AMA) v ASBL Royale Ligue Vélocipédique Belge (RLVB) & Iljo Keisse, CAS 2009/A/2014, award of 6 July 2010; International Tennis Federation (ITF) v Richard Gasquet, CAS 2009/A/1926, & World Anti-Doping Agency (WADA) v ITF & Richard Gasquet, CAS 2009/A/1930, award of 17 December 2009; World Anti-Doping Agency (WADA) v Jessica Hardy & United States Anti-Doping Agency (USADA), CAS 2009/A/1870, award of 21 May 2010. 50 ‘The purpose of the Code is to advance the anti-doping effort through universal harmonization of core anti- doping elements.’: World Anti-Doping Agency (‘WADA’), World Anti-Doping Code (‘WADC’), 1 January 2015, 11. The WADC attempts to ensure consistency by proscribing CAS from giving deference to a decision concerning the application of the Code: art 13.1.2. See British Olympic Association (BOA) v World Anti-Doping Agency (WADA), CAS 2011/A/2658, award of 30 April 2012, [22]. 51 Stavros L Brekoulakis, Third Parties in International Commercial Arbitration (Oxford University Press, 2010), [6.42]. See also D Cohen, note in Cour de Cassation, 5 January 1999, and Cour de Cassation, 19 October 1999 (2000) Rev Arb 92, noting that ‘the validity of a contract does not entail the extension of this contract, and, thus, arbitration agreements cannot contravene the general principles of contract law in this regard’, quoted in English and French by Brekoulaakis, Part II, note 52. 52 See Canas v ATP Tour, 4P.172/2006 (2007) (Switzerland), ATF 133 III 235, [4.3.2.2] translated in Swiss 1 Swiss Int’l Arb L Rep 65, 84-85. 53 A & B v World Anti-Doping Agency (WADA) & Flemish Tennis Federation 4A_428/2011 13 February 2012), [3.2.3]: ‘there is practically no elite sport without consent to sport arbitration’. 126

Nevertheless, in some cases, to uphold the supervisory jurisdiction of international federations and WADA, the Swiss Federal Supreme Court (‘SFT’)54 has resorted, via analogy, to the principle of ‘incorporation by reference’. Clauses in international federation regulations that purport to give international federations and WADA rights to appeal to CAS are held to be incorporated into contractual relationships between other participants in sports.

The SFT considers it ‘sufficient’ to validate the jurisdiction of CAS in relation to the supervisory appeals brought by an international federation and WADA if the athlete or club involved is a member of the sport’s national federation, notwithstanding that neither is a party to the relevant agreement and the analogy is not supported by the authority.55 As a member of the national federation, the athlete or club is bound by the regulations of the national federation, which include a general reference to the rules of the international federation.56 The national federation will also separately be a member of the international federation and bound by that membership to observe the international federation’s rules which will include appeal rights for the international federation and WADA to CAS against any internally final decision of the members in doping matters.

There is a seductive simplicity in the ordering of these facts apparently linking the athlete with an obligation to comply with the statutes of an international federation and then to the rights of ‘appeal’ to CAS of the international federation and WADA in those statutes as a basis to validate the jurisdiction of CAS. The legal analysis of the situation is not so simple, however, as is implicit in the SFT’s resort to reasoning by analogy.

54 The SFT has sole jurisdiction over the setting aside of CAS awards: Swiss Private International Law Act, (PILA), art 191. Art 191 applies by virtue of the seat of all CAS arbitrations being Lausanne, Switzerland: art 176(1); Lausanne is prescribed as the seat by CAS Code, above n 33, rule 28, and by the CAS Ad Hoc Arbitration Rules for the Olympic Games, Art 7. 55 See for example Dodo v FIFA and WADA, 4A_460/2008, (SFT) judgment of 9 January 2009, [6.2]. where the cases cited by the SFT in support of its analogy either did not involve multi-party situations (ie Roberts v FIBA, CAS 2000/A/262, award of 28 July 2000; Judgment of 25 March 2004, 4P.253/2003 (Swiss Federal Tribunal) [5.4], ASA-Bull. 2005 128, 136, a dispute between a footballer and his club concerning a contract between them that referred to the rules of FIFA; and Canas v ATP Tour, BGE 133 III 235, 245 [4.3.2.3], a case in which a tennis player was both a member of the organisation whose rules were applied and who had signed an agreement to those rules. These two-party cases cannot support the analogy: X v Y, 4A_456/2009, judgment of 3 May 2010, [3.3]. The multi-party case was 129 III 727, 735, [5.3.1]. This case does not support the analogy either as it concerned an arbitration agreement that was extended to a third party to the arbitration agreement because that third party had interfered in the conclusion of the contract to such an extent as to express an intention to be bound by the arbitration agreement: [5.3.2]. There was no similar conduct in Dodo and any such conduct is unlikely in other cases involving reliance on a sports body’s regulations. 56 Ibid [6.2]. 127

In addition to the absence of the usual requirement of consent,57 there are two other substantive difficulties in reconciling the validation of the jurisdiction of CAS with established principles relating to the application of arbitration clauses to non-signatories using the theory of incorporation by reference.

The first is that to be legally effective in relation to non-signatories such as international federations and WADA, the arbitration clause incorporated by reference must be wide enough to encompass the dispute involving the non-signatory,58 and the circumstances must support a basis upon which an arbitration agreement can be implied as between the signatories and non- signatories.59 The mere existence of a reference to terms that are contained in a separate document does not automatically give those terms effect as between signatories and non- signatories, with the identification of consent of both the signatories and the non-signatories to the arbitration agreement affecting the validity rather than the scope of the arbitration agreement.60 Like the requirement for consent, these principles are not strictly applied to sports arbitrations.

In the Dodo case,61 for example, the FIFA Statutes did not directly bind the individual athlete and they provided no rights or obligations for the athlete in relation to disputes involving him. The ‘appeal’ right was expressly limited to appeals by FIFA or WADA against decisions of ‘Confederations, Members or Leagues’.62 The footballer was none of these.

Further, the relevant clauses of the FIFA Statute could not properly be characterised as ‘a right of appeal’. In fact, neither FIFA nor WADA were previously involved in the decision of the FIFA member that was the subject of the ‘appeal’, and neither were party to the underlying dispute leading to that decision. The ‘appeal right’ in fact involved the agitation of a new and

57 Judgment of 16 October 2001, DFT 128 III 50, 58 (Swiss Federal Tribunal). See also Judgment of 17 January 2013, DFT 4A_244/2012, ¶4.4 (Swiss Federal Tribunal); Judgment of 17 January 2013, DFT 4A_244/2012, ¶4.2 (Swiss Federal Tribunal); Judgment of 7 November 2011, DFT 138 III 29 (Swiss Federal Tribunal); Judgment of 8 July 2003, DFT 129 III 675 (Swiss Federal Tribunal); Judgment of 15 March 1990, DFT 116 Ia 56 (Swiss Federal Tribunal). Born criticises the strict approach as unwarranted: Born, above n 32, § 5.04[C][1]. See also Steingruber (2012), above n 8, [7.37]. 58 See for example: Judgment of 3 October 2000, Nejapa Power Co. LLC v CEL, 19 ASA Bull. 796, 798 (Swiss Federal Tribunal) (2001); First Options of Chicago, Inc. v Kaplan, 514 US 938, 943 (US S Ct 1995); Walkinshaw v Diniz [2000] 2 All ER (Comm) 237; Busch v WADA, 4A_358/2009, judgment of 6 November 2009, [3.2.3]. 59 Born, above n 32, § 5.05[B][3]. See also Steingruber (2012), above n 8, [8.38]; Hanotiau, above n 37, [58]. See, for example Judgment of 22 November 1950, DFT 76 I 338, 350 (Swiss Federal Tribunal); Judgment of 30 August 1993, 11 ASA Bull. 531, 535 (Zurich Comm. Ct.) (1993); Judgment of 24 January 2003, XXX Y B Comm Arb 509 (Hanseatisches Oberlandesgericht Hamburg) (2005); US Aprons, Inc. v R-Five, Inc, 676 F Supp 2d 837, 843 (D Neb 2009; Judgment of 30 March 2000, XXXI Y B Comm Arb 652, 656 (Oberlandesgericht Schleswig) (2006). 60 Brekoulakis, above n 51, [6.42], [6.51]-[6.52]. 61 Dodo v FIFA and WADA, 4A_460/2008, (SFT) judgment of 9 January 2009. 62 The relevant clause did not mention players: see Dodo, 4A_460/2008, Judgment of 9 January 2009 (SFT), [6.1]. 128

different dispute between different parties. The new dispute was between FIFA and WADA on the one hand, and the relevant national federation, the CBF, on the other. It concerned the decision of the CBF in relation to Dodo. That dispute was only manifested for the first time through the agitation of an ‘appeal’ to CAS by FIFA and WADA under the FIFA statute. Clearly the ‘appeal right’ did not form part of, or constitute a further step in a disputes process applying to non-signatory parties.63 Accordingly, whether or not the supervisory appeal right in the FIFA Statute was incorporated into any contract to which Dodo was party, the FIFA Statute clause did not pertain to the athlete. It applied to disputes between FIFA or WADA and FIFA Confederations, Members or Leagues. The clause was not capable of being considered an arbitration agreement that applied to disputes between signatories and non-signatories.64

The second issue relates to the absence of interrelated contracts in the circumstances in sports arbitration cases where reliance is placed on the regulations of international federations. Under normal principles, it is not enough that two independent contracts between different parties, such as the contract between a participant and her or his club and the separate contract between a national federation and the international federation, make common reference to the rules of an international federation. The legal rights and obligations established by the respective contracts are separate and independent.65 Other than generally concerning a particular sport, the contracts do not relate to the same subject matter, such as a single project or a course of dealing.66 There is therefore no chain of contractual obligations between the athlete and the international federation or WADA, as in the typical incorporation by reference case, where the

63 Such as the two-stage appeal process in Roberts v FIBA. CAS 2000/A/262, award of 28 July 2000. Nor can the FIFA Statute clause be likened to ‘several parties [entering] into a single stand-alone “umbrella” dispute resolution clause that allows for multi-party proceedings: Brekoulakis, above n 51, [3.11]. 64 There was in effect, no arbitration agreement in the FIFA Statutes that the non-signatory could have joined. Under Swiss law, an arbitration agreement is: an agreement under which two or more defined or determinable parties undertake to submit one or more existing or defined future differences between them to arbitration in accordance with a directly or indirectly defined legal order, thereby excluding the original jurisdiction of State courts’: Judgment of 21 November 2003, 130 III 66 (Swiss Federal Tribunal), 70 (emphasis added); See also Emmanual Gaillard and John Savage (eds), Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer Law International, 1999) [385]: ‘An international arbitration agreement is an agreement in which two or more parties agree that a dispute which has arisen or which may arise between them, and which has an international character, shall be resolved by one or more arbitrators’ (references omitted); Bartsch, above n 38, 25, §3.01; J-F Poudret, S Besson, Comparative Law of International Arbitration (SV Berti, Ponti A trans, Schulthess, 2nd ed, 2007) n 149 et seq. Such an interpretation is consistent with the principle that the clause should be interpreted against the party that drafted it (contra proferentem): Gaillard and Savage, [4.6]. 65 See Lee v Yano 93 Haw 142, 997 P 2d 68 (Intermediate Ct App 2000), 74 regarding different legal obligations arising in guarantee cases. See also 129 III 727, 735 [5.3.1]. 66 As in Judgment of 20 September 2011, 30(2) ASA Bull 449 (Swiss Federal Tribunal) (2012); and Judgment of 28 July 1988, 7 ASA Bull 304 (Bülach Dist Ct Zurich) (1989). A suggestion that involvement in the same sport constituted a common project would be no more tenable than an argument that mere involvement in shipping, or construction, was involvement in a common project. What level of involvement would suffice? Where would the boundaries be drawn? Would a supplier of footballs be considered to be similarly involved? 129

scope of an arbitration agreement that applies as between the signatory parties to a contract is extended to a non-signatory through a series of related contracts or transactions or through the pursuit of a common project.67 There is no comparable mutuality between individual participants and international federations in sport.68

In relationships between signatories, the position is that ‘in situations where the relevant agreements lack a sufficiently close commercial or temporal relationship, or involve distinct matters, then an arbitration clause in one contract is likely to be held inapplicable to disputes under the other contract’.69 There is no reason for this principle to be applied differently in relation to incorporation by reference and the relationship between signatories and non- signatories in sporting contexts. If the position were otherwise, mere common reference to rules70 by parties who were unrelated contractually would be sufficient to create an arbitration agreement between those parties.

The acceptance of forced consent is therefore not the only area in which ordinary principles of arbitration are put aside to facilitate non-consensual arbitration in sport. Although the preparedness of courts to dispense with a requirement for consent means that these other divergences from accepted principles become less necessary to sustain non-consensual sports arbitration.

67 See for example cases concerning charter party agreements: Tradax Export v Amoco Iran Oil Amoco Company, ATF 110 II 54, (1986) 11 YBCA 532; Energy Transport Ltd and Cabot v Oilman, 10 December 2004, United States District Court, Southern District of New York, no 03 Civ 4193 in (2005) 30 YBCA 1006. In relation to construction contracts, see Commercial Union v Gilbane Building 992 F 2d 386 (1st Cir 1993); United States Fidelity & Guaranty Co v West Point Constr Co 837 F 2d 1507 (11th Cir 1988. In relation to insurance contracts, see Progressive Casualty Insurance et alia Co v CA Reaseguradora Nacional De Venezuela, 30 September 1992, United States District Court, Southern District of New York, No 91 Civ 4580 (CSH) and 6 April 1993, United States Court of Appeals (2d Cir), (1994) 19 YBCA 825, 834; Century Indemnity v Certain Underwriters at Lloyd’s, 2009 584 F 3d 513 (3d Cir 2009). 68 On the issue of mutuality, the New York Convention, above n 24, is widely considered to be inapplicable in cases where ‘an arbitration provision in one party’s communication (typically an order form, an invoice, a purchase confirmation, or some other standard form) has not been affirmatively accepted in writing by the other party’: Born, above n 32, § 5.02[A][2][g][v] and authorities cited in notes 255-264. In relation to Switzerland, see Judgment of 5 November 1985, Tracomin SA v Sudan Oil Seeds Co, XII Y B Comm Arb 511, 512 (Swiss Federal Tribunal) (1987); Judgment of 6 June 1967, I Y B Comm Arb 199 (Geneva Ct First Inst) (1976). Cf some Dutch authorities cited in n 262 and United States authorities cited in n 264. 69 Born, above n 32, § 9.02[F][5] and authorities cited at n 283. 70 Such as the rules of arbitral institutions, for example, the International Chamber of Commerce, International Court of Arbitration, Arbitration Rules, November 2013, ICC Publication 865-0 ENG. 130

C The Inadequate Justification of Non-Consensual Arbitration

1 The Justifications of Non-Consensual Arbitration in Sport Plainly, the concept of forced arbitration is inconsistent with the requirement for an agreement as the basis of arbitral jurisdiction. In the case of CAS, this inconsistency is justified on functional, rather than moral grounds.

A principal justification of mandatory arbitration, and of the oxymoronic concept of ‘forced consent’ in sport, is that CAS arbitrations achieve the prompt settlement of sports disputes by a specialist independent and impartial tribunal.71 In addition to this ‘prompt settlement’ justification, arbitration by compulsion in international sport is typically justified by reference to the need for uniformity and consistency in dispute settlement. ‘The main advantage of using arbitration to resolve international sporting disputes is to ensure a certain equality of treatment of athletes across borders. In sports, which are international by nature, it is essential that all athletes be treated in the same way.’72 These justifications are manifestly inadequate.

Further, these grounds are largely arbitration-specific and have no obvious wider relevance. Strictly, it is therefore not clear whether, or on what grounds regulatory powers other than the compulsion of dispute settlement by arbitration would also be allowed to be the subject of forced consent.73 Regardless, the judicial sanctioning of forced consent to arbitration does have a wider effect than merely facilitating the settlement of disputes by arbitration: it results in the imposition of all of the rules of a sports governing body. This wider effect is neither acknowledged, nor separately justified.

2 The Selective Application of the Functional Justifications In considering the justifications of forced arbitration, it is significant that forced arbitration is given preferential or partial application in sport. The jurisdiction of CAS per se is not supported by compulsion. Rather, the jurisdiction of CAS is supported where an international federation chooses to confer jurisdiction on it. This is illustrated by the line of cases in which the

71 Canas v ATP Tour, 4P.172/2006 (2007) (Switz.) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep 65; Deutsche Eisschnellauf-Gemeinschaft e.V (DESG) and International Skating Union (ISU) v Claudia Pechstein (‘Pechstein’) KZR6/15, German Federal Court of Justice, 7 June 2016, [59], [62], [63]. See Antonio Rigozzi, 'Challenging Awards of the Court of Arbitration for Sport' (2010) 1 Journal of international Dispute Settlement 217, 244, citing ATF 133 III 235, 245, (2007) Swiss Int’l Arb L Rep 65, 88. 72 Steingruber (2009), above n above n 8, 60. See also S Netzle, 'Jurisdiction of Arbitral Tribunals in Sports Matters: Arbitration Agreements by Reference to Regulations of Sports Organisations', 11(45) Arbitration of Sports-Related Disputes, ASA Special Series (November 1998) [5], [2.2]. 73 Cf Despina Mavromati, 'The Legality of the Arbitration Agreements in Favour of CAS (Pechstein, Parts 1 and 2', Law in Sport, 6 July 2016, who suggests that other types of case would be determined similarly. 131

jurisdiction of CAS has been denied because the rules of international federations did not specifically authorise that jurisdiction.74 In those cases, participants in sports were denied access to CAS. The compulsion of arbitration was not imposed on international federations.

Yet, the utilitarian rationales relied upon by the SFT and by other courts to support the imposition of CAS jurisdiction in the absence of genuine agreement apply equally to disputes in sport whether or not the relevant international federation has prescribed arbitration by CAS in its rules. The need for the prompt settlement of sports disputes by a specialist independent and impartial tribunal and for consistency in dispute settlement in international sport do not depend upon an international federation proclaiming this requirement.

No explanation has been advanced to explain why the existence of a rule of only one of the parties to a dispute is determinative of CAS’s arbitral jurisdiction. It is illogical and inconsistent for individual athletes and clubs to be denied access to CAS arbitration on the ground that the rules of the international federation do not expressly authorise it, but then to permit the compulsion of arbitration against individual athletes and clubs on the ground of facilitating the prompt settlement of disputes by an independent tribunal–but only where the rules of one of the parties do provide for it.

The support of compulsive arbitral jurisdiction based on a purported unilateral conferral of power by one of the parties to a dispute involves a basic partisan support for the power of one class of private individual over other individuals.

3 The Objective of an Effective Dispute Settlement Regime Next, while the need for the prompt settlement of disputes by a specialist, independent and impartial tribunal is widely recognised, and may be accepted, this justification cannot be conflated with reasons that support an arbitral regime in general, or the CAS regime in particular.75 Merely because an effective dispute resolution system may be desirable does not justify compulsion, nor mean that any system should therefore be supported. The need for an effective dispute settlement regime does not entail that a regime of international arbitration is

74 See authorities cited in n 39 above. See also X v Y & Federation Internationale de Football Association (FIFA), 4A_160/2007, [3.4]; Busch v WADA, 4A_358/2009, judgment of 6 November 2009, [3.2.4]. 75 Jeremy Waldron, 'Special Ties and Natural Duties' (1993) 22 Philosophy & Public Affairs 3, 22: ‘What must be established is that there is a good reason to recognize this organization, as opposed to any rival organization, as the one to do justice in the given territory or with regard to the claims that are at issue. To the extent that such reasons exist, the organization is “legitimate.” Legitimacy, then, is an exclusive characteristic: only one organization may be legitimate with regard to a given set of claims or with regard to the issues of justice arising in a given territory.’ 132

either the appropriate form of dispute resolution to adopt in international sport, or that this objective can only be fulfilled by a regime of international arbitration.

Conflating the objective of an effective international dispute settlement regime with support for the CAS regime then encourages support for a compulsory or forced international arbitral regime, as compulsion is necessary to make such a regime effective. Compulsion is necessary to make the sports arbitral regime effective in two ways: it enables the jurisdictional difficulties of litigation of international sport disputes in state courts to be avoided and it facilitates the consistency imperative of international sport.

(a) Avoiding Jurisdictional Problems An international arbitral regime may possess some advantages over traditional, state-based litigation and have been easier for the international sports governing bodies to establish, but these factors provide no support for compulsion. Arguments based on the advantages of arbitration as a mode of dispute settlement in sport fail to address why domestic arbitration is not accordingly a viable alternative to the problems of litigation of disputes in international sport in state courts. If the principal benefit of CAS was its qualities as an arbitral tribunal rather than a court, then state-based arbitral tribunals would equally respond to this need. The reason why state-based arbitral systems are not regarded as effective is because the same difficulties of achieving uniformity and consistency of dispute resolution across jurisdictions which attach to the litigation of international sport disputes in state courts also attach to state- based arbitration. It follows that the key attribute of an effective dispute settlement regime in international sport is a regime that avoids those problems.

But this is the attribute of an effective international dispute settlement regime; it is not a characteristic of international arbitration per se and cannot be deployed to support the imposition of arbitration in the absence of an arbitration agreement.

While the existing international arbitral order is effective in avoiding the jurisdictional difficulties raised by the alternative of diverse, uncoordinated, state-based litigation, this effect is only achieved through permitting non-consensual arbitration and consequently denying disputants access to state courts. That is, without compulsion, international sports governing bodies would be unable to dictate arbitration as the mechanism to settle international sports disputes and avoid the jurisdictional difficulties of litigation in state courts. Without compulsion, there would be no effective international dispute settlement regime. There is therefore a circularity in the reasoning: an effective dispute settlement process is needed; to be

133

effective, arbitration must be compelled; compulsive arbitration should therefore be permitted to ensure an effective dispute settlement process. This reasoning is little more than a version of the ‘tyrant’s plea’: ‘the necessity of unlimited powers in works of evident utility to the public’.76

Further, by itself, the need for an effective dispute settlement regime does not support a compulsive arbitral regime. What would also need to be explained for this justification to be effective is why distortions to basic principles underpinning arbitral regimes, such as the requirement for an arbitration agreement, should be made to achieve this objective? Relevant, and perhaps essential to this question, is whether a compulsive private international arbitral order is the only way in which an effective dispute resolution scheme could be implemented. If an alternative system was possible, then the justification for distorting the accepted principles and basis of arbitration would reduce, if not evaporate. The example of international investment arbitration stands as proof that alternatives are available.77

(b) Facilitating Consistency Similarly, the achievement of consistency is wrongly ascribed as a benefit of an international arbitral order.78 Compulsion may be necessary to achieve consistency; but this is an argument in support of compulsion, not arbitration–unless arbitration is taken to be a distorted version of itself in which consent to arbitration is not required.

4 The Fairness of the Process The attribute of CAS as a specialist, independent and impartial tribunal is also embodied in the ‘prompt settlement’ justification of CAS arbitration without consent.

In respect of this, the imposition of expertise cannot justify compulsion as this involves a violation of individual autonomy. Individual autonomy requires that individuals be free to make their own choices, even if these choices may be wrong or that another individual knows better.79 Further, in terms of the independence and impartiality component of this justification,

76 See Blackstone, Commentaries on the Laws of England (1765-1769), Book 3, Chapter 6, quoted by Timothy Endicott, Administrative Law (Oxford University Press, 2011) 9. 77 See notes 88, 89 below. 78 See for example Haas, above n 14, 53. 79 John Stewart Mill, On Liberty (Yale University Press, 1859) 21-2; John Rawls, Political Liberalism (Columbia University Press, 2005), 36; Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press, 2000), 281-4; Roger Pilon, 'Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles' (1993) 68 Notre Dame Law Review 510–511; Stephen Holmes, The Anatomy of Antiliberalism (Harvard University Press, 1993) 4. See also Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (Knopf, 1993) 167–168, 206; Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Clarendon Press, 1991) 231; Stephen 134

mere procedural fairness of an arbitral or other disciplinary process in international sport is inadequate to replace the requirement of consent as the basis of jurisdiction. Procedural fairness cannot serve as the necessary legitimising agent of private regulatory power and thereby justify the non-consensual imposition of arbitration and the removal of an individual’s right of access to a state court.80

Certainly, the difficulty of establishing minimum standards of substantive justice is well recognised81 and this difficulty has led some to reject the application of minimum standards of substantive justice in favour of minimum standards of procedural justice: procedural justice generates less room for reasonable disagreement on the standard of justice to be applied; there are less cultural variations.82 But it does not follow that mere procedural fairness is a sufficient justification for the imposition of de facto power, in the form of forced arbitration or otherwise.

It is also to be observed that the resort to reliance on standards of procedural fairness because of the problems of establishing minimum standards of substantive justice has less force in the context of international sport. This is because it is not at all clear that a normative consensus on minimum standards of substantive justice is not in fact achievable in international sport.83

Substantively, to focus only on procedural justice is entirely inadequate as a basis to assess the legitimacy of a transnational dispute settlement regime. Iniquitous regimes that satisfy procedural standards qualify under this concept.84 In particular, if the norms that are applied to determine the substance of a dispute in a transnational context are arbitrary in being unilaterally determined by one of the parties to the dispute, by a party that is an illegitimate (eg undemocratic) institution, or are substantively unjust, then the legitimacy of that system cannot be rescued by mere procedural rectitude in the application of those norms.

Perry, 'Political Authority and Political Obligation' in Leslie Green and Brian Leiter (eds), Oxford Studies in Philosophy of Law (Oxford University Press, 2013) vol 2, 1, 64. 80 A right recognised by the Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR), ETS 5, (entered into force 3 September 1953), art 6(1); and the Federal Constitution of the Swiss Confederation, art 30(1). 81 Hans Kelsen, What Is Justice? Justiuce, Law, and Politics in the Mirror of Science Collected Essays by Hans Kelsen (University of California Press, 1960) 4. See also Alf Ross, On Law and Justice (Stevens, 1958) 274: Brian Z Tamanaha, On the Rule of Law (Cambridge University Press, 2004) 99-100. In international law, positivist separation theory leads to doubts that anything other than procedural justice will be able to be agreed: see for example Thomas M. Franck, The Power of Legitimacy among Nations (Oxford University Press, 1990). 82 Thomas Schultz, Transnational Legality: Stateless Law and International Arbitration (Oxford University Press, 2014) 152–3. However, Schultz is contemplating arbitral regimes in which parties consent to the operation of the arbitral jurisdiction upon their dispute, and not de facto regimes: see 161. See also Michael Straubel, 'Enhancing the Performance of the Doping Court: How the Court of Arbitration for Sport Can Do Its Job Better' (2005) 36 Loyola University Chicago Law Journal 1203. 83 The WADC stands as an example. 84 Matthew Kramer, Objectivity and the Rule of Law (Cambridge University Press, 2007) 102. 135

To consider mere procedural fairness as adequate is also wholly inconsistent with the requirements of state support for international arbitration more generally ie an arbitration agreement.85 If mere procedural fairness was a sufficient justification for forced arbitration, any form of private justice that met minimum conditions of procedural integrity could also claim to be entitled to oust access to a state court merely based on the fairness of the process, making states’ insistence on an arbitration agreement as a prerequisite for arbitral jurisdictions a curious redundancy.

In upholding the jurisdiction of CAS, even in the absence of an apparent arbitration agreement, the utilitarian objective of supporting an effective international dispute settling process seemingly outweighs what are otherwise basic principles. An overwhelming focus is devoted to ensuring that minimum procedural standards are satisfied, while substantive principles based on the protection of individual liberty and the fundamental rights of citizens to access state courts are sacrificed: jurisdictional prerequisites for the exercise of private power are relaxed and arbitrary private power is facilitated merely on the condition that it satisfy procedural minimums.

5 Legitimacy of Arbitration and the Problem of the Absence of Agreement Noting the incidence of arbitration occurring in the absence of consent, it has been observed that:

One may choose to cling to the dogma of consent and when no true and meaningful consent exists, rely on a fiction of consent. But if we merely preserve the appearance of consent, this justification for arbitration is no longer compelling. Indeed, it may be more accurate and intellectually honest to simply admit that arbitration without consent exists. Having made that admission, one can then investigate the requirements that have come to replace consent. Are there any? What are they? Simply the fairness of the process? Or others? Which ones? It seems clear that this type of investigation is more likely to identify the true forces at play and thus

85 New York Convention, above n 68, art II(2). See also United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration 1985, art 7(1); the European Convention on International Commercial Arbitration, opened for signature 21 April 1961, 484 UNTS 349 (entered into force 7 January 1964), art I(1)(a), (2)(a); Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention), signed 18 March 1965, 17 UST 1270, TIAS 6090, 575 UNTS 159 (entered into force 14 October 1966) art 25; Inter-American Convention on International Commercial Arbitration, opened for signature 30 January 1975, 1438 UNTS 245, entered into force 16 June 1976, art 1. For similar national legislation, see Chapter 12 of the Swiss Private International Law Act, which is based on arbitration as between parties eg arts 176(3), 177 (2) and 178; Australian International Arbitration Act 1974 (Cth), s 3 which defines arbitration agreements by reference to the terms of art II of the New York Convention; French Code of Civil Procedure, art 1442; Chinese Arbitration Law, art 4, Japanese Arbitration Law, art 2(1); Korean Arbitration Act, art 3.2; Brazilian Arbitration Law, art 4. Cf English Arbitration Act 1996 and Scottish Arbitration Act 2010, art 4. 136

protect the interests of the arbitration users more effectively than insisting on an obsolete dogma.86

While this is a valuable observation to the extent that it raises the problem of the fiction of consent to arbitration, the progression of the reasoning or inquiry suggested is troubling.

First, in addition to the example of sport, reference was made to two other areas where arbitration without consent occurs: arbitration clauses in consumer contracts of adhesion and investment arbitrations based on treaties or national legislation. The compulsion of arbitration in consumer contracts is widely recognised as a problem and, consequentially, is subjected to regulation in many jurisdictions.87 This suggests that arbitration in sport should not be tolerated or facilitated but, instead, regulated. Second, the issue in the consumer context is the adhesive nature of the ‘agreement’ to arbitration. In sport, the problem is more than this. Arbitration is permitted to be compelled in circumstances where there is no arbitration agreement that includes the party against whom the rules of an international federation containing an arbitration clause are applied. Third, in relation to forced arbitration in sport, the consequence is more than the specification of arbitration as the form of dispute settlement. Forced arbitration in sport leads to the imposition of the arbitrary rules and regulatory power of the sports governing body.

Then, in relation to investment arbitration, it is both arguable that consent is present88 and that, in any event, investment arbitration (if it is without consent) is only possible because of international treaties and state legislation, legal foundations that do not underpin sports arbitration.89

86 Gabrielle and Henry Peter Kaufmann-Kohler, 'Formula 1 Racing and Arbitration: The FIA Tailor-Made System for Fast Track Dispute Resolution' (2001) 17 Arbitration International 173, 186. 87 See for example: Unfair Terms Directive 93/13/EEC, s 1(q); Arbitration Act 1996 (England), s 91; Consumer Code ( Code de la Consommation ) (France), art L132-1 and art R132-2; German Code on Civil Procedure (Zivilprozessordnung), s 1031(3); Civil Code, (Hungary), s 6:102(1); Competition and Consumer Act 2010 (Cth), schedule 2, ss 24, 25(1). Japanese law allows consumers to revoke an arbitration agreement at any time before an arbitration proceeding: Shelley McGill, ‘Consumer Arbitration Clause Enforcement: A Balanced Legislative Response’ (2010) 47 American Business Law Journal 361–413. The Canadian provinces of Ontario, Quebec and Alberta all have legislation restricting the enforcement of consumer arbitration clauses: see Consumer Protection Act, 2002, S O 2002, c 30, Sch A, ss 7 and 8; Consumer Protection Act, R S Q c P-40.1, s 11.1; and The Fair Trading Act, R S A 2000, c. F-2, s 16. 88 While international investment arbitration operates in the absence of a formal traditional arbitration agreement: see Jacques Werner, 'The Trade Explosion and Some Likely Effects on International Arbitration' (1997) 14(2) Journal of International Arbitration 5, 6; Steingruber, Consent, above n 8, [2.56], it works through the operation of international treaties and national legislation that give each party the right to initiate arbitration proceedings against the other. Even if there is no formal arbitration agreement, international investment arbitration is consensual in nature: Steingruber, [2.11], [5.55]; Lew, et al, above n 32, [5.21], [28.55]. 89 International investment arbitration is supported by many international treaties and national investment laws. Major international treaties include the North American Free Trade Agreement (NAFTA) reprinted in (1993) 32 137

Accordingly, in comparison to these other areas of arbitration, arbitration without consent in sport remains anomalous. While it may be that arbitration without consent exists in sport, the absence of consent poses a fundamental problem for the legitimacy and legality of this form of arbitration: if an arbitration is not based on and justified by the consent of the parties, on what basis is it valid? It is not clear as a matter of law how the absence of consent from sports arbitration can be so easily dismissed, even by an ‘accurate and intellectually honest’ admission.90

Further still, even if having admitted that arbitration without consent in sport exists, what is the legal position–and what should be done–if it transpires that no, or only inadequate requirements have come to replace consent? Were it even possible for these requirements to replace consent, like consent, they would be essential preconditions for arbitral jurisdiction, known and determined in advance, not matters of mere post-factum academic inquiry. In the absence of such requirements, both the legitimacy and legality of such ‘arbitrations’ is unsustainable.

One attempt to identify the justifications for sanctioning arbitration without consent is that of Rigozzi and Tissot.91 Three reasons are identified. The first two are those identified by the court in Canas:92 the prompt settlement of sports disputes by specialised arbitral tribunals that are sufficiently independent and impartial; and the balancing right to seek to challenge an arbitral award.93 The third, ‘real’ reason identified by the authors, is that a state court’s jurisdiction is excluded ‘in exchange for the opportunity for the parties to have their dispute settled through arbitration. In other words, arbitral jurisdiction constitutes the quid pro quo for the waiver of the state court jurisdiction.’94 One significant problem with this reasoning is that it ignores the consequential effect of the compulsion of arbitration in sport in imposing the arbitrary rule of the international federations.

ILM 289, 605, entered into force on 1 January 1994: Office of the United States Trade Representative, North American Free Trade Agreement; the Lome Agreements, (see European Parliament, European Parliament Fact Sheets 6.4.5, Relations with the African, Caribbean and Pacific countries: from the Yaoundé and Lomé Conventions to the Cotonou Agreement; the Energy Charter Treaty, (Energy Charter Treaty), 17 December 1994, reprinted at ICSID Review – Foreign Investment Law Journal (1995) 10(2) 258; and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) signed 18 March 1965, 17 UST 1270, TIAS 6090, 575 UNTS 159 (entered into force 14 October 1966). 90 The problem of the absence of consent may explain the strength of the attachment to the fiction of consent. 91 Rigozzi and Robert-Tissot, above n 8, 59. 92 Canas v ATP Tour, 4P.172/2006 (2007) (Switz.) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep 65. 93 Rigozzi and Robert-Tissot, above n 8, 66–7. This second reason is not considered to be ‘particularly convincing’ because of the very narrow grounds available for an athlete to seek that a CAS award be set aside: 67. 94 Ibid 67. 138

6 The Rule of the Rules of International Sport Governing Bodies ‘[I]t is an impoverished theory of democracy which does not countenance controls which operate in the very determination of what law is.’95

CAS’s practice of determining disputes by the application of the rules of the sports governing bodies is a substantial problem of principle for the sports arbitral dispute resolution regime. For CAS to determine a dispute involving an international federation by the application of the rules of that federation poses an elemental question regarding the efficacy and legitimacy of the dispute regime: the regime is not one of the rule of law, but rather the rule of the rules of the international sports federations.96

The rule of the rules of the international federations is effected by CAS notwithstanding its de novo power of review.

(a) De Novo Review or the Fresh and Independent Application of Arbitrary Power? In an appeal against a decision of a sports governing body, a CAS Panel has full authority to review the facts and the law so that proceedings are, theoretically at least, de novo hearings.97 Nevertheless, under the CAS Code, the Panel is ‘required to decide the dispute according to the applicable regulations’ and then, ‘subsidiarily’, according to a number of prescribed choice of law rules.98 The regulations that are required to be applied are the rules unilaterally made and imposed by the de facto power of the sports governing body as a form of quasi-legislation.99

95 David Dyzenhaus, 'Laws as Justification: Etienne Mureinik's Conception of Legal Culture' (1998) 14 South African Journal on Human Rights 34 (reference omitted). 96 Mark Ellis, 'Toward a Common Ground Definition of the Rule of Law Incorporating Substantive Principles of Justice' (2010) 72 University of Pittsburg Law Review 199, citing the examples of Zimbabwe, apartheid South Africa and Nazi Germany as examples of regimes with clear legal rules but rules that imposed human rights violations. See also T R S Allan, Law, Liberty, and Justice (Clarendon Press, 1993) 21-2: democracy ‘may today be taken to be a central strand of the rule of law’; and Brian Z Tamanaha, On the Rule of Law (Cambridge University Press, 2004) 99-101. Cf Joseph Raz, 'The Rule of Law and Its Virtue' (1977) 93 Law Quarterly Review 196, who argues that the rule of law should not be ‘confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.’ See also Matthew Kramer, Objectivity and the Rule of Law (Cambridge University Press, 2007) 101: the rule of law may apply in both benign and evil regimes. 97 CAS Code, above n 33, R57. See: N, J, Y & W v FINA, CAS 1998/208, CAS Digest II, 234; and decision of Swiss Federal Tribunal on the athletes’ appeal against CAS 98/208, of 31 March 1999, reported in CAS Digest II, 775; Fazekas v IOC, CAS 2004/A/714, award dated 31 March 2005; De Bruin v FINA, CAS 98/211, award dated 7 June 1999, in CAS Digest II, 255; French v Australian Sports Commission & Cycling Australia, CAS 2004/A/651, award dated 11 July 2005. 98 CAS is bound to apply rules of federations: CAS Code, above n 33, R58; C v Federation Internationale de Natation Amateur, No. 95/141 (CAS 1996) CAS Digest 1, 215, 219; B v International Triathlon Union, No. 98/222 (CAS 1999) in CAS Digest II, 330, 336. 99 Again, this represents a departure from the normal rules of arbitration in which the parties are free to choose the applicable law as an exercise of party autonomy: Gaillard, above n 64, 94-5. This freedom is widely recognised including by International Conventions: 95-6. 139

In almost all cases, CAS determines the substantive matters in dispute before it in accordance with those rules of the relevant sports governing body, 100 the rules forming the substantive law governing the resolution of the dispute.101 The text of the rules overrides norms derived from external sources.102 While CAS has frequently held that it has jurisdiction to disregard such rules,103 it almost never does.104 Only when the rules and regulations are completely inconsistent or contrary to mandatory provisions of the governing law will CAS disregard them.

Accordingly, it has been observed that despite its de novo review powers, CAS ‘appears to actually apply no more than a deferential arbitrary and capricious standard of review.’105 Even in doping cases where it might be expected that CAS would apply its own normative preferences because the ‘sports world has its own quasi-criminal antidrug codes, its own quasi- police forces empowered to take athletes’ blood and urine both in and out of competition, its own forensic laboratories, its own prosecutors, and its own courts’, CAS defers to textual rules and only fills gaps.106 While this approach to the application of the rules of international federations has, at times, counted against the exercise of de facto power of sports governing bodies where those bodies have failed to observe the terms of their own rules, these limitations

100 ‘In most appeals proceedings before the CAS, the issue at stake has been settled by the mere application of the regulations of the sports organisation, without the need for recourse to national law’: Lewis and Taylor, above n 15 [E3.120]. See for example USA Shooting & Quigley v UIT, CAS 1994/129, CAS Digest I, 187, 194; Arcycling AG v UCI, CAS 2004/A/477, Slip Op, 23. 101 See Gaillard, above n 64, 2, 77. See also Compagnie d’Armement Maritime SA v Compagnie Tunisienne de Navigation SA [1971] AC 572, 603 (Lord Diplock); and New York Convention, above n 68, art V.I(d). However, the distinction has been drawn that sports bodies’ rules are not applicable as ‘law’ but are to be considered contractually agreed provisions like terms of a contract: X AG v Y, Decision of the Swiss Federal Tribunal of 20 December 2005, ATF 132 III 285, though this distinction appears largely technical and proceeds on the assumption that the rules have been agreed, rather than imposed. 102 Allan Erbsen, 'The Substance and Illusion of Lex Sportiva' in Blackshaw et al, above n 57, 441, note 20, citing cases where external norms may have worked to mitigate strict liability rules: NWBA v IPC, CAS 1995/122, CAS Digest I, 173, 184; Chagnoud v FINA, CAS 1995/141, CAS Digest I, 215, 221; Meca-Medina & Majcen v FINA, CAS 1999/A/234-235 Slip Op. at 31; Reinhold v FISA, CAS 2001/A/330, CAS Digest III, 197, 204-5; IAAF v MAR & Boulami, CAS 2002/A/452, CAS Digest III, 440, 452. Though there is some inconsistency in approach: see for example Bouras v IJF, CAS 1998/214, CAS Digest II, 308, 322. 103 CAS treats its own rules as overriding those of the tribunal whose decision is being reviewed, thereby ignoring any purported limits on its power of review: Beloff, et al, above n 10, 310, note 275. See for example: Edwards v IAAF, CAS OG/04/003, [49]; Kendrick v ITF, CAS 2011/A/2518, [10.1]–[10.6]; Buci v FEI, CAS 2010/A/2283, [14.36]. 104 Erbsen, above n 102, 443; Marcus Mazzucco and Hilary Findlay, 'Re-Thinking the Legal Regulation of the Olympic Regime: Envisioning a Broader Role for the Court of Arbitration in Sport' (Paper presented at the Tenth International Symposium for Olympic Research, Canada, 29 October 2010). 105 Matthew J Mitten and Timothy Davis, 'Athlete Eligibility Requirements and Legal Protection of Sports Participantion Opportunities' (2008) 8 Virginia Sports and Entertainment Law Journal 90. 106 Erbsen, above n 102, 446. 140

of power do not substantively limit the arbitrary power of international federations because of their control over the content of their own rules.107

The explanations for this approach are unsatisfactory. For example, Erbsen suggests that CAS’s deference to the text of rules rather than to people or institutions is on the ‘grounds that ex ante written codification of regulatory power ensures transparency, fosters predictability, and avoids arbitrary conduct.’108 While this is true to a point, once it is understood that the rules are unilaterally determined by one of the institutions involved, it follows that this deferential approach does not avoid arbitrary conduct–other than perhaps inconsistent conduct.109 It facilitates substantive arbitrariness, rather than avoiding it. CAS’s focus on procedural rights relegates it to the ‘position of a mere enforcer of the norms that are created by international sport bodies and unfairly imposed on athletes’.110

It has also been suggested that the basis of CAS’s deference to the rules of international federations is its limited authority as an arbitration body to merely interpret and apply the rules of a sport body. This limitation is said to respect the policy-making function of a sport body, that an arbitral body should not ‘usurp the authority of a sport governing body to regulate its own affairs, and re-write an authoritative text’.111 However, this logic does not extend to de facto power. Bodies exercising de facto power are not engaged in regulating their own affairs. For CAS to simply apply those rules exposes the conflict between the form of CAS as an arbitral body and its function as sport’s supreme court.112 In applying the rules that are not part of any agreement between the disputing parties, it is necessary for CAS to resort to the consistency justification, not the disputing parties’ agreement. In those circumstances, it is not logical for CAS to decline to consider the merit of rules on the grounds of limitations of CAS

107 For example, if the text of rules is ambiguous, CAS will interpret them against the drafter: USA Shooting & Quigley v UIT, CAS 1994/129, CAS Digest I, 187, 197. CAS will also interpret rules governing burdens of proof to protect athlete’s rights to present plausible defences: Bouras v IJF, CAS 1998/214, CAS Digest II, 308, 318-9. CAS also applies textualist approach to require the specification of substances that are prohibited and therefore attract sanction, for example: Hall v FINA, CAS 1998/218, CAS Digest II, 325. Similarly, CAS requires specific authorisation of sanctions by the rules: Prusis v IOC, CAS OG 2002/001, CAS Digest III, 573, 578; Tsagaev v IWF, CAS OG 2000/010, CAS Digest II, 658, 662-4. See also B v IJF, CAS 1999/A/230, CAS Digest II, 369, 375. Cf Rebagliati v IOC, CAS OG 1998/02, CAS Digest I, 419, 424. 108 Erbsen, above n 102, 450. 109 CAS’s focus is not on the optimal content of rules but on the process of regulation: Ibid 451. Other commentators have also observed the willingness of CAS to enforce minimum procedural standards: see for example Mazzucco and Findlay, above n 104, 17. 110 Mazzucco and Findlay, above n 104, 19. 111 Ibid citing Spanish Basketball Federation v International Basketball Federation, CAS 98/209, Digest of CAS Awards II, 1998-2000, 500. See also Michael Lenard, Frank Oschultz, ‘Doping Cases before the CAS and the World Anti-Doping Code,’ in Blackshaw et al, above n 57. 112 See the discussion in Chapter VI under the heading ‘De Facto Power and the Role of CAS’ below. 141

as an arbitral body when those rules are applied by it independently of the terms of any arbitration agreement.

CAS’s approach to the determination of disputes by the application of the unilaterally determined rules of one of the disputing parties also raises a basic issue of inequality.

(b) Inequality Determining disputes by reference to the rules of international federations means that it is not possible for the rules or ‘laws’ of the sports arbitral regime to be regarded as equally applicable to the respective disputing parties: it is facile to regard rules which are made by one of the parties to a dispute and that are determinative of the dispute as being ‘equally’ applicable, even when the dispute is determined by ‘a specialist independent and impartial tribunal’. There is no ‘equality before the law’ when the law is unilaterally determined by one party: the ‘law’s rule fails when power is held to account only when it serves the interest of those doing the holding’.113

If the independent body is required to determine a dispute through the application of the rules of one of the parties to the dispute, the independence of the body is merely procedural. The international federations do not need to otherwise exercise control over CAS if the tribunal merely enforces rules made by those bodies: CAS is acting as the instrument of those bodies where CAS’s only effective supervisory role is ensuring that the bodies comply with their own rules. Only in a formal, procedural sense then is CAS the first truly independent tribunal called upon to decide the matter in dispute between the parties.114 This procedural independence obscures the real nature of the power of the sports governing body, and provides only a limited, procedural bastion against arbitrary power.115 Unfortunately, issues of procedural independence have occupied much attention,116 operating to divert attention from this substantive issue: the mechanism in which all of the unilaterally determined rules of unrepresentative and undemocratic sports governing bodies are imposed without consent and without justification.

113 Gerald J Postema, 'Fidelity in Law's Commonwealth' in Lisa M Austin and Dennis Klimchuk (eds), Private Law and the Rule of Law (Oxford University Press, 2014) 17, 23. 114 Haas, above n 14, 53. 115 This is an adaption of the description of a similar point made in a different context by Margaret Jane Radin, 'Boilerplate: A Threat to the Rule of Law' in Austin and Klimchuk, above n 113, 288, 290. 116 The independence of CAS was the subject of the collateral attack in Deutsche Eisschnellauf-Gemeinschaft e.V (DESG) and International Skating Union (ISU) v Claudia Pechstein (‘Pechstein’) KZR6/15, German Federal Court of Justice, 7 June 2016. 142

(c) Substantive Arbitrariness It is important to appreciate that the effect of imposing arbitration of disputes in sport imposes all of the unilaterally determined rules of sports governing bodies but only on the basis of justifications relevant to the expediency of the dispute settlement process.117 The unilateral arbitrariness of the substantive rules that are applied to the settlement of disputes in international sport is overlooked in favour of an approach that merely ensures minimum procedural standards.

It follows that it may be true that the CAS system operates to replace the ‘executive fiat’ previously exercised by sports governing bodies in which the choice faced by disputants subjected to the bodies’ regulatory power was between accepting that exercise of executive fiat or resorting to domestic litigation.118 But despite this, the effect of CAS’s deference to the rules of international federations means that the legitimacy issues associated with that system of executive fiat have only partially been ameliorated by the substitution of executive fiat with CAS arbitration. Certainly, due process rights are now more substantial, but these are hollow rights if the substance of disputes is determined by reference to rules unilaterally issued by international federations. The executive fiat of international federations is meditated, but it continues to apply, albeit indirectly through the medium of CAS.

The deferential approach of CAS to the rules of international federations also undermines one of the justifications for non-intervention by national courts, including that of the SFT in its relaxation of the normal requirement for genuine consent to an arbitration agreement. The proposition that courts should defer to CAS as a specialist tribunal that is more suited to resolving international sports disputes than national courts dissolves if CAS does not act as a specialist tribunal but merely applies the rules of international federations. In that case, the courts are merely deferring to the international federations, operating under the cover and under the procedural supervision of CAS.

In the case of international sports arbitration, there is no applicable international treaty setting universal standards, nor even any collective manifestation of the will of international sport or of international sports organisations. Instead, CAS is responsible for applying the rules of the sports governing bodies and for determining disputes about the application of those rules. In effect, the sports governing bodies have combined amongst themselves to create a tribunal to

117 See Pechstein KZR6/15, German Federal Court of Justice, 7 June 2016, [62]. 118 Nafziger, 'Sports Law: A Replay of Characteristics and Trends' above n 2, 506. 143

enforce their own rules, not amongst themselves, but against third parties (eg athletes, sports clubs, National Olympic Committees, national federations) who are forced to submit to the regime. CAS is not a court for world sport, but a court for the worlds sports governing bodies.119

By operating in this way, CAS cannot make up for the democratic deficit and lack of transparency inherent in the structures of the rule-making international federations.120 CAS does not operate as a form of administrative or constitutional court, though it would appear to have the capacity to do so.121

7 Pro-Arbitration Policy Finally, a policy of supporting the process of arbitration cannot support the compulsive application of arbitration.122

A principle in favour of arbitration is applied in many jurisdictions.123 This pro-arbitration policy has replaced a preceding restrictive approach that sought to protect a constitutional right to access state courts that would otherwise be displaced by arbitration.124 In sport matters, the approach of the SFT to the application of arbitration clauses is weighted in favour of upholding the arbitral jurisdiction of CAS and a ‘benevolent’ approach is adopted to the assessment of whether arbitration clauses meet the formal requirements of an arbitration agreement.125

However, pro-arbitration assumptions support an expansive interpretation of the scope of an arbitration agreement only where one exists.126 Pro-arbitration assumptions do not support the

119 See Eastham v Newcastle United Football Club Ltd [1964] Ch 413, 438 (Wilberforce J): ‘The system is an employers’ system, set up in an industry where the employers have succeeded in establishing a united monolithic front all over the world, and where it is clear that for the purpose of negotiation the employers are vastly more strongly organised than the employees. No doubt the employers all over the world consider the system a good system, but this does not prevent the court from considering whether it goes further than is reasonably necessary to protect their legitimate interests.’ 120 Boris Kolev, 'Lex Sportiva and Lex Mercatoria' (2008) 1-2 International Sports Law Journal 61. 121 Bruno Simma, ‘The Court of Arbitration for Sport’ in Blackshaw et al, above n 57, 26. 122 Cf Deutsche Eisschnellauf-Gemeinschaft e.V (DESG) and International Skating Union (ISU) v Claudia Pechstein (‘Pechstein’) KZR6/15, German Federal Court of Justice, 7 June 2016, [63]. 123 Steingruber (2012), above n 8, [5.09]; Karrer and Kälin-Nauer, 'Is There a Favor Jurisdictionis Arbitri? - Standards of Review of Arbitral Jurisdiction Decisions in Switzerland' (1996) 13(3) Journal of International Arbitration 31. US courts have consistently applied a pro-arbitration interpretation of agreements: see Mitsubishi Motors Corp v Soler Chrysler Plymouth Inc, 473 US 614, 105 S Ct 3346, 3355 et seq (1985); see also Remy Amerique, Inc v Touzet Distribution, SARL, XIX YBCA 820 (1994) 823 (SDNY, 16 March 1993). 124 Lew et al, above n 32, [7-61]. 125 Judgment of 16 October 2003, 22 ASA Bull. 364, 386 (SFT)(2004). These requirements are set out in the Swiss Private International Law Act, art 178. They include that the agreement be made in ‘writing, by telegram, telex, telecopier or any other means of communication which permits it to be evidenced by a text’: art 178(1), and that the agreement ‘conforms either to the law chosen by the parties, or to the law governing the subject matter of the dispute, in particular the main contract, or to Swiss law’: art 178(2). 126 Sonatrach v K C A Drilling Ltd, Judgment of 15 March 1990, 1990 Rev Arb 921, 923 (Swiss Federal Tribunal): ‘If it is certain that there is…an arbitration clause, then there are no longer grounds for an especially restrictive interpretation.’ (emphasis added). See also Judgment of 20 September 2011, 30(2) ASA Bull. 449 (Swiss Federal 144

extension of the validity of an arbitration agreement ‘to parties where there is doubt that they ever consented to arbitration in the first place’.127 Accordingly, they cannot support compulsion.

D Chapter Summary As with other exercises of de facto power, once compulsion is permitted in circumstances where power may be exercised independently of the necessity to enforce a contractual obligation, the distinction between arbitration pursuant to forced consent and mandatory arbitration on the basis of a purported conferral of jurisdiction by a sports body’s rules becomes one of form and not substance.

Moreover, CAS arbitration, both where it occurs through the forced consent to rules of a sports governing body and where the tribunal’s jurisdiction is purportedly derived from the rules of an international federation, does the same violence to the accepted theory and principles of arbitration. The rules of private international federations are invested with quasi-legislative status and compulsive effect. This erases the distinction between arbitral and judicial proceedings in which it is the function of the arbitration agreement to confer jurisdiction upon a tribunal and to serve as the source of power of the arbitrators.128

In addition to avoiding sports governing bodies being entangled in prolonged and costly litigation in state courts, one of the original purposes for the establishment of CAS was at least

Tribunal) (2012); Judgment of 3 January 2011, DFT 4A_386/2010, 29 ASA Bull 688 (Swiss Federal Tribunal) (2011); Judgment of 27 January 2010, DFT 4A_562/2009 (Swiss Federal Tribunal); Judgment of 8 July 2003, DFT 129 III 675, 681 (Swiss Federal Tribunal): ‘one has to take into account the parties’ wishes to have disputes resolved by arbitral tribunal’. 127 X. v Y, 4A_456/2009, judgment of 3 May 2010, [3.3]: ‘the generous case law of the Federal Tribunal as to the formal validity of arbitration clauses in the field of international arbitration are accordingly relevant only to the extent that the interpretation of the statements at hand leads to the conclusion that a contract was concluded. By contrast, the developments … as to case law regarding the validity of global references to arbitration clauses contained in the statutes of a federation are not relevant’ (references omitted). See also Brekoulakis, above n 51; Gaillard, above n 64, [481]; McCarthy v Azure 22 F 3d 351, 354-5 (1st Cir 1994): pro-arbitration policy ‘policy presumes proof of a preexisting agreement to arbitrate disputes arising between the protagonists’. It ‘does not extend to situations in which the identity of the parties who have agreed to arbitrate is unclear’. The ‘bedrock principle is that ‘“arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit”’ citing AT & T Technologies, Inc. v Communications Workers, 475 US 643, 648 (1986), which in turn quoted United Steelworkers v Warrior & Gulf Navigation Co, 363 US 574, 582 (1960). 128 Lew et al, above n 32, [1-11], [2-44], [6-2]; Gaillard, above n 64, [498]; Redfern and Hunter, above n 32, [3- 01], [5-07]; Steingruber (2012), above n 8, [2.04]; A Rigozzi, L’arbitrage international en matiere de sport (2005), Basel: Helbing & Lichtenhahn [479], cited in Steingruber (2012), [2.09]; S Besson, Comparative Law of International Arbitration (SV Berti, A Ponti trans, Schulthess, 2nd ed, 2007) [7]. Arbitration agreements also create an obligation between the parties to arbitrate: see Bartsch, above n 38, §3.01. 145

partly pro-athlete – to address the lack of adequate dispute resolution remedies available to athletes under domestic legal regimes, particularly in disputes involving international sports governing bodies.129 So, the appeal rights of individual athletes and other participants to CAS were intended to benefit and not penalise those participants by restricting their appeal options. But the fundamental difficulty with this regime is that whilst CAS has the power to conduct a de novo review,130 if all that CAS is doing is applying rules that are unilaterally made by one of the parties to disputes, then CAS is operating as the mere handmaiden of the international federation,131 and the issue of contention is the substantive fairness and legitimacy of the rules, not the process of the arbitral procedure adopted to determine disputes over the application of those rules. Similarly, to the extent that the SFT, the German Court of Justice, or other national courts simply permit sports governing bodies to impose their unilaterally determined rules by the use of de facto power, with or without ‘forced consent’, and merely subject to minimal protections of fundamental rights, including by the application of a ‘balancing of interests’ test, they too are merely operating as the handmaidens of the international federations.

Functionally the compulsion of sports arbitration may mean that it is the same from the point of view of an athlete whether he or she is bound to the jurisdiction of CAS ‘by virtue of a statutory regulation or by virtue of a unilateral regulation imposed by a monopoly federation’.132 But beyond the utilitarian analogy, there are fundamental differences of principle and legitimacy between self-appointed compulsive private power and statutorily conferred power. To fail to recognize these distinctions involves a basic dereliction from the rule of law, a dereliction that is not justified by resort to the functional benefits of arbitration of disputes in sport by CAS.

129 See: Schwaar, above n 2, 1; Nafziger, above n 118, 506; Lenard, above n 2, 178. 130 P and Deutsche Eisschnelllauf Gemeinschaft eV (DESG) v International Skating Union (ISU) CAS 2009/A/1912 and CAS 2009/A/1913, award of 25 November 2009, [7]. 131 Lord Parker CJ considered that judicial review was based on ‘the principle that courts are the mere “handmaidens of public officials”; there to facilitate the work of bodies charged with acting in the public interest’: Lord Harry Woolf, et al, De Smith's Judicial Review (Sweet & Maxwell, 2013) [1-014] referring to a quotation recorded in G Williams, ‘The Donoughmore Report in Retrospect’ (1982) 60 Public Administration 273, 291. See in another context: Philip Alston, 'The Myopia of the Handmaidens: International Lawyers and Globalization' (1997) 8(3) European Journal of International Law 435. 132 Haas, above n 14, 45; Duval, above n 8, [11.2.2.1]. See A & B v World Anti-Doping Agency (WADA) & Flemish Tennis Federation, 4A_428/2011, 13 February 2012, [3.2.3]: ‘It may be useful to add as to the consensual nature or not of the arbitration at hand that one hardly sees from the point of view of the freedom to contract what difference there could be for an athlete who has no other choice than accepting the arbitration clause contained in the Regulations of the sport federation to which he is affiliated, whether the aforesaid federation adopted the Regulations on its own initiative or pursuant to a requirement of the state in which it is based’. 146

The effects of this dereliction are exacerbated by the misunderstanding as to the validity of exercises of de facto power by sports governing bodies as exercises of the individual liberty of those associations.

147

V INDIVIDUAL LIBERTY AND DE FACTO POWER

A Chapter Introduction ...... 149 B Individual Liberty and De Facto Regulatory Power ...... 149 1 Assumption of Validity of De Facto Power ...... 150 (a) Governmental Power, Individual Liberty and De Facto Power ...... 151 (b) De Facto Power and Individual Equality ...... 152 (i) The Limits to Individual Liberty ...... 153 (ii) Individuals Acting in Their Own Interests ...... 154 (c) De Facto Power and the Rule of Law ...... 156 (i) Rule of Law Principles and Governmental Power ...... 157 (ii) The Rule of Law and Private Arbitrary Power ...... 158 (iii) Different Types of Arbitrariness ...... 159 C Chapter Summary ...... 161

148

A Chapter Introduction This brief chapter deals with an issue of principle: that the freedom of associations does not extend to include the freedom to exercise de facto power so as to interfere with the freedom of other individuals. While this proposition is consistent with, if not implicit in various court judgements concerning the regulatory power of sports governing bodies,1 it does not appear to be expressly recognised.

B Individual Liberty and De Facto Regulatory Power It is a fundamental principle of liberal society stemming from the equality and autonomy of humans that each person is proscribed from divesting another of their inalienable rights to life, liberty, and property. Individuals may only be subjected to the political control of another, if, and to the extent that, each agrees to empower such authority.2 This principle is embedded in the legal systems of liberal societies.3 For example, an essential element of the Rule of Law, as described by Dicey, is that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.’4 Legal rules that are reflective of the liberal protection of

1 See for example Nagle v Feilden [1966] 2 QB 633; Buckley v Tutty (1971) 125 CLR 353. See also Union Royale Belge des Societes de Football Association v Jean-Marc Bosman [1995] ECR I-04921, [80]-[81]. 2 John Locke, Two Treatises of Government (McMaster University, 2000), ‘The Second Treatise of Civil Government’, 70, 118-20, 164. Locke regarded the state’s prerogative to punish: ‘as an entrustment, by its citizens, of their own natural power to punish. It is only because the state undertakes to act on behalf of its citizens to punish those who commit wrongdoings that it: (i) justifiably prohibits individuals from exercising their individual right to punish; (ii) justifiably punishes, as the state. The power of the state to punish is therefore entirely derivative; the obligation of the individual not to engage in private punishment is conditional on the state’s having undertaken that role.’: Benjamin C Zipursky, 'Philosophy of Private Law' in Jules and Scott Shapiro (eds) Coleman (ed), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2002) 639. 3 Munn v Illinois 94 US 113, 124: ‘When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. “A body politic … is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” This does not confer power upon the whole people to control rights which are purely and exclusively private, but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government’. (reference omitted) 4 Albert Venn Dicey, Lectures Introductory to the Study of the Law of the Constitution, (MacMillan, 2nd ed, 1886) Lecture V, 174, describing the Rule of Law as one of the two pillars of the unwritten English Constitution. On the application of the Rule of Law to European nations, see European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) preamble: ‘the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. 149

individual rights include property rights5 and contract rights, which involve limitations on the use of force to enforce private contractual rights.6

1 Assumption of Validity of De Facto Power Neither the courts7 nor commentators8 approach the analysis of the de facto power of sports governing bodies by asking what authority underpins the exercise of power and the interference with the rights of participants in the sports by monopolist sports governing bodies. As legal individuals, international federations are viewed as possessing all of the liberties of a natural person and their right to regulate sports is assumed, the only question being what circumstances will lead to intervention by the courts ie what rights in private law can be established by the individual seeking to challenge a private regulatory action.9

The assumption that the exercise of de facto power by sports governing bodies is valid as the exercise of their individual liberty is wrong.10 It is wrong for three reasons. First, the assumption violates the distinction between governmental and private powers. Second, the

5 See for example Semayne’s case (1604) 77 ER 194 (Sir Edward Coke): ‘the house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose’; Lippl v Haines & Others (1989) 47 A Crim R 148: limited rights of police to enter private property. 6 Physical force is not permitted to be used to enforce a group decision: Innes v Wylie 1 Car & K 257 (1844) 174 ER 800; Sunbolf v Alford (1838) 150 ER 1135: innkeeper had no authority to detain a person to secure payment of a bill. At 1138, Lord Abinger CB described the proposition as ‘monstrous’. Cf Robinson v Balmain New Ferry Co Ltd [1910] AC 295, 299 (Lord Loreburn LC): no false imprisonment and defendants not required to facilitate the plaintiff’s departure from a wharf that he had contracted to leave by a different way. The defendants were entitled to impose a reasonable condition on the plaintiff’s departure from the wharf (the payment of one penny). 7 See for example Bradley v Jockey Club, [2005] EWCA Civ 1056 (Lord Phillips MR, Buxton and Scott Baker LJJ). In affirming Richards J’s judgment, the English Court of Appeal did not question the entitlement of the Jockey Club to regulate horse racing. The court supported the disciplinary powers and rules of the Jockey Club, which it appeared to characterise as a professional body: [24] (Lord Phillips), [29], [31] (Buxton LJ). The appeal was also only pursued on question of proportionality of the five-year ban determined by the Jockey Club: [19]. See also R v Disciplinary Committee of the Jockey Club; Ex parte Aga Kahn [1993] 1 WLR 909; Modahl v British Athletic Federation Ltd [2002] 1 WLR 1192, [42]-[43] (Latham LJ); McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470, [113]. A similar assumption underpins the approach to the judicial supervision of de facto governmental power by private bodies: R v Criminal Injuries Board, Ex parte Lain [1967] 2 QB 864, 881 (Parker CJ), 883–4 (Diplock LJ); R v Take-over Panel, Ex parte Datafin Plc [1987] 1 QB 815, 827, 841, 842 (Donaldson MR). Wade and Forsyth refer to non-statutory powers that are subject to judicial review as ‘legally controllable power which itself has no legal basis’: Sir William Wade and Christopher Forsyth, Administrative Law (Oxford University Press, 2009) 185. 8 For example, Adam Lewis and Jonathan Taylor Sport: Law and Practice (Bloomsbury Professional, 3rd Edition, 2014) [D1.117], [D2.58] referring to a body’s failure to act in accordance with its own rules is described as the ‘equivalent to the requirement that a public body not make an error of law’; Michael Beloff, et al, Sports Law (Hart Publishing, 2nd ed, 2012) [8.12] – [8.34]. In relation to public powers, see also Christopher Forsyth, 'Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review' (1996) 55(1) Cambridge Law Journal 122, 124–7. Appreciating that Forsyth was referring to public powers, and on the basis that he was not suggesting that power could be validly exercised to impose obligations on other individuals without any legal basis, some assumed valid (presumably private) legal power is inherent in this view. See also Mark Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing, 2001) [2.1], [2.3.2], [4.3.1]. 9 See Chapter I, n 89 above and accompanying text. 10 The assumption is not founded on a recognised legal right but on a general theoretical principle – individual liberty. Other conflicting theoretical principles are therefore entirely relevant. 150

assumption that an individual’s liberty extends to directly regulating the liberty of others is incoherent in a system based on individual liberty. And third, the assumption supports the exercise of arbitrary power which is contrary to rule of law principles.

(a) Governmental Power, Individual Liberty and De Facto Power It is a basic principle of liberal society that the state’s right of compulsion and violence in enforcing its power is unique; private citizens do not have the same power as government and cannot legitimately claim power to regulate the affairs of other individuals without the consent of those persons.11 It is because governments, but not private individuals, are permitted to involuntarily impose restrictions on individual liberty that distinctions are drawn between what is allowed to governments in comparison with what is allowed to individuals. The limitation on the unauthorised power of government is based on the protection of individual liberty from the exercise of governmental power that would otherwise interfere with that liberty.12

This distinction, or ‘lack of equivalence’ between governmental authorities and individuals, is expressed by the principle that ‘[i]n public law the rule is “what is not authorised is not permitted” and in private law it is that “what is not prohibited is permitted”’.13 Individuals do not have the power of governments. In its proper context, it is plain that this principle does not

11 John Stewart Mill, On Liberty (Yale University Press, 1859) 21-2, 71–72, 78–79. Mill’s principle applied to mankind collectively and individually. See also Locke, above n 2, 106: all citizens have ‘perfect freedom to order their actions, and dispose of their possessions and person as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man’. According to Locke, at 107, the law that governs the state of Nature requires that being ‘all equal and independent, no one ought harm another in his life, health, liberty or possessions’, and at 108: ‘For in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do’. John Rawls, A Theory of Justice (Belknap Press, 1971) 60, describes the Principle of Liberty that ‘each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others’. 12 Hamed v R [2012] 2 NZLR 305, [28] (Elias CJ), quoting Halsbury’s Laws of England (4th ed, 1974), vol 8, Constitutional Law, [828; (3rd ed, 1954), vol 7, Constitutional Law, [416]. Cf [217] (Tipping J). Jan M. Smits, 'Private Law and Fundamental Rights: A Sceptical View' in Tom Barkhuysen and Siewert Lindenbergh (eds), Constitutionalisation of Private Law (Koninklijke Brill, 2006) 9, 19-20, credits Montesquieu as a founder of the distinction between public and private law, the private sphere being governed by the lois civiles and the public sphere by the lois politique, (citing De l’Esprit des Lois (1748), Book XXVI, Chapter XV and XVI (GF- Llammarion-edition, Paris 1979: part II, 193 ff). Smits also describes Ernest J Weinrib’s The Idea of Private Law (Cambridge Mass, 1995) 208 as a modern version of this essential difference. See also Stathis Banakas, 'The Constitutionalisation of Private Law in the UK: Is There an Emperor inside the New Clothes?', in Barkhuysen and Lindenbergh, 87. 13 C Sampford, 'Law, Institutions and the Public/Private Divide' (1991) 20 Federal Law Review 201. See Attorney- General v Guardian Newspaper Ltd (No 2) [1988] 3 All ER 545, 596 (Donaldson MR): ‘The starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law or by statute’. See also Thomas Hobbes, Leviathan, quoted in John Shand, Central Works of Philosophy V 2 (Taylor and Francis, 2015) 108: ‘In cases where the sovereign has prescribed no rule, there the subject has the liberty to do or forbear, according to his own discretion’. 151

support the proposition that private individuals may exercise de facto power on the grounds that anything is permitted, subject only to what is expressly prohibited.

The distinction between what is permitted to governments and what is permitted to individuals entails that governments have a unique power to impose and enforce interferences with the liberties of individuals, and that individuals do not have that power. The latter, as well as the former must be recognised. This means that while ‘it is fundamentally undemocratic and dangerous to allow government all the powers of a natural person’,14 the converse is also correct ie it is fundamentally undemocratic and dangerous to allow a private body the effective powers of government so as to be able involuntarily interfere with the liberties of other citizens. Where individuals are able to exercise compulsive, non-consensual power, the accepted public/private power dichotomy ceases to apply. Yet this type of interference is what is entailed in the exercise of de facto powers by sports governing bodies.

As well as the comparison of governmental and private powers, considerations of liberty as between private individuals also operate to exclude de facto power from the scope of individual liberty.

(b) De Facto Power and Individual Equality Viewing de facto regulatory power as the exercise of individual liberty contradicts the principle that individuals possess equal liberty. De facto power involves the non-consensual imposition of private power by one individual on another. It is therefore incoherent to consider that individuals possess equal status but also, at the same time, hold that individuals may exercise de facto power, able to exert dominion over other individuals. This would be self-defeating for all individual freedom. This is true whether or not the exercise of that power harms or benefits those over whom it is exercised.15

14 Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) [6.310]: ‘there are strong economic and political arguments for denying statutory corporations the ability to move into new lines of business without prior parliamentary approval’. See also Maxwell L Stearns, 'A Private-Rights Standing Model to Promote Public-Regarding Behaviour by Government Owned Corporations' in Michael J Whincop (ed), From Bureaucracy to Business Enterprise: Legal and Policy Issues in the Transformation of Government Services (Ashgate Publishing, 2003) 121, 122 who argues that government owned corporations should pursue their statutory mandates ‘in a cost-effective manner and decline to go beyond that mandate in a way that allows taxpayer subsidisation to drive out private sector activity that provides goods and services of better quality or at lower cost’. 15 According to Mill’s harm principle, a person’s ‘own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else’: John Stewart Mill, On Liberty above n 11, 17-18. 152

So, while an individual, in contrast to a public authority, need not point to an authorising conferral of power in order to perform an action, the principle of equality means that individuals cannot have the freedom to impose obligations on other individuals. To repeat the point, like equivalent liberty for public authorities, this would negate individual freedom.16 Accordingly, in private law:

none is legally superior to any other, however different they may be in personal characteristics or acquired assets. Hence any legal arrangements that are to become binding on them through acts of private will must be ones to which they mutually consent, so far as concerns any change in the legal position between them.17

Nor is it correct to consider that there is a right for individuals to exercise de facto power either limited only by the harm principle, or on the ground of ‘what is not prohibited is permitted’.

(i) The Limits to Individual Liberty

One limit on the exercise of individual liberty that is readily recognised and accepted is where the actions of an individual harm another.18

But while de facto power that contravenes the harm principle would be beyond the scope of individual liberty, recognition of this does not accurately or completely delimit or describe the boundaries of individual liberty. That is, it is a non-sequitur to conclude from the principle that individual liberty is limited by the harm principle that individuals therefore have unrestricted freedom to interfere with the liberty of other individuals by the exercise of de facto regulatory power, either to the extent that those individuals may not be harmed, or at all.

That this is so is indicated by the fact that the ‘harm principle’ does not merely operate to delineate the boundary of exercises of individual freedom; it also operates as the justification for either governments or individuals to interfere with the liberties of other citizens:

the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which

16 See authorities cited in note 11 above. 17 Neil MacCormick, Institutions of Law (Oxford University Press, 2007) 223. See also 175. 18 See John Stewart Mill, On Liberty above n 11, 80; Thomas Hobbes, above n 13, 108: the private individual never has the right to impose on another citizen to impose a harm whereas the sovereign does have this right; John Locke, Two Treatises of Government, above n 11, 107, §6: ‘But though this be a state of liberty, yet it is not a state of licence … being all equal and independent, no one ought to harm another in his life, health , liberty or possessions’, and §7: ‘And that all men may be restrained from invading others’ rights and from doing hurt to one another’; H L A Hart, Law, Liberty and Morality (Oxford University Press, 1968). P S Atiyah and Stephen A Smith, Atiyah's Introduction to the Law of Contract (Clarendon Press, 2005) 162, cite John Stuart Mill in observing that the duties to act reasonably imposed by tort law are mostly negative duties not to harm others. 153

power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.19

The harm principle then, operates at two levels: it serves to demark the boundary of the exercise of individual freedom, and as the principle upon which the exercise of power over others may be justified. In relation to scope of individual liberty, it is wrong in principle to consider that individual freedom comprehends the freedom to exercise power over other individuals against their will, unless the exercise of power causes harm.20 The converse is the true position: the exercise of power over other individuals cannot be justified unless the power is exercised to prevent harm to others.

Accordingly, de facto power obtains no validity as an exercise of individual liberty. This has important implications for the standard of judicial supervision of de facto power and the role of the court in protecting individual liberty.

(ii) Individuals Acting in Their Own Interests

The nature of de facto power means that distinctions must be drawn between it and the freedom of an individual to regulate the individual’s own mode of carrying on trade. Conflicts over de facto power involve the regulation of the freedoms of others, not an individual’s own trade.

The capacity of parties to act in their own interests without unlawfully interfering with another’s trade or business is well recognised.21 The court’s approach was founded on and proceeded from its recognition of the freedom of individuals to trade: ‘Now it is not denied and cannot be even argued that prima facie a trader in a free country in all matters “not contrary to law may regulate his own mode of carrying on his trade according to his own discretion and

19 John Stewart Mill, above n 11, 17. 20 The point remains even though views may differ as to what ‘self-protection’ or ‘harm’ involves and justifies: see for example Roger Brownsword, 'The Limits of Freedom of Contract and the Limits of Contract Theory' (1995) 22 Journal of Law and Society 259, 264: ‘the harm concept is notoriously problematic within liberalism and modern liberals seem no nearer to finding simple elaborations of Mill's supposedly simple principle’. 21 Mogul Steamship Co v McGregor, Gow & Co [1892] AC 25. Although the approach of the courts in these common law cartel cases has been criticised. See for example Michael J Trebilcock, The Common Law of Restraint of Trade (Carswell, 1986) 293: The cases are ‘an immutable and somewhat embarrassing historical legacy of the common law’s failure to address an important private abuse of economic power and an abdication of the more exalted role which it had begun to define for itself in the mercantilist era and which it had to some extent managed to recapture in other areas of the restraint of trade doctrine in the modern era, especially with respect to involuntary restraints imposed by so-called legal monopolies’. See also Stephen A Smith, 'Reconstructing Restraint of Trade' (1995) 15 Oxford Journal of Legal Studies 565, 577: ‘courts have held consistently that “pernicious” cartels (cartels whose sole purpose is to raise prices) are invalid. Yet this rule has rarely been applied, even though many of the early cases – including Adelaide Steamship and North Western Salt – appear to have involved just such cartels.’ (references omitted). At 577, note 63, Smith notes that [‘t]here is no major English decision this [20th] century in which the rule against pernicious cartels has been applied’. 154

choice.”’22 The possession of this freedom means that it is necessary for those objecting to show that the trading conduct was contrary to law.23 It is not an offence or an actionable wrong to enter into a restraint of trade.24 Such contracts are not caught by the torts of conspiracy or causing loss by illegal means.25 A ‘sinister intention’,26 or ‘a desire to inflict malicious injury on their rivals’27 is required to establish illegality.28 ‘[E]very one has the right to conduct his own business upon his own lines, and as suits him best, even although the result may be that he interferes with another’s business in so doing’.29

However, the law’s support of the freedom of individuals (and combinations of individuals) to act in the pursuit of their own interests in the exercise of their own individual liberty can supply only limited support for the assumption of the validity of de facto power. This is because there is a fundamental difference between de facto regulatory power that imposes obligations on other individuals and the mere consequences of self-interested actions. As actions designed to harm another individual are of a different character to actions taken in pursuit of one’s own interests,30 so too are actions designed to regulate the affairs of another individual (as opposed to inflict harm), such as the exercise of de facto power. De facto power is different from the activities of a trader carrying on his or her trade according to the trader’s own discretion and choice.31 Indeed, it is not at all clear that because an action is addressed and directed to another party that it can properly be characterised as the exercise of an individual’s freedom to ‘regulate

22 Mogul Steamship Co v McGregor, Gow & Co [1892] AC 25, 36 (Lord Halsbury LC), quoting Hilton v Eckersley 6 E & B 74, 75 (Baron Alderson). See also 42 (Lord Watson), 49 (Lord Bramwell), 49 (Lord Morris), 52 (Lord Field) (referring to Keeble v Hickeringill 11 Mod 74, 131, noted that no action would lie because the defendant had a much liberty as the plaintiff), 56–7, 58, 59 (Lord Hannen). 23 See also Ware and De Freville Limited v Motor Trade Association [1921] 3 KB 40, 62 (Bankes LJ), 71 (Scrutton LJ), 78–9 (Atkin LJ); approved in Sorrell v Smith [1925] AC 700; Thorne v Motor Trade Association [1937] AC 797, 807–8 (Lord Atkin), 810 (Lord Thankerton), 812 (Lord Russell), 823 (Lord Wright), 824–5 (Lord Roche). In his judgment, Lord Atkin did not refer to the issue of competing liberties that he discussed in Ware and De Freville Limited v Motor Trade Association, though Lord Wright at 816 said: ‘When a person is placed on the Stop List, the traders who refuse to supply him, are exercising their freedom to trade as they will, just as much as the person who exercises his freedom to sell at other than the fixed prices and at any price that suits him.’ 24 Mogul Steamship Co Ltd v McGregor Gow & Co [1892] AC 25, 39, 42, 46-7, 51. 25 Ibid. See also Bohn Manufacturing Co v Hollis 55 NW 1119 (Minn SC, 1893); Brekkes Ltd v Cattel [1972] Ch 105, 115. 26 Attorney-General of the Commonwealth of Australia v Adelaide Steamship Company Limited (1913) 18 CLR 30, 53-4. On intention, see OBG Ltd v Allan [2007] UKHL 21, [62] (Lord Hoffmann), [167] (Lord Nicholls). 27 Mogul Steamship Co Ltd v McGregor Gow & Co [1892] AC 25, 36 (Lord Halsbury), 59 (Lord Hannen). 28 OBG Ltd v Allan [2007] UKHL 21, [148] (Lord Nicholls). The principles of the tort of conspiracy to injure another in her or his trade were established in Sorrell v Smith [1925] AC 700. The tort requires the purpose of the combination to be to injure another as opposed to defend or promote the interests of the parties participating in the combination. Cf Quinn v Leathem [1901] AC 495 distinguished on the basis that there was an intent to injure. 29 Sorrell v Smith [1925] AC 700, 718 (Lord Dunedin). 30 Quinn v Leathem [1901] AC 495. 31 It would be specious and self-defeating to contend that an individual could allocate to themselves the power and responsibility to regulate others, making this self-appointed activity their ‘interest’. 155

his own mode of carrying on his trade according to his own discretion and choice’.32 Rather than produce consequential effects, the exercise of de facto power is directed against third parties and it is the very purpose of the power to directly regulate the activities of the third parties to whom it is addressed.33

These characteristics of de facto power – that it is incoherent with a system of individual liberty and that it is different to actions taken in pursuit of one’s own interests – limit the application of the observations such as those of Atkin LJ in Ware and De Freville Limited v Motor Trade Association:

The truth is that the right of the individual to carry on his trade or profession or execute his own activities, whatever they may be, without interruption, so long as he refrains from committing tort or crime, affords an unsatisfactory basis for determining what is actionable, inasmuch as such right is conditioned by precisely similar right in the rest of his fellow men. Such co- existing rights do in a world of competition necessarily impinge upon one another, and it appears illogical to start with the assumption that an interruption of the power of a man to do as he pleases within the law is prima facie a legal wrong, which in every case needs to be justified. The true question is, was the power interrupted by an act which the law deems wrongful? with the practical result that to determine liability one has to concentrate, not upon the effect on the plaintiff, but upon the quality of the act of the defendant.34

The rights in conflict in the case of de facto power are not equivalent.

The character of de facto power also gives rise to important rule of law considerations.

(c) De Facto Power and the Rule of Law It is the ‘core, defining aim’ of the rule of law to secure protection and provide recourse against the arbitrary exercise of power.35 As it involves the unilateral, non-consensual exercise of

32 Mogul Steamship Co v McGregor, Gow & Co [1892] AC 25, 36 (Lord Halsbury LC). See note 22 above and accompanying text. Of course, it is facile to consider that one can unilaterally declare that one’s interests are the regulation of others and that this therefore legitimises the pursuit of the regulation of others as the pursuit of one’s own interests. 33 Unlike the regulatory power of sports governing bodies, the agreement in Mogul was for a specified time and the parties were free to withdraw from it: ibid 42 (Lord Watson), and 50 (Lord Morris). On the scope of the rules of international sports governing bodies that are applied against participants in sport through the exercise of de facto power, see the discussion in Chapter I under the heading ‘The Categorical (Not Contractual) Claim to Regulatory Authority’ above. 34 Ware and De Freville Limited v Motor Trade Association [1921] 3 KB 40, 79 (Atkin LJ). 35 Gerald J Postema, 'Fidelity in Law's Commonwealth' in Lisa M Austin and Dennis Klimchuk (eds), Private Law and the Rule of Law (Oxford University Press, 2014) 17 and 19: ‘power’ being the ‘capacity to influence or control the practical decisions or actions of rational, self-directing agents’. See also Albert Venn Dicey, Lectures Introductory to the Study of the Law of the Constitution (Macmillan, 2nd ed, 1886), 202; Lord Thomas Bingham, 'The Rule of Law' (2007) 66 Cambridge Law Journal 67, 69, who, after outlining the uncertainty and controversy as to the meaning of the rule of law, said: ‘The core of the existing principle is, I suggest, that all persons and 156

power, there are obvious problems for de facto power in conforming with the requirements of the rule of law.

(i) Rule of Law Principles and Governmental Power

In their application to arbitrary power, rule of law principles are most commonly applied in relation to governmental power,36 so that while the ‘precise content of the rule of law is notoriously controversial … [t]he kernel of any conception of the principle is that all claims of governmental power must be justified in law’.37 The principles of the rule of law require all governmental power that ‘affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree’38 and it is the rule of law that ‘has provided the major justification for constraining the exercise of official power, promoting the core institutional values of legality, certainty, consistency, due process and access to justice’.39 An essential part

authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’. At 72, Lord Bingham considered that the essential truth of Dicey’s insight stands, and referred to arbitrariness as the antithesis of the rule of law, citing Scott v Scott [1913] AC 417, 477 (Lord Shaw). See also Jeremy Waldron, 'The Concept and the Rule of Law' (2008) 43(1) Georgia Law Review 1, 6-7; John Bowring (ed), The Works of Jeremy Bentham, (Edinburgh: William Tait, 1838-1843), chapter XVII, cited by Timothy Endicott, 'The Coxford Lecture: Arbitrariness' (2014) 27 Canadian Journal of Law and Jurisprudence 52; Lon L Fuller, The Morality of Law (Yale University Press, 1964) chapter 2; John Finnis, Natural Law and Natural Rights (Oxford University Press, 2011) 270-1; Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, 2009) 214-18. 36 Rule of law values have been recognised in various authorities. See for example: R v Secretary of the Home Department, Ex Parte Leech (No 2) [1994] QB 198, 210 (Steyn LJ); R v Secretary of the Home Department, Ex Parte Simms [2000] 2 AC 115, 120, 125-7 (Lord Steyn), 131 (Lord Hoffmann); R v Secretary of the Home Department, Ex Parte Pierson [1998] AC 539, 575 (Lord Hoffmann): ‘Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law … Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law’. See also the judgment of the Australian High Court describing the rule of law as a source of values which properly inform our legal system albeit that they have ‘no immediate normative operation’: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 23 (McHugh and Gummow JJ). See also Plaintiff S157/2003 v Commonwealth (2003) 211 CLR 476, 513; South Australia v Totani (2010) 242 CLR 1, 20-1, 42. Heydon J in Hili v R, (2010) 242 CLR 520, 542 referred to the rule of law and cited F A Hayek’s, The Road to Serfdom (Routledge & Kegan Paul, 1962) 54. where Hayek described ‘the essential point, that the discretion left to the executive organs wielding coercive power should be reduced as much as possible, is clear enough.’ Hayek was describing the distinction between the Rule of Law and arbitrary government ibid 54. Hayek cited (note 1) the ‘classical exposition’ of the rule of law by A V Dicey in The Law of the Constitution (8th ed, 198). Earlier in his judgment, Heydon J also cited Hayek’s The Constitution of Liberty (1960) 208 in relation to Hayek’s view of fixed and clear principles as a component of the rule of law that was the greatest contribution to the prosperity of the West. In Canada, see Baker v Canada (Minister of Citizenship & Immigration) [1999] 2 SCR 817 (SCC), [56] (L’Heureux-Dube J). 37 Elliott, above n 8, 100. 38 Wade & Forsyth, above n 7, 17. See also 5: ‘the government must have legal warrant for what it does and … if it acts unlawfully the citizen has an effective legal remedy’. See Albert Venn Dicey, The Law of the Constitution (Liberty Fund, 2010). 39 Lord Harry Woolf, et al, De Smith's Judicial Review (Sweet & Maxwell, 2013) [11-059]. 157

of the rule of law involves the application of rules to prevent the abuse of discretionary public power, as this is necessary to avoid rule by arbitrary power.40

In its application to governmental power, the rule of law principle is that ‘the exercise of governmental power must be controlled in order that it should not be destructive of the very values which it was intended to promote’.41 In this way, the ultra vires doctrine protects the liberty of citizens and requires any interference with individual liberty occasioned by the exercise of governmental power to be legitimised by being authorised: ‘in a constitutional democracy the role of judicial review is to guard the rights of the individual against the abuse of public power’.42

(ii) The Rule of Law and Private Arbitrary Power

But public law judicial review is but one manifestation of the rule of law’s distaste for arbitrary power, that distaste also extending to arbitrary power in private law.43 As the law constrains unauthorised public power because of its effect in interfering in the liberties of individuals, so the law is also concerned with arbitrary private power because of its effect in interfering with individual liberty. ‘Law is the antithesis of arbitrary power: a regime of law constitutes a bulwark against unregulated interference with each person’s liberty, whether by public officials or private citizens’.44

Accordingly, the protection of the rule of law against arbitrary power applies not only to governmental power but also to societal power, power wielded by non-governmental

40 Wade & Forsyth, above n 7, 18. The Australian High Court has rejected the concept of unlimited administrative discretion: Wotton v Queensland [2012] 246 CLR 1, [10] (French CJ, Gummow, Hayne, Crennan and Bell JJ). 41 Johan Steyn, 'The Weakest and Least Dangerous Department of Government' (1997) Public Law 87. See also T R S Allan, Law, Liberty, and Justice (Clarendon Press, 1993). 42 Woolf et al, above n 39, [1-016], and see [4-046] citing the reason for the extension of judicial review to bodies exercising public functions as being because ‘the courts recognise that it is important to the rule of law that the abuse of those powers be controlled irrespective of their source and that the nature of the control should be the same as the control of more conventional administrative powers conferred by statute’. See also Wade & Forsyth, above n n 7, 4; Elliott, above n 8, 191, [4.2]: even where the conclusion has been drawn that the principle of legality is irrelevant to the exercise of de facto public power, this does not ‘mean that the rule of law, as a whole, is irrelevant.’ 43 R George Wright, 'Arbitrariness: Why the Most Important Idea in Administrative Law Can't Be Defined, and What This Means for the Law in General' (2010) 44 University of Richmond Law Review 839: ‘Usually, but not always, the law thinks of arbitrariness as undesirable’, the exception cited being the exercise of peremptory jury challenges: note 1. 44 William Lucy, 'The Rule of Law and Private Law' in Austin and Klimchuck, above n 35, 41, 70. See also 75. 158

individuals and entities.45 Equality before the law relates not only to citizen/government interactions, but also to relationships between citizens.46

Insofar as state officials are required to act in conformity to previously announced general rules, being unable to assert an unfettered will as regards the treatment of particular persons or the disposition of specific cases, their position mirrors that of the ordinary citizen, obliged to honour established legal constraints in his relations with other persons. There would, moreover, be little point to such official self-restraint if the citizen were not assured of similar protection against arbitrary private power.47

This point applies equally in civil jurisdictions, where it becomes difficult to rationalise the facilitation of de facto power with the requirement for associations to comply with the principle of equal treatment.48 By definition, a non-member subjected to the application of the rules of an association through de facto power does not have the same or equal rights as members of the association, either in the creation of the rules or in their application.

(iii) Different Types of Arbitrariness

In the context of de facto power, it is important to appreciate that the rule of law’s disapproval of arbitrary power applies to the unilateral exercise of power and not merely to the process in which power is exercised. An exercise of power is ‘arbitrary’ as that term is contemplated within the rule of law if it is an unaccountable, unilateral exercise of power: ‘when it is the expression of the libero arbitrium, the free decision or choice, of its agent. The act may be

45 For theoretical support, see note 11 above. See also Immanuel Kant, ‘Perpetual Peace’ in Mary J (ed and trans) Gregor, Practical Philosophy (Cambridge University Press, 1996) n 323: ‘No one can bind another to something without also being subject to a law by which he in turn can be bound in the same way to the other’ (emphasis deleted). See also Immanuel Kant, ‘On the Common Saying: that may be correct in theory but it is of no use in practice’ in Practical Philosophy 292; Evan Fox-Decent, 'Unseating Unilateralism' in Austin and Klimchuck, above n 35, 116. 135: ‘And because we cannot claim for ourselves a greater liberty than we would allow for others, we cannot expect the law to confer on us a legal power or status that would entitle us to dictate terms unilaterally to others’, citing Thomas Hobbes, Leviathan with Selected Variants from the Latin Edition of 1668 (first published 1651), ed Edwin Curely (Hackett Publishing, 1994) 138 (ch xxi para 6); 80 (ch xiv para 5); Postema, above n 35, 33: ‘One party, A, is in a position or has standing to bind another party, S, and to hold S accountable to this obligation, only if A is also subject to a network of accountability to others in which network S also participates’. 46 Postema, above n 35, 17, 19-20, 24-5: ‘Of course, non-governmental power wielders include corporations and collectivities as well as individual citizens; indeed, their power is often far more potent, equalling or exceeding that of many governments’ (24). See also Robin West, ‘The Limits of Process’ in James E Fleming (ed), Getting to the Rule of Law: NOMOS L (New York University Press, 2011) 47. See also T R S Allan, 'The Rule of Law as the Rule of Private Law' in Austin and Klimchuck, above n 35, 67, 69-70. 47 T R S Allan, above n 46, 67, 71. 48 See Rosmarijn van Kleef, 'The Legal Status of Disciplinary Regulations in Sport' (2014) 14 International Sports Law Journal 24, 30. 159

reasonable, reasoned, or otherwise justified, but it is still arbitrary if it is taken entirely at the will or pleasure of the agent’.49

Arbitrariness may therefore arise where a body has no warrant or legitimacy for the exercise of a power, where the body has authority for the exercise of some powers but goes beyond the terms of that authority, where legitimately held power is exercised inconsistently, and where an action is ‘under-determined by reason’ ie where the decision-maker is indifferent between options and makes a selection in the absence of any compelling reason.50

In relation to de facto power, arbitrariness arises from the absence of authority for the exercise of power, although the exercise of power by sports governing bodies may also be arbitrary by virtue of the way in which the power is exercised, by being exercised inconsistently, or in the absence of compelling reason. For example, it appears to be correct to consider that the power of the Jockey Club in Nagle v Feilden,51 was arbitrary in all of these senses. The Jockey Club exercised monopoly power and possessed neither warrant, nor legitimacy for the regulation of non-consenting third parties. Then, its method of exercise of its monopoly power was inconsistent and discriminatory.

While arbitrariness may take different forms, arbitrariness in the form of the exercise of power without authority is fundamental. Indeed, as we have seen in public law, this type of arbitrariness is the central concern and the central component of judicial review through the ultra vires principle. The effect of a public power being unauthorised and therefore ultra vires is that no amount of regularity in the manner of its exercise can protect it from being declared to be void. Similarly, in private law, the purported beneficial effects of a power can have no validating effect on the power if the terms of the contract do not authorise its exercise.

The assumption that individual liberty supplies the foundation for the exercise of de facto power by sports governing bodies is wrong. Without a valid source of power, de facto power may then be regarded as having been afforded a level of deference and legal status that it does

49 Postema, above n 35, 17, 18, citing Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford University Press, 1977) 55. A close meaning is where power ‘is ultra vires, either in the sense of being entirely without warrant or being outside legitimately held warrant’. Lucy also considers the deployment of power without warrant or legitimacy to be arbitrary: Lucy, above n 44, 41, 46. Cf Joseph Raz, ‘The Rule of Law and its Virtue’ in The Authority of Law (2nd edn, Oxford University Press, 2009) 203, 219. However, see also Jeremy Waldron, 'The Concept and the Rule of Law' (2008) 43(1) Georgia Law Review 1, 11 disagreeing with Raz, and describing the Rule of Law as an ideal ‘designed to correct dangers of abuse that arise in general when political power is exercised, not dangers of abuse that arise from law in particular.’ 50 Lucy, above n 44, 41, 46-50. 51 [1966] 2 QB 633. 160

not deserve. The protection of individual liberty against arbitrary power demands a reconsideration of the courts’ approach to the supervision of de facto power.

C Chapter Summary The challenge to the assumption that de facto powers are valid as exercises of individual liberty further undermines the basis of the conventional characterisation of regulatory power in international sport. Not only is the characterisation unsupported by an adequate contractual authorisation of regulatory power, de facto regulatory power also lacks any foundation as the exercise of the individual liberty of the voluntary sports governing bodies. This makes de facto regulatory power arbitrary and contrary to rule of law principles.52

The substantive issue then is what legal consequences should flow from recognition of this? Certainly, the validity of the exercise of de facto power by international federations cannot be assumed; as a minimum, justification must be required to establish validity.

It must also be acknowledged that the propositions advanced here potentially have wider implications for de facto power more generally and not only for the regulatory actions of sports governing bodies.

52 In turn, this raises the prospect that de facto regulatory power is ultra vires the associations and that an approach to judicial supervision in which conflicts involving exercises of de facto power are balanced against the interests with which they interfere is wrong in principle. 161

VI LEGITIMACY AND THE JUSTIFICATION OF THE

REGULATORY POWER OF INTERNATIONAL SPORTS

GOVERNING BODIES

A Chapter Introduction ...... 164 B Democratic Legitimisation of the Governance Regime of International Sport ..... 166 1 Legitimacy and Representative Democracy ...... 166 (a) Why Democratic Legitimacy? ...... 166 (b) Public Law Principles and Analogies ...... 168 2 The Pragmatics of Representative Democracy in International Sport ...... 170 (a) Democracy in Globalised Sport ...... 170 3 Legislative Support of Democratic Regulatory Structures in Sport ...... 173 (a) Good Governance and Governmental Regulation of International Sports Governing Bodies ...... 177 4 Democracy as Good Governance ...... 178 (a) Democracy and Corruption in International Sports Governing Bodies ...... 180 C Democratic Legitimacy and International Sports Arbitration ...... 182 1 De Facto Power and the Role of CAS ...... 184 (a) A Consent-Based Arbitral Form for a Non-Consensual Regulatory Function ...... 184 (b) Arbitration and Sport’s Consistency Imperative ...... 186 2 Democratic Legitimisation of Arbitration Without Consent ...... 187 D Conferring Legality on the Regulation of International Sport - the Need for an International Treaty ...... 189 1 The Limited Benefits of Democratic Legitimacy ...... 189 2 An International Treaty ...... 192 3 The Contents of a Convention on the Governance of International Sport ...... 193 (a) World Sports Regulatory Authority ...... 193 (i) The Regulation of Sport to Be Democratically Based ...... 195 (ii) Democratic Organisational Structures ...... 195 (b) Giving Effect to the Consistency Imperative ...... 198 (i) Arbitral Tribunal or Court? ...... 200 (ii) The Compulsive Scope of Rules ...... 201 (iii) Non-Essential Rules ...... 202 4 The Impetus for Reform ...... 204 (a) Conditional Governmental Support ...... 206

162

E Conclusion ...... 208

163

A Chapter Introduction Central to the liberal-democratic tradition has been an emphasis on the liberty and autonomy and dignity of the individual, on the fundamental legal and political equality of persons, on equality of opportunity, on the responsibility of governments to protect the lives and basic well-being of their citizens, on the importance of reasoned deliberation and justification in the domain of public power, on opportunities for adults to participate in elections and in other forms of political activity, and on the separation of powers of government. These values come to fruition in the Rule of Law.1

The discussion so far has illustrated that the governance regime of international sport is predominantly based upon de facto power, power that is unsupported by either private contractual authority or state legislative authorisation. Despite its unauthorised nature, the regime compulsively regulates and controls a significant activity in society and those who participate in it. This regulation is perpetuated under a false veneer of legitimacy derived from misconceptions as to the voluntary, contractual foundation of these regulatory powers. The reality is that the exercise of this private power is arbitrary and contrary to the rule of law.

The effort that has been invested in illustrating the de facto nature of the existing regulatory regime is intended to be constructive. It has proceeded on the understanding that effective, uniform regulation of international sport is both desirable and necessary,2 though with an important proviso: that this does not mean that any form of uniform regulation is therefore acceptable. Whilst the regulatory power of international sports governing bodies is currently practically effective, basic principle and the conceptions of justice that underpin modern liberal-democratic society demand that the arbitrary nature of this de facto private regulatory regime be recognised and addressed. In addition to these stipulations of principle, purely pragmatic considerations mean that reform is necessary to sustain a valid system of regulation of international sport as, in the absence of a legitimate foundation, the current regulatory system will remain vulnerable to legal attack and is unlikely to be stable or durable.3 The corruption

1 Matthew Kramer, Objectivity and the Rule of Law (Cambridge University Press, 2007) 144. 2 See Jeremy Waldron, 'Special Ties and Natural Duties' (1993) 22(1) Philosophy & Public Affairs 3, 22: political institutions are necessary to mediate and arbitrate disputes and there is ‘a clear moral interest in their establishment.’ 3 See Adam Lewis and Jonathan Taylor Sport: Law and Practice (Bloomsbury Professional, 3rd ed, 2014) [A2.14]. 164

scandals in international sports governance that arise on a frequent basis are one manifestation of the effects of this lack of legitimacy.4

What, then, is needed to place the regulatory regime of international sport on a sound and defensible footing? This question needs to be addressed in terms of both what is required to buttress the regime’s legality so that it possesses a sound jurisdictional foundation; and what is required to invest the regime of international sport with legitimacy so that it is justifiable.

Reversing the order of these issues of legality and legitimacy, this chapter proceeds with an outline of the effect of representative democracy as the remedy to the legitimacy deficit in international sport’s regulatory regime. It considers this in the context of democracy’s legitimising effect and factors that support its introduction in international sport. It then moves to consider how this legitimising characteristic could affect international sport’s arbitral dispute settlement regime and the issue of relative legality of the de facto regulatory regime.

These discussions will illustrate that while representative democracy is essential for the governance regime of international sport to be able to claim legitimacy, and while this legitimacy may positively affect some aspects of assessments of relative legality, the institution of representative democratic structures within international sports governing bodies is unlikely to be enough to ensure relative legality.

Accordingly, the final section of this chapter outlines a reform proposal to both address the legitimacy deficit of international sport’s governance regime and to confer legality on that regime, thereby avoiding the necessity for the fictions that characterise the current approach of the law to de facto power in sport.

The first challenge is that of legitimacy: how can de facto power involving an element of compulsion necessary to give effect to sport’s consistency prerequisite be legitimised?

4 See ‘Democracy as Good Governance’ below. 165

B Democratic Legitimisation of the Governance Regime of International Sport

1 Legitimacy and Representative Democracy Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being.5

(a) Why Democratic Legitimacy? The democratic deficit in the governance of sport is an obstacle to its legitimation, but conversely, the deficit also presents as a mechanism by which the private de facto power of sports governing bodies may be made legitimate.

In this respect, the legitimacy deficit in the governance of international sport is more than an issue of stakeholder management – ‘giving stakeholders a say’.6 It is an issue of fundamental institutional form – representation is necessary when a body’s function includes rule-making. Accountability for the application of rules does not comprehend this element. The approach in which it is contended that it is an error to require democracy as a precondition for accountability and that this ‘confuses the problem of accountability with one of representation’7 and the surrender of a requirement for legitimacy in favour of some form of accountability is therefore rejected. This approach considers that democratic accountability is the ideal, but that international sports governing bodies do not need to be democratic in order to be accountable. This view could only be valid if one’s focus is accountability rather than legitimacy.8 It may be that democracy is not essential to accountability,9 however, it does not follow that democracy is not essential to the legitimacy of the regulatory power of international sports governing bodies.10 Compulsive private power cannot be justified by mere functional accountability mechanisms.

5 Ghaidan v Godin-Mendoza [2004] UKHL 30, [132] (Baroness Hale). 6 Sunder Katwala, Democratising Global Sport (Foreign Policy Centre, 2000) 30–32. 7 Ryan Gauthier, The International Olympic Committee, Law, and Accountability (Routledge, 2017) 25 [1.2]. 8 As Gauthier’s is: ibid 2. Gauthier also takes a particularly functional or instrumental view of the level of legitimacy required of the IOC: see 30. He considers it unlikely that the entire structure of an institution will be changed and that accountability mechanisms ‘are perhaps the best route to reform’: 40. 9 Ibid 25. 10 Ibid 188. Gauthier considers the absence of democracy is not determinative in relation to the IOC, principally because of the IOC’s subject-matter expertise and its independence from states and other actors. 166

The legitimising effect of democracy is established in public law applications. States exercise jurisdiction based on political legitimacy.11 Exercises of powers in public law are ultimately justified by being made by democratically accountable legislatures.12 ‘If people were to accept the consequences of such decisions, they must be made by persons whom the people have elected, and whom they can remove.’13 Democracy legitimates law.14 The legitimising effect of democracy is accepted notwithstanding that

11 Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice, (Oxford University Press, 2012), 176; Vivien Collingwood, 'Non-Governmental Organisations, Power and Legitimacy in International Society' (2006) 32 Review of International Studies 439, 448: ‘A “legitimate” government in the modern liberal sense is chosen by its citizens, operates within the limits of a written constitution or detailed customary and legal rules, and is expected to fulfil (within reason) its electoral promises. The government that fails to accomplish any, or all, of these tasks is at risk of losing all, or some, of its legitimacy’ (reference omitted). 12 Jan M Smits, 'Private Law and Fundamental Rights: A Sceptical View' in Tom Barkhuysen and Siewert Lindenbergh (eds), Constitutionalisation of Private Law (Koninklijke Brill NV, 2006) 9, 19. See also Stathis Banakas, 'The Constitutionalisation of Private Law in the UK: Is There an Emperor Inside the New Clothes?' in Tom Barkhuysen and Siewert Lindenbergh (eds), Constitutionalisation of Private Law (Koninklijke Brill NV, 2006) 83, 87. There are both instrumental and substantive justifications for the power of authorities: Scott Shapiro, 'Authority', in Jules Coleman and Scott Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2002) 431. Shapiro describes Joseph Raz’s Normal Justification Thesis as primarily instrumental – democratic governmental structures are preferable because they are more likely to be of benefit. Shapiro however argues in favour of a more substantive role for democratic procedures in that they represent power sharing arrangements: see 432–7. See also Simon Gardiner, et al, Sports Law (Routledge, 4th ed, 2012) 92, ‘Many democratic models make the assumption that legitimate authority to exercise public power can only flow from a command of popular and legislative majorities’, citing L Hancher and M Moran, ‘Organising regulatory space’, in R Baldwin, C Scott, and C Hood, (eds), A Reader on Regulation (Oxford University Press, 1998) 150; Daniel Bodansky, 'The Legitimacy of International Governance: A Coming Challenge for International Environmental Law' (1999) 93 American Society of International Law 596 , 599: ‘although dissatisfaction with democracy is common in Western countries, it is still no exaggeration to say that democracy has become the touchstone of legitimacy in the modern world’; Julia Black, 'Constitutionalising Self-Regulation' (1996) 59 Modern Law Review 24. It is also argued that there is no real rule of law without representative democracy: Paul P Craig, Public Law and Democracy in the United Kingdom and the United States of America (Oxford Scholarship Online, 1991) Ch 2, discussing the work of A V Dicey; T R S Allan, Law, Liberty, and Justice (Clarendon Press, 1993) 21-2: democracy ‘may today be taken to be a central strand of the rule of law; Samantha Besson, 'Theorizing the Sources of International Law' in Samantha Besson and John Tasioulas (eds), Philosophy of International Law (Oxford University Press, 2010) 163, 176: the democratic nature of the law-making process is often regarded as the best justification for the claim to authority of a law’. 13 Secretary of State for the Home Department v Rehaman [2003] 1 AC 153, [62] (Lord Hoffmann). 14 Allan, above n 12, 21-2: democracy ‘may today be taken to be a central strand of the rule of law’. See also Brian Z Tamanaha, On the Rule of Law (Cambridge University Press, 2004) 99-101; Ronald Dworkin, 'The Right to Ridicule', The New York Review of Books, 23 March 2006; Besson, above n 12, 176: the democratic nature of the law-making process is often regarded as the best justification for the claim to authority of a law; and John Tasioulas, 'The Legitimacy of International Law' in Besson and Tasioulas, above n 12, 100–1. Cf Joseph Raz, 'The Rule of Law and Its Virtue' (1977) 93 Law Quarterly Review 195, 196 who argues that the rule of law should not be ‘confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man.’ 167

there are many definitions of democracy and that there is no consensus on how it should be measured.15

Can these public law legitimacy principles be transferred to a private law context to legitimise private regulatory authority in international sport, authority that in many respects resembles the authority exercised by states, but which largely avoids the accountability inherent in the exercise of legislatively sanctioned public powers?

(b) Public Law Principles and Analogies International sport is considered by some to be a public good.16 Further, while a private law regime, the governance of international sport clearly possesses public elements, including the claims of the international federation to regulatory power and the regulatory nature of the powers exercised.17 In addition, public law principles are applied in its supervision by state courts.18 A CAS panel has observed that ‘there is an evident analogy between sport-governing bodies and governmental bodies with respect to their role and functions as regulatory, administrative and sanctioning entities, and that similar principles should govern their actions’.19

Accordingly, borrowing the justification of representative democracy from public law for the private authority of international sports governing bodies appears apposite. In this context, it is apposite not as a basis for subjecting private sports governing bodies to public law judicial review, but as the minimum conditions by which private regulatory power may be considered legitimate.20 If the role and functions of sports

15 David F J Campbell, 'The Basic Concept for the Democracy Ranking of the Quality of Democracy' (2008) , 4. Even the most minimalist definitions of democracy involve ‘government of the people’: 20. 16 See Jean Francois Bourg and Jean-Jacques Gouguet, ‘Sport and Globalisation: Sport as a Global Public Good’ in Wladimir Andreff, Stefan Szymanski, Handbook on the Economics of Sport (Edward Elgar, 2007) chapter 82. 17 International sports governing bodies have also been characterised as being charged with caring for a public good: see Arnout Geeraert, Jens Alm and Michael Groll, 'Good Governance in International Sport Organizations: An Analysis of the 35 Olympic Sport Governing Bodies' (2014) 6(3) International Journal of Sport, Policy and Politics 281, 284. 18 See for example Bradley v Jockey Club [2004] EWHC 2164, [37] (Richards J). 19 AEK Athens v UEFA CAS 98/200, award of 20 August 1988, Digest of CAS Awards II 1998-2000 (Kluwer, 2002) 38, [58]. See also Luc Silance, 'Interaction of the Rules in Sports Law and the Laws and Treaties Made by Public Authorities' (1977) 120 Olympic Review 618, 622, who considers international federations to be ‘modelled on the pattern of federal States, since they govern national sports federations and obey rules contained in “Statutes”. General Meeting or Session, Board of Directors or Executive Board, disciplinary measures: the International Olympic Committee and the International Sports Federations are comparable to inter-State international organisations.’ 20 These reasons for judging the legitimacy of international sports governing bodies by the yardstick of liberal democratic requirements of governments mean that criticisms of the application of this measure to other types of NGOs are largely not relevant: see Vivien Collingwood, 'Non-Governmental 168

governing bodies are analogous to governmental bodies, then so too can the basis of their claim to legitimacy. In fact, if it is necessary to give effect to the consistency imperative of international sport through government-like compulsive regulatory authority, then the only obvious way of justifying this, if at all, would be on the basis that this compulsive authority was, like that of the state, legitimised by representative democracy.21

It follows then that democracy has the potential to be enlisted as the mechanism by which legitimate authority in international sport may be distinguished from illicit authority (or bare, de facto power), distinguishing the authority of international federations from that of mafias or drug cartels for example, and acting as a ‘form of normative, uncoerced consent or recognition of authority on the part of the regulated or governed’.22

It must be recognised that this is, in a sense, a radical proposition. States are traditionally regarded as possessing a monopoly on the use of coercive powers in society.23 But to be clear, what is being sought is not a justification for the deployment of a new form of coercive private power. To the extent that state legal systems currently permit and facilitate the de facto power of international sports governing bodies, that horse has bolted: the existing coercive private de facto power of international sports governing bodies already challenges the state’s monopolisation of coercive authority. In the face of this reality, what is proposed is the imposition of a requirement that this private power be justified by satisfying minimum conditions that are at least equivalent to those factors that legitimise state power. In the current pluralist system in which sports governing bodies exercise regulatory power, what is missing, and what must be supplied, is a minimum standard of legitimacy. It is simply nonsensical for

Organisations, Power and Legitimacy in International Society' (2006) 32 Review of International Studies 439, 451. 21 This justification being distinct from the mechanism that could give legal effect to such a conferral of private compulsive power. See Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies (Palgrave Macmillan, 2003) 115: the general rationale underlying accountability is the need to hold the powerful to account and this rationale applies equally to the public and private sectors. 22 Focarelli, above n 11, 145, quoting R B Hall and T J Bierstecker (eds), The Emergence of Private Authority in Global Governance (Cambridge University Press, 2002) 4-5. See also Shapiro, 'Authority' above n 12, 395: ‘Legitimate authorities differ from gangsters in that the former are morally permitted to issue such threats and punish non-conformity, as opposed to the latter who are under a moral duty not to act similarly’. 23 Paul P Craig, Public Law and Democracy in the United Kingdom and the United States of America, (Oxford Scholarship Online, 1991) 20-1, referring to parliament’s legislative monopoly: ‘The state was unitary, with all real public power being concentrated in the duly elected Parliament’. 169

requirements of legitimacy to apply to state-based regulatory regimes, but for the private regimes of international sport to avoid any substantive standards of legitimacy.

2 The Pragmatics of Representative Democracy in International Sport As a reform, the introduction of a requirement of representative democracy to international sports federations would appear to be relatively unobjectionable in principle. Most international federations are structured as democracies, albeit as unrepresentative ones. The introduction of democracy per se could not therefore be objected to–it already exists. An objection would therefore have to be framed as an objection to the introduction of a representative form of democracy. But again, it is difficult to understand how such an objection could be made good on theoretical or principled grounds.24 Rather, possible practical difficulties of implementation would appear to provide more fertile ground as a basis upon which to oppose the introduction of representative democracy in international sports governing bodies.

(a) Democracy in Globalised Sport To form a democratic foundation that is representative and therefore capable of sustaining a claim to legitimacy, the ‘public’ of international federations needs to align with those over whom the associations claim regulatory authority. In other globalisation contexts, the problem of identifying a global public for the purposes of democratising global governance institutions, along with other difficulties, has been noted. 25

Normative controversy about globalization pivots around the twin issues of accountability and democracy. A crucial feature of representative democracy is that

24 Mark Bovens, 'Public Accountability' in Ewan Ferlie, Laurence E Lynn and Christopher Pollitt (eds), The Oxford Handbook of Public Management (Oxford University Press, 2007) 182: Accountability is a ‘hallmark of modern democratic governance. Democracy remains a procedure on paper if those in power cannot be held accountable in public for their acts and omissions, for their decisions, their policies and their expenditures’. See also: Mulgan, above n 21, 12–14, 36; P Aucoin and R Heintzman, ‘The Dialectics of Accountability for Performance in Public Management Reform’ (2000) 66 International Review of Administrative Sciences 45: the accountability of those who hold and exercise authority is a cornerstone of public and corporate governance. 25 Allen Buchanan, Robert O Keohane, 'The Legitimacy of Global Governance Institutions' (2006) 20 Ethics & International Affairs 405, 416–7; Benedict Kingsbury, Nico Krisch, Richard B Stewart, 'The Emergence of Global Administrative Law' (2005) 68(3/4) Law and Contemporary Problems 15, 49 and authorities cited at notes 94–7; Collingwood, above n 20, 448–50. Even the democratic structure of the United Nations has not been exempt from criticism: see for example Thomas M Franck, 'Fairness in Fairness Discourse' (2001) 95 American Society of International Law Proceedings 168–70, arguing that if the international system is to survive a serious fairness deficit, it must create a forum in which people rather than governments are represented. Frank considers that a correlation between population and representation is a coherent and just principle of representation: 170. He proposes the direct election of representatives to the UN, perhaps as part of dual chamber decision-making system and considers democratic election to be fundamental to the legitimacy of decisions taken by the forum: 171. 170

those who govern are held accountable to the governed. If governance above the level of the nation-state is to be legitimate in a democratic era, mechanisms for appropriate accountability need to be institutionalized. Yet these mechanisms cannot simply replicate, on a larger scale, the familiar procedures and practices of democratic states.26

Largely, however, these problems of replication do not appear to be significant obstacles for the implementation of representative democracy in international sport.27 Dismissing the possibility of democracy in international sport on these grounds involves giving up far too easily on the need for legitimacy.

The appropriate ‘public’ for international sports federations, those who international federations must represent to claim democratic legitimacy, is determined and identified by the sports bodies themselves: those over whom the organisations assert regulatory authority. So, for example, the rules of FIFA purport to apply not only to FIFA’s member national federations, but also to players, football bodies and officials, and clubs, leagues and other groups affiliated to a member association.28 This comprises a discrete group, or discrete groups, who are relatively easily identified. In addition, unlike some other international institutions, international sports federations possess a central democratic law-making body,29 and there is an independent reviewing court (or at least one in form, if not in function, in the CAS).30

In respect of other problems, the appropriate democratic standard to be adopted also appears largely uncontroversial: international federations currently adopt democratic structures that are generally representative of their members (as opposed to those over whom they exercise regulatory power).31 Accordingly, representative democracy is the appropriate standard; although it remains for this standard to be properly applied.

26 Ruth W Grant and Robert O Keohane, 'Accountability and Abuses of Power in World Politics' (2004) 7 International Law and Justice Working Papers 2. Grant and Keohane, at 10–11, do not consider democratic elections to be viable mechanisms for accountability at the global level because of the absence of ‘a coherent and well-defined global public’: 11. 27 Cf Gauthier who appears to too easily dismiss the possibility of representative democratic structures in sport on general grounds applicable to other international institutions without considering the particular structures of international sports governing bodies: Gauthier, above n 7, 31. 28 See Federation Internationale de Football Association, FIFA Statutes, 27 April 2016, art 14 (members), art 6 (players), art 8.1 (bodies and officials), art 8.3 (organisations and persons involved in the game of football), art 20 (clubs, leagues and other groups affiliated to a member association), art 22 (FIFA’s confederations). 29 Generally, a supreme governing body in the form of a ‘congress’. 30 Were it to function in this way–the existing deferential approach of CAS is critiqued below: see Democratic Legitimacy and International Sports Arbitration below. 31 Geeraert, above n 17, 288. 171

Moreover, international sports governing bodies themselves currently make democracy-related demands of their members as a condition of membership.32 Notwithstanding these demands, the structure of sports’ national federations is based on forms largely unrelated to the scope and subjects of the federations’ claims to regulatory authority. For example, national football federations are club and league- based,33 with players–the principal class of person regulated by the associations–not regarded as constituents or subjects, but as employees of the member clubs.

Further, while the requirement for a body capable of wielding consistent and uniform regulatory authority is a product of sport’s consistency imperative, it is nevertheless also the case that this requirement is produced by the actions of sports governing bodies themselves. It is the sports governing bodies that claim authority to regulate a sport; they make rules, and exercise regulatory power over participants by that self-declared authority, independent of and unlimited by any contract between the regulatory body and the participants. In doing so, a sports governing body uses its position to create a vulnerability in the participants. The participants’ interests are thus bound up with the sports governing body’s regulatory and decision-making authority – but it is the sports governing body who created this dependency.34 Despite creating this dependency, the international federations generally fail to afford anyone, other than national federations, any substantive democratic voice within the international federations. The governance structures of the bodies thereby embody a defective, unrepresentative form of

32 See for example: International Olympic Committee, Olympic Charter, 2 August 2016, rule 28.1; FIFA Statutes, above n 28, art 15(j) mandating that the legislative bodies of member associations ‘must be constituted in accordance with the principles of representative democracy and taking into account the importance of gender equality in football’. See also art 11(1) which recommends that all member associations involve all relevant stakeholders in football in their structures. In addition, art 15 also requires member associations’ statutes to comply with principles of good governance. For a recent example of FIFA making democracy-related demands on one of its small member associations, including a threat to replace the board of the national association, see Dominic Bossi, ‘FIFA threatens to replace FFA board as congress crisis grows’, The Age, 22 June 2017. See also: International Association of Athletics Associations, Constitution, 1 January 2017, art 5.1 requiring the democratic election of the governing bodies of the Association’s members. (art 9.1 of the IAAF Constitution which is to apply from 1 January 2019 similarly requires each member to democratically elect or appoint its officers and executive body in accordance with the IAAF’s rules and regulations); Federation Internationale de Basketball, FIBA General Statutes, 28–29 August 2014, art 9.7 requiring member federations to ensure that their officials are elected or appointed under independent democratic processes. 33 See Football Association, Articles of Association 2016–2017, art 12–14, and Football Association, Rules of the Association 2016–2017, art 1. 34 Lisa M Austin, 'The Power of the Rule of Law' in Lisa M Austin and Dennis Klimchuk (eds), Private Law and the Rule of Law (Oxford University Press, 2014) 269, 270, 285. 172

democracy that is all the work of the bodies themselves. This makes it difficult for the bodies to object to a legitimacy requirement that is produced by their own conduct.

In relation to practical obstacles for transnational democratic accountability, it has also been observed that modern communication possibilities opened up by the Internet now provide ‘ways of giving a kind of democratic foundation for coercive authority (voluntas) to be exerted by transnational agencies.35 Modern communication devices would appear to be capable of facilitating plebiscites in which those who hold office in international sports governing bodies are selected and held accountable by those who are regulated.

In summary on this point, pragmatic difficulties present as problems for the implementation of the principle of representative democracy, not as objections to the adoption of the principle. The resolution of such issues is not insurmountable and, in any event, is secondary to the recognition that there is a universally applicable fundamental principle: that to be legitimate, the international sports governing bodies must be representative of those over whom they exercise authority.

Beyond democratic principle, strong support exists for the introduction of representative democracy in legislative standards and, in general principles of good governance.

3 Legislative Support of Democratic Regulatory Structures in Sport While sports governing bodies as legal entities are the product of the application of state laws, they are largely unregulated by state legislative schemes. Despite this, there are two sources of state legislative support for the principle that sports governing bodies ought to be representative democracies.

General legislation providing for the legal recognition of voluntary associations typically proceeds on the basis that the associations will operate through democratic structures.36 However, as an example of the failure of traditional state-based

35 Roger Cotterrell, 'What Is Transnational Law?' (2012) 37 Law & Social Inquiry 500, 520. 36 For example, legislation providing for the legal status of voluntary associations: eg Swiss Civil Code, 10 December 1907, Chapter 2, Associations, art 60-79 establishes the legal regime applying to associations under Swiss law. The default rules that apply in the absence of alternative provisions in an association’s articles of association (art 63) require associations to provide for equal voting rights amongst members (art 67(1)) and for majority approval of resolutions (art 67(2)). No member can be forced to accept a change to the objects of the association against his or her will (art 74). See also for example French Code du Sport, art L121-1 et seq; Associations Incorporation Reform Act 2012 (Vic), ss 13(2), 38(1). 173

accountability mechanisms, this type of legislative requirement has not been adjusted to respond to the development of sports governing bodies from their origins as voluntary associations only exercising regulatory authority over their members. Now, sports governing bodies that exercise de facto power over non-members can satisfy the legislative requirements of democracy for voluntary associations through their structures that allow only for their members to partake of democracy. This is only notionally democratic and does not account for those who have come to be regulated by these bodies, but who are not members.37

While the regulation of sport by the French state is more extensive than most other countries, it is nevertheless significant to note that in France, to be eligible for state support, sports federations must be certified. One condition of certification is that the associations adopt by-laws guaranteeing that they function democratically, with transparency, and provide equal access to senior management positions for both men and women.38

The second source of legislative support for the principle that sports governing bodies ought to be representative democracies applies a more proscriptive standard of democracy. The Ted Stevens Olympic and Amateur Sports Act (Amateur Sports Act) (US)39 requires that the constitution and bylaws of the United States Olympic Committee (‘USOC’) establish and maintain provisions with respect to its governance and the conduct of its affairs for reasonable representation of both amateur sports organisations40 and of amateur athletes.41 This requirement includes ensuring that athletes make up a minimum of 20 percent of the membership and voting power of the

37 Or who may be given a class of membership that attracts no decision-making power: see for example International Olympic Committee, Olympic Charter, 2 August 2016, rule 28. 38 French Code du Sport, art L121-1 et seq. See Rosmarijn van Kleef, 'The Legal Status of Disciplinary Regulations in Sport' (2014) 14 International Sports Law Journal 24, 28. 39 Ted Stevens Olympic and Amateur Sports Act (Amateur Sports Act) (US) 36 US Code § 2205. 40 Ibid § 220504(b)(1) and (3). 41 Ibid § 220504(b)(2). ‘Amateur athlete’ is defined as athletes who meet the eligibility standards established by the national governing body of the athlete’s sport: § 220502(b)(1). 174

governing bodies of the USOC42 and on the National Governing Bodies (‘NGBs’) of US Olympic sports.43

Further, the Act makes it a duty of an NGB that it ‘be responsible to the persons and amateur sports organizations it represents’44 and that it ‘keep amateur athletes informed of policy matters and reasonably reflect the views of the athletes in its policy decisions.’45 These representative requirements are reinforced by the accountability mechanisms established by the Act.46 One of those accountability mechanisms allows applications to be made for the replacement of an NGB if the NGB is not meeting its

42 Ibid § 220504(b)(2)(B). This provision is inconsistent with the Olympic Charter which denies athlete representatives on National Olympic Committees voting rights, unless the IOC Executive Committee has granted an exemption: Olympic Charter, above n 37, Rule 28.3. In addition, the USOC is required to establish and maintain an Ombudsman who is to provide advice and assistance to athletes: § 220509(b). Another of the purposes of the USOC is to provide swift resolution of conflicts and disputes in amateur sport: § 220503(8). See also § 220505(c)(5). Accordingly, both the USOC and the National Governing Bodies (‘NGBs’) are required to establish procedures for the fair and equitable resolution of disputes involving athletes: § 220509(a) and 220522(a)(13). See also § 220522(a)(4)(B) regarding disputes about participation rights. Further, § 220522(a)(8) provides athletes and other participants with equal opportunity and procedural fairness rights. A right of appeal is provided: § 220529. 43 Ibid § 220522(a)(10): regardless of how the membership of the NGBs is made up, like the USOC, the governing bodies of NGBs are required to have a minimum of 20% of the voting power on those bodies reserved for those actively engaged in amateur athletic competition in the applicable sport. Individual membership of athletes and other participants of NGBs is not mandatory, though this is one of the options required of organisations to be eligible to be recognised by the USOC as an NGB. The other options are that the NGB’s membership is open to amateur sports organisations, or to both individuals and organisations: Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220522(a)(7). 44 Ibid § 220524(1). 45 Ibid § 220524(3). 46 The USOC is required to report annually on its activities to Congress: ibid § 220511. The recognition by the USOC of the one NGB that is permitted to be recognised per sport (§ 220521(a)) is subject to a process involving public hearings: § 220521(b). At least 2 public hearings are required in respect of an application for recognition, with the USOC publishing details of the time, place and nature of the hearings at least 30 days prior to a hearing and advice provided to known organisations in the sport. In addition, the continued recognition of an NGB may be reviewed by the USOC, which may place conditions on the continued recognition: § 220521(d). A statutory complaint process also applies in which an amateur sports organisation or a person eligible to belong to an NGB can seek to compel the NGB to comply with its obligations: § 220527(a)(1). Complaints may be made regarding an NGB’s compliance with eligibility requirements (§ 220522), its duties (§ 220524), or its role in sanctioning competitions (§ 220525). A finding of non-compliance requires that the NGB be placed on probation or have its recognition revoked: § 220527(d). 175

obligations under the Act.47 The Amateur Sports Act also provides and protects the right for individuals to participate in sports.48

Satisfying the Act’s minimum standards of representative democracy are thereby preconditions for the enjoyment of the benefits of recognition under the Act. One of those benefits is an implied immunity from antitrust restrictions,49 which would be lost without recognition under the Act.50

The 20% minimum representation requirement for athletes may be open to criticism as inadequate to give that body of persons a fair and proportionate share of voting and decision-making power on the USOC and NGBs. Despite this, the accountability

47 Or if another organisation is able to show that it would more adequately meet the Act’s requirements: ibid § 220528. The replacement of an organisation as a recognised NGB results in the statutory authority of the organisation ceasing: § 220523(b). This ‘decertification’ process serves as more than a ‘dead letter’, with a number of applications being made in relation to the sports of volleyball, taekwondo modern pentathlon and team handball: see Alan Abrahamson, ‘Volleyball’s Balance of Power in Question’, Los Angeles Times, 7 January 2007; The USOC has also reduced funding to the bobsled and skeleton federation and the US boxing federation has been placed on probation for four years for financial and leadership troubles. It has publicly criticized the managerial and financial capabilities of USA Triathlon: Meri-Jo Borzilleri, 'USOC Taking Control of NGBs', The Gazette (United States), 23 June 2006 2006 . See also Daniel and Harry Epstein Gandert, 'The Court's Yellow Card for the United States Soccer Federation: A Case for Implied Antitrust Immunity' (2011) 11 Virginia Sports & Entertainment Law Journal 1, 26-7. 48 Indeed, one of the purposes of the USOC is to protect the opportunity for amateur athletes and other participants to participate in competition: ibid § 220503(8). NGBs also have a duty to allow amateur athletes to compete in international competitions, unless the denial is based on evidence that the minimum requirements for the conduct of the competition are not met: § 220524(5). The requirements are specified in § 220525. It is a condition of eligibility for the recognition of and NGB that it agree to the arbitration of disputes over the opportunity of any amateur athlete or other participant to participate in competition: § 220522(a)(4)(B). NGBs are also required to provide athletes and others ‘with fair notice and opportunity for a hearing … before declaring the individual ineligible to participate’: § 220522(a)(8). § 220525 also regulates the powers of NGBs to sanction international amateur sporting competitions. The obligations relating to the sanctioning of competitions applies to international amateur sporting competitions in the United States and to the sponsoring of United States amateur athletes competing in international amateur athletic competitions outside the United States: § 220525(a) (1). 49 Behagen v Amateur Basketball Association of the United States 884 F 2d 524, 529-30 (10th Cir 1989), cert denied 495 US 918. See also Eleven Line Inc v North Texas State Soccer Association Inc 213 F 3d 198 (CAS Tex 2000); Jes Properties inc v USA Equestrian Inc 458 F 3d 1224, 1230-1 (11th Cir 2006); ChampionsWorld LLC v United States. Soccer Federation Inc 726 F Supp 2d 961 at 969 (ND Ill 2010): ‘The fundamental issue before the Court is whether the ASA has so clearly granted monolithic control to NGBs over their respective professional sports that the ASA acts as an implied repealer of the antitrust laws, thereby exempting NGBs from liability under those laws’. For an immunity to be implied, it is necessary for some form of regulatory supervision to operate to compensate for the lack of antitrust scrutiny that would otherwise apply: Silver v New York Stock Exchange 373 US 341, 349, 358-60 (1963); Gordon v New York Stock Exchange 422 US 659, 686-7, 689-91 (1975). 50 Actions taken that have not been approved by a recognised NGB are not protected. Not all amateur sport is automatically immune: Eleven Line Inc v North Texas State Soccer Association Inc 213 F 3d 198, 204-5 (CAS Tex 2000): a State amateur soccer association’s rule that had not been approved by the NGB, and which prohibited play at unsanctioned venues, was not impliedly immunised from anti-trust scrutiny. An immunity may have applied if the rule had been approved by the NGB or it was otherwise necessary for the management of the sport. 176

mechanisms in the US Amateur Sports Act stand in stark contrast to the absence of any similar accountability requirements elsewhere.51

(a) Good Governance and Governmental Regulation of International Sports Governing Bodies The autonomy of sport in the sense of freedom from government intervention is an article of faith amongst international sports federations.52 ‘A primary goal of sporting federations has been to protect their autonomy and power – it is almost as if international sporting bodies, wedded to an absolutist conception of their own sovereignty, want to be the last vestiges of unaccountable power.’53 Whether in pursuit of this autonomy or not, international sports federations ‘have mostly chosen political, financial and social regimes that provide them non-accountability and secrecy as well as congenial living environment for the officers’.54 Switzerland is a heavily favoured headquarters location for this reason.55 This lack of official oversight combines with the jurisdictional difficulties for national governments in exercising control over the international federations,56 and governments’ desires to foster good relations with international federations57 to mean that there are virtually no governmental accountability requirements on the international federations.

This absence of a state authority that is willing and capable of holding international federations to account compromises good governance within those federations, as the absence of the threat of government intervention means that voluntary compliance with self-imposed commitments to good governance (if any) declines.58

51 Indeed, these requirements are directly inconsistent with the Olympic Charter, requiring specific dispensation: see Olympic Charter, above n 37, rule 28.3. 52 Alena I Ponkina, 'Autonomy of Sport: Legal Aspects' (2013) 10 International Sports Law Review Pandektis 204. See also Olympic Charter, above n 37, Fundamental Principle of Olympism 5, rules 2.5, 25, 27.5 and 27.6. 53 Katwala, above n 6, 7. 54 John Forster and Nigel K L l Pope, The Political Economy of Global Sporting Organisations (Routledge, 2004) ch 1. 55 Ibid ch 1. 56 See for example Sagen v VANOC [2009] BCCA 522. 57 So as to be considered by international federations such as the IOC and FIFA as a location for the staging of a sporting event such as the Olympics or the FIFA World Cup: Chris Berg, 'Politics, Not Sport, Is the Purpose of the Olympic Games' (2008) (July) IPA Review 15; The Economist, ‘Why Would Anyone Want to Host the Olympics?’ (2013). Governmental support is not limited to only the Olympics or the FIFA World Cup: see for example Juno McEnroe, 'Government to Underwrite 320 Million Euros in Bid for 2023 Rugby World Cup', The Irish Examiner (Ireland), 8 August 2016. 58 Geeraert, above n 17, 292. See also Fritz W Scharpf, 'Games Real Actors Could Play: Positive and Negative Coordination in Embedded Negotiations' (1994) 6 Journal of Theoretical Politics, 41; Klaus Dieter Wolf, 'Emerging Patterns of Global Governance: The New Interplay between the State, Business 177

This is important because one of the principles of good governance is accountability.

4 Democracy as Good Governance Democratic accountability is recognised as a minimum principle of corporate good governance, requiring management to be accountable to shareholders.59 This principle is no less apt for sports governing bodies, and it is recognised as such.60

Sports bodies should establish a clear organisational framework for membership and decision making via appropriately representative, inclusive and competently populated bodies implementing fit for purpose, democratic procedures and acting in pursuance of the objectives, strategic plan and vision of the sports body concerned.61

Democratic accountability is a principle that is recognised as applying to sports governing bodies regardless of the individual structure adopted by each body.

[W]hilst an appropriate degree of flexibility is needed to allow sports bodies to apply a suitable and proportionate democratic structure, based on its particular needs and

and Civil Society' in A Scherer and G Palazzo (eds), Handbook of Research on Global Corporate Citizenship (Edward Elgar, 2008) 225, 230. 59 Geeraert, above n 17, 288. 60 See for example United Nations Educational, Scientific and Cultural Organization 'Mineps V Declaration of Berlin' (2013) , [3.39] calling upon the Sport Movement to ‘Establish or reinforce transparent, democratic decision-making structures to enhance integrity, accountability, equal treatment and sustainability’, and [3.42] ‘Adopt binding good governance rules, which include: a) measures to strengthen democratic structures and transparency at the level of federations and associations/clubs’. The policies of the European Union also provide clear support for the principle of democratic accountability in the structures of sports governing bodies: see Commission of the European Communities, 'White Paper on Sport', 11 July 2007, 4 ‘The Organisation of Sport’, referring to a ‘common set of principles for good governance in sport, such as transparency, democracy, accountability and representation of stakeholders (associations, federations, players, clubs, leagues, supporters, etc.)’. See also European Commission, 'Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Developing the European Dimension in Sport' (18 January 2011 2011), 4.1 Promotion of good governance in sport: ‘Good governance in sport is a condition for the autonomy and self-regulation of sport organisations. While it is not possible to define a single model of governance in European sport across different disciplines and in view of various national differences, the Commission considers that there are inter-linked principles that underpin sport governance at European level, such as autonomy within the limits of the law, democracy, transparency and accountability in decision-making, and inclusiveness in the representation of interested stakeholders.’ Stakeholders to be involved ‘may include players/athletes, managers, owners, coaches, leagues, clubs, supporters, agents, match officials’, and may vary between sports: principle 3(a). Democracy is a minimum standard that is to be enforced down the structure of each sport: ‘Sports bodies should establish minimum representation and democratic standards that stakeholders should meet in order to participate in consultation and/or decision making’: principle 3(b). See also Sport England, UK Sport, ‘A Code for Sports Governance’, October 2016, 20, Requirement 5; Australian Sports Commission, ‘Sports Governance Principles’, March 2012, 1. 61 European Commission, 'Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Developing the European Dimension in Sport' (18 January 2011), principle 4(a). 178

resources, whatever system of democracy is adopted or appointment practices implemented there are some minimum good practice principles. 62

Of course, it would be possible to equivocate and to adopt a parsimonious view on what these principles of good governance exactly require. Nevertheless, concepts such as ‘free and fair elections’, ‘broad representation’, and ‘appropriate levels of inclusivity’ are simply inconsistent with the existing unrepresentative structures of sport. It is untenable to suggest that these principles somehow countenance or comprehend the unrepresentative rule that is currently characteristic of international sports federations. To do so requires it to be accepted that the requirements of democracy in the governance principles were somehow limited and only applied to how the existing ruling groups in sports governing bodies appointed themselves, and made their decisions in exercising their arbitrary rule over the subjects of their regulatory regime.63 Representativeness and accountability are prerequisites of any truly democratic regime.

This also means that mere consultation requirements are inadequate and are no substitute for accountability. Even ‘institutionalized consultation does not equal actual participation, as the latter requires that affected parties have access to decision-making and power’.64 The existence of consultative mechanisms within sports’ governance

62 Ibid principle 4(e). These minimum good governance principles include: (1) A commitment and requirement to hold free, fair and regular elections; (2) Ensuring that broad stakeholder consultation and/or representation exists; … (6) Ensuring that the appropriate level of inclusivity, diversity and sports representation is achieved and maintained across decision making bodies; (7) Adopting fixed terms of office to allow regular refreshing of decision making bodies. (8) Utilising a credible and suitably transparent basis and process for voting. (9) Where appropriate making public the decisions reached’. Similarly, see Australian Sports Commission, ‘Sports Governance Principles’, March 2012, 1, referring to a common principle of accountability, notwithstanding the many different possible forms of governance structures. See also principle 5: ‘Stakeholder Relationship and Reporting’. 63 The same criticism applies to the IOC’s ‘Basic Universal Principles of Good Governance of the Olympic and Sports Movement’ Seminar of Autonomy of Olympic and Sport Movement’, 11–12 February 2008. These principles are to be adopted by all members of the Olympic Movement and provide for representative governing bodies [2.4] and democratic processes [2.5]. However, understandably considering the unrepresentative structure of the IOC itself, these principles are undetailed and opaque in their requirements. It is only clear that they insist on representation of members. The principles do not require all those who are governed to be entitled to membership. If these good governance principles are intended to permit arbitrary rule, confining democracy to a tool of those who hold power, then this involves a perverted form of democracy and representative governance. 64 Geeraert, above n 17, 294, citing N Woods, ‘Good Governance in International Organisations’ (1999) 5 Global Governance 39; and O Young, ‘The Effectiveness of International Institutions: Hard Cases and Critical Variables’, in J Roseneau and E-O Cziempel eds, Governance Without Government: Order and Change in World Politics, (Cambridge University Press 1992) 160. See also Sherry R Arnstein, ‘A Ladder of Citizen Participation’, (1969) 35 Journal of the American Institute of Planners 216, 219: mere 179

structures, such as athletes’ commissions, in which a number of athletes are appointed to an advisory body within an international federation, are therefore inadequate to address the democratic deficit of the federations.65 Whatever the intentions behind the creation of athletes’ commissions, the danger of such structures is that they merely lend false legitimacy to unrepresentative and unaccountable regimes. The specification of minimum levels of representation that are not proportionate or effective (eg 20% of positions reserved for athletes) are also vulnerable to the same criticism.

The detrimental effects of the failure of sports governing bodies to comply with good governance principles by adopting representative and accountable structures is experienced not only in the exclusion of those who ought to be entitled to participate in democratic decision-making: an additional effect of these unaccountable structures is clearly observable in the institutional corruption that afflicts many international sports federations.

(a) Democracy and Corruption in International Sports Governing Bodies Instances of corruption66 in international sports are frequent and well known,67 corruption itself posing a problem for perceptions of the legitimacy of sports governance.68 These incidents are regarded as indicating a widespread lack of good consultation–‘a window-dressing ritual’–does not mean that the concerns of those consulted will be taken into account. 65 See for example: Olympic Charter, above n 37, rule 21, providing that the IOC Athletes Commission only has an advisory role and is unable to even meet without the permission of the IOC President. 66 ‘Corruption’ is the abuse of entrusted power for private gain: see Transparency International, ‘FAQs on Corruption’, http://www.transparency.org/whoweare/organisation/faqs_on_corruption, accessed 15 May 2017. 67 See for example in relation to the International Olympic Committee: Andrew Jennings, The Lords of the Rings: Power, Money and Drugs in the Modern Olympics (Simon & Schuster, 1992); Andrew Jennings, The New Lords of the Rings: Olympic Corruption and How to Buy Gold Medals (Pocket Books, 1996); Lex Hemphill, 'Olympics: Acquittals End Bid Scandal That Dogged Winter Games', The New York Times (New York), 6 Dec 2003; BBC, ‘Rio 2016 vote corruption claims “probed by French investigators”’, 4 March 2017; Sean Ingle, ‘Tokyo Olympic Games corruption claims bring scandal back to the IOC’, The Guardian, 11 May 2016, https://www.theguardian.com/sport/2016/may/11/tokyo- olympic-games-2020-ioc-international-olympic-committee-corruption-bid-scandal; FIFA: Andrew Jennings, The Dirty Game (Century, 2015); Leon Siciliano, Sophie Jamieson, 'FIFA: A Timeline of Corruption - in 90 Seconds', The Telegraph (UK), 2016; IAAF: Richard W Pound, Prof Richard H McLaren, Gunter Younger, 'The Independent Commission Report #2' (World Anti Doping Agency, 14 January 2016, amended 27 January 2016 2016); Volleyball: M Hoy, ‘Volleygate: a showcase of greed and mismanagement’, (2005) Play the Game, 3, 14-5. See also Transparency International, 'Global Corruption Report: Sport' (Transparency International, 23 February 2016). 68 Buchanan and Keohane, above n 25, 86: ‘a deeply and persistently corrupt’ institution may be deemed illegitimate’. Katwala, above n 6, 2: ‘Some sporting bodies – notably the IOC – have become synonymous with all that is worst about international bureaucracy, corruption and inertia’. FIFA stands as an example of such an institution, being described by Transparency International as ‘a worldwide symbol of corruption’, publishing the findings of a survey in which it was found that 53% of football fans had no confidence in FIFA (a 16% improvement over the previous year) and only 26% of fans 180

governance standards in international sports governing bodies,69 those standards including the requirement for accountability. Recent high-profile corruption scandals in sport are attributed as having been ‘institutionally induced’.70

Democracy is commonly believed to reduce corruption,71 recent research showing that ‘democracy may be more important in combating corruption than previous studies would suggest’.72 Corruption and inequality are regarding as interacting in a ‘vicious cycle’ and share ‘mutually reinforcing dynamics’: ‘corruption can flourish when elites control the levers of power without any accountability’.73

A similar point has been made in relation to what is described as ‘idealistic corruption’ which has been observed in sport’s anti-doping regulatory regime. ‘Corrupt idealists’ do not use their positions to advance themselves financially, but instead commit immoral acts where they consider that these acts are justified by a noble cause.74 Examples include those who pursue the ‘war’ against doping in sport with evangelical

considered that the installation of a new FIFA President had restored trust in the organisation. Only 34% of fans thought that FIFA was actively working against corruption in football: Transparency International, 'FIFA Must Do More to Win Back Trust of Football Fans', 2 March 2017. 69 Geeraert, above n 17, 283. 70 Ibid 301. See also Katwala, above n 6, 2–3, 6–7. 71 Ivar Kolstad and Arne Wiig, 'Does Democracy Reduce Corruption?' (2016) 23 Democratization 1198. See also Elsa Nightingale, 'A Crticial Analysis of the Relationship between Democracy and Corruption' (2015) E-International Relations Students: ‘There is a strong body of research that demonstrates an empirical link between democracy and reduced corruption’, although there are opposing views and the link is not conclusive. 72 Kolstad and Wiig, above n 71, 1199. See also Jong-Sung You, Sanjeev Khagram, 'A Comparative Study of Inequality and Corruption' (2005) 70(1) American Sociological Review 136, 146. While correlation is not necessarily causation, the link between corruption and social inequality is well established: Finn Heinrich, ‘Corruption and Inequality: How Populists Mislead People’, Transparency International, 25 January 2017, http://www.transparency.org/news/feature/corruption_and_inequality_how_populists_mislead_people. Heinrich refers to the scholarly consensus that corruption and inequality are linked, referring to Bo Rothstein, The Quality of Government, (University of Chicago Press, 2011); Eric M Uslaner, Corruption, Inequality and the Rule of Law, 2008; and Matthew Loveless and Stephen Whitefield, ‘Being unequal and seeing inequality: Explaining the political significance of social inequality in new market democracies’, (2011) 50 European Journal of Political Research 239. Reasons why democracy may reduce corruption include ‘by reducing private benefits of corrupt actions and increasing expected costs’, ‘Elections increase the probability that corrupt officials will be exposed and punished … and voters have an interest in not re-electing politicians that favour their own private interest over those of the electorate’. In addition, corruption may be reduced by features of democratic systems such as an open system of government, checks and balances within government, so that ‘knowing someone in power becomes less valuable’, and that corruption carries a greater social stigma: Ibid 1200. See also Nan Zhang, 'Democratic Advantages in Corruption Control' (2016) QoG Working Paper Series 2016 : elections are one means of accountability, but other features of democratic society such as a free press and an active civil society have been identified as positively contributing to the reduction in corruption. 73 Heinrich, above n 72. 74 Verner Moller, 'Who Guards the Guardians?' (2014) 31(8) International Journal of the History of Sport 934, 937–8. 181

zeal, overriding genuine concerns about the anti-doping process and suppressing the rights of those accused of doping.75

The introduction of political equality and democratic accountability in the governance structures of sports governing bodies may then serve to break this link between corruption in sports and the lack of democratic accountability in the governing bodies. This would have the double advantage of establishing a basis of legitimacy for the authority of international sports governing bodies and in avoiding corruption-based attacks on the legitimacy of international federations.

The next section examines the effect of democratic legitimacy on the judicial supervision of the de facto power of international sports governing bodies.

C Democratic Legitimacy and International Sports Arbitration International arbitration, and more generally international dispute settlement, is commonly represented as a technical field, as a subject-matter that is all about procedural technicalities and black letter law intricacies. This must stop. We cannot shy away from our social responsibilities by taking refuge in the mechanics of the law. Dispute settlement, at heart, is anything but a dry, technical, mechanical field. It is about justice. It is about our fundamental human aspirations. It is about where there is law and where there is not. But of course there is also malice in this wonderland.76

The benefits of CAS are well documented and need not be repeated here,77 other than to note that there is no question that the institution of CAS has partly ameliorated the difficulties caused for athletes and other participants in international sport by the largely unsupervised determination of disputes by international federations. All parties have benefited from the resolution of jurisdictional uncertainties and gaps that have blighted the litigation of international sports disputes in state courts.

75 Ibid 938–947. As suggested here, Moller argues that the athletes, who are the ones affected by the anti- doping rules, should have a say in their development and administration: 948. 76 Thomas Schultz, Transnational Legality: Stateless Law and International Arbitration (Oxford University Press, 2014) 6. See also: Lon L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353, 357: ‘While it is customary to think of adjudication as a means of settling disputes or controversies, more fundamentally, ‘adjudication should be viewed as a form of social ordering, as a way in which the relations of men to one another are governed and regulated.’ 77 See A & B v IOC and FIS (Danilova and Lazutina v IOC and FIS), 4P.267/2002; 4P.268/2002; 4P.269/2002; 4P.270/2002 of 27 May 2003, translated at Digest of CAS Awards III 2004 674 where the SFT said: ‘There appears to be no viable alternative to this institution, which can resolve international ssports-related disputes quickly and inexpensively, having gradually built up the trust of the sporting world, this institution which is now widely recognised and which will soon celebrate its twentieth birthday, remains one of the principal mainstays of organised sport’. 182

But that CAS has proven to be a valuable reform should not immunise the institution from criticism or proper analysis. The maturation and development of CAS’s jurisdiction since its inception gives impetus and importance to the need to ensure that the basis of the jurisdiction of the body is properly understood, soundly based and exercised in conformity with the fundamental legal and political equality of persons. That the jurisdiction of CAS may have been upheld in judgments of state courts notwithstanding the absence of consent does nothing to lessen this need.78

Ensuring that CAS achieves ‘individual justice and rights for athletes … is what will reinforce its legitimacy and protect its own institutional autonomy and independence.’79 But to do this, CAS must operate from a sound jurisdictional footing.

To secure a sound jurisdictional foundation for an effective system of dispute settlement in international sport it is necessary to move beyond the notion of CAS operating as a purely private law arbitral tribunal. The CAS arbitral system was, and continues to be, but a utilitarian response to the lack of an effective form of international dispute settlement.80 The development of an international arbitral regime was a relatively easy and expedient reform that was within the independent means of the IOC and sport’s international federations to bring about.

Whilst the regime is currently effective, it is sustained by the fiction of consent and, more substantively, it perpetuates arbitrary rule by powerful private international associations.

78 Schultz, above n 76, 163–4: In relation to the assessment of arbitral regimes, Schultz has commented that to merely assess arbitral systems according to whether they meet the requirements of national laws and international conventions would be wholly inadequate – ‘a total trivialization of the whole question.’ All major international arbitration systems meet those standards and this test throws no light on the issue of whether the arbitral systems deserve any particular level of autonomy, whether existing, or more, or less autonomy. The internal point of view of one legal system cannot determine the question of the assessment of a normative system. Cf Antoine Duval, 'Lex Sportiva: A Playground for Transnational Law' (2013) 19 European Law Journal 822, 831: ‘Contrary to the proponents of global administrative law, we do not consider that the concept of law needs to be complemented by a normative element to fulfil its descriptive function beyond the nation state.’ 79 Ken Foster, ‘Lex Sportiva and Lex Ludica: The Court of Arbitration for Sport’s Jurisprudence’, in Blackshaw et al, above n 57, 440. See also Kristin L Savarese, 'Judging the Judges: Dispute Resolution at the Olympic Games' (2005) 30 Brooklyn Law Journal 1114: Because Olympic participants waive a right to sue in domestic courts, the IOC’s arbitration scheme must be a worthy substitute; Nafziger, above n 16, 35-6. 80 See Ian Blackshaw, 'ADR and Sport: Settling Disputes through the Court of Arbitration for Sport, the FIFA Dispute Resolution Chamber, and the WIPO Arbitration & Mediation Center' (2013) 24 Marquette Sports Law Review 30: ‘There appears to be no viable alternative to this institution, which can resolve sports-related disputes quickly and inexpensively’. 183

1 De Facto Power and the Role of CAS As discussed, the de facto nature of the regulatory regime of international sport gives rise to two problems of principle for sport’s current system of arbitral dispute settlement. The first of these problems concerns the non-consensual basis of the arbitral jurisdiction of CAS. While it is fundamental that arbitral jurisdiction depends upon an agreement to arbitration between the disputing parties, this prerequisite is inconsistent with the function of CAS as ‘sport’s supreme court’. The second of these related problems is the approach adopted by CAS to the resolution of disputes by the application of the unilaterally determined rules of the international federations, rather than, for example, by an approach directed at doing justice between the parties. In merely applying the international federations’ rules, CAS acts as mere ‘handmaiden’ to the federations, effectively only policing procedural requirements, ensuring that the bodies comply with their own rules, and not administering substantive justice. For a court to allow the compulsion of arbitration only for CAS to give effect to this approach facilitates the arbitrary rule of the international federations.81

These problems are manifestations of the tension that arises in the de facto regulatory regime of international sport between the form of CAS as an arbitral tribunal and its function as ‘sport’s supreme court’.

(a) A Consent-Based Arbitral Form for a Non-Consensual Regulatory Function What is, in a sense, an inherently inconsistent character was ordained for CAS from its commencement, the tribunal’s very name burdening it with the impossible task of simultaneously being both a ‘court’ and an ‘arbitral tribunal’. This split personality has even received a level of judicial endorsement. In Lazutina and Danilova v Comite International Olympique (IOC) & Federation Internationale de Ski (FIS),82 the SFT described CAS as ‘more akin to a judicial authority independent of the parties.’83 CAS was sufficiently independent of the IOC and the Federation Internationale de Ski for its decisions to be considered ‘true awards, equivalent to the judgments of State courts.’84 A ‘true “supreme court of world sport” is growing rapidly and continuing to develop’,85

81 For the discussion of these issues, see Chapter IV. 82 (2003) 129 III BGE 445; 4.P267, 268, 269 and 270/2000, (27 May 2003). 83 Ibid [3.3.3.2]. 84 Ibid [3.3.4]. 85 Ibid [3.3.3.3]. 184

and that ‘states and all parties concerned by the fight against doping … endorse the judicial powers of the CAS.’86

There is no warrant to suggest that there is any endorsement by states or others of CAS that entails support for CAS operating as a judicial power, rather than as an arbitral tribunal that requires the agreement of the parties as a prerequisite to the exercise of its jurisdiction. Nafziger criticises the Swiss court’s characterisation of CAS as judicial: ‘It is hard to imagine that the court … actually meant to equate arbitral proceedings with adjudication. Perhaps the Swiss court’s identification of the CAS with a court of law was only metaphorical.’87 While it is not entirely clear that the SFT in fact considered CAS to be a court proper, it is clear is that the Tribunal drew an equivalency between the effects of CAS awards with judgments of State courts.

However, it would be wrong to dismiss the tension produced between the role of CAS as both an arbitral body and sport’s supreme court as merely the product of an inappropriate name, or of grandiose ambitions on the part of the IOC for the role of CAS, or as an attempt to invest CAS with the legitimacy associated with judicial bodies.

As has been discussed,88 arbitral proceedings are distinguished from court proceedings in that it is the arbitration agreement that gives a party the entitlement to participate in proceedings and be bound by an arbitral award.89 Party autonomy is the primary source of arbitral jurisdiction, the jurisdictional powers of arbitrators deriving from the parties’ consent.90 This exclusively private jurisdictional character of arbitration means that, unlike judges of courts, arbitrators are unable to exercise coercive powers over property or persons.91 This issue is significant as a matter of arbitration theory: imposing a

86 Ibid [3.3.4]. 87 Nafziger, above above n 16, 54. Otherwise, Nafziger argues, CAS would have authority ‘to resolve the very issues of public law, human rights, and due process (natural justice) that have been presumed to lie beyond the tribunals’ competence.’ 88 See Chapter IV, in particular authorities cited in notes 32 and 128 above. 89 Andrea Marco Steingruber, Consent in International Arbitration (Oxford University Press, 2012) [2.04]; Julian D M Lew, Loukas A Mistelis, Stefan M Kröll, Comparative International Commercial Arbitration (Kluwer Law International, 2003) [1-11]; Emmanual Gaillard and John Savage (eds), Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer Law International, 1999) [498]; Alan Redfern, et al, Redfern and Hunter on International Arbitration, (Oxford University Press, 5th ed, 2009) [3-01]. 90 Lew, et al, above n 89, [2-44]; J-F Poudret, S Besson, Comparative Law of International Arbitration (SV Berti, Ponti A trans, Schulthess, 2nd ed, 2007) [7]. 91 Redfern et al, above n 89, [5-07]; A Rigozzi, L’arbitrage international en matiere de sport (2005), Basel: Helbing & Lichtenhahn, [479], cited in Steingruber, ‘Consent’, above n 89, [2.09]. 185

system of arbitration is incompatible with the accepted basis of arbitration.92 The issue is also more than only theoretical: there is a substantive conflict between the form of CAS as an arbitral body and its role in international sport.

(b) Arbitration and Sport’s Consistency Imperative The consistency imperative of international sport and its demand for categorical rules is irreconcilable with arbitration in which jurisdiction is contingent upon the agreement of individual disputing parties. The idea that jurisdiction may be exercised and general principles can be developed and applied independently of the views of the parties is a characteristic of judicial bodies. It is inconsistent with, if not anathema to the concept of party autonomy and the dispute-specific basis of arbitration.93 This issue is no mere inconvenience of form – it arises from the inherent conflict between the nature of the regulation of international sport and the nature of arbitration.

The impact of the consistency imperative of international sport is manifested more obviously in its effect on sport’s arbitral regime than in other exercises of de facto power in sports. In the case of arbitration, de facto power cannot be exercised without regard for legal form as freely as in other circumstances because of the explicit requirement for an arbitration agreement to form the basis of arbitral jurisdiction. This would normally mean that naked de facto power could not be exercised to compel arbitration heedless of the position of those over whom power was exercised, unlike situations where sports governing bodies can enforce their own power regardless of consent. The express legal requirement for an arbitration agreement would stymie bare de facto power.

Courts and CAS have addressed this conflict between the conventional consent-based requirements of arbitration and the consistency imperative of international sport by the adoption of contract fictions and by dispensing with the requirement for an arbitration agreement altogether, either by allowing sports arbitration to be compelled, or by

92 The distinction between sports arbitration and investor/state arbitration has been discussed: see Chapter IV, notes 88 and 89 and accompanying text. 93 See Antoine Duval and Ben Van Rompuy, 'The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded' (2015) 3. 186

sanctioning the unilateral conferral of arbitral jurisdiction by an international federation through a stipulation in the federation’s rules.94

To be clear, it is only by perverting or distorting the accepted consensual basis of arbitration in this way, converting it to a compulsive regime, that international arbitration can then be regarded as conducive to achieving the consistency objective of international sport. In normal circumstances, sport’s consistency imperative stands opposed to an arbitral system, not in support of it.

This incompatibility between conventional, consent-based arbitration and the consistency imperative of international sport should not mean that the fundamental principles underpinning arbitration are corrupted to accommodate sport. The fictions that are necessary to prop the system up perpetuate its illegitimacy and threaten its long- term viability.

2 Democratic Legitimisation of Arbitration Without Consent If CAS is to exercise a compulsive jurisdiction and apply general rules and principles independently of the intentions of disputing parties and of concepts of party autonomy, then it cannot do so under the guise of conventional, consent-based international arbitration; even if functional, utilitarian reasons could justify the preference for one form of dispute settlement over another, such reasons cannot justify arbitrary private rule.95 Nor is procedural fairness in the form of an independent and impartial CAS adequate to deliver justice in dispute settlement in international sport. Justice cannot be produced by CAS merely enforcing the unilateral rules of the international federations, however procedurally correctly it does so. The issue does not reduce to the mere comparative efficiency of competing forms of dispute settlement. The compulsion of arbitration of disputes in international sport involves more than favouring arbitration over litigation in state courts.96

94 For an example of the discussion of the problem of assumed consent, see Jan Lukomski, 'Arbitration Clauses in Sport Governing Bodies' Statutes: Consent or Constraint? Analysis from the Perspective of Article 6(1) of the European Convention on Human Rights' (2013) 13 International Sports Law Journal 60. 95 This is so even if sports arbitration can be argued to be ‘more efficient than court litigation’: ibid 68, or that CAS arbitration may ‘ultimately benefit athletes’: ibid 72. 96 See the discussion in Chapter IV under the heading ‘The Inadequate Justification of Non-Consensual Arbitration’ above. 187

An alternative, legally effective and legitimate basis of jurisdiction must be provided: the legal sanctioning of compulsion in the regulation of international sport must be more than the mere facilitation of an arbitrary private legal regime.

For the same reason that democracy may legitimise a supervisory approach to judicial supervision of the de facto power of international sports governing bodies, democratically accountable structures could operate to legitimise the compulsive regime of international arbitration. The argument is, by now, familiar, and both the requirement to submit to arbitration and the more general application of sports governing bodies’ rules could be justified on the basis that the rules were the outcome of democratic processes that included those to whom the rules are applied and where those who make and administer the rules are representative of and accountable to those persons.

In this way, the democratically legitimised basis of sports arbitration would conform with its function of enforcing the consistency imperative of international sport. But in absence of democratic reform of the international federations, compulsory or forced arbitration, including the determination of disputes by the application of the arbitrary rules of one of the parties to the arbitration, cannot be justified and should not be permitted.

Ultimately though, as with the effect of democratic legitimacy on the legality of the compulsive private power of international sports governing bodies, the conferral of democratic legitimacy would be an incomplete solution: democratic legitimacy would be ineffective in conferring legality on arbitration without consent. The requirement of the New York Convention,97 and state arbitration legislation, for an arbitration agreement is not answered by a democratically legitimate conferral of private arbitral power.

Accordingly, the final section of this chapter examines the mechanism necessary to complete the remediation of international sport’s regulatory regime.

97 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958 (entered into force 7 June 1959). 188

D Conferring Legality on the Regulation of International Sport - the Need for an International Treaty Transnational law naturally raises questions of legitimacy, as the actors responsible for its creation are often unrepresentative and not democratically accountable. But such moral and political defects do not taint the legal quality of the rules and institutions of transnational law.98

1 The Limited Benefits of Democratic Legitimacy Democratic legitimacy would have positive effects for international sports governing bodies. It would operate to place the regulatory regime of sport on a sound theoretical foundation, something that is lacking in the quaint conventional conception of being based on consent and the law of voluntary associations. Democratic legitimacy would provide the regime with a basis for its claim to a right to rule. The improved capacity of the regime to be defended with logic and justification would resolve many of the concerns about the exercise of arbitrary power. This would also work at the practical level, giving those who are regulated by the regime, whose support is essential for its long-term survival, a reason to support the system.

A system based upon democratic legitimacy would more closely conform to its function; it would acquire a structure that gave proper account for the conundrum arising from sport’s consistency imperative, including supplying a justification for sport’s mandatory arbitration and for the non-contractual application of the rules of sports governing bodies. The regime would have the capacity to meet minimum standards of good governance and would incorporate the institutional structures that are recognised as avoiding corruption.

However, there are limits to the extent to which the benefits of democratic legitimacy may be delivered. There comes a point where the private regulatory regime of international sport butts up against legal facts, and this is so even if sport’s governance regime acquires democratic legitimacy. Basically, there is no positive law requirement on judges in state courts to accept the rules of democratically legitimate sports governing bodies as determinative of any issue. In this respect, legality and legitimacy

98 Michael Giudice, 'Hart and Kelsen on International Law' in Leslie Green and Brian Leiter (eds), Oxford Studies in Philosophy of Law (Oxford University Press, 2013) vol 2, 173. See also Klaus Dieter Wolf, 'The Non-Existence of Private Self-Regulation in the Transnational Sphere and Its Implications for the Responsibility to Procure Legitimacy: The Case of the Lex Sportiva' (2014) 3 Global Constitutionalism 275, 278. 189

diverge and, while recognition of the de facto nature of sport’s regulatory regime exposes the fictions currently deployed to sustain it, the introduction of a requirement for democratic legitimacy does not render the legal fictions entirely redundant.

To illustrate the limited effects of legitimisation on legality, in Canas v ATP Tour,99 the ATP Tour attempted to distinguish itself from typical international federations by arguing that tennis players were involved in the development of the organisation’s rules, that it was non-monopolistic and had a jointly managed structure. In effect, the ATP Tour was arguing that its power was legitimate. However, the court found those arguments to be irrelevant to the question of whether an organisation could validly exclude the possibility of an appeal against an arbitral award under Swiss law. These factors were irrelevant because, unless ATP members decided not to participate in the lucrative competitions organised by the ATP, which represented all the top male tennis players, ATP members had no choice but to sign the waiver of appeal.100

The SFT effectively determined that the private form of legitimacy asserted by the ATP Tour could never legitimise the compulsive power used by the ATP to secure a player’s waiver of a right to appeal from arbitral awards.101

The Swiss court contended that the apparent illogical inconsistency between its refusal to allow a waiver of appeal to be compelled and its acquiescence in the compulsion of arbitration was in fact logical. This conclusion was said to be logical because arbitration without consent promoted the swift settlement of disputes in sport by a sufficiently independent and impartial tribunal. The identification of these policy reasons for the court’s decision to allow forced arbitration was necessary because of the court’s rejection of the legitimacy arguments of the ATP. The protection of the (largely illusory) right to appeal against arbitral awards102 was considered to ‘counterbalance’ the ‘benevolence’ with which the court viewed the compulsion of arbitration in sport.103 Nevertheless, the court’s preference for one policy consideration (the prompt settlement

99 Canas v ATP Tour 4P.172/2006 (2007) (Swiss Federal Tribunal) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep. 65. 100 Ibid [4.4.2]. 101 Ibid. 102 See authorities cited above in Chapter I, n 60 and accompanying text. 103 Ibid [4.3.2.3]. See also X v Y & Federation Internationale de Football Association (FIFA), 4A_548/2009 (20 January 2010), [4.1]; A v World Anti-Doping Agency (WADA), Federation Internationale de Football Association (FIFA) & Cyprus Football Association (CFA), 4A_640/2010 18 April 2011), [3.2.2]; X v Y, 4A_246/2011 (7 November 2011), [2.2.2]; A & B v World Anti-Doping Agency (WADA) & Flemish Tennis Federation 4A_ 428/2011 13 February 2012), [3.2.3]. 190

of disputes) does not render its dismissal of another (the requirement for consent to arbitration) ‘logical’. Nor does a largely illusory right of appeal counterbalance the denial of a substantive protection.

In any event, it follows that some form of state law authorisation for the exercise of private power by international sports governing bodies is necessary to reinforce the legality of a democratically legitimate international sports governance regime without resort to the legal fictions currently employed.

Indeed, as well as supporting the achievement of the advantages of democratic legitimisation, it is argued that states have a responsibility to procure the legitimacy of public authority exercised by private self-regulatory regimes and that this responsibility cannot be completely transferred to the private regulatory regimes.104

Further supplementing this perspective in favour of state action is the analogous application of the rationale for reformative legislative action taken by states to protect against the inequality of bargaining power in the areas of consumer law,105 labour legislation,106 and in the regulation of monopoly power,107 arbitrary power being the archetypal manifestation of inequality of bargaining power. Analogously, it has also been argued that the adhesive contracts of large firms are in effect private legislation

104 Wolf, above n 98, 277. 105 Consumer law originally developed from the concept of inequality of bargaining power: Ian Ramsay, 'Consumer Law, Regulatory Capitalism & the "New Learning" in Regulation' (2006) 28 Sydney Law Review 9. 106 Labour legislation is rooted in the basic premise ‘that individual workers lack the bargaining power in the labor market necessary to protect their own interests and to obtain socially acceptable terms of employment. When there is such economic inequality, the function of the law is to protect the weaker party’: Clyde W Summers, 'Labor Law as the Century Turns: A Changing of the Guard' (1988) 67 Nebaska Law Review 7. See also Richard Hall, 'Australian Industrial Relations in 2005 - the Workchoices Revolution' (2006) 48 Journal of Industrial Relations 293. The distinction drawn by Andrea Marco Steingruber, 'Sports Arbitration: How the Structure and Other Features of Competitive Sport Affect Consent as It Relates to Waiving Judicial Control' (2009) 20 American Review of International Arbitration 72, 73, is unsustainable: that some workers, like some athletes, may have strong bargaining power has never counted against labor market regulation, and the proposition that it is the athlete that triggers arbitration by breaking the rules is specious both by assuming guilt and by overlooking the arbitrary imposition of the rules in the first place. Further, the idea that the incidence of doping in sport illustrates the ‘dominant’ position of athletes is patently illogical, as if the difficulty of policng the problem of fare evasion on public transport somehow illustrated the ‘dominant’ position of passengers. 107 Inequality of bargaining power is one of the justifications for the regulation of monopoly power: Stephen Breyer, Regulation and Its Reform (Harvard University Press, 1982) 32, this rationale underlying the exemption from antitrust regulation granted to labor and agricultural cooperatives. 191

that should be regulated.108 All of these examples support legislative action to address the arbitrary power of sports governing bodies.

Sport’s consistency imperative dictates that this form of remedial regulation operate on a global basis.109

2 An International Treaty In relative legal terms, authority for compulsive regulatory power in the governance of international sport can only be conferred by the state.

It would be possible for states to delegate compulsive power to international sports governing bodies without the institution of representative democratic structures, in effect giving primacy to the rules of international sports bodies. While such a delegation, if it was enacted uniformly across jurisdictions, would resolve uncertainties as to relative legality, this is considered both unlikely and undesirable. In particular, because a bare delegation would merely involve state-sanctioned arbitrary private rule by international sports governing bodies and the expansion of the existing legitimacy deficit in international sport’s private regulatory regime. For this reason, any suggestion that sport’s existing regulatory regime should be granted autonomy from state legal systems and ‘not be invaded by differently motivated, alien systems’,110 cannot be supported. Too much, not too little leeway is given to the de facto power of sports governing bodies. Addressing the deficiencies in sports governing bodies’ de facto power accordingly cannot mean merely providing a mechanism by which legality may be conferred on compulsive private power.

It is therefore suggested that an international treaty is necessary to enable the regulatory regime of international sport to achieve its core function of consistency and uniformity.

108 See Friedrich Kessler, 'Contracts of Adhesion – Some Thoughts About Freedom of Contract' (1943) 43 Columbia Law Review 629; W David Slawson, 'Standard Form Contracts and Democratic Control of Lawmaking Power' (1971) 84 Harvard Law Review 529 . 109 Ian Blackshaw, 'Regulating Sport Globally' (2000) 150 New Law Journal 617; Stephen Weatherill, in ‘After Bosman: tracking a sporting revolution’, Sportzaken, Oktober 1999, 75, 81 considers Blackshaw’s proposal for a ’World Sport Body’ to oversee regulation of sport at the global level to be unlikely. ‘However, this does support contentions that the manner in which sport is regulated needs to be conceived of in global terms, even if it is not organised in such a manner.’ 110 Stephen Weatherill, 'Do Sporting Associations Make 'Law' or Are They Merely Subject to It?' (1998) (July/August) European Business Law Review 220. Further, the grounds upon which this suggestion was made are contested: it is difficult to accept that a system of arbitrary rule can be accurately described as ‘coherent’ or that it responds to the needs of sport, as opposed to the needs of the sports governing bodies. The description of sport’s regulatory regime being ‘invaded’ by ‘alien systems’ is a not a description presaging an inquiry but one that is determinative of how judicial intervention from state courts is to be viewed. 192

As the United Nations Educational, Scientific and Cultural Organization’s International Convention Against Doping in Sport111 supports the legality of sport’s anti-doping regime, an international convention could provide the legal framework that is currently absent by which governments could address the deficiencies in the de facto regulatory power of international sports governing bodies. In doing so, it is also necessary that a treaty stipulate the conditions upon which that power may be exercised to compulsive effect.

The intention here is only to outline at a high level the core principles to be established by a convention.

3 The Contents of a Convention on the Governance of International Sport In broad terms, the principal objectives of an international convention dealing with the governance of international sport are the creation of obligations to ensure the democratic accountability of international federations, and reciprocal arrangements to give effect to the consistency imperative. Institutional reforms are necessary to give effect to these objectives.

(a) World Sports Regulatory Authority A scheme would be established for the registration of international sports governing bodies by a new World Sports Regulatory Authority.112 The convention would make provision for the Authority to oversee the development and implementation of the minimum principles of governance of international sport, including minimum democratic standards.113 The World Sports Regulatory Authority would register international federations that meet the minimum standards. The rules of the registered federations would also be registered.114

To be eligible for registration, rules of international federations would be required to give effect to the minimum democratic principle prescribed by the convention, and

111 UNESCO International Convention Against Doping in Sport, opened for signature 19 October 2005, 2419 UNTS (entered into force 1 February 2007). 112 See note 113 below and accompanying text. 113 See Blackshaw, above n 109, who proposed the formation of a World Sport Organisation that would regulate sport in accordance with principles established by a World Sport Statute, like the UN Universal Declaration on Human Rights. The proposal also included the establishment of a world sports court modelled on CAS. 114 In France, a similar scheme of certification of sports governing bodies operates: see note 36 above. That French legislation also requires modifications to a certified sports body’s regulations to be notified to the Minister who may require modifications that are inconsistent with the association’s certification to be remedied: van Kleef, above n 38, 29-30. 193

reflect the minimum standards of good governance, including any supplementary democratic standards, established by the Authority. The registration of international federations would be made subject to a process of public hearings115 and the on-going registration of an international federation may be reviewed by the Authority,116 which may place conditions on continued registration.117

Following the example of the Amateur Sports Act (US), the convention would establish accountability mechanisms to support the democratic principle of governance of international sport. A complaint process would be established in which members of or persons regulated by a registered international federation could seek to compel the international federation to comply with its obligations.118 A finding of non-compliance would expose the non-complying federation to having its registration revoked.119 In addition, the convention would provide for a procedure whereby applications could be made for the replacement of an international federation if it is not meeting its obligations under the convention.120 Appeals against determinations of the World Sports Regulatory Authority could be made to a reconstituted CAS.121

The membership of the Authority would be broadly representative of the participants in world sport. The International Council of Arbitration for Sport (ICAS), which is responsible for the administration of CAS, is a body whose members are drawn from specific groups in world sport. This provides a model that could be adapted for the appointment of the members of the World Sports Regulatory Authority. Adjustments would be necessary as the categories from which the members of ICAS are drawn cannot be said to be representative of the categories of participant in world sport, either in terms of the inclusion of all relevant groups, or in the proportion of members allocated to each category.122

115 See Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220521(b). 116 See note 113 above and accompanying text. 117 See Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220521(d). 118 See Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220527(a)(1). As with the Amateur Sports Act, the convention would allow for complaints to be made regarding an international federation’s compliance with eligibility requirements (see § 220522), its duties (see § 220524), or its role in sanctioning competitions (see § 220525). 119 See Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220527(d). 120 Or if another organisation is able to show that it would more adequately meet the convention’s requirements: see Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220528. 121 See note 129 below and accompanying text. 122 See Court of Arbitration for Sport, Code: Statutes of ICAS and CAS, art S4. ICAS is composed of 20 experienced jurists drawn from the International Federations (4 members), National Olympic Committees (4 members), and the IOC (4 members). These 12 members then choose 4 members to 194

(i) The Regulation of Sport to Be Democratically Based

The convention would provide that the basis of regulatory authority in international sport should be the will of those who are subjected to regulation. This ‘will’ is to be expressed through free and fair elections, including the system for choosing and replacing the members of the governing body.123

The democratic principle of international sport could be expressed along the following lines:

(1) Every person whose participation in a sport is regulated by an international sports governing body (the ‘participant’) has the right to take part in the government of the sport, directly or through freely chosen representatives.

(2) Every participant has the right to equal access to service in the governance of her or his sport.

(3) The will of the participants shall be the basis of the authority of the sports governing body; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.124

States would be required to adopt measures designed to give effect to the democratic principle of international sport.

(ii) Democratic Organisational Structures

It is not for academic prescription as to which form of democratic structure should be adopted by each sport; this is a decision that is proper for the bodies themselves, provided that the institution of a regulatory regime in a sport is based on acceptance of fundamental democratic principle. That is, while there may be no single legitimising ‘golden’ form of democratic structure, democracy must operate as a ‘golden principle’, as an indispensable component of legitimate regulation. Accepting that it would be wrong to prescribe a particular organisational structure, and that some structures may represent the interests of athletes, and the resulting 16 members choose the final 4 members, who are to be independent of the other bodies. 123 It is arguable that, if it could be shown that democratic will was not overly diluted, this need not necessarily require the direct election of the members of the international governing body by participants. Instead national federations that were themselves directly democratically accountable to participants could form the electorates for the international federations. More than one such intervening ‘layer’ may impermissibly dilute the true expression of any real democratic will. 124 See United Nations, Universal Declaration of Human Rights, art 21. 195

be more or less democratic than others, difficulties of implementation cannot be allowed to displace the application of fundamental principle. The existing universally undemocratic form of international sports governing bodies is neither necessary nor inevitable and this arbitrary rule cannot be justified by the practical difficulty of implementing a democratic alternative. Any claims of such difficulties would ring hollow when no international sports governing body has made anything more than tokenistic steps towards meaningful democratic reform.

Basic democratic principle dictates that those who are governed should be allocated equal political rights. It is true that in giving effect to a principle of equality, difficult questions arise due to the different types of participants in sports and it may be difficult to formulate democratic structures that ‘equally’ allocate political rights as between the members of the different categories of participant eg athletes, clubs, regional and national associations. Absolute ‘equality’ is not possible between categories that are different. Nevertheless, fairness and proportionality of representation can be achieved, notwithstanding that there may be margins of acceptable fairness – fairness and proportionality do not require perfection.

The Amateur Sports Act stands as an example of an apportionment of voting rights within sports governing bodies by state legislation, although it is not clear on what basis the apportionment in that legislation was made.125 The relative allocation of 20% to athletes may or may not be justifiable; otherwise, this cannot be taken as indicative of an appropriate apportionment of rights to athletes. The adoption of this proportion in other contexts may prove to be arbitrary if not drawn by reference to any specific metric.

To reiterate, there is no reason why the minimum standards of democracy for international sports governing bodies ought to be overly controversial or technically difficult. The bodies already operate pursuant to models of representative democracy, albeit that these models are defective in not including all of those who are subjected to the bodies’ regulatory power. Consequently, the most controversial issue would then appear to be the proportion of voting power to be allocated to the different categories of ‘regulatees’ upon their inclusion.

125 Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220504(b)(2). See discussion above under the heading ‘Legislative Support of Democratic Regulatory Structures in Sport’. 196

Another point to note is that it does not necessarily follow that the membership of international federations needs to mirror the democratic forms used by those organisations to choose the members of their internal governing organs. That is, membership of a body is not essential for individuals to be given voting rights. Nevertheless, the introduction of democracy raises a fundamental issue for the structure of international federations as associations of national federations whilst ever those national federations are themselves unrepresentative of those regulated by the international federations.

This is an organisational structure that became redundant with the globalisation of international sport and it is inconsistent with the federations’ regulatory role and de facto power. The structure of modern international sport means that it is only possible to justify international federations as associations of national federations if those national federations are democratically representative of those who are regulated by the international federations ie that democratisation cascades down to the national federations.

If national federations were made representative of those who are subjected to the regulatory authority of international federations, then arguably, the current form of international federations as associations of national federations could be maintained. This form of structure would involve some dilution of the direct expression of the democratic will of those governed, as compared with a structure in which the individual participants were allocated rights to participate directly in the democratic structures of international federations, such as in the election of the federation’s officers. But subject to the stipulation that the national federations themselves were representative democracies, this form of international institution, with the voting members of the international federations being the national federations, could be argued to be sufficiently democratic. It is a form that is consistent with other international institutions. Indeed, in relation to international federations such as FIFA, this structure would have the advantage of merely requiring the international federation to enforce the terms of its statutes that impose obligations of representative democracy on its national federation members.126

126 FIFA Statutes, above n 28, art 15(j) mandating that the legislative bodies of member associations ‘must be constituted in accordance with the principles of representative democracy and taking into account the importance of gender equality in football’. 197

Ultimately, founding the regulatory authority of international sports governing bodies on representative democracy would have the effect of changing the complexion of the international federations. There would no longer be a basis for them to be perceived as only representing the interests of a powerful governing minority. Instead, they would more closely resemble governments, partaking of democratic legitimacy and representing all stakeholders in their sports.

(b) Giving Effect to the Consistency Imperative The second principal feature of an international convention for the regulation of international sports governing bodies follows from and would be contingent on the compliance of sports governing bodies with the first democratic principle: it is necessary for the convention to give effect to the consistency imperative of international sport.

Giving effect to the consistency imperative or, in effect, sanctioning private compulsive power, needs to be considered in this sequence:

First, the conduct of sport is the raison d’etre for the regulatory authority of sports governing bodies. Accordingly, the convention will provide that it is a purpose of registered international federations to protect the opportunity of participants (especially athletes) to take part in sporting competition.127

Second, in addition to giving effect to the democratic principle and minimum standards of good governance, it would be a condition of eligibility for registration that the rules of international federations provide, in addition to any internal dispute resolution processes, for the settlement of disputes concerning the rules and decisions of registered international federations by the reconstituted CAS. In particular, disputes in connection with the eligibility for, or participation in competition would be capable of being the subject matter of disputes.128

127 See for example the Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220503(8). 128 See ibid 220509(a) requiring the constitution of the USOC to contain procedures for the settlement of disputes involving the opportunity of an amateur athlete, coach, trainer, manager, administrator, or official to take part in sporting competitions. Like the obligations on NGBs under that act, international federations would also have a duty to allow athletes to compete in international competitions, unless the denial is based on evidence that the minimum requirements for the conduct of the competition are not met: see Amateur Sports Act § 220524(5). 198

It follows that the convention would provide for a new tribunal, effectively the reconstitution of CAS,129 to replace the jurisdiction of CAS. States would be required to recognise the judgments of this tribunal in disputes relating to the registered rules and decisions of registered international federations. States would also be required to enforce these judgments on similar conditions as prescribed for the enforcement of arbitral awards under the New York Convention,130 but supplemented by an additional ground, discussed below, on which a state court would refuse recognition or enforcement.131 The requirement for state recognition of this regime would apply only in respect of registered international federations. The rules and decisions of unregistered federations would be denied compulsive effect.

The effect of requiring states to recognise and enforce the decisions of the reconstituted CAS provides the mechanism for legal compulsive force to be given to those rules and decisions. The possibility of a state court impeaching the legal validity of a registered rule or decision of a registered international sports governing body would be foreclosed by the specification in the convention that the court of a state party to the convention which is seized of an action in a matter in respect of which the registered rules of a registered international federation apply, shall, at the request of one of the parties, refer the parties to dispute resolution by the reconstituted CAS in accordance with the registered rules of the relevant international federation.132

129 See Blackshaw, above n 109. Jack Anderson also recommends the appointment of a permanent court as a mechanism to reduce inconsistencies arising from the multiplicity of CAS arbitrators: Jack Anderson, Modern Sports Law (Hart Publishing, 2010) 93. 130 See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 38 (entered into force 7 June 1959) (‘New York Convention’) art III– VI. For example, like the New York Convention, enforcement could be refused within a state where a party is under an incapacity, in the case of procedural irregularities such as the denial of proper notice or of an adequate opportunity to a party to present their case, or the subject matter of the dispute was not capable of settlement by the World Court for Sport under the law of the relevant country, or that the recognition or enforcement of the judgment would be contrary to the public policy of that country. In addition, the convention would also provide that the court of a state seized of an action in a matter in respect of which the registered rules of a registered international federation apply, shall, at the request of one of the parties, refer the parties to dispute resolution by the World Court for Sport in accordance with the registered rules of the relevant international federation. See similarly New York Convention, art II(3) regarding disputes subject to arbitration agreements. Recognition and enforcement would be able to be refused where a rule is not valid under the law of the country specified to apply by the rules or, in the absence of a specification, under the law of the country in which the rules were made: See New York Convention, art V(1)(a). See for a similar example: Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966) art 53-5. 131 The additional ground for refusal of enforcement relates to non-essential rules, which is discussed below. 132 See New York Convention, above n 130, art II(3). 199

This mechanism does not directly confer compulsive power on the private rules of international sports governing bodies. It does, however, recreate the practical enforcement which is achieved under the existing regulatory regime (as it is supported by CAS arbitration) but with an important difference: the rules to be enforced through the proposed dispute settlement regime are democratically legitimate and not the arbitrarily imposed rules of a private body. Further, the jurisdiction of the new CAS would not be contingent upon an arbitration agreement between the parties to a dispute.

The dispute resolution jurisdiction of the reconstituted CAS, in extending to disputes relating to the rules of international federations, would enable it to assume a role as an administrative or constitutional court for sport in a way that the existing CAS, because its jurisdiction is theoretically based upon consent, is unable or unwilling to do.133 Unlike CAS currently, the new tribunal would be no handmaiden of the international federations.

(i) Arbitral Tribunal or Court?

One issue that arises is that if the objective is to establish an effective international dispute settlement regime to underpin the legitimate compulsive regulatory powers of international sports federations, it does not appear essential that the proposed tribunal be established as a court-proper. What is essential is that the tribunal be freed from the constrictions that apply to consent-based arbitral adjudication. To the extent that CAS is currently perceived to have procedural advantages over litigation in state court (eg speed, lower cost, expertise), these advantages need not be lost. Whether the tribunal is fully judicial or quasi-judicial does not appear to be material. In any event, as the existing (notionally) arbitral tribunal, CAS, is currently called a ‘court’, there would appear to be little in the way of also describing the new (or reconstituted CAS) tribunal as a court.

There would however be the opportunity to be rid of some of the artificialities that are carry-overs from the pretence of CAS as a consent-based arbitral body. For example,

133 Kolev, above n 120, 61: ‘The big problem in sport is exactly the absence of a good and democratic governance to give credibility and fairness to sport regulations and to defend the idea for full autonomy of sport. CAS is an institution for settlement of civil law disputes, however, it is not an administrative or constitutional court, before which provisions of sport regulations could be challenged on the ground of contradiction with acts staying higher in the hierarchy of the legal instruments. Furthermore, CAS is not entitled to review the substance of the decision-making process but only the procedure and the power of the particular bodies to pass the decision in issue. Although CAS has a lot of common characteristics with international court it is not a court.’ 200

the publication of judgments need not be contingent upon party consent. More substantially, the process for the selection and appointment of tribunal members could legitimately be made to be more independent of the parties and based on court, rather than arbitral procedures. The requirement for party appointment of arbitrators would appear to be redundant under this model.

(ii) The Compulsive Scope of Rules

It has been argued that it is crucial that ‘the international federations do not have autonomy to decide for themselves what is the nature of the sport and the rules necessary to protect and promote it’,134 and that ‘[s]port is now a multi-billion dollar global industry and can no longer be left to self-regulation by the International Sports Federations. Some form of external regulation is needed at a world level.’135

It is not clear whether the concerns of these authors would be reconciled by the requirement for democratic legitimation. The form of regulation that is proposed here does not involve an external body determining the nature of sport or the rules necessary to protect it, nor does it result in an extensive level of external regulation of the global sports industry. However, it does mean that the limits of sports bodies’ powers are no longer being determined by unrepresentative and unaccountable associations.

Despite their democratic legitimacy, the concern about private bodies determining for themselves the limits of their compulsive powers is confronting. While this is what currently happens on the existing approach of the law to the de facto power of international sports governing bodies, remedying this form of arbitrary power has been one of the principal objectives of this work. The imposition of a requirement for democratic authorisation would address the current legitimacy deficit in this private regulatory regime, but the problem of even democratically legitimate private bodies determining for themselves the limits of their compulsive power–the limits of their autonomy from state legal systems–remains. For this reason, it is appropriate for the proposed international treaty to limit the application of the compulsive effect to be given to the rules and decisions of international sports governing bodies.

134 Stephen Weatherill, 'Is the Pyramid Compatible with EC Law?' (2005) 2005 International Sports Law Journal 7. This was suggested in the context of European Union law. 135 Blackshaw, above n 109. 201

It is here that the additional ground for the refusal of state recognition and enforcement of judgments of the reconstituted CAS would operate. But first, the convention would prescribe a right of appeal to the new tribunal against a rule or decision of a registered international federation on the ground that the rule or decision was not justified by the sport’s consistency imperative, that it was not justified by being reasonably necessary and proportionate by reference to the requirements of the proper regulation and governance of the international sport.136 Then, similarly, states would also be required to refuse enforcement of judgment of the tribunal that gave effect to or otherwise enforced such a rule or decision.137

This scheme would thereby operate to limit the compulsive effect of the rules of international federations to those rules that are necessary to give effect to consistency imperative of international sport.138 It is the consistency imperative that leads to the fictions and contortions of legal principle in the law’s current approach to the de facto power of sports governing bodies. And it is only the consistency imperative, as a peculiar characteristic of international sport, that supports these contortions. Where a rule (or a decision relating to such a rule) is not able to be justified as necessary for the organisation and conduct of international sport, the argument that the rule needs to be consistently applied and enforced within a sport and across jurisdictions dissolves. It cannot therefore be necessary that the rule be afforded compulsive effect.

(iii) Non-Essential Rules

Under this proposed system, international federations could still make ‘non-essential’ rules, but these rules would not be able to be enforced under the proposed regulatory regime. A similar limitation operates under the French Code du sport, which contains an express prohibition on sports federations imposing rules regarding ‘equipement

136 To conform with a justificatory approach, the convention would provide that where the necessity of a rule is challenged, the rule is presumed not to be reasonably necessary unless the international federation relying upon the rule proves otherwise. 137 As the New York Convention, above n 130, provides that recognition and enforcement of an arbitral award may be refused where the award goes beyond the terms or scope of the parties’ arbitration agreement: art V(1)(c). 138 See French Code du sport, art L131–34 for a similar limitation requiring rules to be necessary for the execution of the purpose for which a sports governing body is certified or for the application of the rules of an international federation where such rules are compatible with French law. In addition, the rules must be proportionate for the needs of the sport, include reasonable timelines for compliance, be published in advance, and comply with the principles of equal access and treatment: see van Kleef, above n 38, 30. 202

sportif’ that are dictated by business imperatives.139 Competition law cases also provide some guidance as to rules that may be found to be unnecessary for the governance of a sport and to qualify for compulsive effect. Examples include the granting of exclusive supply rights without any objective selection criteria or tendering selection process,140 rules unrelated to quality or other objective requirements that require the payment of royalty fees by sports equipment manufacturers to the governing body to gain access to a market,141 and restrictions of on-court advertising in a way that is not inherent to the playing of the sport of a sport.142

Similarly, rules adopted to protect a sports governing body’s own events and to hinder those of a rival may be regarded as unnecessary.143 In contrast, rules preventing the ownership of multiple football clubs participating in the same competition have been justified as necessary to avoid suspicions of match-fixing that would undermine the requirement for uncertainty of result.144 The necessity of some rules may be controversial,145 the question arising whether particular rules are necessary to protect a legitimate interest such as integrity, uncertainty of outcome, quality or safety or whether such rules are ‘instead examples of leveraging regulatory power to gain commercial advantage’?146 However, it is preferable that rules be justified and not either assumed to be legitimate or judged merely according to the interests of an unrepresentative governing body or purely according to economic effects.

139 Code du sport, art L131–33. See van Kleef, above n 38, 30, who in note 79 cites the examples of ‘setting the number of places and spaces used for public reception or determination devices and facilities for the sole purpose of enabling the audio-visual broadcast competitions (sic) … [and imposing] the choice of a trademark for a material or a given material’. 140 See for example: European Commission, Commission Notice OJ C 138, 9 May 1996; and DN: IP98/355, 15 April 1998, concerning restrictions on the use of tennis balls imposed by the Danish Tennis Federation, discussed by Adam Pendlebury and Anna Semens, 'Sports Governing Bodies and Leveraging of Power: What Is the Appropriate Governance Model?' (2011) (1/2) International Sports Law Journal 20. See also ‘Supply of Tyres for Karting’, Case COMP/38316. 141 See for example FIFA Denominations’ Scheme, European Commission decision letter dated December 2000, Case No IV/F-I/35.266 (FIFA) concerning a FIFA scheme for certifying footballs. 142 See Adidas-Salomon AG v Draper [2006] EWHC 1318 in relation to tennis. 143 See for example the complaint made against the Federation Internationale d’Automobile regarding its obstruction of competing motor sport events and its abuse of its monopoly position in relation to broadcasting rights: European Commission press release IP/99/434 of 30 June 1999; European Commission press release IP/01/1523 of 30 October 2001. See also: Greig v Insole [1978] 3 All ER 449; Hendry v World Professional Billiards and Snooker Association [2002] ECC 8; Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio (C-49/07) judgment of 1 July 2008 144 ENIC/UEFA, Case COMP 37 806; (2001) ISLR 1, 122-153. 145 For example rules regulating player agents: see Laurent Piau v Commission of the European Communities Case T-193/02, judgment of 26 January 2005; and the discussion of this case in Roberto Branco Martins, 'The Laurent Piau Case of the ECJ on the Status of Player's Agents' (2005) (3-4) International Sports Law Journal 8. 146 Pendlebury and Semens, above n 140, 19. 203

Unaccompanied by the consistency imperative, the need for specialist sports arbitration in respect of disputes concerning such rules evaporates, or at least is substantially reduced. No forced arbitration would be provided for such rules even where they were democratically legitimate. Such rules would depend upon the ordinary law for their legal validity.

This system differs from the existing system of arbitral dispute settlement by CAS in that it narrows the scope of disputes that are open to be resolved by forced arbitration. Under the existing system, the de facto power of international sports governing bodies means that all disputes in sport are forced to be resolved by CAS without consent. The proposed system, in addition to requiring democratic legitimacy, differs from the existing system by denying compulsive effect to rules that are unaffected by sport’s consistency imperative.

The removal of the possibility of compulsory arbitration in relation to non-essential rules leads these disputes back to ordinary contract law and the protections of state legal systems against compulsion. However, these protections have been shown to be inadequate in relation to de facto power and to produce a lacuna in legal supervision. The concern therefore arises that the issue of arbitrary power that we have been at pains to address may persist in relation to non-essential rules.

Of course, the impact of any non-essential rules of a sports governing body is likely to be reduced because of the inessential nature of the rule. Further, the remedy that arises from protection of the opportunity to participate and from the right to appeal against rules and decisions operating beyond the bounds of the consistency imperative also ameliorates the impact of any arbitrary non-essential rules.

The lacuna in the law is thereby substantively addressed, and it is addressed not by the invasion of an ‘alien’ system, but within a regime of sports specific dispute resolution.

4 The Impetus for Reform The significance of these proposals and the likely resistance to them is not underestimated. The reforms suggested involve an elemental restructuring of the basis of how the composition of those governing bodies are determined. Those who hold office by virtue of the current unrepresentative structures may reasonably be anticipated to be unreceptive to alterations to the status quo. The self-appointed members of the International Olympic Committee for example, could be expected to view proposals

204

that threaten their positions of privilege with suspicion, if not hostility.147 This opposition may be expected notwithstanding the moral justifications for representative democracy or the practical necessity for a defensible basis of authority over and above the possession of coercive power.148

On the other hand, other participants, those who stand to be included in democratic structures and decision-making processes, may be expected to welcome the introduction of representative democracy, which would have a legitimising effect:

the legal uncertainty in the sports sector has its roots in the lack of a “vote”, or even “voice” of stakeholders. If stakeholders were to be included in the processes which determine the rules that regulate their activities, they would very likely experience a sense of “ownership”. That means that they will come to see the decisions of the [sports governing bodies] as their own decisions, which will make policy implementation more effective. Inclusion in decision- making would probably reduce the likelihood of challenge to these decisions– that is, if they perceive their representatives who are involved in the policy process as legitimate.149

As well as governments, support could be provided by other civil society actors including unions, sports fans, non-governmental organisations and sponsors.

Whatever level of opposition, the legitimacy and legality concerns arising from the recognition of the de facto nature of the power of sports governing bodies are substantive. There is no certainty that other jurisdictions will approach the de facto jurisdiction of international federations with the same alacrity as the German court in Pechstein.150 The future legality of arbitration without consent and other manifestations of the de facto power of sports governing bodies cannot be assured; it only needs the court of one prominent sporting jurisdiction to take a more stringent view of sports

147 Katwala, above n 6, 24: ‘International sporting bodies are independent, autonomous and proud of it. For some, this means that they can never be reformed to govern in the wider interest–the self-interest of self-preserving oligarchies will prevail. International sporting bodies may well prove to be the last organisations wedded to an absolutist conception of sovereignty in a world of interdependence, where effective governance increasingly depends on the ability to cooperate and share power.’ 148 The accountability deficits themselves form an obstacle to the introduction of good governance from within international federations, and reform from within is regarded as unlikely: Geeraert, above n 17, 301. 149 Ibid 295 (references omitted). 150 International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15. See Chapter III, note 48 above. 205

bodies’ compulsive private powers to cause wholesale problems for the efficacy of international sport’s existing regulatory regime, including substantial financial risks for the sports governing bodies arising from adverse decisions in state courts.

Unfortunately, the cogency of a reform probably only very rarely proves instrumental in its adoption, particularly when political interests are involved. Other well-reasoned proposals for more modest reform of the regulation of international sport have preceded this one but have gained no traction, consigned to gather dust on library bookshelves. The prospects of the reforms suggested here may be improved – or conversely, and perhaps more likely, they may be doubly damned – by the fact that they address deficiencies from the perspective of both those who are subjected to the de facto regulatory power of international federations and from the perspective of the international federations that seek to exercise regulatory power.

Katwala, who has argued for a different, more limited form of democratisation of global sport than that suggested here,151 identifies that if there is to be reform, ‘change is likely to come from an uncertain combination of different forces–change from within, pressure from outside, and change through collapse and crisis.’152 Other commentators consider that pressure from outside is likely to be the most plausible force for change:

Indeed, increased pressure to reform from outside is needed in order to achieve improved governance in [sports governing bodies (“SGBs”)]. Since SGBs ultimately need governments more than governments need SGBs and governments control many essential elements of SGBs’ license to operate, political pressure for reform is likely to succeed. The feeling is that such pressure is growing, albeit slowly.153

(a) Conditional Governmental Support In relation to governmental support of international sport, it is noted that the public interest is not served by governments propping up organisations that act through undemocratic and arbitrary structures by the provision of direct financial support, by the enactment of supportive legislation,154 or by granting preferential taxation or other

151 Katwala, above n 6, chapter 3 suggesting measures such as enabling athletes to elect their own representatives to international federations, term limits for officials, professional governance and financial transparency. 152 Ibid 91. 153 Geeraert, above n 17, 301. 154 Examples include legislation to protect the intellectual property of the IOC: see Olympic Insignia Protection Act 1987 (Cth); Ted Stevens Olympic and Amateur Sports Act 1998 36 US Code § 220506; Olympic Symbol etc. (Protection) Act 1995 (UK); and legislation to facilitate the staging of events: see 206

arrangements.155 In addition to the moral imperatives that stand in opposition to governmental support for arbitrary private rule, the expenditure of public funds and the provision of other governmental support for international federations is difficult to justify in light of the governance failings that those organisations too frequently exhibit. As a minimum, governmental support should be contingent on international federations meeting minimum standards of good governance that include representative democracy. This is not a novel proposition: various states already make state funding of sports conditional on the adoption of certain minimum standards.156

These arguments circle back to the international treaty that is proposed here. The treaty represents a tangible reform that responds to these arguments.

Ultimately though, while there is no reason for governments to withhold support for reform of the regulation of international sport, and there are strong reasons for them to support it, the crucial factor is likely to be whether the international federations–the ‘self-serving oligarchies’157 that rule world sport–can be convinced of the need for reform. In this, the law undoubtedly has a role to play. Greater care and consideration should be exercised before courts resort to the fictions that sustain the conventional but errant view of sports governing bodies as voluntary associations operating through contracts and consent. The arbitrary private power of international sports governing

London Olympic Games and Paralympic Games Act 2006 (UK); Eduardo Soares, ‘Law Behind the Rio Olympics’, 3 August 2016, https://blogs.loc.gov/law/2016/08/laws-behind-the-rio-olympics/; FIFA.com, ‘Russia adopts law for 2018 FIFA World Cup and FIFA Confederations Cup 2017’, 12 June 2013, http://www.fifa.com/worldcup/news/y=2013/m=6/news=russia-adopts-law-for-2018-fifa-worldcup-and-fifa-confederations-cup-20-2106591.html. 155 The concessions demanded of states by, and granted, to international federations in exchange for the allocation of major events (Olympic Games, FIFA World Cup) to their countries are extensive: see for example FIFA, ‘Host City Agreement’, https://www.scribd.com/document/22730449/World-Cup-Host- City-Agreement. In addition to its Host City requirements, FIFA requires a set of eight Government Guarantees. FIFA keeps these guarantees secret but they include freedom from visa restrictions (FIFA Guarantee No. 1), freedom from labour law restrictions (FIFA Guarantee No. 2), tax exempt status for FIFA and its official sponsors (FIFA Guarantee No. 3), security guarantees (FIFA Guarantee No. 4), freedom from banking and foreign exchange restrictions (FIFA Guarantee No. 5) and IP protections (FIFA Guarantee No. 6). 156 See for example: Sport England, ‘Sports That We Recognise’, https://www.sportengland.org/our- work/national-governing-bodies/sports-that-we-recognise/, which makes the adoption of minimum standards relating to anti-doping, child protection, equality and diversity, complaints procedure, conflicts of interest and membership rules a condition of state lottery funding. In France, to qualify for state funding, sports federations must be certified, one of the requirements of which is the adoption of manadatory provisions in the federations’ articles of association and standard disciplinary rules: Code du sport, art L131–8: see Kleef, above n 38, 28. In Australia, federal government funding is contingent upon national sports governing bodies complying with governance principles: Australian Sports Commission, ‘Sports Governance Principles’, March 2012. 157 Katwala, above n 6, 91. 207

bodies offends the rule of law and the policy considerations used to support that power shrink to insignificance when placed alongside the legitimacy deficits in the regime.

E Conclusion The concern articulated at the outset of this thesis related to the assumption of arbitrary private power by international sports governing bodies. That arbitrariness is revealed by the challenge made here to the conventional conception of the foundation of regulatory power in sport. The implications of that challenge are significant, and plainly, not all have been considered here. The principal issue that has been considered here has been the necessity for the regulatory regime to be placed on a legally sound and legitimate footing. This is most immeditately–although not only–important to both the institutions that carry out the regulation and those who are subjected to it. The need for reform is immediate and compelling, and the potential benefits substantial. The law has an important part to play in whether, and how that reform may be taken up.

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Weatherill, Stephen, 'Fairness, Openness and the Specific Nature of Sport: Does the Lisbon Treaty Change EU Sports Law?' (2010) (3-4) International Sports Law Journal 11

Weatherill, Stephen, 'Is There Such a Thing as EU Sports Law?' (2011) (1-2) International Sports Law Journal 38

Weiler, Paul C, Gary R Roberts, Roger I Abrams and Stephen F Ross, Sports and the Law (Thomson Reuters, 4th ed, 2011)

Weistart, John C and Cym H Lowell, The Law of Sports (Bobbs-Merrill, 1979)

Werner, Jacques, 'The Trade Explosion and Some Likely Effects on International Arbitration' (1997) 14(2) Journal of International Arbitration 5

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Weston, Maureen A, 'Simply a Dress Rehearsal? U.S. Olympic Sports Arbitration and De Novo Review at the Court of Arbitration for Sport' (2009) 38 Georgia Journal of International and Comparative Law 97

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Wiener, Antje, Anthony F Lang, James Tully, Miguel Poiares Maduro and Mattias Kumm, 'Global Constitutionalism: Human Rights, Democracy and the Rule of Law' (2012) 1(1) Global Constitutionalism 1

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B Cases

1 Australia: Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty (1985) 2 NSWLR 209 Ansett Transport Industries v Commonwealth (1977) 139 CLR 54 Attorney General (NSW) v Quin (1990) 170 CLR 1 Attorney-General of the Commonwealth of Australia v Adelaide Steamship Company Limited (1913) 18 CLR 30 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Australian Capital Territory Rugby League Club Inc v ACT Leagues Club Ltd (1992) 107 FLR 303 Australian Capital Territory v Munday (2000) 99 FCR 72 Australian Football League v Carlton Football Club [1998] 2 VR 546

247

Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 Australian Workers’ Union v Bowen (No 2) (1948) 77 CLR 601 Avellino v All Australia Netball Association Ltd (2004) 87 SASR 504 Axelson v O’Brien (1949) 80 CLR 219 Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 Baldwin v Everingham [1993] 1 Qd R 10 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379; affirmed in [1910] AC 295 Barnard v Australian Soccer Federation (1988) 81 ALR 51 Beattie v Fine [1925] VLR 363 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Braverus Maritime Inc v Port Kembla Coal Terminal Ltd [2005] FCAFC 256; (2005) 148 FCR 168 Buckley v Tutty (1971) 125 CLR 353 Calvin v Carr [1980] AC 574 Cameron v Hogan (1934) 51 CLR 358 CECA Institute Pty Ltd v Australian Council for Private Education and Training (2010) 30 VR 555 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 Clements v Racing Victoria Limited (Occupational and Business Regulation) [2010] VCAT 1144 Coco v R (1994) 179 CLR 427 Commonwealth v Verwayen (1990) 170 CLR 394 Connell v Reynolds SM (1993) 9 WAR 27 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460 Curo v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 D’Souza v Royal Australian and New Zealand College of Psychiatrists (2005) 12 VR 42 Dainford v Independent Commission Against Corruption (1990) 20 ALD 207 DePasquale v The Australian Chess Federation [2000] ACTSC 94

248

Dickason v Edwards (1910) 10 CLR 243 Dixon v Australian Society of Accountants (1989) 95 FLR 231 Dixon v Esperance Bay Turf Club (Inc) [2002] WASC 110 Drummoyne District RFC v NSW Rugby Union (1994) Aust Contract Reports ¶90-039, 18 November 1993, Young J, Supreme Court of New South Wales. Egan v Willis (1998) 195 CLR 424 Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309 Elford v Buckley [1969] 2 NSWLR 171 Empirnall Holdings Pty Ltf v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Equscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 701 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Farmers’ Mercantile Union and Chaff Mills Ltd v Coade (1921) 30 CLR 113 Foley v Padley (1984) 154 CLR 349 Forbes and Bundock v Australian Yachting Federation Inc (1996) 131 FLR 241 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Forbes v New South Wales Trotting Club Ltd [1977] 2 NSWLR 515 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Gamilaroi Boomerangs Sports Aboriginal Corporation v Members of New England Group 19 [1999] NSWSC 495 GB Energy Ltd v Protean Power Pty Ltd [2009] WASC 333 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Godecke v Kirwan (1973) 129 CLR 629Hird v CEO ASADA (2016) 227 FCR 95 Gould v Magarey [2007] HCA Trans 5 Goutzioulos v Victorian Soccer Federation Inc [2004] VSC 173 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Griffith University v Tang (2005) 221 CLR 99 Hall v Victorian Football League [1982] VR 64 Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359 Harris v Harris [1947] VR 44 Hawthorn Football Club Ltd v Harding [1988] VR 49 Heatley v Tasmanian Racing and Gaming Commission (1977) 14 ALR 519 Hili v R, (2010) 242 CLR 520, Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7

249

Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 63, 137–138 Hughes v Western Australia Cricket Association (Inc) (1986) 19 FCR 10 Ikin v Cox Bros (Aust) Ltd (1930) 25 Tas LR 1 Imbree v McNeilly (2008) 236 CLR 510 Industrial Rollformers Pty Ltd v Ingersoll-Rand Australia Ltd [2001] NSWCA 111 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Australia) Pty Ltd (1988) 5 BPR 97326 J N Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432 Justice v South Australian Trotting Control Board (1989) 50 FAR 613 Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235 Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311 Kovacic v Australian Karting Association (Qld) Inc [2008] QSC 344 Kriketos v Livschitz [2009] NSWCA 96 Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 Lee v Crime Commission (NSW) (2013) 87 ALJR 1082 Macqueen v Frackelton (1909) 8 CLR 673 MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125 Malone v Marr [1981] 2 NSWLR 894 Maloney v The National Coursing Association [1978] 1 NSWLR 161 Marist Brothers Community Inc v Shire of Harvey (1994) 14 WAR 69 Mark v Australian Broadcasting Tribunal (1991) 32 FCR 476 Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd [1998] 4 VR 559 McCarthy v Australian Rough Riders’ Association Inc [1987] FCR 391; (1988) ATPR 40-836 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 McKinnon v. Grogan [1974] 1 NSWLR 295 McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54 Meehan v Jones (1982) 149 CLR 571, 581 Meyers v Casey (1913) 17 CLR 90 Miller v Australian Cycling Federation Inc [2012] WASC 74 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 25

250

Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 NEAT Domestic Trading Pty Ltd v AWB Ltd (20030 216 CLR 277 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Olley v Marlborough Court Ltd [1949] 1 KB 532; Ostroski v Palmer (2004) 218 CLR 493 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 Placer Development Ltd v The Commonwealth (1969) 11 CLR 353 Plaintiff M61/2010E v Commonwealth (Offshore Processing Case) (2010) 243 CLR 319 Plaintiff S157/2003 v Commonwealth (2003) 211 CLR 476 Pobije Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105 Potter v Minahan (1908) 7 CLR 277 Prior v Payne (1949) 23 ALJ 298 Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 R v Brisbane City Council: Ex parte Read [1986] 2 Qd R 22 R v Clarke (1927) 40 CLR 227 R v Wilson; Ex parte Robinson [1982] Qd R 642 Raguz v Sullivan (2000) 50 NSWLR 236 Re Maggacis [1994] 1 Qd R 59 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Reed v Sheehan (1982) 39 ALR 257 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 28 NSWLR 234 Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889 Roosters Club Inc v Northern Tavern Pty Ltd (2003) 85 SASR 210 Rose v Boxing NSW Inc [2007] NSWSC 20 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 Rush v WA Amateur Football League [2007] WASCA 190 Russell Gould Pty Ltd v Ramanangkura [2013] NSWSC 1114 Ryan v Kings Cross RSL Club Ltd [1972] 2 NSWLR 79 Ryan v Textile Clothing and Footwear Union of Australia [1996] 2 VR 235 Scandrett v Dowling (1992) 27 NSWLR 483 Sheehy v Judo Federation of Australia Inc, Bryson J, Supreme Court of New South Wales, 1 December 1995, BC9506786, unreported

251

Shepherd v South Australian Amateur Football League Inc (1987) 44 SASR 579 South Australia v Totani (2010) 242 CLR 1 South Melbourne Football Club Ltd v Football Federation Victoria Inc [2010] VSC 355 Stephen v Naylor (1937) 37 SR (NSW) 127 Stevenson v Ellis (1912) 29 WN(NSW) 52 Stockwell v Ryder (1906) 4 CLR 469 Teen Ranch Pty Ltd v Brown [1995] AILR 4,205 Thorby v Goldberg (1964) 112 CLR 597 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Trustees Executors & Agency Co Ltd v Peters (1960) 102 CLR 537 Upper Hunter County District Council v Australian Chilling and Freezing Co (1968) 118 CLR 429 Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Wayde v New South Wales Rugby League Ltd [1985] 59 ALJR 798 Western Australian Turf Club v Federal Commissioner of Taxation (1978) 19 ALR 167 Whitehead v Griffith University [2003] Qd R 220 Whitlock v Brew (No 2) (1968) 118 CLR 445 Wilcox v Kogarah Golf Club Ltd (1995) 14 ACLC 421 Williams v Commonwealth (2014) 252 CLR 416 Wilton v Farnsworth (1948) 76 CLR 646 WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 20 WAR 489 Wotton v Queensland [2012] 285 ALR 1 Zusman v Royal WA Bowling Association [1999] WASC 86

2 Belgium: Green Cycle Associates AB v Amaury Sports Organisation Tribunal de Commerce (Liege) 23 April 2007, [2008] ECC 1

3 Canada: Association olympique canadienne v Deschenes [1988] RJQ 2389, 2390 (CA). Baker v Canada (Minister of Citizenship & Immigration) [1999] 2 SCR 817 (SCC) John Burrows Ltd v Subsurface Surveys Ltd (1968) 68 DLR (2d) 354.

252

Johnson v Athletics Canada and IAAF (1997) 41 OTC 95 Lakeside Colony of Hutterian Bretheren v Hofer [1992] 3 SCR 165 Manco Ltd v Atlantic Forest Products Ltd (1971) 24 DLR (3d) 194 Posluns v Toronto Stock Exchange [1964] 2 OR 547, 610 Progas Ltd v AEC West Ltd 2001 ABQB 549, 296 AR 127, [2001] AJ No 881, [35] (Alta QB) R v Crosswell 2007 ONCJ 25 R v Potter (1978) 39 CCC (2d) 538, 3 CR (3d) 154 (PEISC) Re Parks and BC School Sports (1997) 145 DLR (4th) 174 Re Turnbull and Canadian Institute of Actuaries (1995) 129 DLLR 4th 42 (Manitoba CA) Sagen v VANOC [2009] BCCA 522. Stein v Exec-U-Fit Personal Fitness Training Centres Inc [2007] OJ No 1827, [12] (Ont SCJ) Tunny v Orchard [1955] 3 DLR 15 Union Steamships v Barnes (1956) 5 DLR (2d) 535 Vancouver Hockey Club Ltd v Hockey Ventures Inc (1987) 47 DLR (4th) 51

4 Court of Arbitration for Sport A v Caykur Rizespor Kulubu Dernegi & Turkish Football Federation, CAS 2008/A/1602, award on jurisdiction of 20 February 2009 Agence Mondiale Antidopage (AMA) v ASBL Royale Ligue Vélocipédique Belge (RLVB) & Iljo Keisse, CAS 2009/A/2014, award of 6 July 2010 Al-Wehda Club v Saudi Arabian Football Federation, CAS 2011/A/2472, award of 12 August 2011 Arcycling AG v UCI, CAS 2004/A/477, Slip Op, 23 ASADA v Atkins, CAS 2009/O/A1, award dated 4 November 2009 Ashley Cole v Football Association Premier League (FAPL), CAS 2005/A/952, award of 24 January 2006 B v International Triathlon Union, No. 98/222 (CAS 1999) in CAS Digest II, 330, 336 Bouras v IJF, CAS 1998/214, CAS Digest II, 308 British Olympic Association (BOA) v World Anti-Doping Agency (WADA), CAS 2011/A/2658, award of 30 April 2012 Buci v FEI, CAS 2010/A/2283 C v Federation Internationale de Natation Amateur, No. 95/141 (CAS 1996) CAS Digest 1, 215, 219 Chagnoud v FINA, CAS 1995/141, CAS Digest I, 215, 221

253

Clube de Regatas do Flamengo and ors. v CONMEBOL, CAS 2008/A/1503 Compagnie d’Armement Maritime SA v. Compagnie Tunisienne de Navigation SA [1971] AC 572 De Bruin v FINA, CAS 98/211, award dated 7 June 1999, in CAS Digest II, 255 DESG v ISU, CAS 2009/A/1912-1913, award dated 25 November 2009 Edwards v IAAF, CAS OG/04/003 Egyptian Football Association v Al-Masry Sporting Club, 4A_682/2012, Fazekas v IOC, CAS 2004/A/714, award dated 31 March 2005 FIFA v Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô, CAS 2007/A/1370 & WADA v Superior Tribunal de Justiça Desportiva do Futebol (STJD) & Confederação Brasileira de Futebol (CBF) & Mr Ricardo Lucas Dodô, CAS 2007/A/1376, award of 11 September 2008 Football Federation Islamic Republic of Iran (IRIFF) v Federation Internationale de Football Association (FIFA), CAS 2008/A/1708, award of 4 November 2009 Franco Pellizotti c. Comitato Olimpico Nazionale Italiano (CONI) & Union Cycliste Internationale (UCI) CAS 2010/A/2308 & UCI v Franco Pellizotti, Federazione Ciclistica Italiana (FCI) & CONI, CAS 2011/A/2335, award of 14 June 2011 French v Australian Sports Commission & Cycling Australia, CAS 2004/A/651, award dated 11 July 2005. Grasshopper v Alianza Lima, CAS 2008/A/1705, award of 18 June 2009 Hall v FINA, CAS 1998/218, CAS Digest II, 325 I v FIA, CAS 2010/A/2268, award dated 15 September 2011 IAAF v CBAt & Simone Alves da Silva, CAS 2012/A/2779, award of 31 January 2013 IAAF v MAR & Boulami, CAS 2002/A/452, CAS Digest III, 440 International Association of Athletics Federations (IAAF) v Hellenic Amateur Athletic Association (SEGAS) and Irini Kokkinariou, CAS 2012/A/2773, award of 30 November 2012 International Paralympic Committee (IPC) v I, Venezuelan National Paralympic Committee (COPAVEN), Venezuelan National Anti-Doping Organization (VNADO) & Sport Federation for Visually Impaired Athletes in Venezuela (FEPOCIVE), CAS 2012/A/2789, award of 17 December 2012 (operative part of 28 August 2012) International Rugby Board v Troy & ARU, CAS 2008/A/1664, award dated June 2009 International Tennis Federation (ITF) v Richard Gasquet, CAS 2009/A/1926, & World Anti- Doping Agency (WADA) v ITF & Richard Gasquet, CAS 2009/A/1930, award of 17 December 2009

254

ITF v Karatantcheva, Anti-Doping Tribunal decision dated 11 January 2006, affirmed on appeal, CAS 2006/A/1032, award dated 3 July 2006 Kendrick v ITF, CAS 2011/A/2518 Lehtinen v FINA, CAS 95/142, award of 14 Feb. 1996, in 1986-1998 CAS Digest I, 225 Meca-Medina & Majcen v FINA, CAS 1999/A/234-235 Slip Op N, J, Y & W v FINA, CAS 1998/208, CAS Digest II, 234; and decision of Swiss Federal Tribunal on the athletes’ appeal against CAS 98/208, of 31 March 1999, reported in CAS Digest II, 775 NWBA v IPC, CAS 1995/122, CAS Digest I, 173 Ohlsson v WRU, NADP Appeal Tribunal award dated 6 January 2009 Omer Riza v Trabzonspor Kulubu Dernegi & Turkish Football Federation, CAS 2010/A/1996, award of 10 June 2010 Overvliet v IWF, CAS 2011/A/2675, award dated 25 May 2012 P and Deutsche Eisschnelllauf Gemeinschaft eV (DESG) v International Skating Union (ISU) CAS 2009/A/1912 and CAS 2009/A/1913, award of 25 November 2009 Persisam Putra Samarinda,Deltras Sidoardjo FC, Pelita Jaya FC, L & E. v Football Association of Indonesia (PSSI), CAS 2012/A/2688, award of 12 April 2012 PFC CSKA Sofia v BFU, CAS 2008/O/1694. Prusis v IOC, CAS OG 2002/001, CAS Digest III, 573 Rayo Vallecano de Madrid SAD v Real Federacion Espanola de Futbol (RFEF), CAS 2013/A/3199, award of 22 October 2013 Rebagliati v IOC, CAS OG 1998/02, CAS Digest I, 419 Reinhold v FISA, CAS 2001/A/330, CAS Digest III, 197 Roberts v FIBA, CAS 2000/A/262, award of 28 July 2000 S v FINA, CAS 2005/A/830, award of 15 July 2005 Spanish Basketball Federation v International Basketball Federation, CAS 98/209, Digest of CAS Awards II, 1998-2000, 500 Stichting Anti-Doping Autoriteit Nederland (NADO) and the Koninklijke Nederlandsche Schaatsenrijders Bond (KNSB) v Wesley Lommers, CAS 2010/A/2311, 2312, award of 22 August 2011 Telecom Egypt Club v Egyptian Football Association (EFA) CAS 2009/A/1910, award of 9 September 2010 Tsagaev v IWF, CAS OG 2000/010, CAS Digest II, 658

255

Union Cycliste Internationale (UCI) v Alberto Contador Velasco & Real Federación Española de Ciclismo (RFEC) CAS 2011/A/2384 & World Anti-Doping Agency (WADA) v Alberto Contador Velasco & RFEC, CAS 2011/A/2386, award of 6 February 2012 Union Cycliste Internationale (UCI) v Alexander Vinokourov & Kazakhstan Cycling Federation (KCF), CAS 2008/A/1458, partial award of 23 July 2009 Union Cycliste Internationale (UCI) v Jan Ullrich & Swiss Olympic, CAS 2010/A/2083, award of 9 February 2012 Union Cycliste Internationale (UCI) v Roel Paulissen & Royale Ligue Vélocipédique Belge (RLVB), CAS 2011/A/2325, award of 23 December 2011 United States Olympic Committee v International Olympic Committee, CAS award dated 4 October 2011 USA Shooting & Quigley v UIT, CAS 1994/129, CAS Digest I, 187 USADA v R, CAS 2008/A/1577 award of 15 December 2008 USOC and USA Canoe/Kayak v IOC, Arbitration CAS ad hoc division (O.G. Sydney 2000) 001, in Court of Arbitration for Sport, CAS Awards – Sydney 2000, 13 WADA v Anthony West & Fédération Internationale de Motocyclisme, CAS 2012/A/3029 award of 22 November 2013 WADA v Ivan Mauricio Casas Buitrago & GCD, CAS 2013/A/3077, award of 4 December 2013 World Anti-Doping Agency (WADA) v International Ice Hockey Federation (IIHF) & Florian Busch, CAS 2008/A/1564, award of 23 June 2009 World Anti-Doping Agency (WADA) v Jessica Hardy & United States Anti-Doping Agency (USADA), CAS 2009/A/1870, award of 21 May 2010 World Anti-Doping Agency (WADA) v Lada Chernova & Russian Anti-Doping Agency (RUSADA), CAS 2013/A/3112, award of 16 January 2014 World Anti-Doping Agency v Mr Juha Lallukka, CAS 2014/A/3488, award of 20 November 2014

5 European Union: ENIC/UEFA, Case COMP 37 806; (2001) ISLR 1, 122-153 Laurent Piau v Commission of the European Communities Case T-193/02, judgement of 26 January 2005 Malone v United Kingdom ECHR, no 8691/79, 2 August 198 Meca Medina and Majcen v Commission of the European Communities [2006] ECR I-6991

256

Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio (C-49/07) judgement of 1 July 2008 Societe thermale d’Eugenie-les-Bains v Ministere de l’Economie, des Finances et de l’Industrie [2007] ECR I-6415 Union Royale Belge des Societes de Football Association v Jean-Marc Bosman [1995] ECR I- 04921

United Brands v European Commission [1978] 1 CMLR 429

6 France: Del Drago, Cour d'appel Paris, 10 December 1901, Clunet 314 (1902)

7 Germany: International Skating Union v Claudia Pechstein, German Federal Court of Justice, judgment of 7 June 2016, KZR 6/15 Judgment of 24 January 2003, XXX Y B Comm Arb 509 (Hanseatisches Oberlandesgericht Hamburg) (2005) Judgment of 30 March 2000, XXXI Y B Comm Arb 652, 656 (Oberlandesgericht Schleswig) (2006) Krabbe v IAAF and DLV SpuRt 1995, 161, decision of 17 May 1995, LG Munchen Lagat v WADA and IAAF, Cologne Regional Court, judgement dated 13 September 2006, 5–6 Pechstein v Deutsche Eisschnelllauf-Gemeinschaft e.V. (DESG) and International Skating Union (‘Pechstein’) Case U 1110/14Kart 37 O 28331/12 Munich Regional Court, 15 January 2015

8 New Zealand: Boulder Consolidated Ltd v Tangaere [1980] 1 NZLR 560 Bouzaid v Horawhenua Indoor Bowls Centre Inc [1964] NZLR 187 Finnigan v New Zealand Rugby Football Union Inc [1985] NZHC 102; [1985] 2 NZLR 159 Hamed v R [2012] 2 NZLR 305 Henderson v Kane [1924] NZLR 1073 Kemp v New Zealand Rugby Football League [1989] 3 NZLR 463 Loe v NZRFU, unreported, Gallen J, New Zealand High Court, 10 August 1993 Stratford Racing Club Inc v Adlam [2008] NZCA 92

257

9 Singapore: Haron bin Mundir v Singapore Amateur Athletic Association [1994] 1 SLR 47 Pilkadaris v Asian Tour (Tournament Players Division) Pte Ltd [2013] 2 SLR 385

10 South Africa: Jockey Club of South Africa v Forbes (1993) (1) SA 649 South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others; SA Rugby Pty Limited v South African Rugby Players Union and Another (CA 10/2005) [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC) (12 May 2008)

11 Switzerland: A & B v IOC and FIS, 4P.267/2002; 4P.268/2002; 4P.269/2002; 4P.270/2002 of 27 May 2003, translated at Digest of CAS Awards III 2004 674 (Danilova and Lazutina v IOC and FIS) A & B v World Anti-Doping Agency (WADA) & Flemish Tennis Federation 4A_428/2011 13 February 2012 A v World Anti-Doping Agency (WADA), Federation Internationale de Football Association (FIFA) & Cyprus Football Association (CFA), 4A_640/2010 18 April 2011 ATF 133 III 235 (2007) Swiss Int’l Arb L Rep 65 Bomar Oil NV v. Entreprise Tunisienne d'Activités Pétrolières (E T A P), Cass 1e civ, 9 Nov 1993, 1994 Rev Arb 108, XX Y B Com Arb 660 (1995) Busch v WADA, 4A_358/2009, Judgment of 6 November 2009 Canas v ATP Tour 4P.172/2006 (2007) (Swiss Federal Tribunal) ATF 133 III 235, translated in 1 Swiss Int’l Arb L Rep. 65 Decision of the Federal Tribunal 4A_627/2011 of 8 March 2012 DFT 108 II 416 DFT 109 II 213 Dodo v FIFA and WADA, 4A_460/2008, (SFT) judgment of 9 January 2009 FIFA v Matuzalem, Judgment of the Swiss Federal Tribunal 4A_558/2011 of 27 March 2012 Football Club A v Coach B & TAS, 4P.253/2003, 25 March 2004, in ASA Bull 128 (2005) Judgment of 15 March 1990, DFT 116 Ia 56 (Swiss Federal Tribunal) Judgment of 16 October 2001, DFT 128 III 50, 58 (Swiss Federal Tribunal) Judgment of 16 October 2003, 22 ASA Bull. 364, 386 (SFT)(2004)

258

Judgment of 17 January 2013, DFT 4A_244/2012 (Swiss Federal Tribunal) Judgment of 20 September 2011, 30(2) ASA Bull. 449 (Swiss Federal Tribunal) (2012) Judgment of 21 November 2003, 130 III 66 (Swiss Federal Tribunal) Judgment of 22 November 1950, DFT 76 I 338 (Swiss Federal Tribunal) Judgment of 25 August 1992, ZR 91/92 No 23, 72, (Zurich Comm Ct) Judgment of 25 March 2004, 4P.253/2003 (Swiss Federal Tribunal), ASA-Bull. 2005 128 Judgment of 27 January 2010, DFT 4A_562/2009 (Swiss Federal Tribunal) Judgment of 28 July 1988, 7 ASA Bull 304 (Bülach Dist Ct Zurich) (1989) Judgment of 3 January 2011, DFT 4A_386/2010, 29 ASA Bull 688 (Swiss Federal Tribunal) (2011) Judgment of 3 May 2010, 4A_456/2009, (SFT). Judgment of 3 October 2000, Nejapa Power Co. LLC v CEL, 19 ASA Bull. 796 (Swiss Federal Tribunal) (2001) Judgment of 30 August 1993, 11 ASA Bull 531, (Zurich Comm Ct) (1993) Judgment of 5 November 1985, Tracomin SA v Sudan Oil Seeds Co, XII Y B Comm Arb 511, 512 (Swiss Federal Tribunal) (1987) Judgment of 6 June 1967, I Y B Comm Arb 199 (Geneva Ct First Inst) (1976) Judgment of 7 February 1984, DFT 110 II 54, 60; DFT 93 I 49 Judgment of 7 November 2011, DFT 138 III 29 (Swiss Federal Tribunal) Judgment of 8 July 2003, DFT 129 III 675 (Swiss Federal Tribunal) N v FEI, Judgment of 31 October 1996, (SFT), Digest of CAS Awards 1986-1998, 585, 590 N, J, Y, W v FINA, 5P.83/1999 (2d Civil Court, 31 March 1999) 779 Roberts v FIBA, 4P.230/2000, 7 February 2001 Sonatrach v K C A Drilling Ltd, Judgment of 15 March 1990, 1990 Rev Arb 921, 923 (Swiss Federal Tribunal) Tradax Export v Amoco Iran Oil Amoco Company, ATF 110 II 54, (1986) 11 YBCA 532 X v Y & Federation Internationale de Football Association (FIFA), 4A_160/2007 X v Y & Federation Internationale de Football Association (FIFA), 4A_548/2009 judgment of 20 January 2010 X v Y 4A_456/2009, judgment of 3 May 2010 X v Y Sarl, 4A_246/2011, judgment of 7 November 2011 X AG v Y, Decision of the Swiss Federal Tribunal of 20 December 2005, ATF 132 III 285

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12 United Kingdom: Abbott v Sullivan [1952] 1 KB 189 Aberavon & Port Talbot RFC v WRU Ltd [2003] EWCA Civ 584 Adidas-Salomon AG v Draper [2006] EWHC 1318 Aldwell v Bundey (1876) 10 SALR 118 Allen v Bloomsbury HA [1993] 1 All ER 651 Allen v Flood [1898] AC 132 Allied Marine Transport Ltd v Vale do Rio Doce Navegacao SA (The Leonidas D) [1985] 1 WLR 925 Appleson v Littlewood Ltd [1939] 1 All ER 464 Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98 Ashbury Railway Carriage & Iron Co v Riche (1875) LR 7 HL 653 Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney General v Leeds Corp [1929] 2 Ch 291 Attorney General v Leicester Corp [1943] 1 Ch 86, 93. Attorney General v Manchester Corp [1906] 1 Ch 643 Attorney-General for Hong Kong v Humphreys Estate (Queens Gardens) Ltd [1987] AC 114 Attorney-General v Guardian Newspaper Ltd (No 2) [1988] 3 All ER 545 Attrill v Dresdner Kleinwort Limited [2012] EWHC 1189 Azov Shipping Co v Baltic Shipping Co [1999] 2 Lloyd’s Rep 159 Babanaft International Co SA v Bassatne [1990] Ch 13 Bailey (1800) Russ & RY 1 Baird Textile Holdings Ltd v Marks & Spencer plc [2001] EWCA Civ 274 Baird v Wells (1890) 44 Ch Div 661 Barclays Bank Plc v British and Commonwealth Holdings Plc [1996] BCLC 1 Baroness Wenlock v River Dee Co (1885) 10 App Cas 354 Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 119 Boddington v British Transport Police [1999] 2 AC 143 Bolton v Law Society, [1994] 2 All ER 486 Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606 Bradley v Jockey Club, [2005] EWCA 1056, decision affirmed [2005] EWCA Civ 1056 (Lord Phillips MR, Buxton LJ, Scott Baker LJ), (2005) Times, 14 July.

260

Breen v Amalgamated Engineering Union [1971] 2 QB 175 Brekkes Ltd v Cattel [1972] Ch 105, 115. British Airways Board v Taylor [1976] 1 WLR 13; British South Africa Co v De Beers Consolidated Mines [1910] 1 Ch 354 Bromley v LBC v GLC [1983] 1 AC 768 Bumper Development Corp Ltd v Metropolitan Police Commissioner [1991] 1 WLR 1362 Burke v Amalgamated Society of Dyers [1906] 2 KB 583 Butler Machine Tool Co v Ex-Cell-O Corp [1979] 1 WLR 401 Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762 Cairns v Visteon UK Ltd [2007] IRLR 175 Calvin v Carr [1980] AC 574 Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 Carmichael v General Dental Council [1990] 1 WLR 134 Charles Roberts & Co Ltd v British Railways Board [1965] 1 WLR 396 Chief Constable of North Wales Police v Evans [1982] 3 All ER 141 Cie Frncaise d’Importation etc v Deutsche Continental Handelsgesellschaft [1985] 2 Lloyd’s Rep 592 City of London case (1609) 8 Co Rep 121b; 77 ER 658 Clarke v Earl of Dunraven [1897] AC 59 Classic Maritime Inc v Lion Diversified Holdings Berhad [2009] EWHC 1142 (Comm) Cobbe v Yeoman’s Row Management Ltd [2008] UKHL 55 Colgan v Kennel Club (2001) unreported, 26 October (Cooke J) Combe v Combe [1951] 2 KB 215 Commissioners for Her Majesty’s Revenue and Customs v Benchdollar Ltd [2009] EWHC 1310 Cooke v Oxley (1790) 3 TR 653 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Cowley v Heatley, The Times, 24 July 1986, (Browne-Wilkinson VC) Credit Suisse v Allerdale BC [1997] QB 306 Crocket v Tantallon Golf Club 2005 SLT 663 Cullen v The Duke of Queensberry (The case of the Ladies’ Coterie) 1 B PC 396 CVG Sidergicia del Orinco SA v London Steamship Owners’ Mutual Insurance Association Ltd (The Vainqueur Jose) [1979] 1 Lloyd’s Rep 557 Davis v Carew-Pole & Others [1956] 1 WLR 833 (QB) 844

261

Dawkins v Antrobus (1879) 17 Ch D 615 Deutsche Genossenschaftsbank v Burnhope [1995] 1 WLR 1580 Dickson v Pharmaceutical Society of Great Britain [1970] AC 403 Dines v Wolfe (1869) 16 ER 559; LR 2 PC 280 Doyle v White City Stadium Ltd [1935] 1 KB 110 Dr Warren’s Case (1835), Grindrod’s Compendium of the Laws and Regulations of Wesleyan Methodism, 5th ed, (1857), 371 Dundee United FC v Scottish Football Association [1998] SLT 1244 Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co [1915] AC 847 Dwain Chambers v British Olympic Association [2008] EWHC 2028 Eagleton v East India Co (1802) 3 B & P 55 Earl of Ellesmere v Wallace [1929] 2 Ch 1 Eastham v Newcastle United Football Club Ltd [1964] Ch 413 Edwards v Skyways Ltd [1964] 349 Ellesmere v Wallace [1929] 2 Ch 1 Enderby Town Football Club Ltd v Football Association [1971] Ch 591 Equitable Life Assurance Society v Hyman [2002] 1 AC 408 Esso Petroleum Co Ltd v Commissioners of Customs and Excise [1976] 1 WLR 1 Ex Parte Wachmann [1992] 1 WLR 1036 Exmar NV v BP Shipping Ltd (The Gas Enterprise) [1993] 2 Lloyd’s Rep 352 Fallon v Horseracing Authority [2006] EWHC 1989 Faramus v Film Artistes’ Association [1963] 2 QB 527 Faramus v Film Artistes’ Association [1964] AC 925 Felthouse v Bindley (1862) 11 CB (NS) 869; affirmed (1863) 1 NR 401 Fisher v National Greyhound Racing Club, 31 July 1985, (Oliver LJ) Flaherty v National Greyhound Racing Club [2004] EWHC 2838; on appeal [2005] EWCA Civ 1117 Forbes v Eden (1866-69) LR 1 Sc & Div 568 Ford Motor Co Ltd v AEU [1969] 2 QB 303 Foster v Wheeler (1888) 38 Ch D 130 Fox v General Medical Council [1960] 1 WLR 1017 Framework Knitters’ Co v Green (1696) 1 Ld Raym 113, 91 ER 972 Front Carriers Ltd v Atlantic and Orient Shipping Corporation (The Archimidis) [2007] EWHC 421

262

Gasser v Stinson (15 June 1988, unreported) (Scott J, Queens Bench Division) (LEXIS, England and Wales Reported and Unreported Cases) Gebr van Weelde Sheepvaart kantoor BV v Compania Naviera Orient SA (The Agrabele) [1987] 2 Lloyd’s Rep 223 Ghaidan v Godin-Mendoza [2004] UKHL 30 Gibson v Manchester City Council [1978] 1 WLR 520, reversed on appeal [1979] 1 WLR 294 Gillan and Quinton v United Kingdom [2010] ECHR 27 Gissing v Gissing [1971] AC 886 Goshaw Dedicated Ltd v Tyser & Co Ltd [2006] EWCA Civ 54 Greig v Insole [1978] 3 All ER 449 Grogan v Robin Meredith Plant Hire [1996] CLC 1127 Guaranty Trust Co of New York v Hannay and Co [1915] 2 KB 536 Gunstone v Scottish Women’s Amateur Athletic Association (1987) SLT 611 Halpern v Halpern [2007] EWCA Civ 291 Handsworth Football Club v Football Association FA Rule K arbitration, 6 and 11 July 2012 (Mark Warby QC) Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 Hayman v Governors of Rugby School (1874) LR 18 Eq 28 Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1 Heathrow Airport Ltd v Thames Water Utilities Ltd [2009] EWCA Civ 992 Hendry v World Professional Billiards and Snooker Association [2002] ECC 8 Hillas & Co v Arcos Ltd (1932) 147 LT 503 Hilton v Eckersley (1855) 6 E & B 74 Holgate-Mohamed v Duke [1984] AC 437 Home Secretary v AP [2008] EWHC 2001 Hood v Anchor Line (Henderson Bros) ltd. [1918] AC 837 Hopkinson v Marquis of Exeter (1867) LR 5 Eq 63 Horkulak v Cantor Fitzgerald Ltd [2004] EWCA Civ 1287 Howatson v Webb [1908] 1 Ch 1 Huang v Secretary of State for the Home Department [2001] UKHL 11 Ibeneweka v Egbuna [1964] 1 WLR 219 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 In re Buckinghamshire Constabulary Widows’ and Orphans’ Fund Friendly Society (No 2) [1979] 1 WLR 936

263

Innes v Wylie 1 Car & K 257 (1844) 174 ER 800 Interfoto Picture Library Ltd v Stiletto Visual Entertainment Programmes Ltd [1989] QB 433 International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158 Ipswich Tailors case (1614) 77 ER 1218; 11 Co Rep 53a Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386 Jani-King (GB) Ltd v Pula Enterprises Ltd [2007] EWHC 2433 Jenkin v Pharmaceutical Society of Great Britain [1921] 1 Ch 392 Jones v Welsh Rugby Union (unreported) High Court (QBD), 1997 WL 1103802, Ebsworth J, 27 February 1997, upheld on appeal in 1997 WL 1103674, Thorpe LJ, Potter LJ (1998) Times, 6 January Keeble v Hickeringill 11 Mod 74 Kingscroft Insurance Co Ltd v Nissan Fire and Marine Insurance Co Ltd [2001] 1 All ER (Comm) 272 Korda v ITF Ltd [1999] EWHC J0129-11 (Lightman J); [1999] EWCA Civ J0325-17, CA Kruse v Johnson [1898] 2 QB 91 L’Estrange v F Grauccob Ltd [1934] 2 KB 394 Labouchere v Wharncliffe (1879) 13 Ch D 346 Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302 Lawlor v Union of Post Office Workers [1965] Ch 712 LCC v Attorney-General [1902] AC 165 Lee v Showmens Guild [1952] 2 QB 329 Leeson v General Council of Medical Education and Registration (1889) 43 Ch D 366 Leigh v National Union of Railwaymen [1970] Ch 326 Levison v Patent Steam Carpet Cleaning Co Ltd [1978] QB 69 Lippl v Haines & Others (1989) 47 A Crim R 148 Lloyd v Loaring (1802) 6 Ves Jun 773; 31 ER 1302 Loftus v Roberts (1902) 18 TLR 532 Ludgate Insurance Co Ltd v Citibank NA [1998] Lloyd’s Rep IR 221 Maclean v Workers’ Union [1929] 1 Ch 602 MacPherson v European Strategic Bureau Ltd [2000] 2 BCLC 683 Mayor of London v Cox (1867) LR 2 HL 239 McInnes v Onslow-Fane [1978] 1 WLR 150 McKeown v British Horseracing Authority [2010] EWHC 508

264

Meggson v Burns [1972] 1 Lloyd’s Rep 223 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Modahl v British Athletic Foundation Ltd [2002] 1 WLR 1192 Mogul Steamship Co v McGregor, Gow & Co [1892] AC 25 Mullins v McFarlane and the Jockey Club [2006] EWHC 986 Nagle v Fielden [1966] 2 QB 633 Nash and Staunton v Paragon Finance Plc [2001] EWCA Civ 1466 National Coal Board v Galley [1958] 1 WLR 16 New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 Newport Association Football Club Ltd v Football Association of Wales Ltd [1995] 2 All ER 87 Norweb plc v Dixon [1995] 1 WLR 637 OBG Ltd v Allan [2007] UKHL 21 Oceangas (Gibraltar) Ltd v Port of London Authority (The Cavendish) [1993] 2 Lloyd’s Rep 292 Ooregum Gold Mining Company v Roper [1892] AC 125 Palfreyman v South Metropolitan Master Planning Authority (1963) 15 LGRA 38 Park Promotion Ltd (t/a Pontypool Rugby Football Club) v Welsh Rugby Union Ltd [2012] EWHC 1919 Parker v South Eastern Railway Co (1877) LR 2 CPD 416 Pett v Greyhound Racing Association [1969] 1 QB 125 Pfizer Corp v Minister of Health [1965] AC 512 Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 Port Sudan Cotton Co v Chettiar [1977] 2 Lloyd’s Rep 5, Price v Easton (1833) 4 B & Ad 433 Progress Property Company Ltd v Moorgarth Group Ltd [2010] UKSC 55 Quinn v Leathem [1901] AC 495 R (Bloggs 61) v Home Secretary [2003] 1 WLR 2724 R (Farrakhan) v Home Secretary [2002] EWC Civ 606 R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 532

265

R (on the application of Data Broadcasting International Ltd) v Office of Communications [2010] EWHC 1243 (Admin) R (on the application of Gillian) v Metropolitan Police Commissioner (HC (Admin), 31 October 2003, Brooke LJ & Maurice Kay J), aff’d [2005] QB 388 (EWCA) R (on the application of Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 R (on the Application of Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin) R (on the application of ProLife Alliance) v British Broadcasting Corporation [2004] 1 AC 185 R (Purdy) v DPP [2010] 1 AC 345 R v Barnes [2004] EWCA Crim 3246 R v Benchers of Lincoln’s Inn (1825) 4 B and C 854 R v British Broadcasting Corporation; Ex parte Lavelle [1983] 1 WLR 23R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864 R v Chief Rabbi of the United Hebrew Congregation of Great Britain and the Commonwealth; Ex parte Wachmann [1992] 1 WLR 1036 R v Code of Practice Committee of the British Pharmaceutical Industry; Ex parte Professional Counselling Aids Ltd (1990) 3 Admin LR 697 R v Director of Public Prosecutions Ex parte Kebilene [2000] 2 AC 326 R v Disciplinary Committee of the Jockey Club, Ex parte Aga Kahn [1993] 1 WLR 909 R v Disciplinary Committee of the Jockey Club; Ex parte Massingberd-Mundy [1993] 2 All ER 207 R v Dr Askew et al (1768) 4 Burr 2185 R v Football Association of Wales; Ex parte Flint Town United Football Club [1991] COD 44 R v Football Association; Ex parte Football League [1993] 2 All ER 833 R v Hull University Visitor; Ex parte Page [1993] AC 682 R v Jockey Club; Ex parte RAM Racecourses [1993] 2 All ER 225 R v Life Assurance and Unit Trust Regulatory Organisation ex parte Ross [1993] QB 17 R v Master and Warden of the Company of Surgeons in London (1759) 2 Burr 893 R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815 R v Richmond Borough Council; Ex parte McCarthy & Stone (Developments) Ltd [1992} 2 AC 48 R v Saddlers’ Company (1863) 10 HLC 404, 11 ER 1083

266

R v Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539 R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115 R v Secretary of the Home Department, Ex Parte Leech (No 2) [1994] QB 198, 210 (Steyn LJ) R v Secretary of the Home Department, Ex Parte Pierson [1998] AC 539 R v Visitors to the Inns of Court, Ex parte Calder [1994] QB 1 Raafsanjan Pistachio Producers Co-operative v Bank Leumi (UK) plc [1992] 1 Lloyd’s Rep 513 Rayfield v Hands [1960] Ch 1 Re Exchange Banking Co, Flitcroft’s Case (1882) 21 Ch D 519 Re Halt Garage Ltd [1982] 3 All ER 1016 Re Horsley & Weight Ltd [1982] Ch 442 Re Vince, ex parte Baxter (1892) 2 QB 478 Read v Croydon Corp [1938] 4 All ER 631 Reel v Holder (for IAAF) [1979] 1 WLR 1252; aff’d [1981] 1 WLR 1226 Richardson, Spence & Co v Rowntree [1894] AC 217; Ridge Securities Ltd v Inland Revenue Commissioners [1964] 1 WLR 479 Rigby v Connol (1880) 14 Ch D 482 Roach v Football Association [2001] 9(3) SATLJ 26 Rolled Steel Ltd v British Steel Corporation [1986] Ch 246 Rossiter v Miller (1878) 2 App Cas 1124 Rushton v Worcester City Council [2001] EWCA Civ 367 Russell v Duke of Norfolk [1949] 1 All ER 109 Sankofa and Charlton v FA (12 January 2007, Comm Ct, Simon J) Scally v Southern Health and Social Services Board [1992] 1 AC 294 Scammell & Nephew Ltd v Ouston [1941] AC 251 Scammell v Dicker [2005] EWCA Civ 405 Scott v Scott [1913] AC 417 Secretary of State for the Home Department v Rehaman [2003] 1 AC 153; [2001] UKHL 47 Semayne’s case (1604) 77 ER 194 Shearson Lehman Hutton Inc v Maclaine Watson & Co Ltd [1989] 2 Lloyd’s Rep 570 Sheffield United v FAPL , FAPL Rule S Arbitration, award of FA Arbitral Tribunal dated 3 July 2007, [2007] ISLR-SLR 77; 13 July 2007 Comm Ct (Smith J) Simaan General Contracting Co v Pilkington Glass [1988] 1 All ER 791 Singer v Jockey Club 28 June 1990, unreported, Scott J, transcript 18-19

267

Smith v Baker & Sons [1891] AC 325 Socimer International Bank Ltd v Standard Bank London Ltd [2008] EWCA Civ 116 Somerset v Stewart (1772) Lofft 1; 98 ER 499 Sonatrach Petroleum Corp.(BVI) v Ferrell Int’l Ltd [2002] 1 All ER (Comm) 627 Sorrell v Smith [1925] AC 700 St Johnstone FC v Scottish Football Association [1965] SLT 171 Stabilad Ltd v Stephens & Carter Ltd (No 2) [1999] 2 All ER (Comm) 651 Stationers’ Co v Salisbury (1693) 90 ER 440, Comb 221, 222 Stevenage Borough FC Limited v The Football League Limited Unreported, 23 July 1996, Carnwath J, [2006] International Sports Law Review 128, and CA (1997) 9 Admin LR 109 Stevenage Football Club Ltd v The Football League Ltd (1996) 9 Admin LR 109; (1996) The Times, 1 August Stretford v The FA [2006] EWHC 479 Stretford v The Football Association Ltd [2007] EWCA Civ 238 Sunbolf v Alford (1838) 150 ER 1135 Suttons Hospital Case (1612) 10 Co Rep 1a, 23a, 77 ER 937 Swain v Law Society [1983] 1 AC 598 Taylor v Brewer (1813) 1 M & S 290 The Aramis [1989] 1 Lloyd’s Rep 213 The Gudermes [1993] 1 Lloyd’s Rep 311 The Siskina [1979] AC 210 Thellusson v Viscount Valentia [1907] 2 Ch 1 Thomas v Thomas (1842) 2 QB 851 Thompson v British Medical Association (New South Wales Branch) [1924] AC 764 Thompson v LM & S Railway Co [1930] 1 KB 41 Thorne v Motor Trade Association [1937] AC 797 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 Thrussell v Handyside (1888) 20 QBD 359 Tinn v Hoffman (1873) 29 LTR 271 Towcester Racecourse Ltd v Racecourse Association [2002] EWHC 2141 Tracomin SA v Anton C Nielsen [1984] 2 Lloyd’s Rep 195 Trevor v Whitworth (1887) 12 App Cas 409 Tweddle v Atkinson (1861) IB & S 393; 121 ER 762 [1861-73] All ER Rep 369 UK Anti-Doping v Llewellyn, NADP Appeal Tribunal decision dated 14 February 2013

268

Vitol SA v Norelf Ltd [1996] AC 800 Walker v UKA and IAAF, 3 July 2000, Toulson J, unreported Walkinshaw v Diniz [2000] 2 All ER (Comm) 237 Ware and De Freville Limited v Motor Trade Association [1921] 3 KB 40 Weinberger v Inglis [1919] AC 606 Wenlock (Baroness) v River Dee Co (1887) 365 CH D 675 West Bromich Albion Football Club v El Safty [2006] EWCA Civ 1299 White v Kuzych [1951] AC 585 Whittle Movers Ltd v Hollywood Express Ltd [2009] EWCA Civ 1189 Wilander and Novacek v Tobin and Jude [1997] 2 Lloyds Rep 296 Wilander v Tobin (No 2) [1997] 2 CMLR 346 Williams and Cardiff RFC v Pugh, interim injunction proceedings, 23 July 1997 Popplewell J; 1 August 1997, CA; application for stay hearings 17 March 1998 Buckley J, [1999] Eu LR 195 Williams v Carwardine (1873) 4 B & Ad 621 Wood v Woad (1874) LR 9 Ex 190 Yarmouth v France (1897) 19 QBD 647 Young v Ladies Imperial Club Ltd [1920] 2 KB 523

13 United States: Anthony v Syracuse University 224 App Div 487, 231 NY Supp 435 (1928) Archer v Society of the Sacred Heart of Jesus (1905) 9 OLR 474 AT & T Technologies, Inc. v Communications Workers, 475 US 643 (1986) Baltimore & Ohio Railway Co v. United States 261 US 592 (1923) Beaty v Lessee of Knowler 29 US (4 Pet) 162 (183) Behagen v Amateur Basketball Association of the United States 884 F 2d 524 (10th Cir 1989), cert denied 495 US 918 Blalock v Ladies Professional Golf Association 359 F Supp 1260 (ND Ga 1973) Bohn Manufacturing Co v Hollis 55 NW 1119 (Minn SC, 1893) Century Indemnity v Certain Underwriters at Lloyd’s 2009 584 F 3d 513 (3d Cir 2009) ChampionsWorld LLC v U.S. Soccer Federation Inc 726 F Supp 2d 961 (ND Ill 2010) Charles O Finley & Co v Kuhn 569 F 2d 527 (7th Cir) cert den 439 US 876 (1978) Chevron USA Inc v Natural Resources Defense Council Inc 467 US 837 (1984). Citizens to Preserve Overton Park Inc v Volpe 401 US 402 (1971) Commercial Union v Gilbane Building 992 F 2d 386 (1st Cir 1993)

269

Compania Espanola de Petroleos, S A v Nereus Shipping, S A, 527 F 2d 966 (2nd Cir 1975), cert denied, 426 US 936 (1996), 973 Continental Insurance Co v Polish Steamship Co 346 F 3d 281 (2d Cir 2003) Continental U.K. Ltd. v Anagel Confidence Compania Naviera, S.A, 658 F.Supp. 809, 813 (S D N Y 1987) County of Santa Clara v Southern Pacific Railroad 118 US 394 (1886) Crouch v National Association of Stock Car Auto Racing Inc 845 F 2d 397, 400 (2d Cir 1988) CTS Corp v Dynamics Corp of America 481 US 69 (1987) Czarina ex rel Halvanon Ins. v W.F. Poe Syndicate, 358 F 3d 1286 (11th Cir. 2004) Denver Rockets v All-Pro Management 325 F Supp 1049 (CD Ca 1971) Eckhart v Heier 162 NW 150 (SD 1917) Eleven Line Inc v North Texas State Soccer Association Inc 213 F 3d 198 (CAS Tex 2000) Elizabeth Hospital Inc v Richardson 167 F Supp 155 (WD Ark 1958), aff’d 269 F 2d 167 (8th Cir), cert denied 361 US 884 (1959) Energy Transport Ltd and Cabot v Oilman, 10 December 2004, United States District Court, Southern District of New York, no 03 Civ 4193 in (2005) 30 YBCA 1006 Exchange Mut Ins Co v Haskell Co, 742 F 2d 274 (6th Cir 1984) First Options of Chicago, Inc. v Kaplan, 514 U.S. 938 (U.S. S.Ct. 1995) Gatlin v U.S. Anti-Doping Agency, Inc, Order, June 24, 2008. Case No. 3:08-cv- 241/LAC/EMT; 2008 WL 2567657 (ND Fla 2008) Gilder v PGA Tour Inc 727 F Supp 1333 (D Ariz 1989), affirmed 936 F 2d 417 (9th Cir 1991) Gordon v New York Stock Exchange 422 US 659 (1975) Hotchkiss v National City Bank 200 F 287 [S D N Y 1911] Import Export Steel Corp v Mississippi Valley Barge Line Co, 351 F 2d 503 (2d Cir 1965) Jes Properties inc v USA Equestrian Inc 458 F 3d 1224 (11th Cir 2006) Koszela v National Association of Stock Car Auto Racing Inc 646 F 2d 749, 754 (2d Cir 1981) Lawson v Hewell 118 Cal 613, 50 Pac 763 (1897) Lee v Yano 93 Haw 142, 997 P 2d 68 (Intermediate Ct App 2000) Levant v Whitley, 755 A 2d 1036 (DC App 2000) Linseman v World Hockey Association 439 F Supp 1315, 1322 (D Conn 1977) Los Angeles Memorial Coliseum Commission v National Football League 726 F 2d 1381 (9th Cir), cert. denied, 469 US 990 (1984) Marbury v Madison 1 Cranch 137; 5 US 87 (1803)

270

Matter of Arbitration Between Keystone Shipping Co. and Texport Oil Co, 782 F Supp 28, 31 (S D N Y 1992) Mayer v Journeymen Stonecutters’ Association 47 NJ Eq 519 20 Atl 492 (Ch 1890) Mayfield v NASCAR 674 F 3d 674 (4th Cir 2012) McCarthy v Azure 22 F 3d 351 (1st Cir 1994) Michels v U.S. Olympic Committee 741 F 2d 155, 156, CA Ill, 1984 Minera Alumbrera Ltd v Fluor Daniel (1999) WL 269915 (SDNY 1999) Mitsubishi Motors Corp v Soler Chrysler Plymouth Inc, 473 US 614, 105 S Ct 3346 (1985) Motor Vehicle Manufacturers’ Association v State Farm Mutual Automobile Association 463 US 29 (1983) Munn v Illinois 94 US 113 National Basketball Association v SDC Basketball Club Inc 815 F 2d 562 (9th Cir 1987). NCAA v Board of Regents of University of Oklahoma 468 US 85 (1984) Parsons College v North Central Association, etc, 271 F Supp 65 (ND Ill 1967) Parsons v Trask (1858) 7 Gray 473 Peonage Cases (ED Ark 1905) 136 F 707 Pollock v Williams (1994) 322 US 4 Progressive Casualty Insurance et alia Co v CA Reaseguradora Nacional De Venezuela, 30 September 1992, United States District Court, Southern District of New York, No 91 Civ 4580 (CSH) and 6 April 1993, United States Court of Appeals (2d Cir), (1994) 19 YBCA 825 Randolph v Leeman, 129 Ind App 134, 146 NE 2d 267 (1958) Remy Amerique, Inc v Touzet Distribution, SARL, XIX YBCA 820 (1994) 823 (SDNY, 16 March 1993) Reynolds v IAAF [1992] 841 F Supp 1444, 1452 (S D Ohio) Roth v Robertson 118 NYS 351 (Sup Ct 1909) Silver v New York Stock Exchange 373 US 341 (1963) Slaney v International Amateur Athletic Federation 244 F 3d 580 (7th Cir 2001) Smith v Pro Football Inc 593 F 2d 1173 (1978) St Louis, Iron Mountain & St Paul Railway Co v Paul 173 US 404 (1899) State of North Dakota v North Central Association, 23 F Supp 694 (ED Ill 1968), affirmed 99 F 2d 697 (7th Cir 1938) State; Ex rel. Givens v Marion Superior Court, 233 Ind 235, 117 NE 2d 553 (1954) STP Corporation v United States Auto Club 286 F Supp 146, (S D Ind 1968)

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Supreme Council of the Order of Chosen Friends v Forsinger, 125 Ind 52, 25 NE 129, 9 LRA 501 (1890) Tonya Harding v USFSA [1994] 851 F Supp 1476 Trautwein v Harbourt 40 NJ Super 247, 123 A 2d 30 (App Div), cert den 22 NJ 220, 125 A 2d 233 (1956) Trustees of Dartmouth College v Woodward 17 US (Wheat) 518 (1819) United States Fidelity & Guaranty Co v West Point Constr Co 837 F 2d 1507 (11th Cir 1988) United States v Doe 465 US 605 (1984) United States v EL du Pont de Nemours & Co 351 US 377 United States v White 322 US 694 (1944) United Steelworkers v Warrior & Gulf Navigation Co, 363 US 574 (1960) US Aprons, Inc v R-Five, Inc, 676 F Supp 2d 837 (D Neb 2009) USADA v Bruyneel and others, AAA Panel decision dated 7 June 2013 Wilson Realty & Const Inc v Asheboro-Randolph Bd Of Realtors, 518 SE 2d 28 (NC App 1999)

14 West Indies Demerara Turf Club v Phang (1961) 3 WIR 456

C Legislation

1 Australia: Associations Incorporation Reform Act 2012 (Vic)

International Arbitration Act 1974 (Cth)

Competition and Consumer Act 2010 (Cth)

Corporations Act 2001 (Cth)

International Arbitration Act 1974 (Cth)

Olympic Insignia Protection Act 1987 (Cth)

2 Brazil: Arbitration Law

3 China: Arbitration Law

272

4 Canada: Arbitration Act 1991 (Canada)

Canada Business Corporations Act 1985

Consumer Protection Act 2002, S O 2002, c 30

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273

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Minerva Access is the Institutional Repository of The University of Melbourne

Author/s: Freeburn, Lloyd Douglas

Title: Power, legal authority and legitimacy in the regulation of international sport

Date: 2017

Persistent Link: http://hdl.handle.net/11343/197924

File Description: Power, legal authority and legitimacy in the regulation of international sport

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