THE CASE FOR SPORTS LAW ARBITRATION AND PRACTICE IN SINGAPORE

• Author: Warren B CHIK LLB (Hons) (National University of Singapore), LLM (IBL) (University College London, LLM (ICL) (Tulane University); Advocate & Solicitor (Singapore), Solicitor (England & Wales), Attorney & Counsellor at Law (New York); Assistant Professor of Law, Singapore Management University
• Published date: 01 December 2007
• Citation: (2007) 19 SAcLJ 267
• Date: 01 December 2007

As Singapore aspires to domestic excellence and international glory in sporting achievements, its sports administration infrastructure will also have to mature in line with its policy objectives to grow the sporting industry. The area of dispute resolution is ripe for a change to ensure that sports disputes are properly and efficiently managed, given the unique nature of such conflicts. This article will present the current sports scene in Singapore and make the case for the establishment of a framework for sports law arbitration to deal with most, if not all, sports disputes.

I. Introduction

1 Singapore is a small country with limited natural resources. In its early days of independence, the policy focus was on the growth of niche industries that will sustain the country’s existence and ensure its economic survival. Hence, the emphases in the transportation and transhipment service sectors, finance and technology, and now education and tourism activities. It is always the case that with economic prosperity comes a new vision of social realization. Now that Singapore has acquired de facto First World economic status on the basis of its per capita income and standard of living, concerns that have previously taken a backseat to economic interests have begun to take on prominence in government policies geared towards the development of a stronger national identity and pride.

2 In the sporting arena, Singapore is beginning to hunger for success and recognition. Sports have never really featured so prominently until only about decade or so ago, and even then it was mostly confined

to a few sports, namely swimming and football. Hitherto, sporting achievements were a poor cousin to other forms of professional distinction and a sportsman’s career is relatively short and not well paid. In more recent years, there has been an accelerated drive towards promoting sporting excellence in the form of scholastic,1 cash2 and citizenship incentives.3 There is a clear drive towards making Singapore a force in regional sports events with a view to its debut in the international sports scene. It is not that national pride can be bought, but rather that it can be the reward for an investment well made.

3 Currently, the sports administrative infrastructure in Singapore consists of the Ministry for Community, Youth and Sports (“MCYS”),4 the Singapore National Olympic Council (“SNOC”),5 the Singapore

Sports Council (“SSC”),6 and the individual National Sports Associations NSAs7 for each sport as well as a gumbo of other associations, organizations and clubs depending on the sport in question.8 Those form the national super-structure for sports. As most domestic NSAs derive authority and legitimacy over their sport from their respective international organizations or federations, there is another layer of administration on the international plane. Moreover, even with respect to government-linked sports authorities like the MCYS and the SSC, their necessary involvement with regional and international games, tournaments and competitions, such as the South East Asian Games9 and the Olympics,10 require their participation, cooperation and other forms of interaction with the organizations or institutions that govern them.

4 The regional or international super-structures for sports usually involve an International Federation (“IF”),11 or a regional body, whether an affiliated sub-organization or independent,12 for the oversight of every aspect of the sport in question.13 These IFs or their equivalent will have a comprehensive organizational structure and authoritative documents governing the NSAs, organizations or clubs. The other type of superstructure involve those organizations that administer sporting events, whether single-sport or multi-sport, such as the International Olympic Committee (“IOC”),14 which is an international games, and the organizers of the Southeast Asian (“SEA”) Games, which is a regional games.

5 There is no legislation specifically dealing with sports in Singapore.15 The rules and regulations on sporting activities in Singapore are set out by the respective sports authority, which can be an international set of rules, a domestic set of rules or a combination of both. For example, for football (or soccer), the rules are set out under the “Law of the Game” produced by the Fédération Internationale de Football Association (“FIFA”).16 Domestically, there is another layer of regulations

for NSAs set out by the government-linked bodies, the Ministry for Community Development and Sports (“MCDS”) and the SSC, on 15 February 2003 known as the Code of Governance for National Sports Associations (“the Code”). All NSAs go to the SSC for official recognition and must follow the Code in order for them to obtain funding. These provide for corporate governance and a dispute appeals process under the respective individual NSA.

6 Since all sports are played according to a set of rules and the individual organizations are subject to certain regulations, disputes may follow over whether the rules or regulations have been breached. For example, for domestic competitions, the decision of a referee, umpire or judge may be challenged; a rule or procedure involved in a competition may be flouted with disciplinary consequences for the sportsperson; or contractual clauses between an athlete with the association, organization or club may be invoked in a dispute. Generally, the private NSA or event organizer will deal with matters relating to competition decisions or discipline as well as administer and interpret the relevant rules. In most cases, tribunals, boards or juries are specifically formed to deal with such matters and appeals, if any. The private dispute resolution body must act impartially and independently, and observe natural justice and due process, or its decisions may be challenged in the courts.17 For contractual disputes, these remain under the purview of the public court system.18

7 With the drive towards developing competitive sports in Singapore, the types and number of issues relating to the regulation of sports and disputes between and amongst athletes and sports associations, organizations and clubs are bound to increase concomitantly. There have been such disputes in Singapore, some of which have received media coverage. In particular, disputes involving athletes are mainly contractual disputes, for instance, relating to sponsorship or funding contracts,19 and foreign talent contracts.20 For example, a dispute could be over the interpretation of contractual terms relating to the rights and obligations of the parties, such as the athlete’s eligibility to participate in events.21

II. The need for a domestic sports arbitral body

8 The current dispute resolution mechanisms and processes towards resolving sports disputes are disparate and inadequate. There can also be problems of perception as to the independence and impartiality of a dispute resolution mechanism that is associated with or lies within the

sports body that can be an interested party to a dispute. There is a case to be made for the establishment of a domestic arbitration system and procedure tailor-made for sports disputes with limited recourse for international dispute resolution bodies. There are many reasons why arbitration is the most suitable dispute resolution mechanism to resolve sports disputes.

A. Why arbitration

9 There is already a global trend towards promoting alternative dispute resolution (“ADR”) processes as complementary substitutes to court litigation in order to better meet the specific needs of the subject matter in dispute and to relieve the burden on the public court system.22 In some instances, the court system has even incorporated mediation and arbitration into its processes, whether mandated under law or voluntarily through party agreement. In specialized areas of commercial transactions, such as in the construction industry and in the maritime or investment sectors, the use of arbitration to resolve disputes and differences has risen in prominence. Expert arbitrators, often drawn from an experienced list

of panelists with a credible arbitration institution, have resulted in the consistent treatment of cases and generally fair and equitable decisions, despite the lack of binding precedents under the law of arbitration.

10 The increased use of ADR in general also arose from the desire on the part of disputants to reduce costs, time and expenses; to reach resolutions more suited to their wants and needs (such as helping to maintain amicable relationships); and to reduce the reliance on hard law and the participation of lawyers. Similar considerations apply to sports disputes. It has even been argued that the arbitration system should be extended to resolve tort claims,23 although this has yet to achieve widespread acceptance. The reality is that in sports, as in many other areas of transaction, alternative dispute resolution has increasingly taken over a “market share” of disputes.24

(1) Current system is inadequate

11 Currently, sports disputes are often first dealt with under the internal processes of the NSA. As it is a decentralized system, inconsistencies and arbitrariness are like to arise. Bringing disputes and differences before a body that is part of the structure of, or that is affiliated with, one of the parties also gives rise to problems relating to the real or perceived lack of independence and impartiality of the body in question. “One possible conflict-of-interest problem is…[i]f dispute resolution is largely left up to the sports associations or bodies closely related to them, the body that applies sanctions might be the same as, or

closely associated with, a party to a dispute.”25 An analogy can be made to the history of the Court of Arbitration for Sport (“CAS”).26

12 Briefly, the CAS, which was created by the IOC in 1983 to resolve sports-related disputes, faced...