By Tom Feissner
The bases were loaded in Seoul this week as some of the heaviest hitters in sports arbitration law mixed it up in anticipation of the 2018 PyeongChang Olympic Winter Games. In his opening remarks, Conference Chair Eun Young Park of Kim & Chang ran the bases on the topics to be addressed. He then brought home his remarks by stating that in addition to being entertainment, the string of Olympiads taking place in Asia over the next six years are also major commercial endeavors. The success of these endeavors, he contends, depends on maintaining a fair playing field for everyone. The Court of Arbitration for Sport will play a vital role in that regard, he said.
Dr. Park then invited The Honorable Changjae Lee, Vice Minister of the Korean Ministry of Justice, to throw out the ceremonial first pitch. In his remarks, Vice Minister Lee emphasized that because sports are a part of our daily lives, we must have a system to resolve sports-related disputes in order to ensure fairness. He touted the new Seoul International Dispute Resolution Center as the ideal forum for arbitrating such cases.
Michael B. Lenard then took the mound in his capacity as Vice President of the Court of Arbitration for Sport (CAS). According to Mr. Lenard, the CAS was established in response to one of the biggest challenges in sports today: how to resolve the “inevitable” disputes that arise in today’s era of “lightning-fast” media coverage.
“Let the games begin!” Dr. Park then exclaimed as the players took the field. The first inning was all about international sports law and sports arbitration. At the top of the lineup was CAS Deputy Secretary General William Sternheimer, who led the audience on a barnstorming tour of CAS procedure and practice. Panelists Mark Mangan of Dechert and Sean (Sung-Woo) Lim of Lee & Ko thereafter peppered the Deputy Secretary General with questions concerning the advantages of using CAS for resolving sports-related disputes.
Mr. Lenard then stepped up to the plate again to give an in-depth presentation concerning how CAS arbitrates controversies that occur during the Olympic Games. He explained that because time is of the essence during the Olympics, formal adjudicatory procedures are impractical. As an alternative, he said, CAS has established a number of ad hoc divisions specifically designed to effectively resolve disputes on site. Fielding the play for this discussion were Jinwon Park of O’Melveny & Myers and Harald Sippel of Yulchon. Mr. Sippel was called in as a pinch hitter for Lee & Ko’s Young Sook Lee, who was on the disabled list.
The third inning began with a review of sports arbitration and the rule of law. The moderator for this portion of the event was Kevin (Kap-You) Kim of Bae, Kim & Lee. Speaking on the topic of sports disputes and human rights was Peter Leaver, QC of One Essex Court. Mr. Leaver began with the premise that “by entering the competition, athletes enter into a contract to play by the rules” and that any behavior inconsistent therewith constitutes a breach of that contract. Because a breach gives rise to sanctions, he reasons, athletes are therefore entitled to due process of law. Mr. Leaver then concluded by stating that while the vast majority of athletes are clean and play fairly, there will always be those who cheat, and thus the need to safeguard the rights of all athletes will continue. In addition to Kevin Kim, the panel for Mr. Leaver’s presentation was comprised of Seoul IRDC Secretary General Byung Chol Yoon of Kim & Chang and Professor Benjamin Hughes of Seoul National University.
Utility player Michael Beloff, QC of Blackstone Chambers was then recalled from the dugout to discuss sports and corruption. The draw of all sports, he said, is that their outcome is unpredictable, as opposed to a theatrical performance, the outcome of which never varies. Though the manipulation of sporting events is widely recognized as unacceptable, Mr. Beloff pointed out that corruption in sports is nothing new, citing examples of wrestling match fixing in ancient Egypt and chariot race fraud by the Roman Emperor Nero. He also cited more recent examples such as the 1919 White Sox baseball scandal. The common thread in all these instances is, of course, money, Beloff maintains. Aggravating matters is the fact that athletic associations lack the investigative powers of governments and have no power to arrest, he said.
In the bottom of the fourth, panel members Jin Ho Kim of UNCITRAL Asia, moderator Kevin Kim, and Andrew White of Yulchon then quizzed Beloff on what can be done to combat corruption in sport. He replied that prevention through education is the best method, but clear and specific rules that “can’t be challenged by clever lawyers” and more effective deterrent sanctions are two ways that have also proven effective. The encouragement of whistleblowing through reduced penalties and allowing anonymous testimony was also mentioned.
Kevin Kim then called a time-out for coffee and a seventh-inning stretch, after which the game resumed. The first topic up was anti-doping and fairness. Yun-Jae Baek of Hanol Law Offices, who was called in to relieve Mr. Kim as moderator, then introduced Canadian Richard Pound, QC, former chairman of WADA, to opine on the anti-doping system and disputes. As one of the founding members of the World Anti-Doping Association, Mr. Pound played a large part in promulgating many of WADA’s rules and regulations. He went on to explain his role in the NHL, Lance Armstrong and Sochi Olympics anti-doping controversies. Panelists for his discussion included Sam Kim of Yoon & Yang and John P. Bang of Bae, Kim & Lee.
The bottom of the ninth found Joel E. Richardson of Kim & Chang rounding the bases with a case study in Korean sports. His comments centered on the 2014 case of Yong Dae Lee vs. WBF, in which the World Badminton Federation (WBF) severely sanctioned two Korean athletes for violation of its anti-doping regulations related to “Whereabouts Failures.” Complicating matters was the fact that the Badminton Korea Association (BKA) stood between the athletes and the WBF, often taking action on behalf of the athletes without notice. The case is considered a prime example of the effectiveness of the CAS, which was able to resolve the dispute to the satisfaction of all concerned. Panelists Peter Leaver, QC and Robert W. Wachter of Lee & Ko rounded out the discussion.
As part of the closing commentary, Professor Hi-Taek Shin of Seoul National University and Chairman of the Seoul IDRC expressed his great pleasure at being able to be among such distinguished sports arbitration practitioners, thanked the speakers and panelists for their participation in the conference, and reminded everyone that the Seoul IDRC stands ready to provide the finest in arbitration services and facilities should they ever require a forum in which to resolve a sports-related dispute in Korea.
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