Arbitration and sport
What is it?
Sports arbitration is best defined as the use of arbitration to resolve disputes concerning sports law. Sports law regulates who may participate in sporting events (and what nation they represent), who wins games/matches/races where issues arise, and who is banned from participating in events due to suspicions of doping.
Generally, disputes will be between athletes and sports organisations (as opposed to between two athletes or two sports organisations). Cases will often need to be resolved at top speed, especially if they concern whether athletes may compete at upcoming events.
Various institutions may administer sports arbitration, but the most well-known and frequently used is the Court of Arbitration for Sport (CAS), which has been around since 1984. The court is located in Lausanne, Switzerland.
What are disputes about?
Cases frequently turn on whether athletes may participate in sporting events after testing positive for doping, and frequently also on whether athletes are permitted to represent certain countries. As sports competitions are frequently held on a global scale, the resulting disputes are especially suitable for arbitration.
A very special CASe
Sports arbitration (or more specifically, CAS, seeing as the two are so interwoven) is a highly interesting concept. The disputes are somewhat of a category of their own, which one might even term a ‘third category’ of arbitration besides commercial and investment disputes. So what makes CAS so unusual?
Befitting its subject matter, cases relating to ongoing sporting events can be resolved at lightning speed. The CAS’ Ad Hoc Division will deliver decisions in less than 24 hours. This frequently occurs in the context of the Olympic Games, the FIFA cup, or the UEFA championships. The decisions will often shine a light on whether, and if so, athletes may participate in upcoming sporting events.
Unlike commercial cases, CAS awards are usually public, leading to a body of awards - lex sportiva – which sports arbitration users refer to. Additionally, the hearings may even be held in public (whether online or offline), though this is rare in practice.
All CAS arbitrations are seated in Lausanne, Switzerland, which parties cannot opt out of. Therefore, any set-aside proceedings (i.e., where parties want to challenge the award) must be launched in Switzerland.
Parties may only choose from a list of arbitrators selected by CAS (as with cases in front of the Court of Arbitration for Art – see here). This controversial notion is a means of ensuring that cases are only decided by experts in their respective fields.
Controversy
Sports arbitration has faced criticism, especially in recent years. The agreements athletes enter into with their respective national sports associations, e.g., to represent their country at world tournaments, generally contain an agreement to arbitrate any disputes - frequently through CAS. Due to the inequality of bargaining power between the parties, athletes have alleged that they did not genuinely consent to arbitration.
A recent case in which this occurred involved German speed skater Claudia Pechstein. After failing a doping test in 2009, she was banned from sports for two years. She appealed the decision in front of CAS, which rejected it. Pechstein claimed that she was not bound by this decision as she hadn’t actually consented to arbitrate, given the inequality of bargaining power between herself and the Ice Skating Union.
She therefore appealed to the Swiss Federal Tribunal, which upheld CAS’ decision, before commencing proceedings in her native Germany. Whilst the lower instance court rejected her appeal, the second instance court in Munich (the Higher Regional Court in Munich) agreed with Pechstein that the Ice Skating Union had abused its dominant position under German competition law. However, the German Supreme Court eventually overturned this decision in 2016 and upheld the doping ban.
The German Supreme Court’s decision was a win for sports arbitration. It acknowledged that despite athletes’ consent being somewhat vitiated when entering into the relevant agreements, CAS arbitration remains the best way to resolve sports disputes. As such, it seems that sports arbitration is here to stay - at least for a little while yet.
Outlook
Whilst CAS has its faults, it is the only system currently capable of speedily resolving sports disputes. Moreover, it guarantees international applicability and consistency in international sport. Such uniformity is crucial when athletes come together from around the world to compete on an equal basis. Germany’s 2016 decision to uphold the CAS’ power signalled a clear acceptance of the existing mechanisms. Whilst the court did acknowledge that the system was not perfect, it is presently difficult to envisage an alternate solution.