Sports Law 101: The Role of Arbitration in Sports

In the dynamic and fast-paced world of sports, an effective dispute resolution system must be just as agile – capable of keeping pace with emerging challenges and adapting to the unique complexities of the sporting landscape, while also upholding the principles of fairness and efficiency. Arbitration, with its private, flexible and specialised approach, is well-suited to meet these needs.

Arbitration is generally seen as a quicker, more cost-effective and confidential alternative to litigation. Its appeal in sports disputes is further enhanced by the ability of parties to select arbitrators with subject-matter expertise, particularly those familiar with the regulatory, commercial and ethical dimensions of sports. These attributes have helped solidify arbitration as the preferred forum for resolving the majority of sports disputes, ranging from contract disagreements and eligibility questions to doping violations and disciplinary sanctions.

🤔 What is Arbitration?

Arbitration is a form of alternative dispute resolution in which parties agree to submit their dispute to one or more independent third-parties – known as arbitrators – who then issue a final and binding decision on the dispute. Unlike court judgments, arbitral awards are usually not subject to appeal, with only limited grounds for challenge (such as procedural irregularities or a breach of public policy).

Typically, an arbitration is governed by an agreement between the parties (an arbitration agreement), which may take the form of a clause contained within a broader contract or alternatively, a standalone agreement entered into by the parties. The arbitration agreement reflects the parties’ mutual intention to bypass the traditional court system and resolve any disputes between them through arbitration, a private and (often) confidential process.

Arbitration is supported by well-established legal frameworks, most notably the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention). With over 160 signatory states, the New York Convention plays an important role in ensuring that arbitral awards are widely recognised and enforceable across borders. It provides parties with greater confidence and predictability that their arbitration agreement – and any resulting award(s) – will be upheld in other countries that are party to the New York Convention.

Arbitration may be preferred over litigation for several reasons. It is generally faster and more cost-effective, avoiding the procedural complexity and delays that are common in court proceedings. Parties also have more control over the process, including the choice of arbitrators, the rules of procedure and the location of the hearing. Additionally, arbitration proceedings are usually private and confidential. These features make arbitration particularly attractive in high-stakes, reputation-sensitive fields such as sports.

⚖️ Arbitration in Sports and the Role of CAS

Arbitration plays a central role in the resolution of sports disputes, by offering a process tailored to the fast-paced, specialised nature of the industry. In today’s global sporting environment – where athletes, teams and sports governing bodies (SGBs) frequently operate across borders – there is a clear need for a dispute resolution mechanism that functions beyond the confines of national legal systems. Arbitration fulfils this requirement by providing for an internationally grounded framework, which is administered by experts who are familiar with the unique legal and practical demands of sports. Moreover, the finality of arbitral awards and the flexibility of its procedures make arbitration particularly attractive in preserving the integrity and continuity of competitive sports.

One of the most prominent institutions in this context is the Court of Arbitration for Sport (CAS) based in Lausanne, Switzerland. Established in 1984 to resolve sports-related disputes through arbitration, CAS has since evolved into the de facto “Supreme Court of world sports”. It handles a wide array of sports disputes, including disciplinary sanctions, doping infractions, eligibility and selection disputes, and commercial disagreements involving athletes, clubs, federations and SGBs.

CAS has its own set of procedural rules called the “Code of Sports-related Arbitration and Mediation Rules” (the CAS Code). Under the CAS Code, disputes are heard by panels typically composed of one or three arbitrators, selected from a list maintained by the institution. These arbitrators are appointed for their expertise in both sports law and arbitration.

CAS offers two main divisions:

(i) the Ordinary Arbitration Division, which handles contractual and commercial sports-related disputes in a similar way to other arbitration institutions; and

(ii) the Appeals Arbitration Division, which acts as the court of final appeal for decisions taken by competent sports authorities, either at a national, international or sport-specific level.

CAS also operates an Ad Hoc Division during major international sporting events (for example, the Olympic games) to ensure urgent disputes can be resolved within a matter of hours or days. In practice, the majority of cases at CAS are dealt with by the Appeals Arbitration Division.

Article R28 of the CAS Code provides that all CAS arbitrations are “seated” in Lausanne, Switzerland by default. The designation of the “seat” (or legal place) of the arbitration is an important concept, as it determines the procedural law that governs the arbitration and the supervisory jurisdiction of the national courts. In the case of CAS, the choice of Lausanne as the default seat of CAS arbitrations means that Swiss law governs key aspects of the arbitration process, including the grounds for challenging CAS awards before the Swiss Federal Tribunal. While this ensures consistency and legal uncertainty, it also means that appeals of CAS awards are only possible on narrow procedural grounds under Swiss law, such as lack of jurisdiction, improper constitution of the tribunal or violation of public policy.

Under Article R59 of the CAS Code, awards issued by the Appeals Arbitration Division are generally published as a matter of principle. This represents a notable departure from one of the defining features of traditional arbitration: confidentiality. However, the public availability of CAS awards is intended to promote transparency, enhance the legitimacy of the arbitration process and foster consistency in the resolution of sports disputes. By making decisions accessible, CAS also enables parties, practitioners and other tribunals to rely on and cite established jurisprudence, contributing to the development of a coherent body of sports law (commonly referred to as lex sportiva).

👨‍⚖️ “Mandatory” Arbitration

Beyond the publication of awards, CAS arbitration also diverges from the traditional arbitration model in more fundamental ways.

In usual arbitration contexts, jurisdiction is based on the parties’ mutual and voluntary consent, which is reflected in a negotiated arbitration agreement. By contrast, CAS arbitrations may be characterised as “mandatory”, since athletes and other stakeholders are effectively required to accept the jurisdiction of CAS in order to participate in organised sports. This obligation is usually imposed through arbitration clauses that are embedded in the rules and regulations of most SGBs, which participants have little to no opportunity to negotiate or reject. As a result, submission to CAS arbitration becomes a prerequisite for accessing and participating in sports activities, thereby limiting a sporting participant’s freedom to choose how any eventual disputes are to be resolved.

This lack of genuine consent has prompted ongoing legal and academic debate around issues of fairness, procedural autonomy and due process within the CAS system. Notably, Advocate General (AG) Ćapeta – in an opinion before the Court of Justice of the European Union (CJEU) regarding Case C-600/23 (Royal Football Club Seraing v FIFA) – raised concerns about mandatory arbitration arrangements such as CAS and whether they fall within the scope of Article II(1) of the New York Convention. She questioned whether parties subjected to compulsory arbitration can truly be said to have “undertaken” to arbitrate in the freely consensual manner required by the New York Convention. AG Ćapeta further recommended that national courts within the EU should be able to undertake a full review of CAS awards for their compliance with EU law, particularly where fundamental rights that are enshrined in the EU legal order are at stake.

Although AG Ćapeta’s opinion is not binding, it remains to be seen whether the CJEU will adopt her reasoning or pursue a different course in its upcoming judgment.