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Disputes in Sports

Masato Dogauchi
Professor, Faculty of Law, Waseda University; Representative Director, Japan Sports Arbitration Agency

This year is an Olympic Year. Team Japan athletes are being selected for each event, and people's interest in sports is on the rise. The dedicated efforts and outstanding performances of athletes are deeply moving and inspiring. On the other hand, however, disputes and other troubles may arise-athletes objecting to the decisions of sports federations, doping, harassment, and scandals involving the administration of sports federations. The participation of lawyers is required to resolve these disputes. In this article, I would like to introduce one aspect of the relationship between sports and law by discussing the activities of the Japan Sports Arbitration Agency, for which I serve as Representative Director.

The Japan Sports Arbitration Agency

The Japan Sports Arbitration Agency (JSAA)was established on April 7, 2003 by the Japanese Olympic Committee (JOC), the Japan Sports Association (JASA) and the Japan Sports Association for the Disabled (JSAD) to increase the transparency of laws and rules related to sports and promote the sound, smooth functioning of sports by resolving disputes between individual athletes and sports federations through arbitration or mediation. JSAA’s operating costs are covered by special maintenance fees collected by the three founding organizations mentioned above, which provide three million yen per year, as well as general maintenance fees collected by several other organizations, donations from sports manufacturers and other companies, and funding from the proceeds of the Sports Promotion Lottery (toto). The JSAA also receives funds in trust for its operations from the Ministry of Education, Culture, Sports, Science and Technology, bringing the overall scale of its budget to around fifty million yen.

It is crucial that the JSAA be neutral, so its officers (councilors, directors and auditors) are appointed from three categories (sports federations, athletes and neutral parties) in a balanced way. In addition to clerical work related to sports arbitration and sports mediation, the organization is engaged in activities to raise awareness about sports laws among athletes, sports organizations and the general public.

JSAA’s head office is located in the National Yoyogi Stadium. There is only one full-time staff member, with the rest of the staff only coming to work on certain days of the week and working part-time, while the officers of the organization are all unpaid.

Arbitration and Mediation as Ways of Resolving Sports Disputes

Arbitration is a process in which a third-party arbitrator listens to the arguments of both parties in a dispute and issues a binding judgment, based on the agreement (arbitration agreement) of the two parties to resolve the dispute through arbitration. Typical examples of such disputes are when an athlete objecting to the selection of national team members or a disciplinary measure of a sports federation becomes a petitioner and appeals the decision with the sports federation to revoke it, or when an athlete appeals an anti-doping rule violation exposed by the Japan Anti-Doping Agency or sanctions imposed by the first hearing of the Japan Anti-Doping Disciplinary Panel, claiming for revocation.

Even if this kind of dispute is taken to court, there is a high likelihood that it will be regarded as not being a “legal dispute” (Court Act, Article 3) and be dismissed without prejudice. Furthermore, even if an athlete is able to sue the federation, it will take so much time that the competition in question and the athlete’s career will have ended before a decision is reached. Arbitration is therefore used to quickly and appropriately resolve these disputes.

Thus far, the JSAA has handed down arbitration awards for seventeen disputes over issues such as the selection of representative athletes, as well as two disputes over doping.

As a recent example, the selection of the men’s double scull crew to represent Japan determined at the Asian Qualification Tournament for the 2012 London Olympic Games was revoked(http://www.jsaa.jp/award/AP-2011-003.htm).In this case, six athletes participated in ten races in different combinations, and the selection was supposedly made based on the total time of each athlete. Allegedly, however, irregularities occurred; the scores for all of the boats in which Athlete A rowed in the front or back seat were deleted, and once the remaining scores were added up, Athletes B and C were selected to represent Japan. Athlete D, however, filed for arbitration, claiming that the authorization of the irregularities and subsequent processing were out of line and that Athletes D and E should have been selected, as they would have been if all of the records had been counted as originally planned. Putting aside the question of whether or not there were irregularities, the arbitration panel concluded that, even if there had been any irregularities, the subsequent processing of the results lacked a rational basis, and the selection was revoked. (According to news reports, a competition directly pitting Athletes B and C against Athletes D and E was held afterward, and Athletes D and E were selected.)

On the other hand, mediation is a process in which a mediator acts as a third party during discussions between the parties concerned. If the conciliatory mediation is successful, the dispute ends in an amicable settlement; a mediator does not have the authority to issue a binding judgment. This kind of process works well in some sports disputes, as it does in labor disputes with managers and coaches, and it has led to an amicable settlement in three cases so far under the JSAA.

Problems Involved in Handling Sports Disputes

The first problem is that even when athletes file for arbitration, sports federations often refuse to enter into an arbitration agreement (seven cases so far). If it is likely that arbitration will not begin even if one files a petition for it, people become reluctant to file the petition at all. To solve this problem, the JSAA has been working to establish an automatic acceptance clause for sports federations-a provision to the effect that if an athlete who objects to a decision made by a sports federation files a petition for arbitration, the federation will always agree to arbitration. At present, however, the automatic acceptance clause has only been adopted by about 47% of sports federations, even when just the JOC, JASA and their affiliated and semi-affiliated organizations are considered. This figure needs to be increased.

The second problem is that the arbitration and mediation provided by the JSAA are limited to disputes involving top-level athletes. The scope of disputes that JSAA addresses needs to be broadened to include professional sports on the one hand and amateur sports widely enjoyed by the general public on the other.

The third problem, which lies at the root of the second problem, is how to improve the financial side of things. Human and material resources are needed for sports arbitration and mediation. Assuming these expenses amount to at least ten million yen a year and are completely covered by the concerned parties, the cost will come to one million yen per case, provided that ten cases are handled in a year. It would seem that the cost would go down to one hundred thousand yen per case if one hundred cases were handled in a year. But human and material resources would need to be increased to handle that many cases, and so you would never be able to bring down the costs borne by the concerned parties to an affordable level. Thus, the JSAA limits the cost for filing a petition to fifty thousand yen as a matter of policy and covers the rest of the cost with toto funding and membership fee revenue from the JOC and other organizations, as mentioned above. The membership fee revenue needs to be increased to make sports arbitration and mediation a sustainable institution, and winning the support of the professional sports world is especially required.

The Development of New Sports Laws under the Basic Act on Sports

The Basic Act on Sports went into effect in August, 2011. It completely revised the Sports Promotion Act established in 1961. The Basic Act on Sports prescribes items related to the quick and appropriate resolution of sports disputes that were not included in the Sports Promotion Act. These items are, namely, that sports organizations shall strive to resolve sports-related disputes in a timely and appropriate manner, and that the government of Japan shall ensure that the arbitration and mediation of sports-related disputes are neutral and fair, taking any necessary measures to support organizations that provide arbitration or mediation for sports-related disputes, elevate the quality of arbitrators and mediators, promote understanding among sports federations about the process of dispute resolution, and otherwise contribute to the quick and appropriate resolution of sports-related disputes, in order to protect the rights and interests of people who participate in sports.

In the future, specific policies based on this law will be enacted. It is my hope that the problems discussed above will be resolved through some of these policies and that Japan will become one of the leading countries on this front as well.

Masato Dogauchi
Professor, Faculty of Law, Waseda University; Representative Director, Japan Sports Arbitration Agency


December 18, 1955 Born in Okayama, Japan
1974 Graduated from Okayama Prefectural Okayama Asahi Senior High School
1978 Graduated from the Faculty of Law, University of Tokyo
1978 Served as a research assistant in the Faculty of Law at Tokyo University
         Thereafter, he held various positions at the Ministry of Foreign Affairs of Japan, Meiji University and University of Tokyo.
2004 Left position as Professor on the Faculty of Law, University of Tokyo and became a professor at Waseda University

His areas of specialization are private international law and international civil procedure. In addition to his academic work, he has served as a member of the Legislative Council of the Ministry of Justice and the Council for Cultural Affairs, as well as the Representative Director of the Japan Sports Arbitration Agency from 2003 to the present.

Major Publications: A Slightly Different Introduction to Law for Independent Thought [Jibun de Kangaeru Chotto Chigatta Hougaku Nyuumon] (3rd ed., Yuhikaku, 2007); Points in the Conflict of Laws: General Remarks [Pointo Kokusai Shihou: Sou Ron] (2nd ed., Yuhikaku, 2007) and Points on the Conflict of Laws: Specific Remarks [Pointo Kokusai Shihou: Kaku Ron] (Yuhikaku, 2007 and 2000); An Introduction to Private International Law [Kokusai Shihou Nyuumon] (7th ed., Yuhikaku, 2012); Fundamentals of Drafting Boilerplate Clauses in International Contracts [Kokusai Keiyaku Jitsumu no Tame no Yobou Hougaku] (Shojihomu, 2012)