Romania's court of sports arbitration: establishment, competences, organization and functioning *.

Voicu, Alexandru Virgil

Introduction

Arbitration is not a novelty in Romania. Modern judicial institutions began the process of their establishment and development from the 19th century onwards and this process was eased by the political and social regime as it emerged under the Organic Standing Order. (1) In 1865, the rules concerning ad-hoc private law arbitration were amended in Book 4 of the Code of Civil Procedure (Arts. 340-371). Of this amendment, 18 provisions were inspired by the civil procedural law of the Canton of Geneva dating from 1819, 5 provisions derived from French civil procedural law as it was laid down in 1842, and 8 were based on relevant general principles. (2)

This amendment of private law arbitration remained largely unchanged, despite minor modifications in 1900 and in following years, and even in the 1948 provisions of the Code, up until the year 1993. However, between 1948 and 1990 the amendment was never applied to domestic issues, but only to cases involving foreign rights. Still, the spirit of both private law arbitration and of commercial rights has always been present, both before and after the world war periods, and continues to be present today. (3) For this reason, I fully agree with the proposal made by Mr Octavian Morariu, who was the former President of the National Agency for Sport, during the enactment of the law concerning the prevention and proof of doping in sport and of the law concerning the organization and functioning of the National Disciplinary Committee for Sport to rename the Committee as the Court of Sports Arbitration, but the proposal was rejected on the basis of "arguments in connection with the Ministry of Justice".

Court of arbitration for sport

The need to introduce an arbitration institution especially intended for resolving conflicts arising as a result of sports activities caused the 1983 proposal of IOC President E.S. Juan Antonio Samaranch to become reality in the shape of a "court of arbitration, that would operate with a legal department directly or indirectly related to sport". (4) Therefore, taking into account that organized sport "cannot pretend to be unconnected with the legal order", (5) the Court of Arbitration for Sport (CAS) was established with its headquarters in Lausanne, Switzerland.

Sports impact on the most diverse areas of society and as such may give rise to a variety of conflicts, ranging from conflicts of a "strictly sporting" nature to conflicts concerning economic matters. In light of this, the CAS has a general competence to hear all disputes which may arise during or after sports activities and in connected fields, e.g. conflicts arising out of sponsorship contracts, management contracts, contracts between organizers and advertisers, contracts concerning TV broadcasting rights, service contracts, employment contracts, violations of the World Anti-Doping Code, hooliganism, doping test procedures and penalties, (6) etc.

The CAS's involvement results from an arbitration agreement which is concluded either before or after the dispute arises. The CAS may act as the first instance to hear a case if the parties concerned request this. The CAS may also act as the last instance in cases where the dispute first has to be brought before the judicial bodies of a sports federation, a National Olympic Committee, etc. The CAS operates using a simple and clearly defined procedure which allows a decision to be rendered and executed as swiftly as possible; only in cases in which the problem is of an exclusively property law nature will the parties involved have to contribute towards procedural costs in accordance with a prior agreement, but in all other cases the CAS renders its services for free. In the exercise of its functions the CAS is completely independent from the IOC. In order to achieve the swift resolution of disputes arising from sports activities, but also to save the considerable costs involved in hearings before ordinary courts, many federations and national and international associations have provided a special clause in their statutes stating that the CAS is the exclusively competent appeals body to review decisions of the sports bodies' internal judicial organs. Even the IOC has decided that in certain cases disputes concerning IOC decisions under the Olympic Charter may be resolved through arbitration before the Court of Arbitration for Sport (Olympic Charter, Chapter II, Article 19, point 4). The CAS Statute in addition to the regular arbitration procedure also provides for accelerated reconciliation proceedings upon the request of either party and with the consent of both parties.

The need to introduce sports arbitration

Obviously, there are many more judicial bodies worldwide involved in sports arbitration which are too numerous to describe here. Suffice it to say that the expansion of professional sports often necessitates some kind of review of the sports organizations' decisions which affect the rights of private individuals. It is to be expected that such disciplinary bodies have the necessary experience concerning the regulations applicable in their particular sport, but they do not always have the required knowledge of criminal law, private law, employment law, tax law, social security law, etc. (7) Participants in sports activities are and should also be subjects of legal rules applying to all citizens. The fact that he or she is a famous athlete or that a sports club may act as a legal person does not absolve those in breach of state laws or public order of liability under the law. Violations of the sporting rights of others cannot be justified by simply brandishing the term "sport" or "athlete". For this reason, the positive need has emerged to bring into existence courts of arbitration for sport, even if they go by a different name, like the National Disciplinary Committee for Sports in Romania.

The National Disciplinary Committee for Sport (NDCS)

Legal form and headquarters of the NDCS

The NDCS was established by law no. 551 of 30 November 2004 concerning the organization and functioning of the National Disciplinary Committee for Sport. (8) According to the Article 1 of this law the NDCS is organized and functions as a deliberation body of the National Agency for Sport without individual legal personality, but independently applying the judicial competences attributed to it under Article 2 of the law. The NDCS operates on the basis of regulations concerning its organization and functioning which have to be approved by an order of the President of the National Agency for Sport. The NDCS has its headquarters inside those of the National Agency for Sport, i.e. in Vasile Conta Street no. 16, sector 2, Bucharest.

Jurisdiction of the NDCS

The Committee is competent to hear appeals against decisions in the last instance when all other remedies have been exhausted. These decisions may originally have been made by internal disciplinary committees or other organs with disciplinary duties that are part of the national sports federations' organizational structures, by district associations or by the municipality of Bucharest concerning sport, by professional leagues and by the Olympic (and Sports) Committee. The Committee is further competent to hear appeals against decisions of the National Committee of Action against Violence under Article 2(1). According to Article 2(2) the Committee may hear appeals on the following types of violations: a) non-compliance with provisions of the statutes and regulations of the sports organization when such non-compliance is punishable through penalties imposable by the internal disciplinary committee; b) unsportsmanlike behaviour or attitude or gestures of aggression against referees, fellow athletes, officials or spectators; c) public statements by leaders, technicians, referees or athletes which may inspire team or spectator violence; d) unjustified absence from competitions when called upon to play in a national team; e) manipulation or modification, directly or through another person, of sports equipment resulting in a violation of technical requirements irrespective of the particular area of sport; f) unauthorized participation or non-participation in or backing down from any contest or competition; g) any other violations that fall within the competence of the internal disciplinary committee.

The jurisdiction of the NDCS under paragraphs 2 and a) may be invoked by any interested party and appeals may be lodged within 15 days from the publication of the contested decision.

The procedural rules under which the Committee can hear appeals are to be approved by an order of the President of the National Agency for Sport. From the moment when the Committee has been seized of a case the procedure becomes mandatory. Appeal against the decision lies to the administrative law section of the Court of Bucharest within 15 days from the decision's publication. If the parties do not opt to make use of the resolution procedure before the Committee they can submit the case to an ordinary court in accordance with the general rules of law under Article 282(2) ("the decisions of judicial bodies concerning objections against the decisions of public judicial authorities and other judicial organs are not open to appeal unless the law states otherwise") and Article 299(3) of the Code of Civil Procedure (paragraph abrogated by point 45 of Article I of Law no. 219 of 6 July 2005 concerning the Government's approval of the emergency ordinance (receiving order) no. 138/2000 for the modification and completion of the Code of Civil Procedure, published in the Official Monitor, Part I, no. 609/14 of July 2005).

NDCS staff

The Committee has 61 members. Members of the Committee must be natural persons and in addition must fulfil all of the following requirements: a) be a Romanian national; b) have sufficient mastery of private law; c) have an impeccable reputation; and d) be licensed to practice law or hold a diploma in legal sciences or in physical education and sport or have known experience in sport.

It is further stipulated that in order to be lawfully established at least 21 of the NDCS's members must have studied law, i.e. roughly one third (Article 3(3) of law no. 551/2004).

NDCS members are appointed in accordance with the rules of procedure along the following lines: a) 25 members are appointed by the National Agency for Sport; b) 10 members are appointed by the Romanian National Olympic Committee; c) 15 members are appointed by the national Olympic sports federations; d) 8 members are appointed by the national non-Olympic sports federations; e) 2 members are appointed by the professional leagues; f) 1 member is appointed by the National Academy of Physical Education and Sport. NDCS members are granted a conference allowance of 25% of the economic middle income for each conference, to a limit of 50% per month.

Directorate Council of the NDCS

The Committee is led by a Directorate Council consisting of 7 members. Committee and Directorate Council members are given a four-year mandate. This mandate can be renewed only once. Any member of the NDCS appointed in accordance with the requirements set out above can be a member of the Directorate Council. Membership of the Directorate Council is divided as follows: a) 3 members from the group appointed by the National Agency for Sport; b) 1 member from the group appointed by the Romanian National Olympic Committee; c) 1 member from the group appointed by the national Olympic sports federations; d) 1 member from the group appointed by the national non-Olympic sports federations; e) 1 member from the group appointed by the professional leagues.

The Directorate Council has the following tasks: a) validate the composition of panels; b) adopt all the necessary measures for the parties' procedural protection; c) fulfil any other functions as mentioned in law no. 551/2004 or in the NDCS regulations. The Directorate Council is headed by a president, who is assisted in the fulfilment of his duties by a vice-president.

The president of the Directorate Council's main task is the organization of the panel and the administration involved in the submission to and hearing by these panels of cases. The vice-president of the Directorate Council assists the president in the fulfilment of these duties and may also lawfully deputize for him. The president and vice-president are elected from among and by the members of the Directorate Council by secret ballot.

The Committee's secretariat is provided by the National Agency for Sport taking into account the maximum number of employees it is allowed to have and the amount set aside for salary expenses under the Agency's budget. The secretariat has the following tasks: a) receiving and recording requests, memorandums and documents from the parties in accordance with the law and the NDCS regulations; b) archiving documents received; c) ensuring the circulation of documents for the formation of the panel and obtaining acceptance forms and compatibility statements from the parties in respect of the panel members nominated by them; d) taking care of the necessary formalities for convening the Directorate Council; e) fulfilling any other tasks under the law or the NDCS regulations.

The Directorate Council are called by the president to meet twice a year or however many times necessary. The Directorate Council is lawfully convened if at least half of its members plus one are present. Decisions of the Directorate Council are adopted by the majority vote of the members present.

The Committee hears appeals in panels of 3 members. Panels are formed as follows: 2 members are appointed by the president of the Directorate Council upon the proposal of the parties to the dispute, while the third member who is also to act as president of the panel, is appointed by the president of the Directorate Council on his own initiative. Only members of the Committee can be nominated and appointed as panellists.

Incompatibilities

Committee members cannot be nominated or appointed as panellists when they have a personal interest in the outcome of the dispute. Members of the Directorate Council can only act as panellists in panels hearing challenges of regular panel members. The parties are to deposit their nominations for panel members from among the Committee members at the secretariat. The secretariat then requests from the nominees an acceptance form and a statement of compatibility. Declarations are given at the members' own responsibility, but are scrutinized by the Directorate Council. In case incompatibilities are stated or found to exist or a member does not accept his/her nomination, the parties are so notified by the secretariat and the nomination procedure is repeated for the party whose member was incompatible or refused the nomination. The verification of compatibility for the president of the panel is also carried out by the Directorate Council based on the same principles. Within 5 working days from the date of acceptance by and verification of the compatibility of all panel members proposed by the parties, the president of the Directorate Council validates the formation of the panel. Apart from through the prior compatibility screening described above, parties may at any time during the proceedings up to the expiry of the fixed period after which deliberations are to begin challenge any member of the panel in accordance with the NDCS regulations. Challenges are decided by members of the Directorate Council.

Expenses and taxes

The Committee's functioning expenses are paid from the state budget, through the budget of the National Agency for Sport. The Committee's dispute resolution services are exempt from tax.

Regulations for the organization and functioning of the NDCS

In accordance with Article 13 of law no. 551/2004, the regulations concerning the organization and functioning of the NDCS (9) and the NDCS rules of procedure (10) were approved by an order of the president of the National Agency for Sport, "within three months of the law's entry into force".

Final provisions

Within 6 months from the law's entry into force, the national sports federations, district associations and the Bucharest municipality, sports clubs, professional leagues and the Romanian National Olympic Committee had to begin bringing their statutes into line with law no. 551/2004.

After 6 months of the law's entry into force any decisions rendered by the internal disciplinary committees or similar bodies of sports organizations in cases that according to the new law fall within the jurisdiction of the NDCS shall be null and void.

Conclusions

The establishment of the National Disciplinary Committee for Sport in Romania will certainly contribute to bringing sport further within the reach of the law. In addition, decisions concerning sport rendered by the Committee or by ordinary courts as the case may be will contribute to the formation of a body of case law and doctrine, which is essential for bringing sport within the framework of civilized behaviour and good morals, within the limits of the law and legal responsibility.

(1) Fischer-Galati, St., Giurescu, C. D., Pop, I. A., "O istorie a romanilor", Fundatia Culturala Romana--Centrul de Studii Transilvane, Cluj-Napoca, 1998, pp. 202-204.

(2) Ciobanu, V. M., "Tratat teoretic si practic de procedura civila", Vol. II, Editura National, Bucuresti, 1997, p. 595 si urm., cu trimitere la Popa, M., Ciobanu, V. M., Aspecte privind arbitrajul ad-hoc, Revista de Drept Comercial nr. 1/1991, pp. 25-26.

(3) Ibidem, p. 595, cu trimitere la Vasilescu, P., "Tratat teoretic si practic de procedur a civila", Vol. IV, Iasi, 1939, pp. 98-218.

(4) Gilbert Schwar, Tribunalul de Arbitraj al Sportului, in "Primul seminar juridic. Legislatia Sportiva in Europa: Evolutie si armonizare, Moscova--19-20 septembrie", Comitetul Olimpic Roman, Centrul de Cercetari pentru Probleme de Sport, Bucuresti, 1992, pp. 130 si urm.

(5) Ibidem.

(6) Andrea Pinna, The Trial and Tribulations of the Court of Arbitration for Sport--Contribution to the Study of the Arbitration of Disputes concerning Disciplinary Sanctions, The International Sports Law Journal (ISLJ) 2005/3/4 pp. 8-17.

(7) "Study on national sports legislation in Europe", Council of Europe Publishing, F-67075 Strasbourg Cedex, 2. 5. 3., lucrare tradusa si editata in l. romana de Centrul de Cercetari pentru Probleme de Sport, Bucuresti, 2000.

(8) Legea no. 551 din 30 noiembrie 2004 privind organizarea si functionarea Comisiei Nationale de Disciplina Sportiva, publicata in Monitorul Oficial al Romaniei, Partea I, no. 1.161 din 8 decembrie 2004.

(9) Ordin no. 207 din 27 mai 2005 pentru aprobarea Regulamentului privind organizarea si functionarea Comisiei Nationale de Disciplina Sportiva, publicat in Monitorul Oficial al Romaniei, Partea I, no. 601 din 12 iulie 2005.

(10) Ordin no. 208 din 27 mai 2005 privind aprobarea Regulamentului de procedura al Comisiei Nationale de Disciplina Sportiva, publicat in Monitorul Oficial al Romaniei, Partea I, no. 601 din 12 iulie 2005.

by Alexandru Virgil Voicu **

* Paper presented at the conference organized on the occasion of the 80th anniversary of the Faculty of Physical Education and Sport Sciences of the Semmelweis University, Budapest, 26-28 October 2005.

** Professor at the Babes-Bolyai University, Faculty of Physical Education and Sport, Cluj-Napoca, Romania.