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    Default IBF lost arbitration on new scoring system

    found this in the badminton canada website.

    poor IBF, been in a lot of heat lately.


    ---------------------------------

    ADVISORY OPINION

    delivered by the

    COURT OF ARBITRATION FOR SPORT

    sitting in the following composition :

    Sole Arbitrator : Mr. Ian S. Blackshaw, LLM, Solicitor, Weybridge, England
    Submitted by : Canadian Olympic Committee (Mr. Mike Chambers, President) Created 2003/05/14.

    Pursuant to art. R61 of the Code of Sports-related Arbitration, the President has formulated the Questions in the present case submitted to the Sole Arbitrator as follows:

    Has the IBF Council acted within its jurisdiction and within the published "Rules of the International Badminton Federation" in making a decision on the competition scoring system regulations as directed by the membership at the 2002 IBF AGM?

    In light of the fact that there does not exist an internal appeal procedure within the IBF regulations, did the IBF Council, in making this decision, act in accordance with principles of natural justice?

    Does the decision that was made by the IBF Council constitute a kind of discrimination on grounds of *** in the meaning of the principles implemented by the Olympic Charter?

    INTRODUCTORY REMARKS

    The present matter arises out of a change to the scoring rules of the game of Badminton decided by the IBF Council at its Meeting on 18 May 2002 and announced on 23 May 2002, following discussion and referral of this matter to the IBF Council by the 2002 IBF Annual General Meeting held on 12 May 2002.

    Member Associations of the IBF from Canada, England, Australia, New Zealand and Scotland have questioned the validity of the IBF Council decision on the scoring rules change under the IBF Rules. And, on their behalf, the Canadian Olympic Committee has submitted on 7 February, 2003 a Dossier (subsequently referred to as "the Dossier"), prepared by Badminton Canada on behalf of itself and the other Member Associations.

    The Dossier consists of copies of various documents, press releases and correspondence relevant to this matter and its background.

    In addition, the IBF, having been invited by the Court for its observations, has filed on 4 April its own detailed Response (subsequently referred to as "the IBF Response") to the claims made by the Member Associations requesting this Advisory Opinion.

    This Advisory Opinion is based solely on a review of the Dossier and also the IBF Response, in so far as the arguments and views expressed therein are relevant to the specific Questions posed by the President of CAS, and no hearing has taken place.

    In rendering this Advisory Opinion, I shall apply English Law as the 'Law applicable' as The International Badminton Federation, whose decisions are being questioned, is domiciled in England with headquarters at Manor Park Place, Rutherford Way, Cheltenham, Gloucestershire. This is not only consistent with the Rules of Private International Law, but, although not, in stricto sensu, an appeal, is also consistent, by analogy, with the provisions of art. R58 of the Code of Sports-related Arbitration, which deals with the 'Law applicable' and provides as follows:


    "The Panel shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports body is domiciled."
    No such choice of Law has been made by the parties in the present case.


    THE ADVISORY OPINION

    In the interests of clarity, I shall first answer the Questions posed and then give my reasons for each of them.
    I would answer the Questions as posed by the President of CAS in the present matter as follows:

    No.

    No, in the absence of an internal appeal procedure, the IBF Council could not be in a position to comply with the rules of natural justice.
    Yes, in the sense that the decision of the IBF Council constitutes an unequal treatment between men and women which could be held to be discriminatory.
    And the reasons for my answers to these Questions are as follows:

    QUESTION 1 :

    Has the IBF Council acted within its jurisdiction and within the published "Rules of the International Badminton Federation" in making a decision on the competition scoring system regulations as directed by the membership at the 2002 IBF AGM?

    1.1. The Rules of the International Badminton Federation (subsequently referred to as "the Rules of the Federation") constitute its Constitution and also establish a contractual relationship between the Federation and its Member Associations. The current Rules are those dated 2002/2003, which, I am advised, are, with minor numbering changes, identical to those dated 2001/2002 in force at the relevant time, namely the date of the 2002 Annual General Meeting of the Federation. Under English Law, the general rule of construction - often called 'the golden rule' - of any legal document is to construe it as a whole and give the words their ordinary and natural meaning, unless this leads to a patent absurdity or is inconsistent with any special meanings assigned to any words or phrases by any express 'interpretation' or 'definition' clause.

    1.2. The relevant Rules of the Federation that need to be considered and applied in answering this Question, in my view, are the following ones:

    Rule 19 of the Rules of the Federation deals with 'Alteration of the Laws of Badminton...' and provides as follows:

    "19.1 No alteration shall be made to the laws of badminton except at a general meeting. Any proposal embodying such alteration, or one having a like effect, must be carried by a majority of two-thirds of the votes cast. This Rule shall not be altered without the unanimous consent of a General Meeting.

    19.2 A General meeting shall be empowered to consider proposals to alter the laws only at four-year intervals beginning with the AGM in 1994, unless special circumstances exists which, in the opinion of four-fifths of the votes cast, shall render the consideration of an alteration necessary.

    [19.3 Deals with alterations to recommendations to court officials and is not relevant to the present case]

    19.4 Council shall have power, on behalf of the Federation, to authorise experimental variations to the Laws of Badminton."

    Rule 21 deals with alteration of the Rules of the Federation, which may, in general, only be changed by the General Meeting, except as provided in Rules 19 (see above) and 22 (which deals with dissolution of the Federation and is not relevant in the present context).

    Rule 5 of the Rules of the Federation deals with the Government of the Federation. Rule 5.1 provides (in part) as follows:


    "The Federation shall be governed by a General Meeting (see Rule 7), which delegates from all Member Associations shall be entitled to attend....."
    Rule 7 of the Rules of the Federation deals with competencies and procedural matters relating to the holding of the Annual General Meeting (AGM) and an Extraordinary General Meeting (EGM).

    Rule 6 of the Rules of the Federation deals with the Council and its composition and powers. Rule 6.1 provides (in part) as follows:

    "Each AGM shall appoint a Council which shall have administrative powers to carry on the work of the federation between AGMs...."
    1.3. It is clear from the above governance provisions that the supreme organ of the Federation is the Annual General Meeting, which is competent to make the decisions. Whilst the Council is merely its executive arm charged with the responsibility of implementing them.

    1.4. From the Dossier, it would appear that the proper notices for the holding of the May 2002 AGM were followed (Rule 9) and for the Member Association proposals to be put to the AGM (Rule 8) were duly given. There were no procedural irregularities, therefore, in these particular respects.

    1.5. However, the manner in which the proposals to change the scoring rules were handled at the AGM and by the Council, to whom it appears the proposals were properly delegated by the AGM, would not appear to be in accordance with the Rules of the Federation.


    1.5.1. In particular, it appears that the Council were asked to consider four different proposals, when, in fact, they also considered an entirely different one, which has been referred to as "the 5th Option", apparently of its own creation, which had not been discussed by the Member Associations at the 2002 AGM or in respect of which proper prior notice given (five weeks) under Rule 8.3. The 5th Option the Council included as part of its final scoring rules changes decision.

    1.5.2. To that extent, as it appears that the Council was mandated to consider four and not five proposals, the Council has exceeded its powers. In other words, the decision they made on the scoring rules would appear to be 'ultra vires' and, therefore, invalid in law.

    1.5.3. Indeed, this possible irregularity was, in effect, clearly acknowledged by the Chief Executive of the Federation, Neil Cameron, in his reply of 20 November 2002 to Ian Moss, Executive Director, of Badminton Canada, when he wrote to him in the following terms:


    "Given the divergence of opinion ....as to what Council's remit actually was, Council therefore feels that the best course of action is to allow the 2003 AGM to have overriding authority to rule on the matter by approving or modifying the minutes of the 2002 AGM."

    1.5.4. Furthermore, this also appears to be the case from what is recorded in Minute no. 39 of the AGM Minutes of 12 May 2002, which states as follows:


    "As some delegates indicated they were confused as to where the decision-making process had reached, the Chief Executive said that it was being proposed to refer the matter to Council and empower it to make the final decision."
    1.5.5. Apart from the next Minute, no. 40, which deals with the procedure to be followed, in particular, the qualified voting majority of 2/3, for the matter to be referred to the Council and decided at its scheduled meeting on 18 May, the Minutes do not shed any further detailed light on the matter. In particular, which proposals the Council was mandated by the AGM to consider. In para. 40 of the Response, it is stated that:


    "Minute 40 makes clear that the President did not [emphasis added by IBF] speak about choosing one of four options."

    Indeed, there is no minute detailing what specifically was being mandated to the Council to decide. This is indeed a "question of fact" as the IBF point out in para. 44 of the IBF Response. And, I would add, a crucial one, in view of the differences of opinion on how the scoring rules should be changed (see 1.5.7 below). And one - on such an important issue - that should have been clearly stated in the Minutes, which are the record of the actual mandate given to the Council to decide this point. This was not done and so Minute 40 neither proves nor disproves what options were placed before the Council for determination.

    1.5.6. Indeed, the next Minute, no. 41, states:

    "At this point the meeting was adjourned for a coffee break."
    In other words, the Meeting moved on afterwards to consider other unrelated matters.

    1.5.7. In my opinion, for all the above reasons and based on the information available to me, there is a clear doubt as to the validity of the scoring rules changes, which incorporated the alleged 5th Option, brought in by the Council following the 2002 AGM. And the benefit of this doubt must, in fairness and equity, be given to the Member Associations of the IBF requesting this Advisory Opinion. It follows that, to be legally valid, the actual changes purportedly 'agreed' need to be ratified or changed to reflect the true feelings of the Member Associations meeting in General Meeting. Indeed, Cameron expressly recognises the General Meeting as the "game's supreme body". And furthermore, para. 31 of the Response also specifically recognises this in the following terms:


    "IBF naturally acknowledges and accepts the supremacy of its members meeting in a General Meeting..." [and adds:] "In fact conscious of the view of some members that the 2002 AGM did not in fact mandate Council to choose a new [emphasis added by the IBF] system, but only one of the four before the 2002 AGM, IBF advised members that it would refer this issue back to the 2003 AGM when the members there would formally approve the 2002 minutes..."

    1.5.8. It is also clear, in my opinion, that, in accordance with the general principles of English Law and Equity, the rather hasty manner in which the present scoring rules change decision of the Council was made is flawed, because the mandate given to the IBF Council is neither clear nor precisely recorded in the Minutes of the 2002 Annual General Meeting. Therefore, the decision itself - dealing as it does with such a fundamental issue which requires the utmost clarity - cannot, in my view, be allowed to stand without a further decision of the Member Associations meeting either in the next AGM or a specially convened EGM either ratifying or changing it. As a rider, I would add that this is not to say that there was any bad faith on the part of the IBF Council, merely a lack of a clear mandate and specific authority.

    QUESTION 2
    In light of the fact that there does not exist an internal appeal procedure within the IBF regulations, did the IBF Council, in making this decision, act in accordance with principles of natural justice?

    2.1. To put this question into its legal context, in the IBF response, it is admitted that there is no neutral internal review procedure. Therefore, the absence of such a procedure, which is not uncommon amongst sports bodies, means that the IBF could not be in a position to comply with the rules of natural justice when reviewing decisions within its own organisation. What are these rules?

    2.2. Under English Law, the principles of natural justice are:

    'nemo judex in causa sua potest' - no man may be a judge in his own cause (the so-called 'rule against bias'); and
    'audi alteram partem' - let the other side be heard (in other words, both parties to a dispute should be heard and no-one condemned in their absence).
    In other words and to sum up: the hearing must be a fair one.

    2.3. These rules are part of one of the heads of judicial review, namely, procedural impropriety, as outlined by Lord Diplock in CCU v Minister for the Civil Service [1985] AC 374. And not only apply to cases raising public law issues, but also to cases founded on private law, including the private law relationships of sports governing bodies (Jones v WRFU 'The Times' 6 March 1997 & 'The Times' 6 January 1998).

    2.4. Whether these rules apply depend upon the circumstances of each particular case.

    2.5. As Lord Justice Tucker put it in Russell v. Duke of Norfolk [1949] All ER 109 at p.118:


    "The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth".
    2.6. Whilst in the later case of Wiseman v. Borneman [1969] 3 ALL ER 275, Lord Morris said at p.278:

    "...the principles and procedures are to be applied which in any particular situation are right and just and fair. Natural justice, it has been said, is only fair play in action".

    2.7. It is clear from the above principles that the rules, actions and decisions of the IBF Council must in all respects - substantively and procedurally - be fair.

    2.7.1. And also, it should be added, seen to be fair: as there is also judicial authority to the effect that the likelihood of the appearance of bias would also vitiate any decisions (R v Sussex Justices ex p McCarthy [1924] 1 KB 256; and R v Gough [1993] AC 646).

    2.7.2. In particular, the IBF must not act as judge and jury in its own causes. In other words, appeals against decisions of the IBF Council must not be determined by the Council itself, but referred to an entirely independent and neutral body. Otherwise, there is an absence of impartiality and lack of fairness and, consequently, a breach of the principles of natural justice. In fact, the IBF, in para. 69-E of the IBF Response, expressly acknowledge that there is no "IBF neutral review procedure".

    2.7.3. Rule 6.4.3 provides that:

    "It shall be part of the duties of the Rules and Laws Committee to decide any question which may arise as to the interpretation of the Rules, Regulations, Laws or other statutes. Such interpretation shall be final."
    This provision is clearly in breach of the 'rule against bias'.

    2.7.4. Furthermore, the provision of finality is also unlawful. In general, no body in any dispute may oust the jurisdiction of the courts. Such agreements are void (Baker v Jones [1954] 2 All ER 553).

    2.7.5. However, what may lawfully be done is to require all internal appeal procedures to be exhausted before resorting to the Courts (Scott v Avery [1856] 5 HL Cas 811).

    2.7.6. On a general point, I do not agree with the IBF contention as stated in para. 25 of the IBF Response that the IBF Council is "not judicial or quasi-judicial in nature". It is an important organ of the governing structure of the sport of badminton and, in exercising its governance powers, particularly in relation as to what may be required of women contestants under the "Laws of the Game", the IBF Council is acting in a quasi-judicial manner, simply because rights of competitors - or would be competitors - are affected. In particular, it must exercise those powers, which it has under the Rules of the Federation or which have been delegated to it by the supreme organ, the Annual General Meeting, in accordance with the Rules of Natural Justice. And, in particular, must act fairly and not in an arbitrary manner. As Lord Denning pointed out in the case of Enderby Town Football Club Ltd v The Football Association Ltd [1971] Ch 591 at p. 606:


    "The long and the short of it is that if the court sees that a domestic tribunal is proposing to proceed in a manner contrary to natural justice, it can intervene to stop it."
    For 'domestic tribunal' read 'sports governing body' exercising its powers of governance under its rules.

    Furthermore, to suggest, as the IBF does in para 69-E of the IBF Response that the right of Member Associations to refer disputes under Rule 2.4 to the CAS (an external appeal body) in some way legitimises "the lack of an internal appeal process" is to miss the point. The Question posed concerns the absence of a neutral internal (my emphasis) appeal procedure. I would add (in parentheses) that the IBF might like to follow the recent examples of a number of UK sports governing bodies, such as the Jockey Club, made particularly in the light of the UK Human Rights Act 1998 (see below) and refer disputes to an internal body with an independent legal chairman. This would add the required neutrality and impartiality, which currently seems to be lacking.

    There is also other later judicial authority supporting and applying the above general principle that the courts will intervene in cases of unfairness in relation to the actions and decisions of sports governing bodies in the UK - even where they relate to the 'Laws of the Game' (see Chapter 5 of 'Sports Law' by Simon Gardiner, Mark James, John O'Leary, Roger Welch, Ian Blackshaw, Simon Boyes & Andrew Caiger, Second Edition, 2001, Cavendish Publishing Limited, London).

    I would add (again in parentheses) that the decisions of sports governing bodies in the UK are now also directly subject to challenge under the provisions of the European Convention on Human Rights - particularly article 6 which guarantees a fair hearing - following the enactment of the Human Rights Act 1998. But, as I am not specifically asked to consider this aspect of the matter, I shall not pursue this point any further.

    2.8. For all the above reasons, in my opinion, it would appear that, in view of the absence of "an IBF neutral review procedure", which is admitted, the IBF Council could not and, therefore, did not comply with the principles of natural justice in making its decision on the new scoring rules.

    QUESTION 3
    Does the decision that was made by the IBF Council constitute a kind of discrimination on grounds of *** in the meaning of the principles implemented by the Olympic Charter?

    3.1. Rule 3 of the Rules of the Federation sets out the purposes and principles of the International Badminton Federation. And Rule 3.2 is particularly apposite in the present case. It provides as follows:


    "The general and fundamental principles of the Olympic Charter are applicable, and no provision of the Rules and other Regulations shall be deemed to conflict with or derogate from those principles."

    3 2. To answer this Question and also following on from the above Rule, it is also necessary to consider the relevant provisions of The Olympic Charter of 11 September 2000 (the latest version).

    3.2.1. The Olympic Charter is the codification of the Fundamental Principles, Rules and Bye-laws adopted by the IOC and governing members of the Olympic Movement.

    3.2.2. One of those principles declares the practice of sport to be a human right and that every individual must have the possibility of practising sport in accordance with his or her needs.

    3.2.3. Also, Chapter 1, under the general heading of 'The Olympic Movement', sets out in section 2 the role of the IOC in promoting 'Olympism'.

    3.2.4. In sub-section 4 of that section, the IOC is required to "promote the rights of members of the Olympic Movement" and to act "against any form of discrimination..."

    3.2.5. Further, under sub-section 5 of the same section, the IOC "strongly encourages, by appropriate means, the promotion of women in sport at all levels..."

    3.2.6. A Note to the Charter also provides that:


    "the masculine gender used in relation to any physical person....shall, unless there is a specific provision to the contrary, be understood as including the feminine gender."
    3.2.7. It is clear from all the above that the Olympic Movement is founded on an absence of any kind of gender discrimination in sport.

    3.3. The concept of discrimination against women is a simple and straightforward one. Section 1 of the UK *** Discrimination Act 1975 provides as follows:


    "A person discriminates against a woman in any circumstances relevant for the purposes of any provisions of this Act if:
    on the ground of her *** he treats her less favourably than he treats or would treat a man...."

    3.3.1. Under most laws against *** discrimination in sport, and certainly under English Law, account may, according to the particular circumstances, be taken of the physical differences between men and women; so the right against discrimination is not an absolute one, but a qualified one that must be judged according to the particular circumstances of each particular case.

    3.3.2. Thus, section 44 of the UK *** Discrimination Act, 1975 contains the so-called 'sporting exception' and provides as follows:

    "Nothing....shall, in relation to any sport, game or other activity of a competitive nature where the physical strength, stamina or physique of the average woman puts her at a disadvantage to the average man, render unlawful any act related to the participation of a person as a competitor in events involving that activity which are confined to competitors of one ***."

    3.3.3. The new scoring rules do, prima facie, discriminate between men and women players.

    3.3.4. Unless the different scoring rules for women's singles and doubles and mixed doubles can be justified in so far as they relate to these women's events within the express terms of section 44 of the UK *** Discrimination Act, 1975, which, being a specific exception to the general rule, must be interpreted strictly, they constitute *** discrimination. I would add (again in parentheses) that the recent decision of the Federal Magistrates Court of Australia in the *** discrimination case of Gardner v AANAL (All Australia Netball Association Limited) is apposite on this legal interpretation point and of 'persuasive authority'.

    3.3.5. The onus would be on the IBF Council to try to justify this discrimination within the limits of the above statutory parameters, but no such justification would appear to have been adduced.

    3.3.6. Certainly, there is no attempt to provide any justification in the Memorandum of 23 May 2002 from Torsten Berg, Chair Administration Committee, announcing the changes to the scoring rules.

    3.3.7. However, from the correspondence in the Dossier, the only justifications that do appear to have been offered by the IBF Council are "marketing issues" and the "marketability of ladies events". This 'justification' is also advanced in para. 14 of the IBF Response, which, following on from para. 13, which recognises, with examples, the physical differences between men and women in relation to sport (the basis/rationale of the above statutory exception), goes on to expressly exclude these differences as grounds for discrimination stating:


    "However, this is not a question of whether women could play to 15 points in doubles- undoubtedly they can, and have been doing for many years. The issue is what is best for the promotion and development of the game."
    Again, in para. 7 of the IBF Response, it is stated:


    "The primary focus for IBF in considering a change of the scoring system was to make Badminton on television more exciting and watchable..."
    In other words, to make the sport more 'telegenic'.

    Also, in para. 17 of the IBF Response, "the marketability of elite badminton to spectators at the competition venue" is also a factor prompting the change in the women's scoring rules.

    In other words, to make the sport more spectator friendly too.

    In both cases, to treat women as 'commodities' and 'marketing objects/tools' does not fall within the legal exceptions mentioned in 3.3.2. above, and would not, therefore, constitute a lawful defence to a claim of sexual discrimination in sport under English Law.

    3.3.8. Apart from all this, the new scoring rules represent a regressive step compared with the 'status quo ante' in which only the scoring rules in Women's Singles events were different - equally this limited unequal treatment of women and men competitors would need to be legally justified. And so any ground(s) justifying the different rules for several disciplines in the sport of badminton, namely Women's Singles, Women's Doubles and Mixed Doubles, would require even more rigorous scrutiny, from a legal, and, I would add, from an equitable and sporting point of view also.

    3.3.9. In all these circumstances, the new scoring rules are also clearly contrary to the principles in the Olympic Charter, to which the Rules of the Federation are made expressly subject (see Rule 3.2 cited in 3.1. above).

    3.4. Based, therefore, on the above reasoning and also in the absence of any objective and lawful justification by the IBF Council - marketing reasons are not within the permitted legal exceptions - in my opinion, the new scoring rules decision - although probably not intended or realised by the IBF that, legally speaking, it could be interpreted as being discriminatory and without any evidence of any bad faith on its behalf - does produce the effect of unjustified unequal treatment between men and women competitors. And, therefore, this decision could be legally held to be discriminatory. As such, it follows that the new scoring rules could also be regarded as being contrary to and incompatible with the principles against *** discrimination and the promotion of women in sport as enshrined in the IOC Charter, which the International Badminton Federation, according to its Rules, is legally obliged to respect and uphold.

    Done in Lausanne and dated 24 April 2003

    The Court of Arbitration for Sport
    Sole Arbitrator
    Ian S. Blackshaw

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    If a person reads an interesting story and would like to sure it with the rest of BF, maybe it would be a good idea to give a short summary of it if the article is extremly long?

    (this article was 4600 words. Most legal opinons have headnotes.)

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    This article demonstrates to me the naivety of the members that make up the IBF.

    Whilst I don't think there were any real misintentions of the IBF in popularising the sport, obviously they have a set of advisors/PR personnel not able to anticipate the problems so well. Of course, if in the first place, amendments to IBF rules and regulations are not following correct procedures, any action is difficult to justify.

    I just wonder about the make up of IBF committee. Whilst no doubt all are working towards a common goal, there might be a lack of sufficient numbers who understand politics. Of course, BF members have asked before, why not ask the audience what they want rather than just have experiments which may or may not work.

    No doubt people (and organisations) are sometimes unhappy with the decisions of the IBF. I think in some way, perhaps IBF could contribute to its own cause by better dissemination of the logic behind its decisions. ie publicising the minutes of its meetings.

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    Does this refer to the current proposed 3x21 rally-based system or the previous 5x7 service-based system? Because the document starts with: "The present matter arises out of a change to the scoring rules of the game of Badminton decided by the IBF Council at its Meeting on 18 May 2002 and announced on 23 May 2002, following discussion and referral of this matter to the IBF Council by the 2002 IBF Annual General Meeting held on 12 May 2002."

    Anyone know?

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    I think it goes back to a short period when
    any event involving a lady was only played to 11 points
    MS 3x15, MD 3x15
    WS 3x11, WD 3x11, XD 3x11

    and this discrepancy with the Olympic Charter has had some part in the most recent scoring change proposal. i.e. Mens and Ladies events use the same system.

    it doesn't seem to cause a problem for tennis to have men play best of 5 sets but ladies only play best of 3 though. Tennis seems to be ok having different formats for different events. Mens is often best of 3 sets.
    Is it only the Grand Slams that are best of 5?

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    I think the IBF is no longer domiciled in the UK. Many years ago the Privy Council in the UK threw out the IBF's decision to kick Taiwan out. But the IBF and the rival WBF got around that one.

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