The sports world has been explained in previous articles to be governed uniquely. Within the world of sports, a pyramidical structure typically exists with international federations sitting at the helm, overseeing confederations and national federations. Athletes are mostly at the bottom of this strata but are arguably the most important people in the sports world.
International federations exist to ensure that there is uniformity and consistency in sports. In the European and Football framework, the power of international federations is wielded more authoritatively because there exists a strong disincentive of ostracization of National teams who refuse to subject themselves to the hierarchy. If as a national authority, you do not implement FIFA’s guidelines you risk being kicked out from FIFA, and this is something many countries do not want for several reasons. This is not exactly the case with the USA and Basketball for instance. FIBA is the leading Basketball authority and is recognized by the IOC, but the NBA operates its league outside the purview of FIBA and even has several rule deviations, like 2 minutes longer quarters and relaxed defensive rules to facilitate high-level entertainment.
The main questions we seek to answer here are the following. First, how exactly does the IOC, FIFA, WADA, and other international federations, operating a unique and insulated but global applied system, manage to command conformity of athletes? e.g. How exactly does a Premier League athlete, consent to FIFA’s regulations which for instance mandate that all football disputes should be deferred to CAS? Or how is an athlete competing at the Olympic games in any way subject to the anti-doping regulations of WADA?
INTERNATIONAL SPORTS FEDERATIONS/ORGANIZATIONS
The biggest justification for the existence of international federations is to ensure uniformity and fairness by and large. Without a central authority to regulate the sport, there will be multiple variations of the rules and laws that regulate the game, and while this might seem unproblematic, it could dilute the fan experience, especially in a truly global sport like football. What an organization like FIFA does, is to set the rules of the game and importantly license and regulate the referees who administer the rules of the game, and of course, this creates uniformity and ensures a level playing field guaranteeing the regulations are fair and not biased to one person or group or the other. As illustrated in the preamble, in Basketball, it is more difficult to have a comparison of talent and skills across the competitive spectrum. The NBA applies its own unique rules to maximize entertainment. A quarter is 12 minutes long as opposed to 10 minutes according to the FIBA rules largely implemented in Europe, and there are other subtle rules around goaltending and defending that accentuate scoring and offense, while the FIBA rules appear to allow defenses to be more confrontational and physical.
International federations are usually private organizations that are governed by the domestic laws of which they are resident as well as other adopted rules. These international federations organize competitions and regulate, national federations and athletes from all over the world, and it can be tricky to understand how exactly that is possible, given their status as private organizations and the myriad of conflicting national laws they deal with.
HOW ARE ATHLETES BOUND
International federations make several demands from athletes, ranging from the expectation they should not use performance-enhancing substances, to the requirement that all disputes should be settled by specialized sports courts. With the plethora of laws by which athletes can be bound, there would arise disputes as to implementation and its applicability to each athlete regardless of nationality and other factors. In some cases, they are unaware of all these rules and laws.
An athlete can be bound by various forms of regulations through legal mechanisms such as contracts, licenses, or entry forms (which may all serve as or be called contracts).
1. Licenses: Every player/athlete requires some form of a license to compete in their respective sports. These licenses would require athletes to undertake certain terms. Many of which include undertakings to respect and be bound by the federation’s rules, undertaking to submit any dispute to the Court of Arbitration for Sports (CAS), and undertaking to be bound by Anti-Doping rules among others. These undertakings or regulations contained in these licenses, for instance, are governed by private
In European football, for example, athletes are not members of national associations or federations, but football clubs are. For players or athletes to be allowed to compete professionally they must be issued licenses that are not issued directly to players but their clubs on their behalf. Clubs then have the power to transfer this right to compete if their economic terms are met and the players give their consent. A license is then effectively a contract with a player which is mandatory and unnegotiable. Licenses contain specific clauses where players outrightly consent to be subject to the laws that govern the game and the governing federations. They also effectively consent to the authority and jurisdiction of organizations like CAS and WADA and sometimes permit the usage of their private data.
2. Contracts: Contracts are also signed outrightly between leagues and players. The premier league for instance requires players to sign a contract, which contains provisions obliging players to certain responsibilities, as well as clubs. The contract also outrightly stipulates that the players submit to the jurisdiction and power of the FA and consent to its rules which are in tandem with the rules and regulations of FIFA as is a requirement for all FIFA members.
3. Entry Forms: Entry forms are specifically used for tournaments or competitions. The IOC for instance put in place an entry form for the Olympic games. The form essentially stipulates that competing athletes consent to the power of the IOC and the Olympic Charter. When entry forms are in place, athletes cannot compete without signing them.
In most cases, if not all, athletes would not be allowed to participate in competitions organized by these international federations if they do agree or consent to be bound by the rules of the competition. The rules are non-negotiable and are usually worded lengthily in layers of rules. Many athletes sign these documents without reading in most cases and some have claimed to not be aware of some of these rules. These also come in the form of entry forms to competitions.
WHO IS BOUND BY THE RULES?
In determining who is bound by these rules, CAS in its decisions in Diego Dominguez v. Fédération Internationale de l’Automobile (FIA) stated that all those participating in organized sports are deemed to know that, to ensure a level playing field for all, there are strict anti-doping rules that must be complied with, and they are deemed to be bound by those rules whether or not they have ever explicitly signed up to them, or even read them. The FIA Anti-Doping Regulations (ADR) define international athletes as “Athletes taking part in any Competition registered on the FIA International Sporting Calendar”. Thus, tacit, or implied acceptance of the rules suffices and participation in an FIA International Sporting Code event means that the athlete submitted to the FIA regulations including its FIA Alternative dispute resolution mechanism.
Ignorance of the law or negligence may not be excused and CAS has reiterated that position in FIFA v. Mr. Ricardo Lucas Dodô & (STJD) & (CBF) and WADA v. Mr. Ricardo Lucas Dodô (STJD) &(CBF) where it stated in respect of Anti-Doping rules that to establish that an athlete bears no significant fault or negligence, in addition to the proof of how the prohibited substance came to be present in his/her body, the athlete must prove that their fault or negligence when viewed in the totality of the circumstances and taking into account the requirement of utmost caution, was not significant in relationship to the anti-doping rule violation. It further states that the WADA Code provides that the athlete is personally responsible for the conduct of people around him/her from whom he/she receives food, drinks, supplements, or medications, and cannot simply say that he/she trusts them and follows their instructions. Therefore, negligence is not an excuse.
In the cases above, the CAS held that if national legislation itself expressly states that official sports practice in the country is governed by national and international rules, then international sports rules are directly applicable in that country. Accordingly, any athlete registered with a national federation is directly bound by the international rules accepted by that federation, including any provision therein giving jurisdiction to the CAS. Such instances can be found in the FIFA Statutes. Others include rules such as World Anti-Doping Code. The non-compliance with rules such as World Anti-Doping Code can have serious consequences like non-participation at competitions among other sanctions.
As expected with the application of various laws to individuals from different nationalities, disputes would arise. Claims have been made of human rights violations resulting from athletes being subjected to a series of rules, some of which they are not aware of. In recent years, a lot of attention has been drawn to human rights issues within sports and how to guarantee these rights in the modern world of sports. There have been notable cases over the years such as Dutee Chand v. Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) where the IAAF admitted that their 2011 regulations were prima facie discriminatory rules.
Another notable case is that of Caster Semenya Mokgadi Caster Semenya v. International Association of Athletics Federations (IAAF) & CAS 2018/O/5798 Athletics South Africa v. International Association of Athletics Federations (IAAF), where the applicant’s claimed discrimination against certain women on the basis of sex, gender, and genetics as well as constitutional infringement.
Over the coming years, debates will continue to linger over the application of international rules on athletes and their implementation in the world of sports. The legitimacy of those rules is unquestionable. Opposition voices will however continue to question the moral basis for athletes to be bound by regulations they hardly have a say in, and cant express their opt out power without facing the dire consequence of being ostracized from the sport. Until any change is made especially within Europe, giving athletes a voice akin their American counterparts who frequently negotiate Collective bargaining agreements, it is pertinent for athletes to be conversant with these rules or hire professionals to advise them accordingly as to their rights and other important factors governing their participation at global events.
CAS 2016/A/4772 Diego Dominguez v. Fédération Internationale de l’Automobile (FIA) – https://jurisprudence.tas-cas.org/Shared%20Documents/4772.pdf
FIFA v. Mr. Ricardo Lucas Dodô & (STJD) & (CBF) and WADA v. Mr. Ricardo Lucas Dodô (STJD) &(CBF) – https://jurisprudence.tas-cas.org/Shared%20Documents/1370,%201376-O.pdf
2014/A/3759 Dutee Chand v. Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) – https://www.doping.nl/media/kb/3317/CAS%202014_A_3759%20Dutee%20Chand%20vs.%20AFI%20%26%20IAAF%20%28S%29.pdf
CAS 2018/O/5794 Mokgadi Caster Semenya v. International Association of Athletics Federations (IAAF) – https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf