On 7 October 2018 Law Decree n.115 entered into force (published in the Official Gazette on 6 October 2018) entitled “urgent provisions regarding administrative justice, the reduction in revenue losses and relating to the proper conduct of competitive sports events”.
The reasons of extraordinary need and urgency in adopting the Decree were stated to be those of “introducing instruments aimed at improving the efficiency and functionality of administrative justice, as well as safeguarding the Italian National Olympic Committee before the administrative courts, also in relation to the need to ensure a speedy and easy connection with appeals to the courts of sports-related decisions concerning the admission or exclusion from sporting competitions or championships of professional sports companies or associations, with immediate effect for the due conduct of ongoing championships”.
In other words, the legislator has wanted to remedy the " repêchage chaos " that has overwhelmed the system of professional football in recent months and for which a final solution still seems far away. Naturally, the legislator has not regulated the single competitive discipline (football) but rather the whole system of the relationship between sporting justice and ordinary justice, at least as far as regards the issue of participation in specific competitions.
1. So what changes in practical terms ?
Firstly, the legislator – by way of various amendments to the Code of Administrative Procedure (Legislative Decree no. 104 dated 2 July, 2010) – has established the exclusive jurisdiction of the administrative judge and that of the mandatory functional competence of the Lazio Region’s Regional Administrative Court, Rome headquarters, in disputes concerning admission and exclusion from professional competitions of professional sports clubs or associations, or in any case relating to the participation in professional competitions.
In this way the Legislator tries to solve the unfortunate back and forth between the sports judge and the administrative judge that has occurred recently in more than one case in relation to competence to hear matters.
Moreover, in order to ensure the decision is rendered as quickly as possible, the amendment to the Code of Administrative Procedure also included art. 119, paragraph 1, Letter a), with the result that the aforementioned disputes will follow the special and "accelerated" procedure that has been reserved until now to issues of public works and service tenders. This procedure halves all the ordinary deadlines in the proceedings, including that within which to file an appeal, which is therefore 30 days.
In addition, and solely for these types of sporting measures (an absolute novelty in administrative procedures) there is now a possibility of filing an appeal before the Council of State against the cautionary orders issued ex parte by the President of the Lazio Regional Administrative Court, before the discussion of the cautionary phase. This is however only possible "in those cases where the enforcement of the order is likely to produce very serious harm or irreversible damage before the collegial treatment of the cautionary application".
In this last regard, it is easy to imagine that, pending uniform jurisprudence on this point, there will be various interpretations about the irreversibility of the alleged damage. Limiting ourselves, for the sake of brevity and timeliness, to the "football case", we can already foresee the diatribe on the irreversibility of the damage related to the uncertainty of the championship relative and its sports decisions, for example, the choices of a team in relation to the so-called "transfer market".
In these disputes, the Decree provides the possibility for the Italian National Olympic Committee (CONI) -to benefit from representation by the State Attorney. It remains to be seen what the possible role and involvement of CONI might be in matters relating to orders for the admission or exclusion taken by professional Sports Federations.
2. Are there any other bodies entitled to administer sports justice?
However, the legislator did not want to completely deprive the sporting justice system of the possibility of deciding on the issues covered by the Decree.
In fact, while giving the administrative court exclusive jurisdiction, in the same controversies the Decree does not affect the possibility that sports justice bodies can also decide, in a sort of first-instance one-off federal–internal proceeding, provided that certain requisites are met. After having established in general that for the aforementioned disputes "any jurisdiction of the sports justice bodies is excluded", article 1, paragraph 3, nevertheless states "the possibility that the statutes and regulations of CONI and consequently those of Sports Federations [...], provide for bodies of justice within the sporting system that decide on these issues also on the merits, within the peremptory deadline of 30 days from the publication of the relevant decision" and whose rulings are subject to appeal as provided above”.
Therefore the legislator imposes, on the Federations wishing to make use of this opportunity, to modify their bylaws and regulations creating ad hoc internal bodies of justice, which will have to decide "definitively and in first and sole instance” within 30 days.
These Federation decisions may also be appealed before the Regional Administrative Court – TAR (in accordance with the reference contained in paragraph 3 to “subject to appeal”). This has the further consequence that the decision of the Lazio TAR could also be challenged before the Council of State, within the same Administrative jurisdiction.
On this point, however, the legislator does not clarify the deadline within which the decision of federal ad hoc judicial body must be appealed. However, the clear purpose of the Decree to make the process as fast as possible, suggests that the appeal must be filed within 30 days from the date the decision is made public, as it is for the for appeals in front of the sport courts against admission and exclusion decision issued by sport authorities.
If, on the other hand, the federation ad hoc body does not take the required decision within the 30-day time limit, the appeal in front of the sport body will be deemed rejected and the interested parties will be entitled to apply to the Lazio TAR within the following 30 days.
Vice versa, for the Federations not aligning their internal rules with the creation of the ad hoc judicial bodies and sport justice regulations, it will not be possible to appeal the decisions of sport authorities in front of sport justice bodies, and the appeal will be presented directly to the Lazio TAR.
Again, with regards to the purely sporting aspects, a further matter, which is only apparently marginal, concerns the applicable scope of the Decree stated as exclusively that of "sporting decisions concerning the admission or exclusion from competitions or championships of professional sports clubs or associations".
According to current legislation (Law 91/1981, Article 2) professionals are (only) athletes who perform competitive activities for consideration within those Federations expressly recognizing sporting professionalism and, as a result, only clubs or sports associations that use professional athletes for their competitive activities.
To date, among the 45 Federations recognized by CONI, only 4 recognize and provide for professionalism (football, basketball, golf and cycling), and of these only 2 have a “system” (championships, promotions and relegations, repêchage etc.) that may fall within the Decree.
However, there are Federations in which, regardless of the formal element, there is a sort of "de facto professionalism" (eg volleyball, rubgy, tennis, water polo, etc.). It is questionable whether the sports clubs affiliated to these Federations may (or must) use the instruments indicated by the legislator also in the event of the absence, albeit formal, of the element of "professionalism" required by the Decree.
3. What about disputes that are under way at the date of the Decree ?
Finally, the Decree seeks to regulate disputes that are currently under way where no final decision has yet been taken.
Art. 1, paragraph 4 provides that:
- Disputes pending before the organs of sports justice regarding the orders for admission/exclusion, can be represented before the Lazio TAR within 30 days from the date of entry into force of the Decree:
- The same term applies within which to appeal decisions to the organs of sports justice published prior to the entry into force of the Decree, where the terms for appeal are still pending.
The purpose of this provision seems to be to include within the scope of the Decree those disputes arising from the complicated situation that was created during this football season between the Serie B and Lega Pro concerning the admission of some teams to Serie B. It could, therefore, now be up to the Lazio TAR to resolve this situation, which involved, among others, the National Federal Court and the High Court of Sports Justice (the ultimate court of sports justice established pursuant to the CONI Bylaws).