CONTENTS I. Preliminary considerations, l ?? conciliatory institution: nature and functions. - II. The notion of sports dispute. ?? III. The sports dispute resolution methods. ?? IV. The conciliatory phenomenon in sports disputes. - IV.1. The system of the Court of Arbitration for Sport. - IV.2. The French case, a model to follow. ?? IV.3. L ?? Italian approach. ?? V.1. The Chamber of Conciliation and Arbitration for Sport: nature and functions. - V.2. objective and subjective scope. Method. ?? YOU. Concluding remarks: the reconciliation which method the sporting dispute resolution.
Preliminary considerations, l ?? conciliatory institution: nature and functions.
The conciliatory phenomenon in our system, as indeed in almost all modern legal systems, is presented as one of the possible forms of settling disputes arising from the juxtaposition of subjective legal situations.
Notwithstanding the structural analysis and the ideological profiles of ?? conciliatory bank for the purposes of the application evaluation of the conciliation model to the resolution of sports disputes, however it will not be useless to dwell briefly on the role and nature of conciliatory mediation, institution whose employment has experienced a significant recent development also in ?? general legal system. [1]
The phenomenon occurs when two or more parties in dispute with one another try ?? before a third party, authoritative and impartial ?? to find an agreed solution of the dispute, by registering, at the end of this procedure, the settlement of the dispute or lack of agreement.
Conciliation, which institution is realized through two separate and distinct stages of proceedings, even if among them interdependent: the attempt at conciliation, to be understood as a process that takes place in the presence of mediatore- conciliator; the phase of ?? agreement, having negotiating nature.
As noted, the ?? agreement, tending to the amicable settlement of the dispute, takes negotiating nature, although in reality the figure of conciliation must ?? discerned the existence of a plurality of stores, identified in the transaction (referred to in Article ??. 1965 CC), the waiver by either party to such claim and recognition of the claim of the other party [2].
However, the reconciliation differs from the transaction, since it springs from a preordained process all ?? final agreement that takes place in the presence of a third party with the task of making a qualified mediation between the parties in dispute. L ?? qualifying element, therefore, for the purposes of ?? existence of conciliation, is to be found in an institutional factor, namely the presence of the mediator in the process. [3]
The notion of sports dispute.
For sports dispute can be understood through a rough definition, a contrast between the attitudes or opinions of two or more parties relating to a conflict of interest related to sports [4].
?? In the modern era, partly because of increased economic significance ?? connected to the sport, as well as increased awareness of ?? inviolability of certain rights, in sport are increasing the cases where conflicts of interest give rise to disputes, which lead, inevitably, in the proceedings underlying the resolution of the same.
However, it should be recognized the existence in ?? ?? scope of the general notion of sports law, of a plurality of sports disputes case; only through their distinction and classification will be possible to address the issue of a resolution of the same means. [5]
Sports disputes can be classified according to several criteria, among them the most useful certainly appears that the use of subjective type, in which words, it shows the reliefs around the ?? identity and quality of the opposing parties.
Based on this policy, you can find various hypotheses of sports disputes:
disputes in which neither party is a sport institution or an entity affiliated to it, but alleging areas related to sport;
disputes in which in which one of is a sport institution;
disputes in which one party is an affiliate subject to a sport institution;
disputes where both parties are sporting institutions or persons affiliated with sporting institutions.
?? In this last case it is customary to employ a further subclassification of technical disputes, economic, administrative and disciplinary.
Appears the peaceful acceptance that disputes attributable to the first three points above are unlikely to find, as the location for a resolution, the tools created within the sports institutions, namely through the use of SO-CALLED ?? ?? domestic jurisdiction, being from time to time and these deputies state courts in relation to interests related to the subjective position relied upon in disputes (individual rights, legitimate interests, etc.).
?? In the context of litigation category where both parties are sporting institutions and / or entities affiliated to them, the methods responsible for resolution of these are from time to time required by the Regulations or by the Statutes of sports institutions which athletes they affiliate.
It is used in such cases to the aforementioned internal tools or ?? Domestic Justice ??, established and regulated within the sports institutions, which find their legal recognition through a clause comprimissoria ?? CD. ?? bond of justice ?? [6] - signed by the affiliate at the time of their entry into the world of sport, with which the same undertake to recognize and comply with all decisions taken by the governing bodies of the institutions to which they belong, including certainly fall, also the decisions taken by the organs of internal justice.
?? Focusing the attention on these types of disputes it became clear the problem about the overlap between the state system and ?? l ?? sports law; often, in fact, occurred ?? the hypothesis that a club or an athlete ??, not satisfied with the decision taken by the sports justice organs or of the procedure which it is based, addressed to ordinary justice, to protect its interests.
That said, the aim of a reduction in ?? fattening of state courts in strictly sports disputes, as well as in order to create a barrier between the inner court instances of the sports institutions and state courts, it would, therefore, appropriate to provide the appropriate alternative tools sports justice, with particular reference, that is, the alternative means of dispute resolution (or alternative dispute resolution- AD R .-), which more and more frequently are also used in other branches of law.
The sports dispute resolution methods.
L ?? analysis of different methods of the sporting dispute resolution must be made ?? through the identification of the various procedures that are actually offered by the sporting regulations. By doing so you may experience the ?? existence of proceedings type judicial Latu sensu, the arbitration proceedings and proceedings for the first two alternatives. [7]
The proceedings of a judicial type (or sports justice ?? ??) which owns the sports judges, competent to decide in the first instance or on appeal, are set up at the National Sports Federations, and are essentially entitled to the membership by ?? part of the affiliates with standard cD bond of justice contained in the Regulations or in federal statutes.
They are characterized by the observance of certain procedural guarantees (the principle of equality, the adversarial principle, principle of ?? hearing the parties, etc.) even if you can not find, however, a distinct profile of impartiality. Expected, in fact, that bodies competent to settle sports disputes are set up at the reference sports institutions, they I appear more than anything else, how ?? organs ?? of either party.
From a genetic point of view, then, the court proceedings are not much different from those of an adjudicatory nature, given that, even in these, you may experience as the foundation of its legitimacy, a negotiation character. It reiterates, in fact, being subject in a general way to the power of sports justice appears determined by the voluntary adhesion to the system set, and the bond of justice that comes from it, however, in recognizing the negotiating nature all ?? act of adherence to the affiliates of Sports Federations regulations that require it, can not discerned the same party autonomy that sits at the base of the subscription ?? ?? arbitration clauses, which allow the roots of the nature of arbitration procedures. [8]
Even l ?? arbitration is one of the possible of the sporting dispute resolution methods.
The same, and the process that derives from it, is implemented, as previously noted, ?? through the agreement of the parties, intended to be awarded to one or more individuals, with respect to third parties, the competence to resolve a particular dispute already It arose, or any and indeterminate future disputes regarding the rights of the parties available.
In the sports world are frequent arbitration mechanisms [9], although it is necessary to distinguish between those who are legally and those who have only the name of arbitration.
Among the first part surely the Court of Arbitration for Sport (T.A.S.) of Lausanne, which although founded by C.I.O. in 1984, it can now be considered an independent arbitral institution. Indeed, the Swiss Federal Supreme Court has ruled that the award pronounced by the CAS is a real arbitration, in the light of the guarantees of impartiality in its Statute judgment.
In the area of ?? domestic law, it is sufficient to note that processes of an adjudicatory nature are limited to economic disputes arising between the sun affiliated parties to sports institutions, and are resolved through the establishment within the same of clearing houses ad hoc institutions.
Despite the prediction of ?? establishment of the arbitration panels to resolve certain sports disputes, remains, however, partially unsolved problem about the input, resulting in contrast, the state courts in the conflicts mentioned above, due to the non-nature independent of such arbitration panels from the institutions at which they are established.
With a view to reducing the risks of conflict between the sports justice and the legal system ?? General arise methods of alternative dispute resolution jurisdiction and all ?? arbitration.
It should be remembered in this regard, that trade-related state organizations allow individuals, increasingly, to resolve their disputes through the already mentioned means of alternative dispute resolution, including primarily the reconciliation.
This trend towards private justice, verily, is advantageous both for States and for the parties concerned.
On the one hand, the state saves time and resources, from ?? other individuals can achieve the fastest dispute and a decision left to the experts.
?? There is no reason why similar considerations should not also apply to sports disputes: these can be resolved by procedures and private legal instruments in an efficient and competent, applying for more private customary rules that have already formed in the sports field due to the admixture of the rules of the sporting regulations and the general principles of state legal systems. [10]
The conciliatory phenomenon in sports disputes.
The alternative dispute resolution methods to the jurisdiction or to arbitration ?? are not completely foreign to the world of sports justice. Various Sports Federations regulations require, in fact, as a prerequisite to any senior proceedings, an attempt at conciliation between the parties. [11]
L ?? hypothesis is especially common when it comes to disputes relating to the contractual relationship and who see opposing affiliates and their sports companies. The process is however lawful only if it does not close those concerned l ?? access to state jurisdictions.
Internal conciliation commissions are essentially conceived as regulatory bodies of ?? sports law; but they are necessary, of course, explain to the parties the legal positions of the parties. In this sense, the mission of the mediator is, generally, those of be a precondition to a successful settlement of the dispute, or at least a useful data in a further process.
The conciliatory phenomenon in sports disputes has been for several years found only in not belonging to our legal institutions, and from which it will be necessary in order for a fruitful approach, taking example, through a brief review of the most representative cases.
IV.1. The system of the Court of Arbitration for Sport.
A particularly interesting example is offered by the system T.A.S. As a model that can be adopted for general use alternative procedures to ?? arbitration and jurisdiction for the settlement of sports disputes.
Recently, in fact, it was established at the T.A.S., a mediation process.
More specifically, has introduced a non-binding and informal procedure, based on ?? both parties agree, through the experiment which they undertake to negotiate in good faith, with the assistance of a mediator appointed ?? ?? in the context of a ?? special list kept at the Court, the sport of a dispute. [12]
The T.A.S. mediation, in accordance with the objective limits that these procedures meet, can be experienced only for disputes that do not put into play a decision taken by a sports organization: although they can be subject to arbitration, disciplinary matters are excluded from mediation.
Highlights of this procedure are the extreme flexibility, depending in every way from the consent of the parties, and the particular confidentiality of matters discussed and proposals made: it assumes a simple ban on using the information collected during conciliation in an eventual judicial or arbitration proceedings.
IV.2. The French case, a model (in part) to follow. [13]
IS?? It is known that in France a conciliation mechanism has been established by law (art. 19 of the Loi no. 84-610 of 16 July 1984, as amended by Loi no. 92-652 of 13 July 1992), at the French Olympic Committee.
In any proceedings in the comparison of the French sports federations, must be used at the outset that the conciliation procedure, before proceeding to ?? possible action before the competent national court. L ?? ex lege obligatory nature of the settlement procedure determines the inadmissibility of a ?? possible action before the state judge. The conciliators are 15 authoritative experts jurists with sporting issues, and it was named one for each dispute.
The procedure is separated partially from the traditional conciliation as at the end thereof, if the parties do not find l ?? agreement, the conciliator shall submit to them a proposal for a solution based, though not exclusively, on the right; if, within one month, the parties do not reject the proposal, the proposal of the conciliator shall be deemed accepted.
French conciliation mechanism has demonstrated a remarkable effect in time, and has undoubtedly had considerable success.
IV.3. L ?? Italian approach.
For what concerns the development of conciliatory phenomenon in ?? field of sports disputes that are produced in Italy, it should be noted that the same had as a starting point forecasts, contained from time to time in the Sports Federations National regulations , the establishment of conciliation rooms appointed to find an amicable solution to ?? lead to litigation between affiliated parties or between them and the National Authorities. [14]
Recently, l ?? Article 12 of the Statute New C.O.N.I. established the Chamber of Conciliation and Arbitration for Sport, by introducing an absolute novelty in the area of ?? ?? national sports system, which had been without a warranty and justice organ, inspired by respect for the principles of impartiality, autonomy and independence , which could also ensure more expeditious court proceedings is whether the reduction in the number of sporting disputes brought to the knowledge of ?? Judiciary state.
It, according to the rules contained in its rules, exercising, even a conciliatory function. The purpose of the conciliation procedure is to promote the amicable settlement of disputes quickly and with low costs through ?? intervention of conciliators.
The conciliator for each dispute is appointed by the President of the Chamber among the members of the Chamber or by ?? list of experts provided for by the Statute C.O.N.I.
The Chamber of Conciliation and Arbitration for Sport.
V.1. Nature and functions.
The Chamber of Conciliation and Arbitration for Sport is the ?? current culmination of alternative procedures for resolving disputes in sport. As noted above, among the functions it exerted, it is provided as conciliatory.
From reading the conciliation reports signed by the parties at the end of this procedure, it is clear what the ?? idea that moves this institution. It is apparent, in fact, that conciliation is a peaceful out of court procedure, voluntary and cooperative resolution of conflicts arose to ?? ?? interior of sports law, so an impartial third person, the mediator, assists the parties in conflict facilitating communications, driving their trading, making it emerge the interests and orienting them towards finding a mutually satisfactory understanding, applying, finally, the rules of law and the rules and customs of ?? national and international sports law.
The conciliator also invites the parties, in the spirit autocomprensivo of the procedure, to seek a settlement of the dispute, assuring them that here they enjoy a ?? fair opportunity to express their view of the disagreement and to listen to each other. However, participation in the settlement procedure in no way implies a renunciation of their positions or abdication to their arguments.
V.2. objective and subjective scope. Method.
By resolution of the National Council of C.O.N.I. n.1188 of 1 August 2002, and subsequent amendments and additions made on 03.06.2003 in implementation of the precisely planned by ?? Article 12 of the Statute C.O.N.I., was approved on the House Rules.
The Chamber conciliatory function is activated at the request of one or more stakeholders, especially, an affiliated person, affiliated or fired or from the national sports federation, sports Discipline associated or sports promotion body or by persons not affiliated, licensed or under licenziali of the previous article, paragraph 3, in the cases expressly provided for by Article 3 ?? namely:
when that right is expressly provided for in the Articles of a sports federation or sport related or sports promotion body;
both when a dispute arose which opposed? one or more affiliated parties, members or fired, for a sports federation or other bodies mentioned above.
L ?? Article 4 provides in paragraph 1 that ?? activation of the procedure should be performed with a ?? instance to be presented in a time-limit of sixty days from the date of knowledge of ?? deed being contested by both affiliated parties that the federations or other entities.
?? It also provided the opportunity to donate to any dispute concerning sport Room ?? even among individuals not affiliated, licensed or licensed ??, provided that there is an express agreement of the parties to that effect.
Is wide enough l ?? object of the conciliatory function of the Chamber which is competent for any controversy concerning sport with the limits set in the Regulation:
It must consist of disputes they have been ?? previously exhausted domestic remedies to the Federation or to the sporting discipline associated or all ?? sports promotion body ?? In other words, for which they have already exhausted all levels of appeal provided for by the internal regulations specified entities;
It must, in any case, be of final decisions: this detail has been inserted with specific reference to all cases in which the federal statutes or of other bodies provide for a single degree of jurisdiction. Not being provided a second level of jurisdiction, in fact, such decisions are final and, as such, be contested later in the House;
may be challenged before the Chamber of Conciliation and Arbitration only the decisions of federal judicial bodies which have resulted in the imposition of disciplinary sanctions ?? beyond 120 days.
It should, finally, remember that the conciliation process turns out to be a prerequisite for the subsequent establishment of the arbitration proceedings.
Only for statistical purposes will be useful to clarify that the date of its establishment (2001) until today, the Chamber of Conciliation and Arbitration for Sport has received 103 requests for conciliation, of these 55 well have ended in a settlement agreement on the dispute.
Concluding remarks: the reconciliation which method the sporting dispute resolution.
The settlement of sports disputes has nothing to gain from a system where state courts and sports institutions are placed in competition with each other. The one and the other must instead be associated, combined, to ensure a positive definition of ?? sport with better treatment of the conflicts that are produced here.
In dealing with disputes in sport, the reconciliation presents virtue attested by the statistics relating to the conciliation accepted proposals.
L ?? undeniable success, both internally than in foreign jurisdictions, conciliation clearly shows its appropriateness to the expectations of those who practice the sport ?? and willingness of sports federations not to evade the recommendations of this ?? ?? Sports justice.
The rapidity of the settlement procedure, its flexibility and the lack of formalism ?? certainly contribute to this success. V ?? is also, and above all, the choice of conciliators that have had legal expertise, a deep understanding of ?? sports environment, extremely concerned about their independence, they quickly gained the confidence of litigants and have strengthened their authority with reasoned proposals accurately.
That said, you can then draw the conclusion that, l ?? conciliatory experience can validly prove that you can first coordination between sport and private justice public justice and that through the ?? use of the settlement procedure may allow the resolution of conflicts avoiding the drawbacks of an exclusively federal proceedings and those of a government process.
dr. Mignacca Gianluca
notes:
[1] Consider, for example, the discipline of mandatory attempt conciliation provided for by Article ??. 10 of l. June 18, 1998 n. 192 on the regulation of subcontracting in productive activities.
[2] Clear appears in the conciliation reports signed by the parties negotiating the terms of willingness to compromise, recognizing the claims of others ?? with a simultaneous downsizing of their own. In this sense, see above par. V.1 on the content of the conciliation minutes signed at the Chamber of Conciliation and Arbitration for Sport set up at the C.O.N.I.
[3] This institutional figure, an MP in the outcome of the conciliation, which can pose a different court, administrative body or private entity.
[4] For a concise definition of sports dispute, see. KARAQUILLO, Complementarity between the settlement of disputes by sports institutions and the solution at the hands of state jurisdictions in the Sports Law Magazine, 1996, p.671.
[5] For a more detailed classification of disputes arising in the area of ?? sports law, see COCCIA, Phenomenology of the sporting dispute and its resolution methods, in Riv. Dir. Sport.1997, p.605.
[6] On the constitutionality of the normal bond of justice, see. SALAZAR, Sports Justice and Constitutional principles, Iure PRAES, 1994.
[7] For an in-depth survey on the sporting dispute resolution methods, see FUMAGALLI in doctrine, the resolution of sports disputes: legal methods, arbitration and alternative composition, in Riv. Dir. Sport. 1999, p.245.
[8] On arbitration clauses concerning sport, see. Punzi, The arbitration clauses in ?? sports law, in Riv. Dir. Sport., 1994.
[9] See, Persichelli, The matters to arbitration ?? interior of sports jurisdiction, Riv. Dir. Sport. 1996, p.702.
[10] Sull ?? use of alternative methods of dispute resolution see PICONE sports, sports and Arbitration court settlement, Riv. Dir. Sport., 1991.
[11] Thus, for example, it has the ?? art. 6 R.N.S. CSAI, which provides that the application for conciliation should be directed away from the moment the Executive Committee CSAI and thus to the counterparties, with ?? invitation to submit any written rebuttal. The conciliator CSAI examines the writings, summon the parties, and makes a proposal for conciliation. If the parties accept the proposal, it is implemented in a report signed by the parties; conversely, the mediator draws up a report of a negative depletion of his attempt, specifying each party's position.
[12] The text of the mediation regulation T.A.S. It is reproduced in the Sports Law Magazine, 1999, p. 129 ss.
[13] For a more detailed analysis of conciliation in the field of sports disputes proposed in the French system see KARAQUILLO, op. cit.
[14] See footnote. 11 of this paragraph.
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