SPORTS DISPUTES AND THE RIGHT TO LEGAL PROTECTION OF SPORTSPERSONS IN MALAYSIA By: Zaid i bin Has sim, L. L. B (Hons), MCL (II UM) Matriculation Lecturer, International Islamic University Malaysia INTRODUCTION There are three main types of people in a sports body the sportsperson, coaches and officials or the main board of directors. These three types have different roles but at the same time they ought to give the best cooperation, but it is not easy to get members to guarantee their full cooperation. Due to this, disputes may arise between several parties, such as sportsperson and sportsperson, coaches and sportsperson, coaches and officials, and sportsperson and officials. Recently, a national badminton player, Ong Ewe Hock, was issued a show cause letter on 23 December 2002 by the Badminton Association of Malaysia (BAM) for criticising the national association’s decision to appoint a local as head coach for the national team.
Ong sent a one-page statement to the press against ‘baseless’s tate ments made by the then secretary of BAM, Zolkples Em bong, accusing him of having an ulterior motive for suggesting that he look at coaching as an option. He was called to appear before the disciplinary committee for a hearing but did not attend since he was not satisfied with the procedure used by the disciplinary committee. He wanted to be represented by lawyer and also have the opportunity, if need be, to cross examine Datuk Nadzmi Salleh (President of BAM) and Zolkples. In their verdict, the committee suspended Ong for one year from all local and international competition. There are many other unreported sports dispute cases which have happened in Malaysia. These disputes must be settled according to right procedure and be fair.
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However, in many cases the rights of sportspersons in Malaysia is not protected, either by any specific legislation or by their respective sports bodies. This article is mainly concerned about the rights of sportspersons, especially the rights of natural justice. In a hearing, they are not represented and sometimes notice given is not within a reasonable period. Sports bodies claim that they have their own way to settle disputes among its members and associates. However, the transparency of their hearing and appeal process can still be challenged in the court of law. Another area of increasing importance is the eligibility to compete after being suspended by an association’s tribunal.
In addition, this article will consider whether State / sports bodies are governmental and therefore their decisions are susceptible to judicial review, or whether they are like any ordinary legal person. Sports bodies’ constitutions and bye-laws will also be discussed and lastly, to suggest a proposal for the improvement of carefully written internal procedures and practical guidelines for the development and implementation of a comprehensive and effective alternative means of settling disputes between sportspersons and their State or sports body. JUDICIAL CONTROL OF SPORTS BODIES Dispute is defined as argument, controversy and a question of truth and validity. Dispute in sports is normally settled in a domestic tribunal. A domestic tribunal is ‘a body that exercises jurisdiction over internal affairs of a particular profession or association under powers conferred either by statute or by contract between the members.” It also means it is any organization which has the power to make decisions which affect people and normally governed by the principles of administrative law. Administrative law focuses on whether or not the tribunal interpreted its rules properly, followed its rules, or properly received or delegated its authority with regard to the implementation of its rules in settling disputes.
Disputes relating to sports in Malaysia can be placed into 2 categories. Firstly, those occurring within a sports body itself which arise as a result of selection, misinterpretation and disagreements involving sportspersons and coaches, miscommunication between the parties arising out of personality conflicts and differing views of a particular policy, employment disputes involving the interpretation of terms of contract, salary increments and wrongful dismissal, disputes emanating from a perceived bias or lack of fairness in the appeal process and perhaps human rights aspects involving sex discrimination and eligibility to participate at certain levels of competition. The second category is disputes occurring between sports bodies but the internal mechanism of either body is not available. Examples are transfer of eligibility to compete and jurisdiction between states such as dispute over matters of funding or representation.
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Resolution of Sports Dispute in Malaysia: It is perceived that a sports body can adjudicate a dispute better than a court of law, principally owing to the expert knowledge that they have relating to a sporting event. The internal procedure for the resolution of disputes arising among sportspersons or with its committee or governing body is provided for in Section 23 of the Sports Development Act 1997 (referred as “SDA 1997”).
However, there are only a few sports bodies in Malaysia with established rules and procedures. The application and implementation of the rules are still vague, incomplete, ambitious or contradictory. Some choose to deviate from them or not to follow them at all.
It should not be surprising to submit that even at the state and national levels of organized sports, governing bodies do not have adequate rules and procedures to deal with the resolution of disputes. Sometimes, there are even procedures that they do not meet some of the basic criteria of natural justice or fairness. As a result, there are several examples of disputed disciplinary action arising in the context of Malaysian sports. For example, in 1980, the Perak Hockey Association (PHA) imposed a three-year ban on 11 players for criticizing PHA officials for not doing enough to find the players jobs and publicizing the appeal and circulating copies to members of the press. In 1987, the Disciplinary Committee chairman, Tan Sri Hamza h Abu Sarah, who was also the FAM deputy president, found Malacca’s coach and captain Soh Chin Aun guilty of having used abusive language and trying to assault referee Akhmat Idris during a Malacca-Trengganu match. Mohamed Jais, the Malacca FA deputy president commented that FAM has been unfair in suspending Chin Aun for a year by taking into account Chin Aun’s past record when it imposed the sentence but it failed to take into account the referee’s track record.
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Accordingly, Chin Aun and Mohamed Jais were given the ‘opportunity to voice their opinions in the hearing but the committee was not convinced by their rebuttals’. In 1991, Johor’s Khalid Shah dan received a three-match suspension because Singapore referee N. Kunalan reported that Khalid had struck a Trengganu player (Wan Eliza Dad) before he was hit although his statement in the report was inconsistent. The FAM disciplinary board hearing on September 7, decided to accept Kunalan’s testimony stating that the referee was nearest to the incident and was therefore in a better position than the TV cameras to spot it. The board allowed themselves to be hoodwinked into believing that Wan Eliza was a first offender, and so gave him a lighter sentence of a six-month ban. In 2001, Nizaruddin and Mohamed Shawwal were both banned for four months and fined RM 500 each by the Kuala Lumpur football association disciplinary committee for not attending a 10-day training camp, although their contracts had ended on December 31.
the Players Status Committee chairman Tan Sri Zain Hashim stated that “a player can only be suspended during the duration of his contract only… The Football Association have no right to ban him beyond that.” Thus, the development and implementation of sports dispute resolution in Malaysia is at the slippery end of a slope that leads to a bureaucratic and legalistic organization where there will always be people who allow position or power to go to their heads and who become inflexible or even autocratic in their conduct. Some may also claim that sports dispute resolution procedures undermine leadership and effective decision-making. Factors: There are a few factors that contribute to the failure of the good implementation of sports dispute resolution in Malaysia. First are the personalities of the people dealing with the matter may contribute to the escalation of disputes. Conflict of personalities will drive the dispute beyond the point of an early settlement.
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Other factors such as flawed policies, misinterpretation of policies, and lack of legal knowledge of the aggrieved party’s basic substantive and procedural rights by one party may also relate to the personalities factor. The second factor that contributes to disputes may arise due to a lack of knowledge, especially on the legal background, of how to handle the process of sports dispute resolution. Parties may be well intentioned but simply do not have the knowledge or skills necessary to deal properly with the matter. The third factor may arise due to a general perception that the government, via the Ministry of Youth and Sports, will intervene and do something.
This often drives the dispute further and so becomes more complicated. REGULATIONS AND DISCIPLINARY MEASUREMENTS IN GOVERNING BODIES’ CONSTITUTIONS AND BYE-LAWS Concept of Natural Justice in Malaysian Sports: Malaysian courts show no inhibition in interfering where the ground of challenge is the breach of one of the two rules of natural justice. The first requirement of natural justice is a fair procedure where both sides should be heard and second, that a person should be disqualified from determining any matter in which he may be fairly suspected of being biased. Unfair procedures are properly thought to diminish the chance of fair results. The court may be wholly ignorant of the rules of the sport, but they can tell when a sports body has been guilty of something less than fair play. Procedural fairness basically comprises three principles, Authority, Right of Hearing and Rule against Bias.
The authority that makes a decision must be properly vested with discretionary power. Secondly, the right of hearing must be given to the person affected by the decision. They must be given a reasonable opportunity to present their case and be represented by their representative or lawyer. Thirdly, the decision maker has a duty to listen fairly to both parties. The authority of a sports body should be clearly stated in their Constitution and Bye-Laws. However, many sports bodies in Malaysia do not have established rules and procedures to deal with cases involving discipline.
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If a sports body has made a decision without having had any authority or clear policy to act upon, its disciplinary actions may be overturned if the sportsperson challenges it in court. Constitution and Bye-Laws: This is the foundation of a sports organisation’s contract with its members. From it flows all the powers, benefits and privileges of its members. In many cases, major national sports bodies take the legal form of a corporation governed by a set of internal procedures known as by-laws, which provide the mechanism for resolving disputes.
Unincorporated associations also have similar sets of rules, bye-laws or a constitution by which all members are bound by way of contract through individual membership. This article will closely examine the policy of internal procedure that allows the organisation to make decisions in the areas of discipline, hearing, appeal and penalty. It is hypothesized that there are 5 types of policy in Malaysian sports organisations’ constitutions. The first type of policy only addresses the basic structure of the organisation and the empowerment of the board, committees and members. There is no specific and clear policy to deal with disciplinary issues. In terms of authority to make decisions, the President and the Board or Council will be given discretionary powers to decide any penalty and fine.
There is no written delegation of authority that allows other people (arbitrator) to solve the dispute practically and sensibly. The second type of policy states the players’ conduct and code of ethics as well as prohibited acts that should be observed by the whole community of the sports organisation. Those found guilty of contravening with conduct or ethics stipulated in the constitution will be suspended, expelled or fined. However, this policy is not final and is subject to recommendation and review by others due to its ambiguity. Disciplinary measures are sometimes referred as General Provisions and vaguely affect all affiliated members, officials or players and may be imposed, not only the Executive Council and the Executive Board, but by members of the General Assembly. The third type of policy clearly provides for the hearing process and the procedure of appeal.
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It states the circumstances and procedure for a disciplinary inquiry (in writing) and the Council in its meeting will consider whether there is sufficient evidence to justify the charge. Notice is issued in writing which specifies the charge, date and place of inquiry and the date of inquiry shall not be earlier than 7 days from the date when such notice is delivered to and received by the member to whom it is addressed. The Disciplinary Board will conduct the hearing process and may dismiss the case (if the charge has not been proved) or impose penalties (censured and suspended) if the charge has been proved. All those members who are not satisfied or disagree with the decision may appeal to the General Council, clearly stating the reasons and facts of the appeal within 30 days of the decision accompanied by a payment of RM 300.
However, the decision is not final unless at least two-thirds of the members of the Executive Council vote in favour of it. The fourth type of policy gives the Executive Committee powers to interpret the rules in the constitution and bye-laws. The decision on any question of interpretation shall be final and binding. However, it is harsh to submit that any person who has been the subject of any disciplinary action or proceedings shall not institute any proceedings in any court of law against the association, its President, Board of Management and the Disciplinary Committee.
The last type of policy refers to the decision of the arbitrator appointed by common consent and governed under the Arbitration Act 1950. The findings and award of the arbitration shall be final and no appeal may be lodged in the court of law. However, in the case of misconduct by an official or player of a Member or Associate Member, it shall be the duty of such Member or Associate Member to take appropriate disciplinary action. This does not appear to be according to the fair procedure of natural justice. Administrators and officials of sports bodies in Malaysia should therefore adhere to the sports litigation process. When a question of legal rights and liabilities arise, they should look first to the rules or bye-laws of the national sports body to avoid costly and unproductive litigation.
Courts will only intervene when a governing body becomes involved in a serious dispute, or when the internal rules of the national sports bodies are disregarded by the sports administrators. Sports litigation frequently arises when the members of an organisation challenge the rules or enforcement proceedings taken against them by their own organisations, either on the grounds of deprivation of their legal rights, or on the grounds that their organisations did not follow their own rules in imposing a sanction or penalty. Or they may challenge rulings or actions of their associations that are mandated by their bye-laws. The common issue of all sports litigation in the United States, United Kingdom or even Malaysia is the origin of the body’s authority and its proper and lawful exercise. COURT LITIGATION The ultimate method for resolving a sports dispute is by way of litigation, which involves filing a lawsuit or defending one. It means ‘process of going to court’.
Litigation has always had the advantage of certainty and giving protection to the rights of the parties. Sportspersons in Malaysia are now turning to the law when they do not like a decision by a state / sports body. In 1988, Abdul Karim bin Pin applied to the A lor Star (Kedah) High Court to declare the imposition of a three-year ban by the Kedah Football Association Disciplinary Committee to be a nullity. In 1989, the national striker, Dollah bin Haji Salleh challenged in the Johore Bahru High Court, an order issued by the Johore Football Association (JFA) his ban from playing football at national or state level and from holding any office in any team or any football association for a period of three years.
Likewise in Kota Baru when the ‘rebel eight’s ued the Kelantan Football Association, and in Kuala Lumpur when Wong Hung Nung took FAM to court. It should be recognised that sports in Malaysia is no longer merely traditional games for fun, it is big money with the sportspersons standing to make or lose fortunes. As such, it is inevitable that legal challenges will be made. Judicial Review: The question of whether sports bodies’ decisions are susceptible to judicial review is one of the important issues that will be discussed. Judicial review is essentially the legal means of controlling or holding to account the activities of government.
It is inherent in the jurisdiction of the court to supervise, on the basis of certain principles and procedures, the activities of public bodies. The court will intervene only if there is illegal exercise of power. All administrative actions must be based on a legitimate foundation in order to be legally valid. The power must be used in the manner as required by the law, and they must act within the boundary of that power. The courts under the judicial review process will declare decisions decided outside the lawful boundary of power unlawful and invalid. Catherine Bond in her article, Judicial Review of the Decision of Sporting Bodies defines Judicial Review as the process by which the High Court exercises a supervisory jurisdiction over (i) proceedings and jurisdiction of inferior courts; (ii) tribunals; (iii) bodies or persons carrying out quasi-judicial functions; and lastly (iv) bodies or persons who perform public acts and duties.
She argued that the last three groups can all be applicable to sporting bodies and should be susceptible to judicial review. However, the courts have refused to allow the application of judicial review in sports, although of one the main advantages which judicial review offers above the writ is that of a swift remedy. The traditional test for establishing whether a body is subject to judicial review is the source of its power. The power must derive from either statute or prerogative and must not be purely contractual. Judicial review is principally concerned with the lawfulness of public law decisions made by public bodies. If the source of the body’s power or authority is statutory or prerogative, then the body in question will be a public body.
However, if the source of power is based on contract, the relevant body will be private or domestic. This test provides the answer to the question of whether the body is susceptible to judicial review. However, there may be occasions when the test is not decisive. The judicial willingness to intervene may depend on the context and area of dispute. Such willingness may be more visible in areas involving rights and liberty. Lloyd LJ in R.
v. Takeovers and Mergers, ex parte Data fin plc  1 All ER 564 stressed that .”.. there is one area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may… be sufficient to bring the body within the reach of judicial review.” The Authorities and Application of Judicial Review in Sports: A leading authority on the review ability of the decisions of sports bodies is the decision of the England and Wales Court of Appeal in Law v. National Greyhound Racing Club Ltd.
In this case, the plaintiff, a greyhound trainer, had his licence suspended for six months after stewards of the club found that he had in his charge a dog which had failed a ‘dope test’. The plaintiff sought by way of an originating summons a declaration that the stewards’ decision was void and ultra-vires. In this case, the powers of the stewards to suspend the plaintiff were derived from a contract between the two parties. Therefore, since it was a well-established principle that private or domestic tribunals were outside the scope of certiorari, it followed that judicial review would not have been the appropriate procedure for challenging the stewards’ decision. The decision was subsequently followed in R. v.
Jockey Club, ex p Massingberd-Mundy (1990) 2 Admin LR 609 where the applicant sought judicial review of a decision by the Disciplinary Committee of the Jockey Club not to allow him to continue to act as a chairman (as he was no longer qualified to do so) of a panel of stewards. He sought an order of certiorari to quash the decision and an order requiring the Disciplinary Committee to reconsider the matter. The Divisional Court concluded that the Jockey Club was not a body which was susceptible to judicial review, because it had a position of major national importance and held near monopolistic powers in an area in which the public had a general interest and in which many persons carried on their livelihoods. The next case to be decided, R. v.
Jockey Club, ex p RAM Racecourses Ltd  2 All ER 225, involved a challenge brought by way of judicial review against a decision by the respondent to refuse to allocate to the applicant company a minimum of 15 fixtures at its proposed new racecourse at Telford in Shropshire. The doctrine of stare dec isis requires that a court exercising the supervisory jurisdiction is bound to follow the rulings of those equal-status courts unless it is convinced that the earlier judgment was wrong. The counsel of the applicant submitted that the decision in Massingberd-Mundy was wrong on the grounds that the Divisional Court had erroneously considered itself bound by the earlier decision of Law v National Greyhound Racing Club Ltd. In fact, this latter case can be distinguished from Massingberd-Mundy for the reason that the National Greyhound Racing Club derived its power and authority from a contract whereas there was no contractual relationship between Mr. Massingberd-Mundy and the Jockey Club. Stuart-Smith LJ said that “I am convinced that the decision of R.
v. Jockey Club, ex p Massingberd-Mundy was wrong. It is quite clear that it was not in any way per in curiam, the court having given careful consideration to Law’s case and, we are told, other extensive citations of authority. But for this authority I should have held that the decisions of the Jockey Club in this case were amendable to judicial review.” In the case of R. v. Football Association ex parte Flint Town United Football Club (1991) COD 44, the applicant football club was a member of the Football Association of Wales and played in the Welsh amateur league.
When the club tried to change leagues, permission was refused because of a proposed reorganisation of the football league in Wales. On appeal, a commission of the Welsh FA upheld the committee’s decision. The applicant sought a judicial review of both decisions. The Court of Appeal held that the law had developed since Law v.
National Greyhound Racing Club Ltd, but nevertheless felt bound by precedent. The court was not prepared to accept the argument that, despite the contractual relationship existing between the applicant and respondent, there was a sufficient public element in the respondent’s decision to justify judicial intervention. Finally in Finnigan v New Zealand Rugby Football Union  NZL R 159, in contrast to the conclusions which the English courts have reached so far, in Finnigan, the New Zealand courts found that the New Zealand Rugby Football Union was subject to judicial review. The plaintiffs, who were members of local rugby football clubs and linked to the Union by contract, were held to have standing to challenge the decision of the Rugby Union to send a team to tour South Africa. The law should not be prevented from developing and allowing people to use judicial review purely for the reason that it might inhibit the progress of applicants who are currently allowed to resort to its use. Many sporting bodies have extraordinary wide powers and those who contract with them have no alternative but to accept the obligations imposed since their powers are monopolistic.
Farquarson LJ argued that nearly all sports are subject to a body of rules to which an entrant must subscribe. Malaysian Experience of Judicial Review on Sports Dispute: In Malaysia, where a dispute cannot be resolved using internal procedures, a sportsperson may refer the dispute to the Minister. The Minister may seek the opinion of the Sports Advisory Panel for a resolution. If the resolution is properly constituted and executed in a fair manner, the courts will not interfere with the decision.
On the other hand, if it is proven that there was an element of unfairness in the dispute resolution process, or if there is no appeal against the decision, a sportsperson may seek judicial review of the decision in the event that he is dissatisfied. The courts will only review the procedural aspects in arriving at a decision and will not review the findings or decision of the Disciplinary Committee. If a court determines that the procedure used is fair, the decision will be upheld. If it is found that the procedure has not been complied with in arriving at the decision in dispute, the court can declare such decision as null and void and may order a re-hearing. A sportsperson can apply for judicial review in two situations.
Firstly, where the internal procedures are so blatantly unfair that further pursuit or recourse within the sports body would be futile. Secondly, where owing to time constraints he is precluded from undergoing Sports Advisory Panel proceedings. The issue in Tan Sri Haji Muhyuddin Bin Haji Mohd Yassin v Dollah Bin Haji Salleh  1 SRC 65, was an order issued by JFA as a disciplinary action, banning the respondent from playing football at national or state level. The respondent appealed, and the period of the ban was reduced and the respondent was also allowed to play for the national team, if selected, and for his new employer. It appeared that FAM had sent a letter to urge member associations to abide by the ruling of the JFA. The respondent sought a declaration that the ban imposed on him was ultra vires the constitution of the JFA.
The appellants (JFA) argued that the respondent had not exhausted his domestic remedies, as he had not appealed to FAM. The learned trial judge granted the declaration, as there was no contractual relationship between the respondent and FAM; the respondent was only bound by the constitution of JFA. The respondent could not be held legally obliged to appeal to FAM in order to exhaust his domestic remedy. The Court of Appeal held that it is at the discretion of the court to grant or not to grant the declaration. Since the respondent’s allegation against the State of Johore Football Association (JFA) was lack of jurisdiction, he should not be denied access to the Football Association of Malaysia (FAM).
Halsbury’s Laws of England, 1989, stated that the court in their discretion would not normally make the remedy available where there is an alternative remedy by way of appeal. However, judicial review may be allowed where the alternative statutory remedy is ‘nowhere near so convenient, beneficial or effectual’ or ‘where there is no other equally effective and convenient remedy’. This is particularly so where the decision in question is liable to be upset as a matter of law because it is clearly made without jurisdiction or in consequence of an error of law. The second case of judicial review in sport is Haji Osman Bin Haji A roff & A nor. v. Abdul Karim Bin Pin  1 LJ 425.
The respondent was an employee of the Kedah Regional Development Authority (KEDA), which had established a sports club affiliated to the Kedah Football Association. The respondent tendered his notice of resignation from KEDA by sending a telex and on the same day played for Kuala Lumpur football club. Disciplinary proceedings were taken against him as he had contravened certain articles of the Constitution of the Kedah Football Association. The disciplinary Committee imposed a ban of five years through a newspaper notice without giving him the opportunity to be heard and defend himself. The respondent applied to the High Court to declare the decision to be a nullity. The learned judge held that the respondent’s resignation was valid and therefore he had ceased to be an employee of KEDA and so was not subject to the jurisdiction of the Disciplinary Committee of Kedah FA.
On appeal, the court held that the respondent’s twenty-four hours notice of resignation was not valid and therefore he was still under the jurisdiction of Kedah Football Association (KFA).
Article 49 of the Constitution of the KFA required the respondent to obtain prior approval before participating in a football match outside the state of Kedah. Why Judicial Review fails in its application to Malaysian cases? Sports in Malaysia is regulated and controlled by a broad spectrum of organisations, which include voluntary, government-sponsored and legislatively authorised national and international governing bodies. As a general rule, voluntary associations such as Malaysian Universities Council (MA SUM) and Malaysia Schools Sports Council (MSSM), are created by and made up of constituent members that are, for the most part, educational and academic institutions. They are allowed to enforce their own rules without interference from the courts. The courts will review the rules of these associations only if one of the following conditions is present.
1. The rules violate public policy because they are fraudulent or unreasonable. 2. The rules exceed the scope of the association’s authority. 3. The organisation violates one of its own rules.
4. The rules are applied unreasonably or arbitrarily. 5. The rules violate an individual’s constitutional rights.
Even if the rules are subject to review, the role of the court is very limited. A court will not review the merits of the rule involved but it will only determine if the rule is invalid by virtue of one of the five standards listed above. The case will be referred back to the association for further consideration based on directions from the court. All clubs and associations in Malaysia exercise their authority along participant classification lines. Malaysian experience shows that these clubs and associations form their own rules and regulations and the members / players enrolled in the clubs / associations are subject to be sued and can sue where legal rights are being asserted.
However, these clubs and associations will be subject to the dominant nature of the national sports body, which requires that their rules and regulations be no less restrictive than its own. Otherwise these clubs and associations would be in violation of the bye-laws or regulations of the national sports bodies to which they belong. Enactments of state legislation or an Act of Parliament, the most notable example being the Sports Development Act 1997, has recognised the existence of national sports governing bodies whose focus is sports-specific and whose authority prevails. National bodies like the Football Association of Malaysia (FAM) may derive its authority from the consent of members of the governing body / international governing body (for example FIFA) with the tacit or express imprimatur of the Malaysian government (members may be institutional or individual).
THE LAWS PROVIDING FOR SPORTS DISPUTE RESOLUTION IN MALAYSIA The Sports Development Act 1997: Section 27 of the SDA provides for the establishment of a panel known as the ‘Sports Advisory Council’ to advise the Minister on all sports matters. The Sports Advisory Panel consists of a chairman and not more than eight other members, two of whom should be candidates nominated by the Olympic Council of Malaysia.
Subject to Section 32, the Minister may make regulations prescribing the procedures to be adopted by the Panel for dealing with any matter referred to it, the manner in which the panel shall be convened and the place where the panel shall hold its sittings. The procedure laid down in the SDA is spelled out in Section 24. Where a dispute cannot be resolved under the internal procedure referred to in Section 23, any aggrieved sportsperson or the sports body itself may refer the dispute to the Minister for resolution. The Minister may seek the opinion of or refer the dispute to the Sports Advisory Panel or any other committee established by the Minister for that purpose, before making his decision. The decision of the Minister under this section shall be final.
However, a convicted person shall only be liable to a fine not exceeding RM 5, 000 or to imprisonment for a term not exceeding six months or both. The Arbitration Act 1952: Arbitration is the submission of a disagreement to an impartial person, with the understanding that the parties will abide by the arbitrator’s decision. The general principles of law are not necessarily followed in arbitration, nor are the arbitrators bound by the rules of evidence. The proceedings are conducted in private and usually without a recorded transcript. Reasons need not be given in support of decisions. The proceedings are usually expeditious and relatively inexpensive.
Any award by the arbitrators is subject to limited appellate review. By convention as it is jurisdictional by function, arbitration is, more precisely, a private procedure whereby the arbitrator chosen by the parties judges their disagreements. The purpose of arbitration is clear, to settle disputes and provide solutions. Hence certain juridical or non-juridical agencies established, or likely to be established, in national or international sports federations or for national sports groups, may not be associated with an institution of sports arbitration. The Football Association of Malaysia (FAM) is the only national sports body in Malaysia that allows all the members, associate members or sportspersons in dispute to appoint their own arbitrator and refer all such disputes to Arbitration which shall be enforceable as an agreement to refer under the Arbitration Act 1952. The findings and award of the Arbitration shall be final and no appeal may be lodged in the Court of Law in connection therewith.
The power of an arbitrator is governed by the Arbitration Act 1952. Parties in dispute can generally confer upon the arbitrator whatever powers they wish. Another device is to stipulate that the arbitration is conducted in accordance with the rules of professional institutes such as the Rules of the Regional Centre for Arbitration in Kuala Lumpur or the UN CITRAL Arbitration Rules. The Human Rights Commission of Malaysia Act 1999 (Act 597): It is anticipated that this Act will increase the pressure on sports bodies to improve the quality of their procedures. The Act provides the individual sportsperson with more opportunities to challenge the decision making process of the sports bodies. This totally will ensure fair procedures and good administration of sports bodies in Malaysia.
RECOMMENDATIONS FOR SOLUTION: JUDICIAL REFORM OF SDA 1997 Edward Grayson has set out a checklist for governing bodies to rely upon in ensuring that their disciplinary procedures conform to the duty to act fairly. It consists of the following; Avoid any risk of pre-judgment prejudice or bias or likelihood of that; Formulate and notify clearly, preferably in writing, any assertions needing reply; Notify clearly and preferably in writing, any date for investigation or hearing; Act intra-vires, within any rules and not ultra-vires, outside them; Remember the right to be heard in defence of any allegation; and lastly in cases laden with difficulty or complexity, consider carefully for legal representation. Thus, those who are involved at all levels of state or national sports bodies must check the policy of dispute resolution. The policy must be clearly written and interpreted in a fashion best serving the organisation. The writer would like to recommend that the Minister, either through amendments to sections 23 and 24 of the SDA 1997 or through introduction of new legislation, require that all sports bodies adopt a separate and overarching policy that institutes an appropriate internal appeal process. This should incorporate the principles of natural justice and provide for mediation and arbitration in the event of a dispute of any internal decision and ensure that the results of arbitration are final and binding upon the parties involved.
A policy resource center may be established to assist national sports bodies with the design and structure of policies related to internal appeal mechanisms to ensure appropriate legal training for decision makers in the national sports community on the development, interpretation and implementation of these policies. Another recommendation is to introduce Alternate Dispute Resolution (ADR).
ADR has been defined as a series of processes that are alternatives to litigation. ADR processes include prevention, negotiation, mediation, facilitation and arbitration.
ADR implementation is envisioned in two phases. The first phase requires the Minister of Youth and Sports to notify all sports organisations of the intention to legislate ADR and will provide assistance to national sports bodies in their effort to incorporate ADR into their constitutions and bye-laws. The second phase would be the implementation phase. After a reasonable period of time, the Minister should ensure that the ADR programme is implemented and those sports organisation that had not incorporated provisions for ADR into their internal procedures would be subject to sanctions such as fine, suspension or revocation of its registration by the Ministry. The scope of the programme would cover disputes which had not been resolved to the satisfaction of both parties using the sports body’s appeal procedures.
The basic principle of the programme would have the arbitrator measure the correctness of the decision and review all aspects of the case and use any evidence and records that was before the original decision-maker. The programme should be a guaranteed right for any member of, or any participant within, a national sports body for any dispute within the jurisdiction of the body. There should an article or provision in all states’s ports organisations and national sports body’s constitutions or bye-laws to use the national ADR system. However the system itself must incorporate certain principles namely; not for profit, affordable, accessible, timely, sports specific and independent. The national ADR system may be carried out by the Sports Advisory Panel, which was originally established to advise the Minister on all sports matters. The Panel would be responsible for designing and implementing the structure, ensuring appropriate evaluation and running its administration.
The number of panel members and their appointments would be made through nomination / selection by the Minister. It is advisable that the panel is represented through the Minister’s recommendation by qualified sportspersons, coaches, National Sports Council representatives and representatives from all respective states and national sports organisations. CONCLUSION Malaysian law has established the right to procedural fairness and natural justice within sports organisations. Regrettably, this well established right has not translated into internal procedures that fully reflect the principles of natural justice.
Some decisions continue to be made without hearings or opportunities for appeal and the arbitrary authority of the coach, umpire and other officials continues to reign completely unfettered. Section 23 of the SDA gives tremendous power to Members of the Board of national sports bodies, the chairman and officials. As a result, sportspersons are reluctant to pursue any avenues for dispute resolution open to them for fear of future reprisals. Clearly sportspersons lose valuable opportunities and their only recourse is to appeal to the courts. Some sports bodies’ constitutions / bye -laws have an internal appeal process, but in some cases it does not apply to all decisions of the organisation. However, it is submitted that there are inconsistencies in the policies and procedures of some sports organisations.
Some constitutions do not stipulate that arbitration is final and binding, thereby allowing for appeals to the courts. There are a few examples of disputes erupting, not over the administration of a policy, but over the substance of the policy itself. The writer acknowledges the right of a sports body to develop and implement its own policy but a dramatic improvement is needed so that the right of procedural fairness and right to natural justice is not jeopardise d by inconsistencies and deficiencies in sports body’s policies and procedures.