Arbitration in the Sphere of Sports Law : Peculiar Features Distinct from Commercial Arbitration
By Annie Rydén
Introduction
Arbitration is widely accepted and frequently utilized as a means to resolve disputes in the fields of both international commerce and international sports. While the areas of commercial arbitration and sports arbitration share many characteristics, there are a number of peculiarities inherent in the latter. Such peculiarities – encompassing issues of consistency of seat, jurisdiction, choice of arbitrators, funding, time-efficiency, publicity, and enforcement – are elaborated upon below.
CAS – a Supreme Court for the Sports World?
The landscape of sports arbitration is – despite the vast and varied nature of international sport – dominated by one institution in particular: The Court of Arbitration for Sports (CAS), located in Lausanne, Switzerland.[1] This institution is colloquially referred to as a sport’s supreme court. Nevertheless, it functions rather as an arbitral tribunal.[2] Modelled on the ‘leading commercial private dispute settlement systems […]’, CAS’s structure and management are commercial in nature.[3] However, divergences exist.
In contrast to standard commercial arbitration, where the parties have the freedom to choose the seat of their arbitration, athletes seldom have the option to do so. This is because sports-related contracts generally contain a clause submitting disputes to CAS.[4] It follows that an athlete’s consent to arbitration under the rules of CAS is indispensable for his or her participation in a federation and, accordingly, to practice a sport.[5]
Structure of CAS
As regards the structure of CAS, which is of significant interest for present purposes, the arbitral tribunal can broadly be separated into the CAS Ordinary Division[6] and the CAS Appeal Arbitration Division.[7]
1. The CAS Ordinary Division
A CAS Ordinary Division procedure largely resembles a commercial arbitration procedure. Given that the cases that are allocated to this division often concern commercial disputes that happen to relate to sport, such resemblance comes as no surprise.[8] By and large, there are only three distinct aspects of this procedure, as outlined below.
First, Swiss law applies to the merits of the dispute by default where the parties have not made an express choice of law.[9] This is contrary to the general rule in arbitration, according to which the arbitral tribunal may select the most appropriate law to apply to the substance of a dispute in the absence of the parties’ express choice of law.[10] Second, the parties to a dispute at CAS may only select arbitrators from a closed list of potential candidates.[11] In standard commercial arbitration, there is no such list.[12] Third and finally, the costs pertaining to the CAS Ordinary Division procedure are significantly lower in comparison to those of the main institutions active in commercial arbitration.[13] In this regard, it shall be noted that individuals lacking the financial means to bring their dispute to CAS can be granted legal aid funding.[14]
2. The CAS Appeal Arbitration Division
The CAS Appeal Arbitration Division, which deals with appeals filed against decisions issued by other arbitral or disciplinary tribunals, differs more notably to commercial arbitration than the CAS Ordinary Division.[15]
Perhaps the most noteworthy aspect of the CAS Appeal Arbitration Division (and sports arbitration in general) is the speed of the proceedings.[16] Given that time is of essence in the sports world, the CAS Code contains relatively short time limits for filing written submissions and conducting the procedure.[17] Such time limits may be further shortened where the parties so agree.[18] Nevertheless, in mega-events such as the Olympic Games, even the possibility to proceed on an expedited basis would fail to result in a timely adjudication of disputes. For these events, an Ad Hoc Division of CAS is set up, appointing arbitrators that must remain available at all times to issue awards within 24 hours of the lodging of an application for arbitration.[19]
The scope of review that the panel may undertake in the CAS Appeal Arbitration Division procedure is broad. Cases can be heard de novo, meaning the panel has “full power to review the facts and the law” even where the lower instance body was itself an arbitral tribunal.[20] This differs, for instance, from the narrow scope of appeal provided by the ICSID Annulment Mechanism.[21]
Furthermore, contrary to the strict confidentiality that ordinarily applies to commercial arbitration proceedings, the CAS Appeal Arbitration Division provides that the award will be made public by CAS unless the parties agree otherwise. [22]
Enforceability of CAS awards
CAS awards may be challenged or enforced in the Swiss Federal Tribunal pursuant to Swiss law.[23] Moreover, CAS awards are enforceable under the New York Convention.[24] In practice, however, such mechanisms are seldom used as many international federations have self-enforcement mechanisms that ensure compliance with CAS awards.[25]
Conclusion
The commercialization of sport and the potential for business disputes to be referred to CAS continues to grow. In light of the above, sports arbitration is nonetheless characterized by unique features that deviate from standard commercial arbitration. This is largely due to its inherent need for speed and effectiveness, and the overriding objective to facilitate consistency of decisions, so as to uphold the integrity of sports in the eyes of both athletes and the general public.
[1] Antonio Rigozzi, Sébastien Bassot and William McAuliffe, ‘International Sports Arbitration’ (2017) GAR <https://globalarbitrationreview.com/guide/the-middle-eastern-and-african-arbitration-review/the-middle-eastern-and-african-arbitration-review-2017/article/international-sports-arbitration> accessed 11 November 2020.
[2] Ibid.
[3] Rachelle Downie, ‘Improving the Performance of Sport’s Ultimate Umpire: Reforming The Governance of the Court of Arbitration for Sport’ (2011) MelbJIL 12/2 <http://www.austlii.edu.au/au/journals/MelbJIL/2011/12.html> accessed 11 November 2020.
[4] Ibid.
[5] Elliot Geisinger and Elena Trabaldo – de Mestral, Sports Arbitration: A Coach for Other Players? (JurisNet LLC 2015) 60.
[6] Code of Sports-related Arbitration (‘CAS Code’) arts R38 et seq.
[7] Ibid arts R47 et seq.
[8] Antonio Rigozzi, Sébastien Bassot and William McAuliffe (No 1).
[9] CAS Code (No 6) art R45.
[10] See ICC Rules of Arbitration art 21 and LCIA Arbitration Rules art 22.3.
[11] CAS Code (No 6) art R38.
[12] Rachelle Downie (No 3).
[13] Ibid.
[14] CAS Code (No 6) art R65.3.
[15] ‘International Sports Arbitration’ (No 1).
[16] Laurent Levy and Michael Polkinghorne, Expedited Procedures in International Arbitration (ICC 2017) 92.
[17] CAS Code (No 6) art R49.
[18] Ibid art R52.4.
[19] Expedited Procedures in International Arbitration (No 14) 99.
[20] CAS Code (No 6) art R47.
[21] ICSID Convention art 52.
[22] CAS Code (No 6) art R49.
[23] Ibid art R46.
[24] Frequently Asked Questions (Court of Arbitration for Sport) <https://www.tas-cas.org/en/general-information/frequently-asked-questions.html> accessed 11 November 2020.
[25] Elliot Geisinger and Elena Trabaldo – de Mestral (No 5) 16.