Luljeta PLAKOLLI-KASUMI
Recent developments and success stories related to Kosovo sports convey the necessity to
explore the legal infrastructure related to sports. Only this year, Kosovo made an international
breakthrough in sports by getting admission in both UEFA and FIFA, and its sportswomen made
history by winning the first ever-gold Olympic medal in Rio2016. Last year, Kosovo was granted
admission to FIBA, thus becoming its 215th member. The internationalization of the Kosovo
sport demands the establishment of an effective and efficient sports system aligned to rules of
international sports associations, EU law and other international standards, as well as sound
institutional infrastructure that will implement this regulatory framework.
Along with the development of the sports law, many countries have also developed national
sports arbitration bodies thus providing to sports organizations, members of the national Olympic
Committees and other interested parties, a forum where they can refer their contractual disputes
related to sport. In Kosovo, arbitration law has received a significant attention during the last
couple of years and two arbitration centers have been established, one with the American
Chamber of Commerce (AmCham) and another one with the Kosovo Chamber of Commerce
(KCC). Both arbitration centers provide commercial arbitration services, and while commercial
arbitration and sports arbitration share many characteristics, the sports arbitration, nevertheless
distinguishes from non-sports-related arbitration in many aspects. Sports-related disputes are
facilitated with procedural rules specifically adapted to sports thus ensuring speed, special
expertise, and last but not the least, consistency and transparency. In addition, sports-related
arbitration bodies also serve as a final court of appeal for disciplinary cases.
The aim of the present paper is to examine Kosovo’s current legal and institutional infrastructure
related to sports and present some findings with regard to the level of its conformity with EU and
international standards, as well as to look into the possibilities of creation of a national sports
arbitration body for settlement of sports-related disputes. In this regard, the paper will take into
account best practices of other countries, the Court of Arbitration for Sport and recent case law
in this regard.
I. Introduction
Sports law represents one of the branches of economic development.2 If developed and
implemented properly it can bring countless benefits to national economy, improve welfare of
athletes and bring into international spotlight Kosovo’s image and capability in the area of
sports3. Regardless of recent success stories with regard to internationalization of Kosovo sports,
little has been done in terms of reforming and aligning Kosovo sports legislation with European
sports system and international standards and best practices. With power comes responsibility
and with its admission this year to FIFA, UEFA, and the winning of the first ever-gold medal in
the Olympics, Kosovo has earned itself an enormous and important task ahead. The
internationalization of the Kosovo sports demands the establishment of an effective and efficient
sports system aligned to rules of international sports associations, EU law and other international
standards, as well as sound institutional infrastructure that will implement this regulatory
framework.
Along with this, there emanates a need to establish a national sports arbitration center that would
provide to different sports organizations, its members, members of the National Olympic
Committee and other interested parties a forum to settle their disputes related to sports. While
arbitration law per se has received a significant interest and has marked a solid development
during the past couple of years, debate on issues such as sports law and sports related disputes
has been lacking. The drafting of a new sports law is not a simple assignment and it requires
involvement of a number of experts, institutions, academics as well as substantial debate in order
to come up with the best sports development strategy. The example of Croatian Sports Act
enacted in 2006 serves as a very good example in this regard.
The aim of the present paper is twofold: first, to make an analysis of current legislative and
institutional framework pertaining to sports in Kosovo and identify gaps and needs for further
development, and secondly to open a debate for creation and development of a national sports
arbitration center.
In order to be able to compare the existing sports legislation of Kosovo with the requirements
deriving from the EU Sport Law, obligations of other international organizations as well as rules
of international sport federations, there should be first an analysis of what constitutes European
sports law, what are the main international instruments in the field of sport and what are the rules
of international sport federations.
II. SPORTS LEGAL AND REGULATORY FRAMEWORK
2.1 European Sport Law
In EU and international level, sports law has received an immense attention. In the European
Union, the importance of sport was acknowledged with the entry into force of the Lisbon Treaty
on 1 December 2009, where Article 165 of the Treaty calls on EU to: ‘’contribute to the
promotion of sporting issues, while taking into account the specific nature of sport, its structures
based on voluntary activity and its social and educational function’’4. Prior to that, the European
Union was not entitled to harmonize national laws and regulations and issue EU regulations or
directives, until in Bosman5 case, when the ECJ ruled that that the sports fall within the scope of
EU law as far as it constitutes an economic activity6. Until the Bosman case, the governing
bodies of professional sport in Europe considered themselves either immune from the effects of
EU free market and competition law, or in some sense ‘a special case’7. Post-Bosman, EU was
now not just concerned with the economic aspects of sport but also the regulation side of sport as
well8. Since then, the EU have begun to piece together what is at stake in the notion that EU law
applies to sporting practices, but with due recognition of their peculiar characteristics.9 Herewith,
the EU Sports Law has emerged mainly from the jurisprudence of the European Court of Justice
and in deciding whether a sporting rule is compatible with EU Law, the Court takes a case-bycase
basis approach by taking into account ‘peculiar characteristics’ of professional sport. 10
The White Paper which dates back before the Lisbon Treaty addressed sport related issues in a
comprehensive manner where the European Commission aimed at illustrating the application of
EU law to sport and aimed at setting out further sports-related actions at EU level11. The term
“specificity of sport” refers to the special characteristics of sport recognized in the Nice
Declaration on Sport of December 2009. The White Paper also provides for a meaning of the
“specificity of sports”, and according to it, the specificity of European Sport can be approached
through ‘’two prisms’’12. First, it acknowledges that sport is subject to the application of EU law,
particularly as far as it constitutes an economic activity, and secondly it is subject to other
important aspects of EU Law, such as the prohibition of discrimination on grounds of nationality,
citizenship of the Union and Equality between man and women in employment13.
In 2011, the European Commission published its Communication ‘’Developing the European
Dimension in Sport’’, which is legally non-binding document, and it contemplates the White
Paper on Sport (2007) and sets out the Commission’s view on how the provisions of Article 165
of the Lisbon Treaty should be put into practice. The Communication proposes concrete actions
for the Commission and/or Member States within three chapters: the societal role of sport, the
economic dimension of sport and the organization of sport14. The Communication also stresses
that good governance is a condition for the self-regulation and autonomy of the sports sector15.
On 21 May 2014, the European Council and Representatives of the Governments of the
Members States, in a meeting within the Council adopted a Resolution on the European Union
Work Plan for Sport (2014-2017).16 The Work Plan recognizes the need to continue cooperation
on sport in EU context established after the entry into force of the Lisbon Treaty, and a need for
the EU to work closely with sport movement and relevant competent organizations at national,
European and international levels such as the Council of Europe and World Anti-Doping Agency
(WADA), in particular through the structured dialogue.17
In the Member States of the European Union, sports is organized in a pyramidal system of
national federations, usually only one federation per country is linked together in the European
and international federations. The clubs and players form the foundation of this pyramid. The
regional and national federations form the mid layer of the pyramid. National federations
regulate all general matters within their discipline and at the same time represent their branch in
the European or international federations. At the top of the pyramid are European federations
and they allow only one federation from each country to be a member.18 UEFA is for instance
the governing body for football in Europe and is placed almost at the top of the pyramid, whereas
FIFA is an international federation which is at the top of the pyramid. Overall, European Union
works with Member States and sport bodies to improve how sport is governed around Europe, by
tackling big threats such as match-fixing, doping, violence, corruption and racism. It also
encourages sport organizations-from local teams to international federations-to embrace the
principles of democracy, transparency, inclusiveness, accountability and gender equality19.
Community law as we know it has a crucial impact on sports-related matters and it is directly
binding on all EU member states, and many non-European countries20.
2.2 Council of Europe
Apart from the European Union, the Council of Europe, which is an inter-governmental
organization was the first international body to establish legal instruments and offer an
institutional framework for the development of sport at European level. European Sports
Ministers in 1975 launched the European Sport for all Charter, which was officially adopted in
1976. Based on the principles laid down in the “European Sport for all Charter”, the European
Sport Charter was adopted in 1992 and revised in 2001 and its aim was to provide a common set
of principles for all Europe21. The European Sport Charter was complemented by the Code of
Sports Ethics and it sets out responsibilities for governments, sports-related organizations and
individuals.22
The action of the Council of Europe aims to fight against the negative aspects of sport – in
particular violence, doping and manipulation of sports competitions – through three Conventions:
the European Convention on Spectator Violence, the Anti-Doping Convention and
the Convention on the Manipulation of Sports Competitions.23 The European Convention on
Spectator Violence aims to prevent and to control spectator violence and misbehavior as well as
to ensure the safety of spectators at sports events24. The Anti-Doping Convention aims at
promoting the national and international harmonization of the measures to be taken against
doping, and each contracting party undertakes to create a national coordination body; reduce the
trafficking of doping substances and the use of banned doping agents; reinforce doping controls
and improve detection techniques; support education and awareness-raising programs; guarantee
the efficiency of sanctions taken against offenders; collaborate with sports organizations at all
levels, including at international level and to use accredited anti-doping laboratories25.
On May 2007, the Council of Europe adopted Resolution CM/Res(2007)8 establishing the
Enlarged Partial Agreement on Sport (EPAS), which provides a platform for intergovernmental
sports cooperation between the public authorities of its members states and it also encourages
dialogue between public authorities, sports federations and NGOs26. One of its achievements was
the Convention on the Manipulation of Sports Competitions. The Convention was opened for
signature on 18 September 2014 and only Norway and Portugal have ratified it, and 26 other
member states have signed it. A minimum of five ratifications are required for the Convention to
enter into force. The aim of the Convention, as the name suggests, is to fight sport manipulation
and corruption in sports. The Convention provides for common definitions and international
cooperation mechanisms in this regard.27
One of the recent works of the Council of Europe is the Convention on an integrated safety,
security and service approach at football matches and other sports events, which was adopted by
the Ministers’ Deputies on 4 May 2016 and was opened for signature on 3 July 2016.28
2.3 International Sport Federations
International Sport Federations are international non-governmental organizations recognized by
the International Olympic Committee (IOC) as administering one or more sports at world level.29
International Sports Federations that seek IOC recognition must ensure that their statutes,
practice and activities conform with the Olympic Charter30. The summer federations, the winter
federations and the recognized federations have formed respective associations such as the
Association of Summer Olympic International Federations (ASOIF), the Association of
International Olympic Winter Sports Federations (AIOWF) and the Association of IOC
Recognized International Sports Federations (ARISF). Federation Internationale de Football
Association (FIFA), Federation Internationale de Basketball (FIBA), International Handball
Federation (IHF) and many others are international federations recognized by IOC, to which
Kosovo is a full member31. The IOC reserves the right to withdraw its recognition of National
Olympic Committees (NOCs) and International Federations which fail to comply with the
Olympic Charter, its code of ethics or the World Anti-Doping Code.
2.4 Kosovo Sport Legislation
The current legislative framework in the field of sports in Kosovo consists of the Law No.
2003/24 on Sports, amended and supplemented by the Law No. 04/L-075 on amending and
supplementing the Law No. 2003/24 on Sports. The Law is obsolete and falls short in laying
down basic principles and describing the rules for proper functioning of a national sports system.
The law is based on UNMIK Regulations and does not reflect or comply any longer with the
reality in Kosovo that emerged since its declaration of independence in February 2008. In terms
of its implementation, a number of by-laws32 have been enacted, and the Sports Department
within the Ministry of Culture, Youth and Sports (MCYS) has been vested with the authority to
prepare, assess and approve policy programs in the field of sports. In practice, however, the
situation is different and the current regime does not provide the desirable context for a sound
and sustainable national sports system and for advancement of sport in Kosovo. The Law
No.04/L-57 on Freedom of Association in Non-Governmental Association is also a source of
Kosovo sports law given the fact that most of the football clubs and national federations in
Kosovo are organized as non-governmental organizations33.
Currently in Kosovo, there are over thirty sports federations, and each federation is licensed for a
single discipline by the MCYS. Each federation has its own statute, and rules to which national
sports clubs, and athletes must adhere to. Some of these federations are part of European and
international federations, such as the Kosovo Football Federation, which has been admitted to
UEFA and FIFA; Kosovo Basketball Federation, which is full member of FIBA as of last year
etc. All these federations are part of the National Olympic Committee, which is a full member of
the International Olympic Committee (IOC) as of this year.
From what has been explained above, when speaking about approximation of Kosovo sports law
with the European Sports Law, one should think of the harmonization with Community law by
taking into account specifities of sport. The Kosovo Sports Law falls short in laying down basic
sports principles, or put differently, it touches upon them superficially thus providing fairly
vague formulations. The principle of voluntary participation in sport is one of the most important
principles and it should be boldly emphasized. In addition, the current law does not provide
sufficient basis for construction and maintenance of sports facilities, education and training of
experts, scientific projects in the area of sport, economic measures, advancement of partnership
between governmental and non-governmental sport organizations and private entrepreneurship.
The law needs to provide sound basis for creation of a national Sports Program that would
include programs that create conditions for sporting activities in the educational system,
recreational sporting activities. This is in line with what the European Union calls for more
extensive interaction between sport and education across Europe. 34Article 16 of the current law
only provides that sport education bears special national values but fails short of translating this
into a concrete program and designating a concrete body to carry out the program.
The Kosovo Sports law does not contain clear provisions on the persons in the sports system and
it does not make any distinction between the natural and legal persons. It further does not contain
provisions with regard to types of legal persons and does not define whether private companies
and/or institutions fall within this category. To this end, modern sport laws contain provisions on
sport joint stock companies for sport clubs35. With regard to natural persons, the law does not
have provisions for treating separately athletes, coaches and sport managers.
Kosovo needs to develop robust governance mechanisms to be maintained by national sport
associations that promote transparency and integrity and that stay away from corrupt activities
and match-fixing practices. Further, since equality between women and men is a fundamental
principle of the European Union, legislative changes must also take into account and address the
gender gap in decision making in sporting institutions. The law must be harmonized and brought
in line with the Council of Europe standards laid down in its conventions, as well as anti-doping
requirements of both Council of Europe and other international bodies such as UNESCO.
III. SPORTS ARBITRATION
3.1 General Observations
In the wake of many changes, Kosovo will also need an efficient sports dispute management
mechanism for dealing with unique type of conflicts. Article 25 of the Kosovo Sports law
provides that the organizational structure of the Kosovo Olympic Committee (KOC) shall
include the Committee for Arbitration in Sport (CAS), which operates in accordance with
international applicable sport arbitration acts and standards. National Olympics Committees such
as KOC are bodies independent from its country’s government with the exclusive power to send
teams and athletes to participate in the Olympic Games.36
Article 26 of the Sports law provides that the Committee for Arbitration in Sport shall function
within KOC in accordance with relevant acts of ICAS. In practice, though, it is not yet
functional.
ICAS stands for the International Council of Arbitration for Sport which has under its
administrative and financial authority the Court of Arbitration for Sport (CAS), an institution
independent of any sport organization which provides services in order to facilitate the
settlement of sports-related disputes through arbitration or mediation by means of procedural
rules adapted to the specific needs of the sports world37. CAS is an institution independent of any
sports organization, which provides for services in order to facilitate the settlement of sports-
related disputes through arbitration or mediation by means of procedural rules adapted to the
specific needs of the sports world.
The CAS was created in 1984 and is placed under the administrative of financial authority of the
International Council of Arbitration for Sport (ICAS). The CAS has nearly 30 arbitrators from 87
countries, and it registers around 300 cases every year,38 and is regarded as the “supreme court of
world sport”39
With the commercialization of sports the need for developing sport dispute settlement methods
became bigger and bigger. Given that the sports industry is estimated to account for between 3
and 6 per cent of total world trade, it comes as no surprise that it is also a major source of legal
disputes.40 The relationship between an athlete and his or her club, between clubs and
federations, and between national and international federations is contractual in nature. Through
his or her membership with a particular club, an athlete is granted a license, by a federation to
which the club belongs, which allows the athlete to participate in the various events the
federation organizes.41
Apart from CAS, there are a number of other international sports federations that have their own
system of dispute resolution and appoint tribunals for the resolution of disputes arising in their
sport.42 One example of such an dispute resolution system is the Basketball Arbitral Tribunal
(BAT), which was set up by FIBA.43 On the national level, an increased trend of establishing
national sports dispute resolutions bodies can be noticed.
One characteristic of national sports related dispute resolution bodies is that the awards of some
of these bodies can be appealed to the CAS if the dispute in question is international in nature, or
alternatively they provide for first instance arbitration by a national body, with the possibility to
appeal the award to the CAS.44 In Kosovo, there is a tendency of establishing a national
arbitration service controlled by country’s national Olympic Committee known as KOC. With
regard to this model, the literature suggests that is arguable that the bulk of resources should be
dedicated to the establishment of a high-quality ‘national CAS’ in every country for the
resolution of national level of disputes, because if these bodies are established in each individual
country and sport, the right of appeal to the CAS could be restricted and the role of the CAS
could evolve from that of a body, which rehears appeals on a de novo basis.45 There can also be
problems of perception as to the independence and impartiality of a dispute resolution
mechanism that is association with or lies within the sports body that can be an interested party
to a dispute.46 Along with the changes in the legislative framework pertaining to sports, different
models of national sports arbitration bodies need to be analyzed and their respective long-term
feasibility must be assessed.
Further, while the Kosovo Law on Arbitration No.02/L-75 sets forth rules that apply to
arbitration agreements, arbitration proceedings and the recognition and enforcement of arbitral
awards made inside and outside of Kosovo, it does not contain any specific provision with regard
to sports dispute resolution. Article 5.2 of the Law on Arbitration provides that all disputes
related to the civil-judicial and economic-judicial requests may be the subject of an arbitration
agreement, unless prohibited by law47. Though, as pointed out above, the relationship between
different undertakings in sports is contractual in nature, and can therefore fit within the meaning
of Article 5.2 of the Arbitration law, still the applicability of this law to sport related disputes
remains questionable and opens way for extensive debate. This is mainly because sports-related
arbitration has so many features that distinguish it from the commercial or investment arbitration
in so many aspects.
3.2 Differentiating features of sports arbitration
Speed, special expertise, consistency and transparency and the ease of enforcement of sports
arbitration awards are the main features that distinguish sports arbitration from other commercial
and/or investment arbitration. When speaking about speed, one should bear in mind that the sport
industry resolves around a series of regular sporting events and competitions, and hence
resolution of a sports dispute must be concluded before a particular competition or event takes
place.
The “special expertise” in sports arbitration is said to be the most conspicuous feature of the
sports arbitration system in combination with speed, and the diversity in the expertise required in
sports arbitration is an important factor to bear in mind.48
With regard to consistency and transparency, it is worth of mentioning that awards issued by an
arbitral tribunal tend to be regarded as authoritative precedent by subsequent arbitral tribunal
from the same sports arbitration institution and awards of sports arbitration bodies are mainly
published.49
Unlike with awards rendered in a commercial arbitration, a sports governing body with mostly
comply with arbitral awards thus excluding any reason to resort to the New York Convention for
enforcement of arbitral award. In case a sports governing body does not comply with the arbitral
award, the enforcement can be sought under the New York Convention.50
Other distinguishing feature of sports-related disputes is that they range from football
employment disputes, disciplinary measures, to match-fixing and ethical disputes. Therefore, the
disputes resolved by sports arbitration bodies are quite diverse in nature, and can vary between
purely commercial disputes in a sporting context, to very sport-specific disputes concerning
actions or incidents arising on the field of play.51 Sporting practices have peculiar nature and so
do sports-related disputes.
IV. CONCLUSIONS
Kosovo needs a solid legislation in the field of sports that is practicable and can be easily
implemented in practice. The sports legislation must be upgraded to the level as to enable further
development of sports in Kosovo by harmonizing it with relevant EU and international standards
and requirements deriving from internal regulations of the International Olympic Committee and
international federations.
Main elements to be incorporated in the new legislation pertain to governance issues of national
sports associations and match-fixing practices, anti-doping requirements and national sports
program. The law and the secondary legislation must foresee and provide for sound
implementation mechanisms as well as a forum where national sports associations, sport clubs
and athletes can resolve their potential disputes in a speedy and cost-effective manner. To this
end, different models of national sports arbitration bodies must be explored and solutions that
suit the best the needs of Kosovo must be applied. The legal basis for resolving sports related
disputes must be measured and addressed as the current arbitration law in Kosovo does not
contain any provisions related to sports arbitration.
Kosovo has outstanding athletes, and they deserve good laws, which in turn establish sound
sports systems. Good laws and sound enforcement mechanisms will enable our athletes to further
develop and excel in the world of sports and will assist Kosovo in strengthening its national
identity and international recognition.
