Sports arbitration / Antonio Rigozzi and William McAuliffe
In: The European, Middle Eastern and African Arbitration Review / 2013. - P. 15-22, 118. - Global arbitration review [© Law Business Research Ltd]
Given that the sports industry is estimated to account for between 3 and 6 per cent of total world trade, it comes as no surprise that it is also a major source of legal disputes. Of particular interest to the international arbitration community, however, is the fact that arbitration is now firmly established as the dispute resolution method of choice throughout the sports industry, with the Court of Arbitration for Sport (CAS) in Lausanne now receiving a new case almost every working day.
Although sports arbitration shares many characteristics with commercial or investment arbitration, and although many sports arbitrators also sit in standard commercial and investment cases, it also has many interesting features that distinguish it from nonsports-related arbitration. For example, most arbitration practitioners would probably be surprised to learn that some of the world’s leading sports arbitral awards were issued at the conclusion of an expedited 24-hour arbitral process involving all-night deliberations by the arbitral tribunal. Another striking feature of sports arbitration is publicity: CAS arbitrators must be prepared not only to have their awards pored over by the parties to the arbitration, but also to have their findings analysed in detail by the world’s media and critiqued over morning coffee by millions of sports fans around the globe. The Swiss Supreme Court has even suggested that, although CAS cases are heard in private, should an athlete request it, it would be desirable for a public hearing to be held.
In conclusion, arbitration has proven to be an extremely successful method of resolving sports disputes, and as a result it has gained the favor and confidence of the sporting world. This success has inevitably led to a massive increase in the number of sports arbitrations taking place in recent years. Unfortunately, the expectations of the sports community, created largely by the high-profile activity of the CAS, are somewhat at odds with the
reality of many national level sports dispute resolution bodies, as well as some of the international ‘arbitral’ bodies that have been created by international federations.
Perhaps the greatest challenge that the sports arbitration community is now faced with is the need to put structures in place to ensure that the increase in the number of arbitrations does not lead to a decrease in the quality of the awards being issued. To this end, it is arguable that the bulk of resources, both financial and intellectual, should be dedicated to the establishment of a high-quality ‘national CAS’ in every country for the resolution of national level disputes, and a similarly high-quality arbitral body in each sport, to resolve international disputes. If these two types of bodies became established in each individual country and sport, the right of appeal to the CAS could be restricted, and the role of the CAS could evolve from that of a body which re-hears appeals on a de novo basis, to that of a review body whose primary function would be to scrutinize the procedural fairness of the arbitral proceedings at previous instances.
In effect, it would fulfill a similar role to that which is currently performed by the Swiss Supreme Court in relation to the CAS. This development would eventually lead to a pyramidal structure in the world of sports dispute resolution. National level athletes would have access to high-quality dispute resolution services in their own countries, which would eliminate language barriers and reduce the costs that are currently associated with international tribunals, thereby increasing access to justice. In addition, each sport would have its own independent arbitral service for
international disputes, which would ensure even greater understanding of disputes by arbitral tribunals.
This structure would allow the CAS to utilize its resources in a new way. During the early stages of this development, it could share its institutional knowledge and the experience of its secretariat to assist with the creation of the new arbitral bodies. Then, once the bodies are established, the role of the CAS, at the top of the pyramid, would be that of a watchdog, or a safety net, to ensure that fairness and independence were being maintained at all times. In this way, the CAS would play a significant role in ensuring that both domestic and international arbitral tribunals maintain a high standard of arbitral awards in sports arbitration, while providing an even more accessible and specialized arbitral service to sports people and sporting entities worldwide.
