The Plural Remedy Mechanisms for Sport Disputes: In International and Comparative Law Perspectives (Abstract of PhD graduation thesis)
 
郭树理
【关键词】Sports Law, Sports Disputes, ADR
 
　　Sports dispute is one of the common social phenomena all over the countries, the reasonable and effective resolution of which will be of great significance to guarantee the normal development of the sports. It is as well valuable to do the research into the resolution of the sports dispute for the extension of the inter-discipline lex sportive from the point of subject.　

　　The general relationship between sports and law is firstly analyzed for the examination of the resolution of sports dispute in that most of the sports disputes are resolved under the legal frame. Both of them have a diversity of historical sources from their origination and some connections between them are determined by such common elements as their derivation from certain custom or taboo, the close relation between their origination and religion and war, the common historical process from custom to written rules of their modes of rule, and the like. What’s more, they also have some common characteristics from their basic elements—rites, tradition, authority and universality. Sports rules and legal rules, however, are not identical, for there are great differences in their objects regulated, their scope of application, their concrete contents and their formation and enforcement respectively. On the other hand, the appearance of sports legal rules is also the result of co-activity between sports rules and legal rules. It is a tendency to draw a separate code for sports according to the current practice of sports law legislation in some countries. The author puts forward a broad and plural conception of lex sportive, that is, the generalization of custom and usage created by the parties of sports themselves (including the sports associations) that are used to regulate the sports relationship between them. Such a kind of rules have the characteristics of plurality, autonomoty, professionality, internationality, culturality, traditionality and non-public enforciablity, some of which become part of national sports laws and regulations by the way of the process of national sports legislation and have the public enforciablity.　

　　The sports dispute itself is defined in the following from the perspective of legal sociology and sports sociology as a kind of tense social relation arising from the disputes of distribution of benefit as well as right and duty between the subjects in the sports. The sports dispute has some similarities as other kinds of disputes (e.g. political dispute, racial dispute, civil dispute, criminal dispute, etc) which are the particularity of the subject; the opposability of the subject’s benefit as well as the dynamic characteristic of the process of the dispute, besides, the sports dispute has its own particularities as technical, professional, culture-dependent and public.　

　　The sports dispute and sports order can be found to have some relativity and mixture considering the influence of the sports dispute from their relation .The basic elements of the sports dispute include the parties, the behavior and the subject-matter of the dispute and its relevant elements include the social sports institution, the direct reason of the sports dispute and the grades of its remedy mechanism. There are different sorts of sports disputes according to various standards and the most typical kinds are the disputes from the fans’ riot and the use of drugs. Because of the complexity of its kinds and nature as well as the advantage and disadvantage of its different resolution mechanisms, every country adopts the way of combining the internal remedy of the sports associations with the external remedy of the sports organizations (mediation, arbitration, action) to resolve the sports dispute and there is a tendency of pluralization of the development of the remedy mechanism of it.　

　　In the comparative part an examination is made of the practice of the sports dispute remedy in Britain, the United States, Germany, Italy, Greece, Netherlands, Japan, Belgium and Sweden. The British law has a very strict requirement of the substance and procedure of the internal remedy mechanism of the sports associations. Though the British courts are cautious to hear the cases out of the sports dispute, especially on the judicial review of the association’s decision, it is an unarguable fact that there are more and more sports disputes litigations, in which the injunction is one of the most effective weapons for the parties. The advantage and successful practice of sports arbitration in Britain maybe make it the most principal and effective remedy for British sports disputes; In the United States the internal remedy of the sports associations is usually through internal arbitration which to some extent safeguards the justice of the dispute-relieving process, and the external remedy of the sports trade is usually by the way of sports arbitration (external arbitration ) almost all of which are in the charge of the American Arbitration Association (AAA).The American courts are also cautious to hear the sports cases, especially those about the judicial review of the sports associations’ decision, however, the sports litigations are still on the rising in the courts; The situation in Germany is that there is generally an arrangement of three instances in the internal remedy mechanism of the sports associations and the only remedy for the parties in most of the stipulations is to resort to the internal remedy of the sports association, ousting the court’s jurisdiction. Nevertheless, when adjudicating the sports disputes the German courts often regard them as “justiciable controversy”, not subject to the principle of maintaining the autonomy of the sports organizations while exercising their jurisdiction, and there are many judicial interventions into the sports disputes. In the case of Italy the Italian National Olympic Committee plays a fairly great role in the remedy mechanism of sports dispute. In addition, the Italian law makes a strict distinction whether the internal remedy of sports associations (most are internal arbitrations) is a formal or informal arbitration, the court can take a full judicial review of the decision of the latter and it is unnecessary to exhaust the internal remedy of the sports organizations before the parties bring an action in the court. The greatest particularity of the sports dispute remedy mechanism in Greece lies in the establishment of the Supreme Council for the Resolution of Sport Disputes, an administrative institution to adjudicate all the sports disputes. In Netherlands the internal remedy of the sports associations must be exhausted before the resort to the judicial remedy, and also the arbitration committee in Dutch Football Association has its particular practice in dealing with the disputes out of the players’ transition; Most of the sports disputes in Japan are resolved by the sports associations and only a few are adjudicated in the courts. Separate sports arbitration system is being set up in Japan at present; In Belgium a special sports arbitration institution, namely the Belgian Sports Arbitration Committee has been set up to hear the sports disputes and every sports associations (e.g. the Belgian Football Association ) also has its own internal arbitration mechanism (e.g. the Arbitral College of the Belgian Football Association). The sports disputes in Sweden are almost resolved by means of the internal remedy of the sports associations with an exception of the sports disputes concerning the labor relationship over which the Swede courts have an exclusive jurisdiction.　

　　Such conclusions can be drawn from the above comparisons that the common law countries put more emphasis on the procedural justice than the civil law countries in the remedy mechanism of sports disputes and they have different judicial interventions with the sports dispute remedy, owing to the different legal theories and practice in the two legal systems. The main way by which the sports disputes are resolved is not similar either in the countries with different modes of sports management and traditions of legal culture. The universal trend emerging in the current practice of sports dispute remedy in western countries include the plural developments of the sports dispute remedy mechanism , higher and higher demand of the internal remedy mechanism of sports associations (disciplinary penalty mechanism included ), manifest increase of sports litigations as well as sports arbitration having been the most effective remedy for sports disputes.　

　　In the international part the practice of judicial remedy for sports disputes in European Court is examined with a discussion of the application of EU treaties and laws in the sports field mainly from the perspective of substantial law. The current trend is EU acknowledges that the sports trade should maintain its own culture on one hand, but on the other hand EU insists that as a commercially-operated trade it should observe the EU treaties and laws. A research is also made of the international sports arbitration system of the Sports Arbitration Tribunal established by International Olympic Committee and the conclusion is the arbitration mechanism in the Court of Arbitration for Sport (CAS) is the most effective remedy for international sports disputes and the Tribunal can be the center of harmonizing and uniforming the contradicting sports dispute remedy mechanisms. As to the possible conflict between the arbitral procedure of the ad hoc arbitration court set up by the CAS and China’s national arbitration system during Beijing Olympic Games 2008, the author’s suggestion is that the problems be regulated through separate legislation.　

　　The nature of the sports associations is firstly analyzed in the national part because in most of the sports disputes it is one of the parties and it has its own dispute relieving mechanism. In the author’s view the relations between the sports associations and its member are mainly the relations of service, benefit representation and administration. The sports associations acquire their power from the following three ways: the authorization of national law, the entrustment of government and contract or de facto contract. The associations regulations whose effect derives from the autonomous power of the sports associations have something to do with and are also different from the national laws and they are likely to get the same compulsory and binding force as national laws by the national recognition and protection in the modern world.　

[1] [2] 下一页