The Court of Arbitration for Sport (CAS) is an independent institution, based in Lausanne, involved in resolving legal disputes in the field of sport.

The increase in the financial aspect in sport is giving rise to a whole new cluster of legal disputes.

It is not outrageous to assume that the more money finds its way into sport, then athletes, clubs and federations may end up being short-changed. Therefore, a legal solution is required to safeguard the interests of all involved.

However, in matters dealing exclusively with sport, are the civil and criminal courts always appropriate to resolve such disputes?

The international scene in recent years has shown that the answer to this question is a simple ‘no’ and there are various reasons why.

First, a case in a civil court can take years to conclude.

When one considers that a professional athlete’s career, injuries permitting, spans up to a maximum of ten to 15 years, it is understandable that such individuals cannot afford being stuck in a court case relating to disciplinary infringements or a breach of contract.

Likewise, a sports federation cannot wait too long to take disciplinary action against one of its members for infringements of regulations.

Secondly, having a case heard by a judge who has the knowledge in a particular sporting discipline depends solely on luck.

Moreover, the legal basis under which the ordinary courts can decide on sports cases is not so straightforward. Decisions of sports federations are not subject to judicial review as these are not public entities but private organisations.

In fact, the only basis under which a case related to a sports dispute can be heard in court is under contract law. Members of a sports organisation voluntarily submit to the regulations of that sports organisation. This creates a contractual link between that member and the sports entity and therefore sports disputes are to be treated as being of a civil nature.

Having said this, one need only look at the backlog of the Civil Court to understand the argument for brevity.

Having a specialised national sports arbitration tribunal reaps advantages.

Being an arbitration tribunal makes it undoubtedly faster than the ordinary court, as much of its existence depends on the rapidity by which it can decide cases. It is also much cheaper, since the brevity of cases mean less legal fees.

Also, a sports arbitration tribunal may be more inclined to invite the disputing parties to find an amicable solution rather than passing judgement, since a sports tribunal would not be tied to the strict formalities of civil or criminal procedure.

However, most importantly, a sports tribunal would be composed of judges, or arbitrators, that would be experts in the field of sport.

Many countries have been sensitive to this issue and have acted years ago.

In Italy, all sports organisations, members of the Italian Olympic Committee, can refer their disputes to the Tribunale Nazionale dell’ Arbitrato per lo Sport, which serves as an arbitration tribunal for contractual disputes related to sport in Italy, and as a final court of appeal for disciplinary cases.

From an international perspective, one must mention the popularity of the international Court of Arbitration for Sport... a final court of appeal for international sporting disputes and being an arbitration tribunal in its own right.

The Maltese scenario

Unfortunately, while the law contains dispositions on sports dispute resolution, this subject has been given little or no importance by Maltese governments over the years.

Part VIII of the Sports Act of 2002 carries a whole section dedicated to sports dispute resolution, with the Kunsill Malti għall-Isport (KMS) being tasked with helping athletes and sports organisations reach amicable solution to disputes through mediation, or through mediation with the aid of the Malta Arbitration Centre.

The law also speaks about a Sports Appeals Board, which should be appointed by the government to serve as an appeals body for decisions undertaken by KMS.

However, such a board is practically non-existent and, moreover, it is hard to believe that an athlete will ever rely on KMS to help in the solution of disputes, considering that it is the governmental organisation entrusted with funding Maltese sports federations.

Today, sports disputes in Malta are resolved internally within the structures of our different national associations.

Specialised ‘boards’, established by the members of a particular association, hear disputes related to discipline or contracts and decide according to the regulations of that organisation.

Although, this system has served the Maltese sports movement well through the years, questions have been raised, particularly by athletes, as to the impartiality of such ‘boards’, since the adjudicators are chosen by the association.

This highlights the need for a further appellate tribunal, with no strings attached to Maltese sports associations and recognised under Maltese law. This will make sure that the country is ready for the inevitable surge of disputes that will arise in future as a more professional and financial attitude is overtaking our sporting landscape.

It is to be believed that the establishment of such a national sports tribunal will along the years be considered to be a legacy of that government that opts to take this step.

The legal basis is there, all we need is action.

Note: Chris Bonett is a lawyer specialised in Sports Law. He is currently serving as a vice-president of the Malta FA.