Sports Arbitration in Egypt: An Interview with CRCICA’s Director

This is the tenth article in Clyde & Co’s latest international arbitration series covering the topic of Sports Arbitration. In this piece Mohamed El Mahdy and Moamen Elwan interview Dr Ismail Selim, Director of Cairo Regional Centre for International Commercial Arbitration (CRCICA), President of the International Federation of Commercial Arbitration Institutions (IFCAI), and Chairman of the Egypt Branch of the Chartered Institute of Arbitrators (CIArb), to discuss the overview of the landscape of sports arbitration in Egypt with a focus on recent developments, criticism to the old regime and the outlook for the future.

1.    What are the main differences between Sports Arbitration and Commercial Arbitration? 

I prefer to start by highlighting the differences between different types of sports disputes to be able to draw comparisons between sports arbitration and commercial arbitration. 

There are generally three main types of sports disputes. First you have commercial sports disputes and those are the ones related to sports activities but are commercial in nature. For example, there are disputes arising from sponsorship and broadcasting agreements. Those are purely commercial in nature and their referral  to commercial arbitration centres is not uncommon. Second there are purely sports disputes such as ADRVs (i.e. Anti-Doping Regulations Violations), other violations of sports federations regulations and complaints against referees. Those are regulatory in nature and you would rarely see those being arbitrated before the international commercial arbitration centres. Lastly, there are disputes that fall between those two extremes, they are a mix between sports and commercial disputes such as disputes arising from employment contracts of athletes, trainers, and agents as well as clubs governance disputes. They generally involve financial and commercial issues, but also involve compliance with sports regulations and rules and are usually arbitrated under CAS rules similar to the sports disputes which are purely regulatory.

That said, there are various differences between Sports Arbitration and Commercial Arbitration, including:

a.    Difference in the form of the arbitration agreement

In Commercial Arbitration, this would mainly take the form of an arbitration clause or a submission to arbitration agreement. For Sports Arbitration, it could be very similar, but there are also different ways a party can consent to arbitrate. For instance, the arbitration agreement can be in a sports-related regulation or the regulation of a sports club or federation itself. By carrying out such sport or being admitted to the club or regulation or by signing a membership form that is subject to a sport regulation that refers disputes to arbitration a party consents to arbitration. 

b.    The Nature of the Proceedings

With regards to the procedure, and particularly ordinary procedures, Sports Arbitration differs from Commercial Arbitration, in that in commercial disputes there is no decision previously that is subject to challenge before the arbitral tribunal. On the other hand in Sports Arbitration, the proceedings are generally an appeal against a decision that has been rendered by a sports federation. You can find that in different regulations of sports federations or under the rules of national sports arbitration centres such as the NSAT in Kuwait that provide that their decisions could be appealed to the CAS. Therefore, Sports Arbitration can be a challenge of a previous decision issued and referred to the Appeal Arbitration Division of the CAS and this is in addition to the ordinary procedure where disputes are handled by CAS acting as a court of sole instance and fall under the jurisdiction of the Ordinary Arbitration Division of the Court.

c.    The Appointment and Selection of Arbitrators

In Sports Arbitration, arbitrators are chosen from a closed list, which is perfectly tailored for Sports Arbitration and would not be functional for Commercial Arbitration because, in Sports Arbitration, there is a fundamental need to be familiar with sports regulations and the lex sportiva to ensure the quality of sports arbitration. However, as is the case with closed lists, institutions must be transparent about these arbitrators such as revealing their names, and their CVs on the institution’s website. In Commercial Arbitration, the process would not be the same, where parties enjoy a larger freedom in their choice of arbitrators without being bound by a closed list. 

d.    Confidentiality

Sports Arbitrations are generally confidential, but there is room to publish CAS awards, and in those cases, it is the CAS that decides which awards to publish not the parties. On the other hand, in commercial arbitration, arbitration centres are not permitted to do so without getting the consent of the two parties, and even when they do publish the awards, there is a strict process to be followed.

e.    Dissenting opinions

In Sports Arbitration, dissenting opinions are not welcomed, not recognized, not published, and not delivered to the parties while they are more common and regular in commercial arbitration.

2.    Can you give us a brief background on sports regulation in Egypt?

We can divide the development of sports regulations into two phases: one prior to 2017 and another after 2017.

In the period before 2017, sports were considered a public service. Heavily regulated by the State, particularly by the Ministry of Youth and Sports, and disputes would be referred to the State Council (Conseil d’État). At that time, there was a scarcity of legal provisions that would regulate sports, with few decisions and decrees that were issued by the Ministry of Youth and Sports. There were separate laws regarding Clubs, Centres of Youth, and the Olympic Committee, but no comprehensive law regulated sports in one place.

This started to change when sports were dealt with in the Constitution. Article 84 of the 2014 Constitution introduced a provision that made practicing sports a constitutional right. Accordingly, the State had to enable its citizens to practice sports and would thus organize it to achieve this goal through a law as per international practice.

Law No. 17 of 2017 was issued, followed by the regulations of sports federations, which both played a normative role. The regulations of sports federations, however, were often mistranslated from their English or French counterparts, and I consider that there is a need to review and reform some provisions of these regulations, whether with regard to their content or the Arabic translation.  

3.    The Sports Law No. 71 of 2017 was long anticipated, as it is the first law to extensively regulate sports-related matters in Egypt. What are the most important concepts that were introduced by the Sports Law, and how did it address existing gaps in sports regulation in Egypt, according to you?

In the preparatory work (‘travaux préparatoires’) of this Law, it was quickly revealed that there were contradictions between old laws and the international standards and norms set by the International Olympic Committee. The aim of this law, therefore, was to remedy and eliminate these contradictions, and it contains a multitude of positive aspects.

It is fundamental to note, first and foremost, that the Egyptian Olympic Committee, compared to the period prior to 2017 when the State was the regulator, was empowered through this major step.

The new Law deals with important details, such as establishing a centre to find sports talents everywhere, which itself fulfils the constitutional right of practicing sports. One of the major reforms this Law introduces is the regulation of sports investment, and the possibility of establishing a club in the form of a Joint-Stock Company, with the semi-public clubs remaining as they are. Furthermore, the Law erases doubt around specific establishments with ambiguous meanings and whether or not they are sports establishments, such as spas or gyms for example. The regulations of sports clubs have to also be approved by the General Assembly, the Egyptian Olympic Committee, and the relevant international body. However, the requirement for approval of the Egyptian Olympic Committee might be removed in the reforms to the law.

Article 66 of this Law provides for the Egyptian Sports Arbitration and Settlement Centre (ESASC), which is not obligatory in and of itself, since compulsory arbitration is unconstitutional. However, if the club did not vote their own regulation (i.e. amend), there was a model regulation provided by the Law, and in that model, the ESASC was mentioned. 

4.    Regarding the Egyptian Sports Arbitration and Settlement Centre, what was its legal and dispute resolution framework? And what were the controversies around it?

As previously mentioned, the Egyptian Olympic Committee was empowered through this Law. The ESASC was managed by the board of the Egyptian Olympic Committee. It had the power to appoint, add and remove arbitrators from the closed list. Sometimes, the Committee would even be a party to these disputes. Certain contract forms, as mentioned in Article 67 of the Law, gave jurisdiction to the ESASC. 

The main controversial issues revolve around the ESASC establishing a Chamber to decide upon setting aside arbitral awards, thereby giving itself the right to have its own Court of Appeal. In the beginning, that was not what was practised. Many of the awards rendered were set aside by the Cairo Court of Appeal, for reasons such as being signed by only one arbitrator, while the tribunal is formed of three arbitrators, or at least a majority, were needed. Against this backdrop, the ESASC created its own set-aside Chamber. To put this into perspective, the only centre that does this is the ICSID, which has an appeal committee. Awards issued by CAS for example are challenged before the Tribunal Federal Suisse. 

5.    In a ruling in 2023 by the Supreme Constitutional Court of Egypt, Article 69  was rendered unconstitutional, deeming the Statutes of the Egyptian Sports Settlement and Arbitration Centre (No. 88 of 2017 and its amendments) invalid. What is your opinion regarding the reasoning behind that decision?

The amendments made (that were subject of the challenge to the Constitutional Court) were against public policy and encroached on the judiciary’s role in having jurisdiction over the set aside of arbitral awards. The Constitutional Court of Egypt thus found that the Egyptian Olympic Committee was the one determining the framework of the ESASC, which in return decided on the challenge of the awards.

Contractual disputes were still referred to CRCICA, even with the existence of ESASC. Sports disputes are now referred to civil courts in Egypt instead of the Conseil d’État.

6.    Accordingly, in your opinion, do we need a dedicated arbitration centre? 

Here, there is a choice to be done. Do we wish to regularize the situation, meaning to create the centre again despite all the criticisms around it, or do we wish to reform, thereby forgetting about the experience that did not fully succeed? It is crucial to note that CRCICA is a successful arbitration centre in Egypt that has an agreement with CAS. The agreement between the CAS and CRCICA makes it appropriate to resolve sports disputes as it guarantees a fair resolution through arbitration of sports disputes.

CRCICA is in the process of issuing sports arbitration rules to be inserted in the potential regulations and contracts, rendering another centre not absolutely fundamental. Although existing rules are suitable, CRCICA’s approach is to issue more specialized sports rules to be chosen by the athletes and sports organisations in the region. 

The series continues next week with a perspective from Australia.