June 22, 2021

Justice must be seen to be done

8 min read

Sports Associations are often advised to avoid going to the Courts to settle their disputes and resolve the matter internally. If it fails, than the parties are advised to refer the same to the arbitration panel of the Olympic Council of Malaysia (OCM) or to the Sports Commissioners Office.

The dispute panel of the OCM is only for its own members and there are a number of national sports associations not affiliated with them. So that leaves the Sports Commissioners Office as the only choice for some.

And reference to a third party including the OCM or the Sports Commissioners Office can only be made after all avenues to resolve the matter within the association is first exhausted.

There is a strong reason as to why sports associations would be wary of referring any disputes to the Sports Dispute Committee – Section 24 A of the Sports Development Act (SDA).

The new Section 24 in the Amended Act 2018 provides for the formation of a new sports tribunal to manage disputes arising from any member of a sports body or from the sports body itself.

While it provides an avenue for arbitration, the problem lies with the other clauses in the Section.

While one would assume that the Sports Dispute Committee would be just and fair in meeting out their decision, the Section also has another rather startling provision.

Section 24 A

(2) The Minister may confirm, reverse or vary the decision of the Sports Dispute Committee.

(3) The decision of the Minister under subsection (2) shall be final.

These provisions basically empower the Minister as the sole final authority in settling the dispute at his own discretion.

If the Minister confirms, reverses or varies a decision made by the Sports Dispute Committee, it raises plenty of questions. Does he have to give any a reason for his decision? Does he have the expertise if the issue relates to legal issues? Can he be impartial if the matter concerns a politically connected person? What would transpire if we end up with a truly incompetent or dictatorial person in that position?

While we keep lauding ourselves as a democratic nation, is giving one man the final decision making power democratic?

These provisions are likely to deter some disputes from being actually referred to the Sports Dispute Committee.

While Section 24 A (3) says the decision of the Minister shall be final, Jady Zaidi Hashim the Associate Professor at the UKM and the author of the book on sports law – An Introduction to Sports Law in Malaysia: Legal Guidelines for Sports persons and Sports Administrators, is of the opinion that aggrieved parties still do have further options.

In his blog, Jady has this to say:

Therefore, if the parties still not satisfied with the Sports Minister decision, the next step is either (a) to refer the matter freshly under the provision of the Arbitration Act 2005 (Act 646) for domestic arbitration, or international arbitration in the case of international nature, involving the application of private international law. The matter may also be referred for final determination to Court of Arbitration for Sports, or (b) to ordinary court to review the decision of the Minister. In the latter process, the court intervenes only if there is a case of illegal exercise or abuse of power, or the Sports Minister acted outside the boundaries of his jurisdictional power.

The OCM in its constitution has its own rules governing arbitration. While the Sports Act seems to lean toward immediate arbitration, the OCM prefers to take the mediation route in the first instance.

Section 22 of the OCM constitution provides for the body to provide the necessary services of mediation. Alternatively, the mediation may be referred to the Kuala Lumpur Regional Centre for Arbitration (KLRCA) for a mediation process under the KLRCA Mediation and Conciliation Rules.

The OCM constitution also allows the matter to be referred to the Sports Dispute Committee or for arbitration by the KLRCA.

There were also efforts to set up a Sports Arbitration Center under the KLRCA, now known as the Asian International Arbitration Centre (AIBC). The issue was supported by the OCM previously and was even referred to the Sports Ministry for their support and approval.

However, despite initial positive support, the Ministry finally chose to take the Sports Dispute Committee route.

Former KLRCA director Datuk Professor Sundra Rajoo said that the panel would have been beneficial as it would have seen a professional and independent arbitration system.

“We had in fact trained the arbitrators and made all the preparatory works to get it working quickly,” said Sundra.

He added that the plan was to slowly elevate the status of the Sports Arbitration Centre to also expand to other Asian Countries.

Of the two – Sports Dispute Committee and the OCM – the latter seems to be a better route for sports associations. But again neither option would create an impression of impartiality if the matter concerned relates to a high ranking or a politically linked official. The perceived veto power given to the Minister is also not a confidence factor.

A completely independent tribunal proposed by the KLRCA would probably have been the best choice.

The problem with getting fair resolutions in disputes involving sports associations does not only depend on outside mediatory boards and tribunals.

Most disputes within associations arise because the office bearers themselves do not follow their own constitution or guidelines.

Take a look at the issue related with the Malaysia Karate Federation (MAKAF).  While the matter is currently being battled out in the courts, the entire problem is because MAKAF itself failed to follow its own constitution.

Back in 2018, MAKAF had wanted to call for an election of caretaker office-bearers but the proposal was not supported by the Sports Commissioners Office due to unresolved issues relating to the membership of two state affiliates. The internal problems in MAKAF had been referred by some members to the Minister previously and the Sports Commissioner had advised MAKAF to defer their proposal until a resolution from the Minister was given.

But, the then executive committee went ahead with an election in October the same year after getting majority support of its own members. At the meeting, only the elections were conducted and no other agenda as required for an Annual General Meeting or Biennial General Meeting were included.

If it was an Extra-Ordinary General Meeting, then the meeting can only discuss specific issues and certainly cannot conduct an election.  

The question one needs to ask is whether the Sports Commissioner had recognised them as being duly elected? If yes, then the Sports Commissioner Office may have erred in its decision. If not, is MAKAF still a legal body?

But that was not the end of how an association had failed to follow its own regulations.  The interim committee decided to allow exponents from non-members to participate in the national championships, contrary to its own regulations.

Official written queries from disgruntled affiliates went unanswered. This was followed by a majority members requesting for a Supreme Council Meeting and EGM and once again did not get a response from the committee as required by its own constitution.

The Sports Commissioners Office in its letter to the rival faction refused to get involved in the matter and requested that the matter be resolved internally as per Section 23 of the SDA.

But, how can the matter be resolved internally when the elected office bearers, in this case still questionable, refuse even to reply to queries from members or adhere to their own association’s constitution.

The rival faction with a majority backing conducted their own EGM to pass a no confidence motion against the interim committee in June last year and followed it up with a BGM in July to elect the office bearers.

MAKAF now has two sets of elected office bearers, both claiming to be the legal body and both taking injunctions against each other.

The MAKAF constitution also has no provisions pertaining to dispute resolutions nor does it  have provisions to set up a disciplinary sub-committee. It makes the Supreme Council the judge, jury and executioner. In this case how can a dispute against the office bearers be disposed without bias?

This is not the only case where associations fail to adhere to their own constitution in victimizing their detractors. One Kuala Lumpur state sports association has been suspended indefinitely without due process for more than 10 years by its national body with no resolution in sight.

While the parties in MAKAF have the financial capacity to bring their dispute to the courts, there are plenty of other grassroot sports organisations, officials and even athletes who do not have the luxury to be able to resolve their problems through the courts.

As such, it is important that a better system of mediation and arbitration be put in place with the ability to quickly dispose of such issues. Internal resolution within the associations may look good on paper but are never seen as equitable, justifiable or evenhanded.

It is therefore pertinent that the Sports Commissioners Office come out with the regulations that require all sports associations to include clear articles on dispute mediation and arbitration into their constitution as the first step.

But, let us be realistic. Internal mediation and arbitration does not always work. We need independence in this crucial aspect or be prepared for more derailment on the proper, just and smooth administration of any association.

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