Analyzing Sports Arbitration and Its Trans-Border Application

Neha Garg

Department of Law, Bharati Vidyapeeth (Deemed to be University), Institute of Management and Research, New Delhi, India

Keywords: Sports Arbitration, Court of Arbitration for Sports, Dispute Resolution, Transparency

Abstract: The article analyses the introduction to sports arbitration, how it works and sports governance providing for

settlement of disputes mechanism across the borders. It analyses the functioning of different sports agencies

like Court of Arbitration for Sports, International Olympic Committee, World Anti-doping Agency and

International Council of Arbitration for Sports. It provides an overview of the functioning of these agencies

and raises concerns about the transparency and rendering justice to the sportspersons. It also raises concerns

of limited judicial review of the decisions of CAS and also provides for prospective reforms to ensure fairness

in the justice delivery system through arbitration.

INTRODUCTION

The contemporary Olympic moment represents a

harmonized and organized global effort, conducted

under the supreme authority of the International

Olympic Committee. This endeavor involves

individuals and entities who are guided by the

principles of Olympism, which embodies a life

philosophy that harmoniously amalgamates the

attributes of the body, willpower, and intellect.

(International Olympic Committee Olympic charter

11). The Olympic charter explicitly asserts that

"engaging in sports is a fundamental human

entitlement," and mandates all National Olympic

committees to ensure that no athlete is subjected to

exclusion due to racial, religious, political, or any

other discriminatory factors. (Olympic charter rule 44

(4) at 80.)

Sports is a form of social conduct that has a

multifaceted perspective and it is also governed by a

set of defined rules that have been agreed by the

sports persons and it also frames a code of conduct to

be followed in accordance with those rules. It

provides for exercise of both body and mind which

improves the physical skills of a person how to work

in a team how to build leadership skills and also how

to have self-control over one cell in case of adverse

circumstances and avoiding violent conduct. The

persons who are already indulged in sports have a

very enriching experience for life in comparison to

https://orcid.org/ 0000-0002-7129-788X

those who are mainly watching it. But every sport is

governed by certain rules which are to be accepted by

the participants as without these rules the activity or

sports cannot be carried out to its full extent.

These rules are by the participant’s outcome of any

competition within the sphere of these rules and

regulations. The rules are being formulated so as to

grant equal opportunity of competition and success to

every participant. The human nature is such that the

rules are being abides advertently or inadvertently

accordingly and for a player who reaches the rules

applied and also a member may be removed

temporally like in football we have penalty shots and

a player may also get disqualified for his offending

conduct. The article aims to identify Sports

arbitration providing for a future dispute redressal as

there is elimination of the decisions inconsistency, for

example in case of red card penalty leading to the

suspension of a footballer can price him a lot as his

other matches might be affected, so to challenge to

his suspension the decision will be given either in his

favor or against him in a span of 48 hours.

Sports interim measures are provided so that the

athletes or sports person might not be stopped from

participating in the tournament on account of delay in

the arbitration or adjudication. In case of sports

arbitration, the arbitrators are appointed are appointed

from a closed list of arbitrators providing for a

constrictive system. Its justification is that it

comprises of law specialist as a panel for deciding the

Garg, N.

Analyzing Sports Arbitration and Its Trans-Border Application.

DOI: 10.5220/0012531300003792

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st Pamir Transboundary Conference for Sustainable Societies (PAMIR 2023), pages 941-946

ISBN: 978-989-758-687-3

941

sports arbitration as contrast to the commercial

arbitration where the parties are at liberty respecting

the norms of party autonomy. Since CAS is seated at

Lausanne, therefore the party submit their submission

of the disputes to the Swiss institution in resolving the

sports disputes pertaining to Olympics and FIFA. The

major challenge is the decision making system that

requires transparency and rendering justice to the

sportspersons.

SPORTS ARBITRATION

a. AAA-The Ted Stevens Olympic and Amateur

Sports Act, 1978 (The Ted Stevens Olympic and

Amateur Sports Act, 1978) and US Olympic

Committee, American Arbitration Association

recognize a particular spot as Olympic sport. United

States has anti-doping agency and it has also

appointed American Arbitration Association to

resolve the dispute that is pertaining to the violation

of the protocols that is done by the athletes in the

Olympic sports matches. It has provided excellent

service for over 40 years and also it has trained the

Arbitration activities for Sports to adjudicate the sport

doping cases. The American Arbitration Association

also looks after the doping cases in case of

Professional golfers Association and also maintains

the players integrity program and whatever the

appeals that are being raised out of the violations, the

sanctions that are being imposed by the Professional

Golfers Association pertaining to doping or other

ethical issues.

The AAA comprises of a National Commercial

Sports panel consisting of former judges, executives

and attorneys who are very well experienced in the

athletics or have the agent representation in sports and

they are having the relevant experience pertaining to

the Olympic matters and the contracts, and the

gaming and gambling in answering in all that are

being used as professional league disputes. There is

requirement for the minimum qualifications and

abidance of the code of conduct.

The qualification provides for a 10 years of

experience disputes pertaining to Sports dealing with

the issues like the doping, gambling, contract breach,

ethics violation and the eligibility for the participation

issues. The legal professional must comprise of an

attorney having a minimum number of 10 years of

experience in the legal scenario. He should also

possess an educational degree in a particular field of

expertise and he should also have the training in

dispute resolution and other forms of dispute

resolution that is pertaining to sports. Such person

shall be able to manage the proper hearing processes

and he should be free from any bias and there should

be impartial evaluation of any evidence.

The AAA also provides for a Commercial Code of

Ethics for the arbitration for training to the

commercial disputes. The Code provides the

neutrality in arbitration for deciding the disputes and

ensure that the settlement should be independent and

impartial. The arbitrators are also required to make a

free disclosure of issues or the circumstances which

might raise questions to the neutrality of the

impartiality. If there is not any doubt pertaining to any

uncertainty then arbitrators should serve neutral

arbitrators unless and until there is any doubt

pertaining to uncertainty in dispute resolution.

b. Role of Arbitrator-The arbitrator should ensure

the fairness in the arbitration process ensuring high

levels of independence and the integrity of the

process. The Pro Bono services may be instituted by

the arbitrator where ever he deems fit. Reappointment

acceptance should be done by the arbitrator only in

those circumstances when he can ensure that he is

competent to serve and resolve the dispute in partially

and independently and he should make his

availability and adhere to the party requirements.

After being appointed, the arbitrator should not

indulge in professional relationship or should not

have any personal or monetary conflicts or interests

which can have adverse effect on the Independence

or impartiality. The decision of the arbitrator shall not

have any self-interested motives or be effected by any

external pressure. If he thinks that any obligations or

rules that are specified in the arbitration agreement

are not ethical then he is not under any obligation to

comply with the agreement. Arbitration process is

adopted as it is efficient resolution of the disputes and

the arbitrator should not withdraw and abandon his

appointment unless there are such compelling

circumstances which provides that he would not be

able to perform his duties in an impartial manner.

DISPUTES IN SPORTS

ARBITRATION

a. Issues in sports arbitration- The doping and

cheating issues pertaining to the sports are at upsurge

and therefore neutral solution for the same. First the

disputes go to the ordinary divisions and then the

other is the appeal arbitration division.

b. International Council for Arbitration for

Sports- It operates as an institution that supports

arbitration, overseeing arbitrator activities and

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addressing issues related to arbitrator removal and

challenges. Each division is led by its own President,

overseeing administrative tasks specific to that

division. Disputes in sports can emerge directly or

indirectly from commercial contracts tied to sports,

such as media rights, employment matters, or

sponsorship agreements between parties. The

framework includes procedural rules categorized into

three procedures: general provisions for regular

arbitration and its various processes, along with

specific provisions for arbitration appeals.

For those seeking interim relief, including applicants,

it's crucial to demonstrate that they have endured

irreparable harm that could negatively impact their

chances of succeeding in their claim. Participation in

arbitration isn't optional for athletes wishing to

compete in the Olympic Games; they are required to

sign a waiver agreement renouncing the right to

appeal to CAS. (Rule 59 of the Olympic Charter)

c. The Court of Arbitration for Sports- The Court

of Arbitration for Sport (CAS) was established in

1983 by the International Olympic Committee and is

headquartered in Lausanne, Switzerland. CAS

decisions are final and binding, except on extremely

limited grounds, such as incompetence or irregularity

of the arbitration panel, the award going beyond the

scope of the parties' submissions, the award failing to

decide a major issue, violation of the parties' right to

be heard, lack of equal treatment between the parties,

or the award being incompatible with public policy.

In 2018, CAS amended its Code of Sports-related

Arbitration to add a new provision (Rule 59(e)) that

allows the court to alter or amend a judgment within

10 days of its entry. This provision is similar to

Federal Rule of Civil Procedure 59(e), which allows

a court to alter or amend a judgment for a limited

number of reasons, such as a mistake in the judgment,

newly discovered evidence that could not have been

discovered earlier with reasonable diligence, or fraud

or misrepresentation by a party.

The amendment to CAS Rule 59(e) is intended to

provide parties with a way to correct errors in CAS

judgments and to ensure that justice is served.

d. Arbitration award- The arbitration award is

binding on the parties and cannot be set aside simply

because the parties do not have any business or

residence in Switzerland. Arbitration offers a number

of advantages, such as public hearings, which give the

athlete accused of disciplinary action the right to a fair

hearing. Public hearings also help to maintain the

integrity of the proceedings and prevent negligence,

bias, or corruption, which are common problems in

private proceedings.

Sports-related penalties are consistent with other

sanctions for doping or other unethical practices. One

of the main advantages of sports arbitration is that it

leads to less discretionary outcomes in arbitral awards.

Additionally, sports arbitration can be expedited, with

decisions being made within 24 hours by sports

governing bodies and rules.

SPORTS ARBITRATION IN

DISPUTE REDRESSAL

The arbitration has its advantages for the attorneys

because it constituted a fair arbitration Tribunal

working on equitable basis and the chairman who was

also the President of the disciplinary committee was

not effectively involved in the arbitration Tribunal

and the athlete was given the right of appointment of

only one arbitrator out of the three arbitrators.

a. CAS-The CAS provides for Ad-Hoc division of the

arbitration which consists of an arbitral body for

specified duration like during the Olympic winter and

Summer Games and the FIFA World Cup. The events

duly have, an arbitrator panel are appointed and they

decide in the host city throughout the event and it

must remain available at all times. As per the Adhoc

rules, if complaint is filed then it has to be resolved

within a period of 24 hours after its lodging in open

championships like football l League and for World

cup it is 48 hours. The time limit and resolution of

disputes through arbitration is very less and it

provides for expedited procedure of all the legal

issues in advance before the start of the competitions.

b. The World Governing Body of Swimming- The

Brazilian National Swimming Federation (CBDA)

initially issued warnings to four swimmers who had

tested positive for a prohibited substance. However,

the International Swimming Federation (FINA)

appealed to the Court of Arbitration for Sport (CAS),

which ultimately upheld the CBDA's decision. CAS

is a specialized court that resolves disputes in the field

of sports. It is known for its fast and efficient dispute

resolution process, and it also has the power to grant

provisional measures, such as injunctions, before a

final decision is made. This can be helpful in cases

where there is a risk of irreparable harm, such as when

Analyzing Sports Arbitration and Its Trans-Border Application

943

an athlete is facing a doping ban. The CAS ruling in

this case is a reminder that even if an athlete tests

positive for a prohibited substance, they may not be

automatically banned from competition. The specific

circumstances of each case will be considered, and

the CAS may decide that a warning is sufficient

punishment.

c. The Basketball Arbitral Tribunal- It

is set up in

Geneva and provides for speedy resolution of sports

disputes among the athletes, clubs and the parties. It

provides for several conservative remedies and a

speedy issuance of final arbitration award within six

weeks from the date of completion of proceedings. It

clears the hearings only upon the application by the

parties and the cases are on justice and fairness

insured to the parties with reference to any

international law.

d. Chambre Arbitrale du Sportis- France has a

dispute resolution body called the Court of

Arbitration for Sport (CAS). It offers speedy dispute

resolution through arbitration and is referred to by

national and international sports organizations. The

French Olympic Committee appoints the arbitrators

for CAS and exercises control over it.

CAS has gained the trust of the sports world,

including the Olympics and other regional games.

This is due to the growing number of disputes in the

sports sector and the need for CAS to resolve national,

domestic, and international disputes arising from

disputes between athletes and international sports

federations.

Here are a few examples of disputes that CAS has

resolved:

• A dispute between a player and a sports

federation over a doping violation.

• A dispute between two sports federations

over the ownership of a tournament.

• A dispute between a sponsor and an athlete

over a breach of contract.

• CAS is a respected and impartial body with

the expertise and experience to resolve

disputes in the sports world. It is a valuable

resource for athletes, sports organizations,

and sponsors who need to resolve disputes

quickly and efficiently.

e. The World Anti-Doping Agency The

establishment of the Court of Arbitration for Sports

(CAS) in 1999 was prompted by conflicts between

international sports redressal bodies and governments.

This institution serves as an overarching body

dedicated to combating global doping issues. It

operates under unified rules, procedures, and

sanctions managed by sports organizations. CAS

enforces a catalog of banned substances, ensures

proper testing in authorized labs, and encourages

research into prohibited substances and methods such

as chemical, blood, and genetic manipulation to

enhance athletes' performance. It also grants

exceptions for therapeutic drug use. The growth in

sports arbitration has led to decreased quality in

arbitration awards and necessitated significant

financial, intellectual, and infrastructural resources to

provide top-notch CAS services on a global scale for

resolving international disputes.

In a recent development, the Sports Arbitration

Centre of India was established on September 26,

2021, and inaugurated by Minister Kiren Rijiju in

Gujarat. This initiative, backed by the Ministry of

Law and Justice, aims to establish a reputable and

enduring center to address sports disputes and related

issues transparently and equitably.

The adjudicatory process in India has proven

ineffective in providing remedies to athletes, as seen

in the Manika Batra case (W.P.(C) 10590/2021 & CM

APPL. 32671/2021), which has been ongoing for

many years. This prolonged decision-making has left

no recourse but to await investigations to address

charges or ethical concerns. This situation fails to

meet the urgent needs of Indian athletes, particularly

those aspiring to participate in global events like the

Olympics, as the adjudication delays could lead to the

loss of career opportunities and negatively impact

their prospects.

A significant drawback is the high cost and lack of

transparency in resolving disputes. Notably, the Court

of Arbitration for Sports (CAS) has not published any

annual reports, making its financial operations and

expenditures undisclosed. This lack of transparency

raises concerns about its functioning, as it operates

without public awareness. Furthermore, gender

disparity exists among the arbitrators listed on CAS's

website, predominantly comprising males. Matthieu

Reeb, the Secretary General of the Court of

Arbitration for Sports, has retained his position

unchallenged since 1999, raising questions about

leadership longevity.

Forced arbitration clauses are established under

Article 6(1) of the European Convention on Human

Rights, which mandates a fair public hearing within a

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reasonable timeframe by an impartial tribunal.

However, in practice, these clauses can undermine

fairness and due process.

In the case of Mutu and Pechstein v Switzerland, the

European Court of Human Rights (ECHR) found that

the rights of Claudia Pechstein, a professional speed

skater, had been violated under Article 6(1) of the

European Convention on Human Rights (ECHR).

This is because the Court of Arbitration for Sport

(CAS) did not hold a public hearing in her case.

The ECHR distinguished between forced arbitration

clauses and voluntary arbitration clauses. Forced

arbitration clauses are those that are imposed on

athletes as a condition of participating in a sporting

event. Voluntary arbitration clauses are those that are

agreed to by athletes of their own free will.

The ECHR found that the arbitration clause in

Pechstein's case was a forced arbitration clause

because she was given the choice of either accepting

the clause or being ineligible to compete. This, the

ECHR found, violated Pechstein's right to a fair

hearing.

The ECHR's decision in the Pechstein case is

significant because it sets a precedent for other

athletes who have been subjected to forced arbitration

clauses. The decision also raises questions about the

fairness of the CAS, which is the leading international

body for resolving sports disputes.

Here are some of the key points of the case:

The ECHR found that the CAS's decision not to hold

a public hearing in Pechstein's case violated her right

to a fair hearing under Article 6(1) of the ECHR.

The ECHR distinguished between forced arbitration

clauses and voluntary arbitration clauses. Forced

arbitration clauses are those that are imposed on

athletes as a condition of participating in a sporting

event. Voluntary arbitration clauses are those that are

agreed to by athletes of their own free will.

The ECHR found that the arbitration clause in

Pechstein's case was a forced arbitration clause

because she was given the choice of either accepting

the clause or being ineligible to compete.

The ECHR's decision in the Pechstein case is

significant because it sets a precedent for other

athletes who have been subjected to forced arbitration

clauses. The decision also raises questions about the

fairness of the CAS.

CONCLUSION

In conclusion, the analysis of sports arbitration and its

trans-border application reveals a complex landscape

where various sports governing bodies and arbitration

institutions play pivotal roles. The contemporary

Olympic movement embodies a globally coordinated

effort under the aegis of the International Olympic

Committee, guided by the principles of Olympism

that harmonize physical prowess, willpower, and

intellect. However, this framework necessitates

effective dispute resolution mechanisms to ensure fair

play and justice.

Sports arbitration, which includes the Court of

Arbitration for Sport (CAS) and other bodies like the

American Arbitration Association (AAA) and

International Council for Arbitration for Sport, strives

to provide an impartial and efficient platform for

resolving disputes in the realm of sports. The CAS,

established in 1983, stands as a critical institution to

arbitrate disputes related to sports and ensure the

integrity of the games. Nevertheless, concerns have

been raised about the transparency, quality of

arbitration awards, and limited judicial review of

CAS decisions.

Despite these challenges, sports arbitration offers a

means to expedite dispute resolution and provide

athletes with timely justice. Measures such as the Ad-

Hoc division of CAS during major events like the

Olympics and FIFA World Cup, along with

specialized bodies like the Basketball Arbitral

Tribunal, have been established to address sports-

related disputes efficiently. However, cases like the

Mutu and Pechstein v Switzerland raise questions

about the fairness of forced arbitration clauses and

highlight the need for balanced proceedings.

The establishment of the Sports Arbitration Centre of

India marks a significant step towards resolving

disputes in the Indian sports context. However,

concerns remain about the efficiency of the

adjudicatory process and the potential impact on

athletes' career prospects. Transparency, gender

parity among arbitrators, and financial accountability

of arbitration institutions like CAS are areas requiring

attention to uphold the principles of fairness, equity,

and justice within the sports realm.

In the broader context, the pursuit of a transparent,

fair, and efficient sports arbitration mechanism

remains an ongoing endeavor. The combination of

legal expertise, neutrality, and respect for athletes'

Analyzing Sports Arbitration and Its Trans-Border Application

945

rights is essential to create a balanced and effective

platform for resolving disputes, preserving the

integrity of sports, and ensuring that athletes can

compete on a level playing field.

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Olympic charter rule 44 (4) at 80.

Rule 59 Olympic Charter

CAS Code R57 International Council of Arbitration for

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Arthur D. Little, Inc. v. East Cambridge Savings Bank, 35,

(1994) Mass. App. Ct. 734, 743, note 7.

FINA v. Cesar Augusto Cielo Fiho and CBDA CAS

2011/A/2495

W.P(C) 10590/2021 & CM APPL. 32671/2021 (interim

relief)

European Convention on Human Rights,

https://www.echr.coe.int/documents/convention_eng.p

df.

Applications no. 40575/10 and no. 67474/10) (ECHR 324

(2018) (2October 2018).

Black, A. M., Sergio, L. E., & Macpherson, A. K. (2017).

The Epidemiology of Concussions: Number and Nature

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and Male Canadian Varsity Athletes 2008 to

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journal of the Canadian Academy of Sport

Medicine, 27(1), 52–56.

International Olympic Committee Olympic charter 11

(entered into force September 9, 2013).

The Ted Stevens Olympic and Amateur Sports Act, 1978

https://www.wada-ama.org/en/anti-doping-partners/court-

arbitration-sport

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