Tuesday, October 4, 2022

Global Administrative Law Can Fix Sports Governance

Varun Nambiar

There is little in common between sports and the law. At first glance, there can scarcely be two more different disciplines. One is a physical and competitive pursuit of athletic people. The other is a calling of somewhat cerebrally inclined individuals – albeit less competitive – who may or may not be athletic. It may then come as a surprise to many that the law plays a role in sports. But as sociologist and philosopher NiklasLuhmann famously wrote, “all collective human life is directly or indirectly shaped by law. Law is an essential and all-pervasive fact of the social condition.” Every sport is played under a set of norms or rules, often loosely labelled the ‘laws of the game.’ Perhaps even more importantly, sports are governed by national and international bodies that claim to run their affairs by law. The question is, which law and whose law?    

Supreme Court of India

This question was at the heart of a recent development between the Supreme Court of India and the Fédération Internationale de Football Association (FIFA), football’s privately-managed non-profit international governing body. Private bodies like FIFA and the International Olympic Committee (IOC) rule the roost as norm-setters in international sport, and together with the Switzerland-based Court of Arbitration for Sport (CAS), they sit at the head of a system that claims autonomy and virtual immunity from legal intervention or scrutiny by other legal orders such as national courts.

FIFA claim

On August 26, FIFA announced that it was lifting its suspension of the All India Football Federation (AIFF), following the Supreme Court’s decision to end the mandate of the Committee of Administrators (CoA) it had appointed to manage the AIFF. The announcement eased fears of India missing out on hosting the FIFA under-17 women’s world cup, scheduled for October.

Earlier in the month, FIFA announced that it was suspending the AIFF because of what it characterised as ‘undue third party influence’ exercised by the Supreme Court in appointing the CoA. The apex court appointed the CoA as an interim body following the removal of Praful Patel as AIFF President. Its mandate was to run the AIFF pending the finalisation of a constitution and the completion of elections to the AIFF Executive Committee.

It is evident that FIFA’s decision to suspend the AIFF, and the threat to take away hosting rights for the under-17 women’s world cup, forced the Central Government’s hand into moving an application requesting the Supreme Court to end the CoA’s mandate, and the Court obliged. In other words, a private body headquartered in distant Switzerland tried to dictate to India how the AIFF, registered in India under the Societies Registration Act, 1860, should be run. Surely, this cannot be legal? The answer is complicated.

Lex Sportivaand legal autonomy

Articles 56, 57 and 58 of the FIFA Statutes (May 2022 edition) stipulate that FIFA members shall recognise the CAS as the only entity with jurisdiction to hear appeals from FIFA legal bodies and resolve disputes. FIFA Statutes prohibit recourse to ‘ordinary courts of law.’ Per Article 19, the Supreme Court’s order to constitute the CoA was a third-party intervention not recognised by FIFA law.

Emblem of All India Football Federation

FIFA’s statutes and regulations, together with those of other international sports governing bodies, form part of ‘Lex Sportiva’ or ‘Global Sports Law.’ Lex Sportiva is an autonomous transnational legal order established by international sporting federations based on their statutes and regulations, as interpreted by institutions of alternative dispute resolution, such as the CAS, created or authorised by federations.

Lex Sportiva is a private order that derives its legitimacy by contract and consent. It brings uniformity in sports governance transnationally by claiming legal autonomy. International sporting bodies like FIFA and the IOC argue that Lex Sportiva is, in essence, a ‘law without a State,’ immune from State regulation and national courts because it is a separate legal order in its own right.

Autonomy has allowed international sporting bodies to claim effective immunity from review by national courts and enabled them to maintain a degree of self-governance and non-accountability that is arguably unrivalled, even by intergovernmental organisations such as the United Nations and the European Union, which have treaty guarantees from national governments conferring immunity.

Recent developments show that Global Sports Law’s claims of autonomy have put it in the crosshairs of a political struggle between global private regulatory bodies and national governments and courts. This tussle has also put the spotlight on the need to balance self-regulation with public accountability.

Accountability deficit

The world over, national sports governing bodies have been accused of corruption, malpractice, ​​lack of transparency, and ineffective management. This has prompted national governments and courts to take matters into their own hands to fix sports governance and hold these bodies accountable. Such efforts have almost always attracted the ire and disapprobation of international federations like FIFA and the IOC.

Many countries’ national courts have hesitated to challenge the monopoly enjoyed by bodies like FIFA. These jurisdictions are reluctant to apply what they view as public law principles of accountability to private rule-making bodies. This is especially true in the UK, where the courts have shown a deferential attitude and refused to extend judicial review to the decisions of sporting federations (for example, the 1993 decision in R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan).

Where courts have attempted to hold national sporting federations accountable, such as in Nigeria and Pakistan, FIFA and other international sporting federations have retaliated. For instance, in 2014, the Nigeria Football Federation (NFF) was banned by FIFA after a national court order had compelled the Nigerian government to appoint a senior civil servant to take over the administration of the NFF.  The NFF approached the CAS, which ruled that FIFA acted legitimately within its powers to deny the recognition of the court-appointed administration and that FIFA’s ban on the NFF did not constitute an appealable decision. Similarly, when a court-appointed administrator took over control of the Pakistan Football Federation (PFF) in 2017, FIFA suspended Pakistan for violating its rule on non-interference.

Thomas Bach, re-elected as president of International Olympic Committee till 2025

A few years earlier, Poland’s parliament tried to address allegations of corruption in the Polish Football Association, which relied on public money. FIFA and the Union of European Football Associations (UEFA) resisted by asserting the autonomy of sports associations and threatening to strip Poland of its right to host Euro 2012. Poland, like India in 2022, ultimately relented.

The ability of these private regulatory bodies to claim autonomy and de facto immunity from national courts and the jurisdiction of States, in general, has raised more than a few eyebrows. Critics point out that many national sports federations around the world are run as personal fiefdoms, and the backing of international sporting bodies gives corrupt national federations carte blanche to misgovern and remain unaccountable to the public at large.

With the commercialisation of world sport and the professionalisation of athletes, leaving sports governance at the mercy of private clubs unaccountable to anyone for their far-reaching decisions is problematic. It has implications for the labour rights of individual athletes and human rights in general.

Allegations of human rights violations have plagued the FIFA World Cup scheduled to be held in Qatar later this year. In 2016, a report submitted to FIFA authorities by Professor John Ruggie alluded to concerns over conditions for workers building world cup stadia in Qatar. It highlighted the possibility of FIFA’s private regulatory regime’s legal autonomy endangering substantive justice. The report also called upon FIFA to embrace a ‘good governance’ culture over ‘good-looking governance,’ indicating glaring accountability shortcomings. FIFA’s accountability deficit is emblematic of a larger malaise affecting national and international sporting federations across the board.

Sports federations not beyond judicial review

The jury is still out on how the accountability deficit in global sports governance can be bridged. Some have suggested an endogenous approach involving a voluntary embrace of rule of law and accountability standards by international and national sporting bodies coupled with submission to national jurisdiction. Ruggie, for example, argued that organisations like FIFA should reassess the exemptions they seek from national laws, at least to the extent of human rights-related cases.

It is unrealistic to expect the likes of FIFA and the IOC to voluntarily give up their autonomy and monopoly over what is an increasingly lucrative sporting ecosystem. Ultimately, the onus of holding sports governing bodies accountable must fall on the shoulders of governments and courts. The scope of judicial review, in particular, is extensive. The Supreme Court has held that judicial review applies to all public functions carried out by a sporting body. In BCCI v. CAB (2015), the Supreme Court ruled that judicial review can also lead to the supplanting of the internal processes of a sports governing body.

However, as the Nigerian example referred to in the previous section illustrates, judicial review by a national court may not pass muster at the Court of Arbitration for Sport. For this reason, any national court exercising its power of judicial review over a sports governing federation would do well to buttress its judicial reasoning by relying on the body of transnational legal principles embodied in what is often referred to as ‘Global Administrative Law (GAL).’

Global Administrative Law

Many commentators have identified GAL as a potential restraint on the self-governing autonomy of sports federations. International sporting bodies’ transnational private regulatory regime has assumed constitutional and administrative functions comparable to those discharged by public administrative bodies in domestic law. They are not simple private societies held together only by contractual obligations. As authorities discharging public functions at a global level, it is only fair to expect these privately-run regulatory bodies to be held accountable based on globally accepted standards.

The task before national courts is regulating, organising and limiting these transnational bodies, many of which have pre-existing constitutional regimes with quasi-legal instruments such as the Olympic Charter or the World Anti-Doping Code. Courts can achieve this by injecting GAL principles into these sporting federations’ decision-making, rule-making and adjudicative structures.

GAL is a form of transnational law and, therefore, different from international law (which is essentially a product of State action on the international plane). It is enforced by domestic courts claiming jurisdiction over institutions of global governance by applying principles of administrative law in a global context. The plurality of authorities and sources means that there is, as yet, no universally-accepted ‘final word’ on the sources or content of GAL. However, several emerging principles have widespread acceptance in legal literature and are considered to form the ‘minimum content,’ or core, of GAL.

GAL incorporates both substantive and procedural justice norms. It underscores the need for access to justice and the right to a remedy against the arbitrary actions of public administrative bodies. Core GAL principles include transparency, stakeholder participation in the day-to-day governance and rule-making, a robust system of internal review with strong procedural guarantees of a fair hearing, and reasoned, independent and impartial decision-making in writing.

National courts can draw upon GAL principles to promote accountability in sports governance. For example, the stakeholder participation principle can be applied to safeguard athletes’ interests, often undermined by the top-heavy organisational structures of sports bodies dominated by politicians and bureaucrats. Similarly, courts ought to be able to compel federations to be transparent in their dealings to minimise financial corruption.  

Time for intervention

The strong-arm tactics resorted to by FIFA to threaten India into falling in line are symptomatic of a bigger problem in sports governance. International sports federations and their national counterparts have been virtually immune to judicial scrutiny. Unfortunately, sovereign States appear to have been rendered powerless in the face of these private regulatory bodies. It may be time for national courts, such as the Supreme Court of India, to put the proverbial foot down and adopt an interventionist approach.

Instead of relying only on domestic administrative law, national courts could serve the cause of legal certainty and predictability by applying (and expounding on) the principles of administrative law accepted globally. Large global sporting bodies are bound to resist any attempt to impose fetters on their autonomy and threaten countries with suspensions, bans and cancellations of major events. Regardless of the coercion, national governments and courts must stand their ground and fix public accountability in sports by being proactive. In the long run, losing out on hosting a world event or two might be a small price to pay if it can lead to efficient and accountable domestic sports governance.

Varun Nambiar
Varun Nambiar
Varun Nambiar is a lawyer and research scholar. He is a doctoral candidate at South Asian University, New Delhi. His research area is international law, and he writes on law and international affairs, global governance, the accountability of international organisations, geopolitics and human rights.

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