Keeping Sports Out of Courts: Philippine Sports Arbitration (Part I)

by: Mickey Ingles

The Short Version

 This is going to be the first of a series of posts advocating for the establishment of a sports arbitration tribunal in the Philippines. And for those who wish to skip everything and get down to the gist of it, here it is: the Philippines needs a sports arbitration tribunal.

Why? For a number of reasons!

First, sports arbitration is a faster, more flexible, and more affordable way to settle sports disputes.

Second, sports arbitration allows “people in the know” (i.e. people who are actually knowledgeable in sports) to settle disputes. This leads to the third advantage…

And that’s declogging courts by offering a new venue to settle sports disputes. Our overworked judges will love that.

Okay, that’s the basic thrust of this three-post series. If you have more time to read and learn about sports arbitration, then go ahead. If you don’t, then, um, can you just share this series so we can have more readers? LOL.

As this series will be pretty lengthy, I divided it to three parts. The first part gives a brief overview of sports arbitration. The second part talks about the current state of sports arbitration and sports dispute resolution in the Philippines. And the last part outlines a possible sports arbitration structure and how we can possibly make it happen in the next couple of years.

And since I only have 24 hours in one day (and 8-9 hours of that is spent sleeping and another 2-3 hours is spent in traffic), we’ll release each part every week. That also allows us to meet our two-three post per month quota!

Ready to take the dive? Great. Let’s start with a story then. Two stories actually. One about a young boy named Jose Yabut, Jr. The other about an Olympian named Apolo Ohno.

Tale of Two Athletes

In 1983, Jose Yabut, Jr. joined a soap box derby race organized by the Philippine Soap Box Derby, Inc.[1] Before one of his races, race officials discovered that Yabut had a weight in his back pocket. Apparently, Yabut’s pop gave it to him to make his racer go faster. Officials disqualified young Yabut from continuing. (That’s not him in the feature picture, by the way.)

The father demanded an investigation. The derby officials refused. Distraught from the disqualification and humiliated because he was the representative of one of the race sponsors, the father filed a complaint for damages against Philippine Soap Box Derby, Inc. The case reached the Philippine Supreme Court (SC). The SC ultimately found for Philippine Soap Box Derby, Inc., stating that courts generally may not substitute its judgment for those made by officials in sporting competitions. It also stated that legal notions should not intrude into sporting events, lest every decision of referees or umpires be subject to judicial review.

The race was held on July 3, 1983.The SC decision was promulgated on October 27, 1995. From race day until promulgation, 12 years had elapsed! That might not seem like a long time considering how cases are decided in the country, but for a simple question over a decision of race officials? That’s pretty darn long.

Get this: when the decision finally came out, the country had already experienced the assassination of Benigno Aquino, the EDSA Revolution, and the drafting of a new Constitution. The case spanned three presidents (Marcos, Aquino, and Ramos). And more importantly, by the time the SC finally ruled that young Yabut was correctly disqualified, he wasn’t young anymore. He was 22!

Now for our second story. It also involved a disqualification, but in a grander scale: the final of the 2002 Salt Lake City Winter Olympics 1,500-meter short track skating event. [2] On February 20, 2002, Korean skater Kim Dung-Sung crossed the finish line ahead of American Apolo Ohno. However, Kim’s joy of finishing ahead was soon turned to anguish as he learned that the Lead Referee disqualified him for breaking a skating rule—improper crossing to another racer’s lane. Ohno won the coveted Olympic gold medal.

It was a big “Oh No!” moment for Kim. (#titojokealert)

The following day, the Korean Olympic Committee (KOC) protested the incident to the International Skating Union, arguing that the Lead Referee should have called for a re-run and that the Lead Referee’s decision on the track was a result of public pressure. On that same day, the International Skating Union denied their protest.

The next day, the KOC appealed the decision to the Court of Arbitration of Sport (CAS) Ad Hoc Division for the Salt Lake Olympic Games. In its decision, the Ad Hoc Division simply stated that “CAS Panels do not review ‘field of play’ decisions made on the playing field by judges, referees, umpires, or other officials, who are responsible for applying the rules or laws of the particular game.”[3] The award was rendered on February 23, 2002.

You do the math. That was, yup, three days after the contested race.

While two cases differed in remedies sought (damages in the former, a re-race in the latter), the question was the same—who was the real winner? And interestingly, both were decided under the same ground—non-intrusion of legalities in reviewing “field of play” decisions. And yet, the time it took to decide the cases was shockingly different: twelve years versus three days.

The facts were also practically the same: an athlete disqualified by a sports referee, a subsequent protest, an appeal, and a final decision. But what was so different between the two cases that would create such a disparity in the period to grant relief?

The difference lies in the adjudicating body. The Soap Box Derby Case was decided by the regular courts and appealed all the way to the Supreme Court. The Korean Speed Skating Case was initially decided by a sporting association and then appealed to the CAS Ad Hoc Division, an arbitration committee formed by the CAS specifically for the Olympic Games.

Advantages of arbitration

The two cases highlight three advantages of arbitration when it comes to sports disputes: speed, efficiency, and expertise. And that’s why we need it. We don’t want sports disputes to end up in the courts for three reasons.

First, our courts are pretty slow. No offense to our robed heroes and heroines who work their butts off, but that’s just the nature of the beast. And if the case is challenged all the way up the Supreme Court, it’ll probably take a decade or so to be put to rest. Just ask the Philippine Soap Box Derby folks. Twelve years! Really?

Second, it’s expensive. Think of the filing fees. Think of the paperwork. Think of the money you have to shell out for a lawyer. And dear lord, think of the traffic going to court.

Third, judges might not be the best folk to settle sports disputes. Not because they’re incompetent (which they aren’t), but because sport disputes are probably not within their sphere of expertise. To settle disputes effectively, we need those who have at least a working knowledge of the sport in question—better even if they’re experts—in the same way we have justices in the Court of Tax Appeals who know the ins and outs of the National Internal Revenue Code.

We want sports disputes resolved quickly and efficiently. Sports arbitration offers just that. Olympic medals and soap box derby trophies are at stake, people!

To put it in simpler terms, imagine you’re a basketball coach and you need a point guard who’s fast, efficient, and can read the game better than anyone to solve a pickle you’re in. You have two choices: Russell Westbrook and me. Who you got? (Disclaimer: I suck at basketball.)

Hold up there, brotato chip, what’s arbitration anyway?

In its simplest terms, arbitration is a manner of settling disputes outside the courts. Instead of judges, arbitrators (who are normally chosen by the parties themselves) rule on the disputes. Arbitration proceedings are less formal than court procedures and are more flexible, allowing parties to dispense with the strict Rules of Evidence. This makes it a quicker alternative than going through the tedious effort of litigating in court. The SC has recognized arbitration as the “wave of the future”[4] because “they provide solutions that are less time-consuming, less tedious, less confrontational, and more productive of goodwill and lasting relationships.”[5] That’s a Friendster-worthy testimonial if there ever was one![6]

One important point to know though is that resolving disputes through arbitration is strictly governed by contract. It’s purely voluntary between the parties to enter into arbitration. Hence, parties usually include a provision in their contracts that any disputes arising from the contract will be resolved through arbitration.[7] That’s called an “arbitration clause.” Without an arbitration clause, a party can’t compel the other to settle their dispute via arbitration. They’ll have to go to court instead. (And like we said, we don’t want that. Remember Russell Westbrook, people!)
Sports arbitration is, as the name suggests, more specific. It settles sports disputes outside the courts.

gollum 1.jpg
Oh, didn’t know you were a sports law fan, Gollum.

In the Philippine legal context, there is, at present, no definition for what constitutes a “sport dispute.” Both the law creating the Philippine Sports Commission (PSC)[8] and the constitution of the Philippine Olympic Committee (POC)[9] don’t have a definition for “sport/s”, let alone “sport disputes.”

The Code of Sports-Related Arbitration (CAS Code)[10] doesn’t define it straightforwardly as well. The CAS Code does define the instances or disputes which can be brought under its jurisdiction. These are disputes which “may involve matters of principle relating to sport or matters of pecuniary or other interests brought into play in the practice or the development of sport, and generally speaking, any activity related or connected to sport.”[11]

Breaking it down, sports disputes cover three areas:

  1. Those which “involve matters of principle relating to sport,”[12]
  2. Those which “involve matters of pecuniary or other interests brought into play in the practice or development of sport,”[13] and
  3. Those arising from “Any activity related or connected to sport.”[14]

That’s a pretty expansive definition that can cover everything from issues arising from selection and eligibility (i.e. an athlete claiming he or she met the requirements to be part of the national team but was still left off the team), doping (Maria Sharapova!), match-fixing, conduct on and off the field, transfer contracts (think transfer fees of soccer players in Europe) and disqualifications (like the Korean Skating Case).

You’re using a definition from the CAS, but you haven’t explained what the CAS is. What kind of professor are you?!

Hold your horses! I was just getting to that point.

The Court of Arbitration of Sport (or the Tribunal Arbitral du Sport, if you’re inclined to speak French) is the head honcho of sports arbitration. It sits all the way in shores of Lake Geneva in Lausanne, Switzerland, and was established way back in 1984 by the International Olympic Committee (IOC). In a nutshell, the CAS derives its jurisdiction from—yes, you guessed it—arbitration clauses or dispute resolution clauses in sports contracts. The Olympic Charter and the World Anti-Doping Code also refer all disputes to the CAS.

The CAS is the reason why Maria Sharapova’s doping disqualification was reduced to 15 months (check out CAS Head of Research Despina Mavromati’s take on the case here), why Oscar Pistorius was able to use his blades during the 2012 London Olympics, and International Association of Athletics Federations (IAAF) Hyperandrogenism Regulations are considered discriminatory.

The CAS operates via a network of underlying sports contracts, a prime example of how arbitration depends largely on contracts (just like what we talked about earlier). Imagine you’re a Philippine track star who was disqualified for a false start in the finals of the 2020 Olympics. You want to protest and argue that some goombah in the crowd popped a balloon and you thought the starter’s gun went off. Can you bring the dispute to the CAS?

 

goombah
That’s a goombah, by the way… at least according to Super Mario Bros. the movie.

 

Yes, you can! A chain of contracts places the dispute within the jurisdiction of the CAS. You probably signed a contract with the Philippine Olympic Committee as a Philippine Olympian (#pinoypride!), which in turn has an agreement with the IOC that all sports disputes arising from the Olympics will be resolved by the CAS. So, that’s how it works.

The CAS has a closed list of more than 300 arbitrators that parties can choose from. These arbitrators are well-respected lawyers from all around the world. They are experts in their respective fields. The Philippines has one arbitrator in the CAS panel, and it’s none other than my pop: Enrico Ingles (#proudson). He was a member of the CAS Ad Hoc Division in the recently concluded 2016 Asian Beach Games in Vietnam.

 

gollum 2.jpg

Fine! Don’t get all meme-y on me. I admit, that was pretty long, and even my head is swimming like a pickle in a jar of brine. But if there are two essential take-aways (is that a word?) from this week’s post, remember these: first, sports arbitration is a viable (even better) way to settle sports disputes; second, it won’t have any life without an underlying contract.

Remember these two nuggets and you’ll be all set for next week as we talk about the existing sports dispute resolution structure in the Philippines.

Mickey Ingles is the editor-in-chief of Batas Sportiva. He won’t feel bad if you do choose Russell Westbrook. 


 

[1] This is actually a Supreme Court cas! If you want to read the full text, check out Philippine Soap Box Derby v. Court of Appeals, G.R. No. 108115, October 27, 1995.

[2] Arbitration CAS ad hoc Division (OG Salt Lake City) 2002/007, Korean Olympic Committee (KOC) v. International Skating Union (ISU), CAS Awards – Salt Lake City 2002 & Athens 2004 65 (award of 23 February 2002)

[3] Id., at 71.

[4] BF Corporation v. Court Appeals, 288 SCRA 267 (1998)

[5] Id.

[6] If you don’t get the Friendster reference, then… umm… you’re pretty young.

[7] An Act to Authorize the Making of Arbitration and Submission Agreements, to Provide for the Appointment of Arbitrators and the Procedure for Arbitration in Civil Controversies, and for Other Purposes [The Arbitration Law], RA 876 (1953).

[8] An Act Creating and Establishing the Philippine Sports Commission, Defining its Powers, Functions and Responsibilities, Appropriating Funds Therefor, and for Other Purposes, RA 6487 (1990).

[9] Philippine Olympic Committee Constitution and By-Laws, available at http://www.olympic.ph/consti.html.

[10] Code of Sports-Related Arbitration (2016). [hereinafter CAS Code].

[11] CAS Code, R27.

[12] Id.

[13] Id.

[14] Id.

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