Raja, who is also a top rower, said: "The EOK general assembly agenda includes a significant point – creating a sports court. I agree that the establishment of a court like this would be a groundbreaking and much needed step for Estonian sports."

"However an opinion piece by Mart Parind, a lawyer from the NOVE Law Office and an expert in sports law, has highlighted several critical deficiencies in the proposed regulations, including possible conflicts with the Constitution," Raja went on, via a press release.

Raja was referring to the Estonian Constitution.

"According to him (ie. Parind – ed.) the proposed sports court regulations are partly in conflict with both the Constitution and the principles of protecting athletes' rights … He did approach me seeking an ally on this matter, and with our discussions, we realized that this document's content of needs further work, in several key areas," Raja added.

"At the same time I call it important that the development of the document's content is contributed to by the EOK presidential candidates, so that the independence and fairness of the proposed future sports court is guaranteed, particularly for athletes," he continued.

"Secondly, as chair of the EOK sportspeople's committee, I feel the moral responsibility to highlight that the rules concerning athletes' rights must be clear, transparent, and comprehensible. Right now, the need for this court of arbitration and its challenges have not been properly discussed or explained to the EOK sportspeople's committee. The complex legal text needs expert clarification in 'plain speak,' to understand what each provision involves. The situation right now creates questions about both the rules-making process and the necessity of the court, in its proposed form."

"In being guided by Mart Parind's observations, I see the need to revisit a substantive discussion and a working party, to evaluate thoroughly the sports court rules and their potential impact on all sides. A strong foundation has been laid, but a document of this size should not be hurried through," Raja concluded.

Parind's opinion follows.

Estonian sports court – about cabinet silence at the expense of athletes' fundamental rights?

Mart Parind, attorney at the NOVE law firm, head of its sports law department

On October 11, the new EOK is to be elected. The electoral campaign, which should end in a resetting of the cornerstone of Estonian sports, has mercifully garnered widespread media attention. Unfortunately, another agenda item for the EOK general assembly has slipped under this radar – the creation of an Estonian sports court.

The birth of this sports court would be a groundbreaking development for the sector, and does not deserve to be relegated to a mere footnote role.

A court of arbitration specializing in the resolution of sports disputes is essential, but is only justified if it is created as a strong and independent entity, and if the relevant legal framework is uncompromisingly of a high quality.

The raft of documents relating to the establishment of the sports court, as sent to the EOK general assembly, is unfortunately glaringly underdeveloped, and in some of its parts, even in conflict with the Constitution.

To "push through" the draft in its current guise would constitute a legal blunder and would result in the immediate need for a complete overhaul of the system.

Beyond the content, the process itself leaves much to be desired. The EOK sportspeople's committee, for example, was not involved, even though the regulations under development will directly determine where and how athletes can defend their rights.

In such an undertaking, the voice of the athletes should have been heard. Best practice should have also involved engaging the public at large. The EOK, as the umbrella organization for sports in this country, functions de facto as a public body, and fundamental changes like these require greater transparency. Yes, this could slow down the pace somewhat, and even get tedious, but ultimately it is necessary and justified.

The concrete shortcomings of the sports court plan can be divided into four categories:

1. Perhaps the least important, though still not insignificant of problems, are the hallmarks of a rushed job evident throughout the documents. The text contains many linguistic and grammatical errors, contradictory provisions, and ambiguities and inconsistencies or terminology.

2. A concern of a comparably greater degree is the various "simply strange" provisions in the draft, which do not align with the role of the court.

So for instance one of the purposes of the sports court is stated as the prevention of disputes. However, how a court might preempt disputes is unclear, given that courts are strictly reactive institutions with no proactive rights to initiate.

Directly alarming is the point in the bill that refers to the sports court as a disciplinary body. Hopefully, this is a mistake caused by misuse of punctuation (the author is referring to an ambiguity in the original Estonian – ed.), since openly stating that the court would function as a disciplinary body is something that even countries where this is the case would hardly dare to declare publicly.

3. The third category of problem is that athletes, who are likely to be the main "clients" of the sports court, are being sidelined or neglected.

According to the draft, every adult sportsperson must pay a fee of €2,500 to file a complaint. While this sum is recoverable from the opposing party if the athlete wins, for many, especially in the world of Estonian sports, where many athletes live practically hand to mouth, this amount could be a significant barrier to seeking justice (ie. it is not on a no-win, no-fee basis – ed.).

The sports court does require funding to operate, but there are most likely alternative financial models which could be considered. As a comparison: In the world of big money – public procurement – the highest state fee possible is €1,280.

What is more important is that, under the bill's terms, the losing party is not required to reimburse the winner's legal costs. This is problematic – and questionable from a constitutional perspective – for two reasons: First, the jurisdiction of the proposed sports court is effectively mandatory for all sportspeople (the alternative "option" being to stop taking part in sports altogether).

Second, in general, athletes would need a lawyer to effectively protect their rights – as sports disputes have become increasingly complex. With this, the system compels athletes to go to court, where they will likely need a lawyer's aid, but even in the event of a victory, no one will reimburse them for their legal costs.

Certainly it is the case that extending the "loser pays" principle to legal fees also has a downside. It could deter individuals from filing otherwise legitimate complaints due to the fear of losing and the financial burden that would ensue.

However, the "loser pays" principle has a moral justification too – the losing party was in the wrong. It is hard to find moral justification for requiring the winning party to pay out of pocket to defend their own rights.

4. The issues in the draft of greatest magnitude are the conflicts with various legislation, including the Constitution.

How to subject amateur athletes, who in reality make up the majority of Estonian sports, to the jurisdiction of the sports court, has not been thoroughly thought through. The draft aims to bring all sports disputes in Estonia, even at the amateur level, under the sports court's ambit via preemptive arbitration agreements. However, under Estonian law, agreements made with amateurs on the resolution of future disputes in arbitration are null and void.

The draft appears to affirm the sports court's competence even when its jurisdiction is specified in the rules of a competition, without requiring the individual participant's separate confirmation of their own consent. According to Supreme Court case law, this is not enough: Under the Estonian legal order, at the bare minimum a form of consent that allows for written reproduction is required.

The bill also sees it that, generally, disputes are not resolved from scratch in the sports court but rather that the court only reviews the legality of an a priori decision.

This means that a review conducted by the sports court would not be as thorough as it could be. The dispute would not be deconstructed and examined from the bottom up, as is usually the case in a court of first instance; rather, whether the decision-maker – for example, the disciplinary committee of a sports federation – made any (serious) mistakes, is the only consideration.

This may serve to weaken the plaintiff's position, as the sports court would merely act as a restricted overseer of someone else's work, instead of going over the entire process of reasoning by itself.

For comparison's sake: The Court of Arbitration for Sport (CAS) reviews cases from the start, as required by the European Convention on Human Rights (ECHR), which stipulates that a person must be granted a "genuine trial" in at least one instance.

The CAS has stated that the disciplinary and dispute resolution bodies of sports federations do not guarantee impartial and independent justice.

Finally, and likely in conflict with the Constitution, the draft takes away the right of all individuals who are mandated to be referred to the sports court to initiate any state court proceedings on the same matter, after the sports court process is over. However, in a rule of law state, there cannot be a type of private justice which is entirely immune from state oversight.

So it can be seen that Estonian law provides that an arbitration decision made by a domestic arbitration court can be appealed on to the circuit court. Certainly, a sports dispute is not reexamined in full there, but it is checked over to ensure that the arbitration decision does not conflict with public policy and that the individual's procedural rights were not violated.

As a signatory to the ECHR, Estonia is also obligated to ensure that at least one instance evaluates the compliance of judicial proceedings with the convention (ie. a human rights test).

For these reasons, CAS rulings can be appealed for limited review with the Swiss Federal Supreme Court. The latter, along with the German Supreme Court, has ruled that athletes must retain the right to appeal an arbitration decision to a state court, to receive a judgment on the compliance with the individual's fundamental rights and the core principles of public order. This makes it puzzling that this option is being discarded in Estonia. Our own Constitution probably does not tolerate such a forced waiver of an individual's constitutional safety nets.

To sum up, an Estonian sports court is, in and of itself, a good idea. However, a good idea also requires good implementation. Otherwise, the undertaking may do more harm than it does good. In sporting terms: Right now, a timeout at the tactics board and an adjusted game plan would be helpful. Only then can we ensure that a quality gets is created, one that can serve the Estonian sports community smoothly and over the long term.

--

Follow ERR News on Facebook and Twitter and never miss an update!