Sports Arbitration Tribunal – mandatory arbitration, possibility of appeal
Right of access to the courts;
Principle of effective jurisdictional protection;
Right of appeal;
Independence and impartiality of arbiters.
RULING No. 230/13
24 of April of 2013
The norm which created a Sports Arbitration Tribunal (TAD), as an independent jurisdictional entity with exclusive competences, and which did not admit appeals to a state court against decisions on the merit of the case in mandatory arbitration proceedings was unconstitutional, because it violated both the right of access to the courts and the principle of effective jurisdictional protection – rights which the Constitution affords to all citizens in order to enable them to defend their legally protected rights and interests.
It is not acceptable for the state to delegate powers of authority to a private entity, thereby operating an organic privatisation of the Public Administration in its role as the executor of a certain public task, and for it to simultaneously renounce any jurisdictional control by state courts over the merit of administrative decisions taken within the legal framework of that delegation of competences.
Where what is at stake is mandatory arbitration, it is even more evident that there must be provision for a means of appeal to a state court when the issue is not one of mere private-law relations, or of mere administrative legal relations in which the parties are on a par with one another, but rather legal relations derived from the exercise of powers of authority.
The President of the Republic asked the Constitutional Court to conduct a prior review of the constitutionality of a norm contained in the Law governing the Sports Arbitration Tribunal (TAD). The norm required parties to submit to arbitration and prohibited them from seeking mediate access to the state courts in order to defend their legally protected interests. The norm would thus have meant that it was impossible to appeal against decisions given within the scope of a mandatory TAD arbitration process.
The challenged norm gave the TAD both mandatory and voluntary arbitration competences. The former encompassed disputes arising from acts and omissions of federations and other sports bodies and professional leagues, as well as appeals against decisions taken by disciplinary bodies of sports federations, or against Portuguese Anti-Doping Authority (AAP) decisions with regard to breaches of anti-doping regulations.
The list of TAD arbiters was to be drawn up by the Sports Arbitration Council (CAD, which forms part of the TAD’s organisational and functional structure), with CAD free to choose both the first level of arbiters and those who compose the TAD’s appeals chamber.
In general terms the acts undertaken by sports federations in the exercise of their powers to regulate and discipline sporting activities are subject to the administrative jurisdiction. This is a logical consequence of the public nature of the powers the state entrusts to them when it grants the public-interest status that in turn gives a sports federation the sole competence to exercise regulatory and disciplinary powers in relation to a given form of sport – powers that are characterised as being of a public nature. These days it is widely accepted that the administrative courts are the ones with the competence to hear cases regarding the decisions taken by sports federations in the exercise of public powers, except when what is at stake is a purely sporting question – i.e. one that results from the application of the “rules of the game” and where the decision cannot be qualified as an administrative act because it does not constitute the expression of a public power.
Administrative jurisprudence has sought to operationalise the concept of strictly sporting questions in order to define the scope of the administrative courts’ own competence in the field of sport-related justice. In particular, the Supreme Administrative Court (STA) is restrictively interpreting the concept of the constitutional right of access to the courts in such a way as not to hear questions that are entirely sporting matters, while retaining within the jurisdiction of the state those decisions that undermine or negatively affect fundamental rights, rights which the holders are not free to dispose of, or legal assets which are protected by legal norms other than those strictly related to sporting practices. The STA’s jurisprudence emphasises that decisions of sporting entities which might potentially undermine or negatively affect key values that form structural elements of the legal order cannot be removed from the jurisdiction of the state.
The work of arbitration tribunals, to which the Constitution expressly refers, is equivalent to a true private exercise of the jurisdictional function.
The Constitutional Court said that the express recognition in the Constitution of the existence of arbitration tribunals means that the legislator can create them in order to judge certain categories of dispute, thereby obliging the citizens involved in such matters to resort to this jurisdictional conflict-solving path. However, it said that one must deduce consequences from the fact that mandatory arbitration has nothing to do with the autonomous will of the parties. If a dispute is submitted to mandatory arbitration, the decision to resort to the arbitration jurisdiction derives from the legislative act that makes it compulsory, and the interested parties are precluded from gaining access to either state jurisdiction or voluntary arbitration.
The Court said that resort to a state court is the primary form of access to the law, and that this reservation of jurisdiction serves as the basis for the possible imposition of limits on the formation of arbitration tribunals. The right of access to the courts is a logical corollary of the tendency to resolve conflicts via the state courts.
The question here is whether the guarantee of access to the courts can be fulfilled by means of an arbitration-based jurisdiction in a way that always excludes re-examination of the case by a state court, regardless of the nature of the rights and interests at stake.
The Court took the view that, except in cases in which jurisdiction pertains exclusively to the state courts, it may be permissible for the right of access to the courts to be assured only at the appeal level and for the first stage of the resolution of a dispute to be handled by other powers. In such a case, one would be talking about a partially exclusive jurisdiction. The inability to appeal against arbitration decisions represents a clear violation of the right of access to the courts, not only because these are decisions that are taken as a part of a mandatory arbitration process, but also given the nature of the rights and interests in play and the fact that we are in the presence of an exercise of delegated powers of authority.
What is more, the way in which the norm proposed that arbiters be appointed limited the parties’ freedom – when it is precisely in that individual act of appointment that we find the material grounds for the subjection of a certain category of dispute to a legally required arbitration jurisdiction – and the president of the tribunal could hand down a decision on a provisional resolution of the dispute without any need for acceptance or agreement by the parties. These circumstances configure limitations on the parties’ self-determination and undermine the requisites of independence and impartiality that are imposed on an arbitration tribunal. As such, the inability to bring an appeal against an arbitration decision before an administrative court also represents a breach of the principle of effective jurisdictional protection.
For these reasons, the Court found the norm before it to be unconstitutional.
One concurring and one dissenting opinion were attached to the Ruling. The dissenting Justice took the view that the fundamental right of access to the courts – a right that is linked to the reservation of the jurisdictional function to the courts – is not guaranteed solely by means of access to the state courts. In her opinion, although the TAD was not a state court, the fact that its creation resulted from a legislative act and not a private-law private legal transaction, meant that its typically public nature was undeniable.
Rulings nos. 230/86 (08-07-1986); 52/92 (05-02-1992); 757/95 (20-12-1995); and 262/98 (05-03-1998).