/ 8 August 2008

Why SA needs a ‘sports court’

South Africa needs an effective, simple and independent national dispute-resolution panel that would offer binding arbitration and non-binding advisory opinions, as well as mediation services.

Premier Soccer League (PSL) club Platinum Stars’ Sailor Tshabalala recently had a two-year banning order slapped on him for the use of dagga, a non-performance enhancing substance. Previously, PSL players convicted of using the weed were sentenced to bans of no more than six months.

The death of boxer Samora Msophi at an officially sanctioned boxing tournament in Mdantsane was blamed on several factors, including the alleged absence of oxygen and a medical doctor at the ringside — as required by the rules and regulations of the boxing governing body.

The reasons for establishing such a forum include the ferocious spat between the parliamentary portfolio committee on sports and the South African Sports Confederation and Olympic Committee (Sascoc) and the 10-year banning order on Aziz Kara, the owner of FCAK, by the South African Football Association. Initially, two panels banned him for 30 years. Later, on appeal, the sentence was extended to a life ban before Safa’s arbitration process reduced it to 10 years.

All these examples suggest a need for such a ”court” and the development of sports-related jurisprudence.

It is not such a radical idea. The United Kingdom has the Sports Dispute Resolution Panel, established in 2000, and Australia has the National Sports Dispute Centre (NSDC), established in 1996 ahead of the Olympic Games in Sydney in 2000. It was considered a priority to have the NSDC tribunal up and running before the Olympic Games.

The Court of Arbitration for Sport ruled in May that double amputee Oscar Pistorius could attempt to qualify for the Beijing Olympics after the athlete appealed against an International Amateur Athletics Federation decision to bar him from competing with able-bodied athletes on the basis that his prosthetic legs gave him an unfair advantage.

In South Africa such a panel would serve as an equaliser between the rich and powerful sport governing bodies and the generally poorly paid and largely illiterate sportsmen and women. It would be appropriate for South African sport governing bodies to develop uniform rules of dispute resolution that make it easier to achieve sameness in sport.

When and if established, the National Dispute Resolution Panel would have to be supported by representative governing bodies such as Safa, Basketball South Africa, Athletics South Africa and the South African Rugby Union.

The panel should be designed to complement existing dispute resolution procedures and provide a universal alternative dispute resolution mechanism. The panel would promote codes of good practice for dispute resolution and corporate governance in sport and would further influence the establishment of acceptable sentences and punishments for South African sport.

The panel should be made up of legal and sports experts referred to it by the representative bodies and it should be cost-effective, accessible, flexible, comprehensive and speedy.

A panel that would have specialised knowledge of the commercial dynamics of sport would have better resolved the PSL’s controversial broadcasting rights bonus furore.

The panel would have made it possible for the family of the slain Msophi to obtain an inexpensive advisory opinion on the liability of the boxing federation and may well have brought the matter to a speedy resolution through mediation or arbitration. Equally, Tshabalala may have been able to persuade the panel that smoking dagga is less harmful than compelling an injured player on to the field.

The panel would compensate for the shortcomings prevalent in different governing bodies, some of which change administrators much more often than others and in so doing are not always attentive to problems. It would ensure that the sporting benchmarks of the 21st century percolate to all governing bodies, that the benchmarks of commercially successful governing bodies such as Saru and Safa would spread and lift others by making resources less expensive and accessible to them.

The panel would serve to democratise sport governance at a time when sport is increasingly being regulated. The fact that sport generally falls within the space of private law is no longer a reason to sustain its isolation, as the acts and omissions of governing bodies affect people and their family’s lives in the same manner as a court order or judgement.

Already sport governing bodies have a responsibility to ensure that their rules and regulations comply with human rights culture as required by the Constitution. Therefore, the panel would serve as an independent mechanism through which sport governing bodies could achieve transparency in enforcing their rules and regulations.

The panel would have powers to arbitrate on selection and quota issues that have the potential to harm the image of sporting codes such as cricket, rugby and athletics.

The mediation services the panel would offer would make it possible for the ongoing relationships between parties to be preserved.

Themba Langa is a senior partner at Langa Attorneys and has extensive experience in sports-related litigation, arbitration and mediation