RESPONDING DUALISM OF ARBITRATION IN SPORTMANSHIP DISPUTE

The exhibition of ASIAN Games 2018 has left an important note for the development of sports for Indonesia. In ASIAN Games 2018, Indonesia achieved the highest medals in its participation history in ASIAN Games. Indonesia successfully won 98 medals comprised of 31 gold medals, 24 silver medals, and 43 bronze medals. The Indonesian contingent was also recorded as the biggest contingent for ASIAN Games 2018 with 935 athletes, followed by China 859 athletes and Thailand 812 athletes.

Fast-growing in the number of enthusiasts in sports, cannot resist commercialization flow in the relevant sports branch, nowadays, many athletes have managers to manage their career for a brighter future of the relevant athletes. Friction between athletes, sports organization and athletes, or between sport organizations in provincial region will be inevitable. In the end, many frictions become disputes.

In the same time, conventional dispute resolution through judicial institution is deemed unable to accommodate the needs of the sports actors. Sports actors not only need a fast, simple, and low cost, but also meet the sense of justice and equity.

In response to the abovementioned issue, then arbitration will be the best solution. Pursuant to Article 56 Law No. 30 Year 1999 concerning Arbitration and Alternative Dispute Resolution (“Arbitration Law”), panel of arbitration may take an award based on the prevailing law or justice and equity. Therefore, arbitration award more fulfils the sense of justice to the party instead of verdict from judiciary institution which sees a dispute in solely in formal-legal perspective. In addition, arbitration has more definite time to process the dispute since Arbitration Law requires disputes shall be resolved not later than 180 days as of the formation of arbitration panel.

Furthermore, arbitration is not only about how a dispute is resolved, but also by whom such dispute will be resolved. In short, arbitration give a freedom to the disputing parties to choose the most qualified arbitrator to resolve the case. Arbitration is an option to put the right man on the right place. The use of arbitration center in sports dispute resolution has been accommodated in Article 88 of Law No. 3 Year 2005 concerning National Sportsmanship System which stipulates sportsmanship dispute may be resolved by arbitration center. In Indonesia, there are two arbitration centers having jurisdiction to handle sports dispute namely Indonesian Court Arbitration of Sports/Badan Arbitrase Olahraga Indonesia (“BAORI”) and Indonesian Sportsmanship of Arbitration/Arbitrase Keolahragaan Indonesia (“BAKI”).

BAORI and BAKI at a Glance

BAORI

BAORI was established in 2006 under Decree No. 187 Year 2006 concerning Establishment of BAORI. Pursuant to Articles of Association of KONI, BAORI is authorized to solve sportsmanship disputes arising from the following violations:

a. articles of association and memorandum of association;

b. other regulations as determined by KONI or its member;

c. dispute on dualism of management;

d. violation of National Sports Week (as panel of the judge); and e. other dispute in relation to the development of sports organization. Pursuant to Regulation of the Head of BAORI No. 1 Year 2017 concerning Procedural Law of BAORI, requirements to be appointed as BAORI arbitrator are as follows:

• capable to conduct legal action;

• not less than 30 years of age;

• holding minimum bachelor degree at law (S1) and any other equals field of study;

• has participated actively at least 5 years in Indonesian sportsmanship organization or branch sport;

• certified/licensed as arbitrator and mediator issued by authorized institution and recognized by BAORI;

• appointed and confirmed by the Head of BAORI Therefore, those who may be appoint as BAORI’s arbitrator are athletes, former athletes, coaches, and any other party as long as they meet the abovementioned qualifications. Pursuant to official website of BAORI on 9th October 2018, BAORI has 28 registered arbitrators among other, Laica Marzuki dan Jimly Asshiddiqie.

Therefore, those who may be appoint as BAORI’s arbitrator are athletes, former athletes, coaches, and any other party as long as they meet the abovementioned qualifications.

Pursuant to official website of BAORI on 9th October 2018, BAORI has 28 registered arbitrators among other, Laica Marzuki dan Jimly Asshiddiqie.

BAKI

BAKI was established in 2012 under Member Meeting of Indonesian Olympic Committee/ Komite Olahraga Indonesia (“KOI”) No. Kep.08/ RA-KOI/I/2012. BAKI is an arbitration center OPINION 10 established by KOI to resolve sports dispute for any branch of sports played in the Olympic in accordance with Olympic Charter Year 2015. BAKI serves as representative of Court of Arbitration for Sport (“CAS”). Pursuant to online searching, there is no rules publication regulating qualification of BAKI’s arbitrator, either issued by KOI or BAKI. Pursuant to official website of CAS on 9th October 2018, Indonesia has 2 arbitrators registered at CAS, namely M. Idwan Ganie and Anangga Roosdiono.

Freedom of the Parties

The disputing parties may choose to bring its dispute to BAKI or BAORI provided that such disputed sports are played in the Olympic and fulfill qualifications as determined by the Head of BAORI. The dualism of arbitration center shall not prejudice the freedom of the parties and legal binding force of arbitration award. BAORI or BAKI still will examine and resolve any dispute brought to them in accordance with mutual consent of the parties as regulated under arbitration agreement. Even have some similar jurisdiction to solve sports dispute, there is no jurisdiction dispute between BAKI and BAORI.

Sports Arbitration and Commercial Arbitration

Dualism of arbitration center is not only occurred in the field of sportsmanship, but also in the field of commerce. There are two commercial arbitration centers in Indonesia, namely Indonesian Arbitration Center/Badan Arbitrase Nasional Indonesia (BANI) domiciled in Mampang, led by M. Husseyn Umar (“BANI Mampang”), dan BANI domiciled in Sovereign Plaza, led by Anita Kolopaking (“BANI Sovereign”). Different from BAKI and BAORI, both commercial arbitration center claim that its arbitration center is the valid arbitration center under prevailing Indonesian law and regulations.

In relation to the abovementioned dispute, there are verdict contradictory each other granted by the court. Verdict from the Higher Court (PT) of Jakarta No. 315/PDT/2018/PT.DKI dated 8 August 2018, which confirmed verdict of the District Court (PN) of South Jakarta No. 674/Pdt.G/2016/PN.Jkt.Sel stipulates the establishment of BANI Sovereign has been in accordance with the prevailing laws and regulations.

However, in Administrative case at the cassation, the Supreme Court stipulates the establishment of BANI Sovereign is invalid and shall be revoked. Up to the issuance of this articles, dispute resolution between BANI Mampang and BANI Sovereign is still on progress.

Regardless the authority issue of BANI Sovereign, in practice there are disputing parties bringing their case to BANI Sovereign or BANI Mampang. Therefore, legal protection and certainty for the parties who has brought its case to both arbitration centers strictly shall be granted.

Quality of Arbitration Center

The quality of arbitration center is not solely determined by how long such arbitration center has been established and completeness of establishment documents. In the end, arbitration center rendering the highest quality award which will prove quality of the relevant arbitration center. An award, not only understanding the laws, but also sense of justice and equity.

SCN/HE