INTRODUCTION
Arbitration in sports is a form of alternative dispute resolution (ADR) used to resolve disputes that arise within the sports industry. It involves an impartial third party, called an arbitrator, who hears arguments from both sides and makes a legally binding decision. The process is similar to a trial, but the arbitrator’s decision is final and cannot be appealed, except in limited circumstances. Arbitration in sports is often used to resolve disputes related to contracts, eligibility, disciplinary actions, and other issues that arise in the context of sports. It is typically faster, less expensive, and more confidential than traditional litigation. As such, it has become an increasingly popular method of dispute resolution in the sports industry.
Arbitration in sports has a long history, dating back to the early 20th century. One of the earliest recorded instances of sports arbitration occurred in 1914 when the National Baseball Commission settled a dispute between the New York Giants and the Chicago Cubs over a player’s contract. Over time, the practice of sports arbitration became more widespread, and sports organizations began to incorporate arbitration clauses into contracts. In the 1950s and 1960s, the National Football League (NFL) and Major League Baseball (MLB) became the first sports organizations to include arbitration clauses in their collective bargaining agreements.
In the 1970s, the use of arbitration in sports expanded further, with the creation of the American Arbitration Association’s (AAA) Sports Arbitration Division. The AAA became the primary provider of sports arbitration services, handling disputes in a variety of sports, including basketball, boxing, football, and hockey.
The 1980s and 1990s saw a further increase in the use of sports arbitration, particularly in the context of international sports disputes. In 1983, the Court of Arbitration for Sport (CAS) was established to provide a specialized forum for resolving international sports disputes. The CAS has since become the premier provider of sports arbitration services, handling disputes related to the Olympic Games, FIFA, and other international sports organizations.
Today, sports arbitration is widely used in the sports industry and has become an essential tool for resolving disputes between athletes, teams, and organizations. It continues to evolve and adapt to the changing needs of the sports industry, ensuring that disputes are resolved quickly, fairly, and impartially.
The purpose of arbitration in sports is to provide a quicker, less expensive, and more efficient method of dispute resolution than traditional litigation. It allows parties to resolve their disputes in a confidential and impartial manner, without disrupting the sport itself.
Arbitration in sports is especially significant because it helps maintain the integrity of sports by ensuring that disputes are resolved fairly and consistently, without bias or favoritism. It helps to prevent disputes from escalating and becoming public, which can damage the reputation of the sport and the parties involved.
In addition, sports arbitration is often used to resolve complex issues related to contracts, eligibility, disciplinary actions, and other matters that require specialized knowledge of the sports industry. It allows disputes to be resolved by experts in the field, who are familiar with the rules, regulations, and customs of the sport.
Furthermore, the use of arbitration in sports has also helped reduce the burden on courts and other legal systems, by providing a specialized forum for resolving sports disputes. This has helped to free up resources for other important legal matters, while ensuring that sports disputes are resolved quickly and efficiently.
Types of Sports Arbitration
There are several types of sports arbitration, each with its own characteristics and applications. Here are some of the most common types:
- Contractual Arbitration: This type of arbitration is used to resolve disputes related to contracts between athletes, teams, or organizations. It typically involves issues such as payment, performance, and breach of contract.
- Disciplinary Arbitration: This type of arbitration is used to resolve disputes related to disciplinary actions taken by sports organizations, such as fines, suspensions, or other penalties.
- Eligibility Arbitration: This type of arbitration is used to resolve disputes related to the eligibility of athletes or teams to compete in a particular sport or event.
- Collective Bargaining Arbitration: This type of arbitration is used to resolve disputes related to collective bargaining agreements between athletes and their respective organizations. It typically involves issues such as wages, benefits, and working conditions.
- International Arbitration: This type of arbitration is used to resolve disputes that arise in the context of international sports competitions, such as the Olympic Games or international tournaments. It is typically conducted by the Court of Arbitration for Sport (CAS).
- Appeals Arbitration: This type of arbitration is used to appeal decisions made by sports organizations or arbitrators. It allows parties to challenge decisions that they believe are unfair or inconsistent with the rules and regulations of the sport.
Overall, the type of sports arbitration used will depend on the nature of the dispute and the specific rules and regulations of the sport or organization involved.
THE LEGAL FRAMEWORK FOR ARBITARTION IN SPORTS
A Court had to be established where these disagreements could be amicably settled within a fair amount of time due to the peculiarities of sports, and the time commitment required for most sports. The Court of Arbitration for Sport (CAS) was established in 1984 to resolve any disputes relating to sports and has been placed under the administrative and financial authority of the International Council of Arbitration for Sport (ICAS).[1]
The legal framework typically includes the following elements:
- National laws: The laws of the country where the arbitration is taking place will apply to the arbitration process. This includes laws related to contract, tort, and civil procedure.
- International laws: The rules and regulations of international organizations, such as the International Olympic Committee (IOC) or the World Anti-Doping Agency (WADA), may apply to sports arbitration. These organizations have their own codes and regulations that govern the conduct of athletes, teams, and organizations in international sports competitions.
- Arbitration agreements: The parties involved in the dispute will typically sign an arbitration agreement that sets out the rules and procedures for the arbitration process. This agreement will often specify the governing law, the number and qualifications of arbitrators, the location of the arbitration, and the language to be used in the proceedings.
- Arbitration rules: The arbitration process will be governed by specific rules that have been established by the institution or organization administering the arbitration. For example, the CAS has its own rules of arbitration that apply to sports disputes heard by the court.
- Court supervision: In some cases, sports arbitration may be subject to court supervision or review. This is particularly true in cases where the arbitration award is being challenged or enforced.
Overall, the legal framework of sports arbitration is complex and multifaceted, and it can vary depending on the specific laws, agreements, and rules that apply to the dispute. It is important for athletes, teams, and organizations to have a clear understanding of the legal framework of sports arbitration before entering into any agreements or dispute that may require arbitration..
Court of Arbitration for Sport (CAS)
In the year 1984 in Lausanne, Switzerland Court of Arbitration for Sports (CAS) was established to resolve the Sports-related Disputes arising in the International Arena via means of Arbitration and Mediation. For the appointment of members and amendment of the statutes governing the Court of Arbitration for Sports, the International Olympic Committee (IOC) is responsible and henceforth it led to the establishment of the International Council of Arbitration for Sports (ICAS) which is supreme to Court of Arbitration for Sports (CAS) and acts as an Administrative and Financial Authority. Also, the Court of Arbitration for Sports decision is final and binding upon the parties to the dispute if they fall under the jurisdiction of CAS.
According to the Code of Court of Arbitration for Sports, CAS has Jurisdiction over all sports-related disputes be it direct or indirect manner as long as the parties to the disputes have a valid arbitration agreement. Another important thing that needs to be noted here is that any sporting organization such as BCCI or any Sports person can approach this court for resolving their dispute. The recent dispute of an Indian athlete Dutee Chand was resolved by CAS.
The disputes at CAS can be categorized into 2 categories:
- Disciplinary Disputes
- Commercial Disputes
Starting with the Disciplinary disputes, it mostly deals with the cases related to doping, violence, racism, etc. In these disciplinary disputes, the sports authorities which govern the event or that particular sport takes disciplinary action against the offender/player and here CAS works as an appellate court over these organizations. When there is a foreign arbitral agreement and the player has exhausted all his/her domestic remedies in their country then only their case can be admitted at CAS. Another category is Commercial Disputes which includes disputes related to the execution of contracts like media rights, broadcasting rights, merchandising & licensing for sports events, Agency relationships between athletes, clubs, coaches & agents, disputes regarding civil liabilities such as accidents of athletes in a competition.[2]
Sports Arbitration Centre of India (SACI)
On September 26th, 2021 India got its 1st Sports Arbitration Centre for resolving Sports-related Disputes. It was inaugurated by present Law Minister Kiren Rijiju in Gujarat. At the inauguration ceremony, Kiren Rijiju said “The SACI will have far reaching impact for the sports sector of India by creating a reputation and establishing credibility for itself through the provision to settle disputes and other issues and concerns of the sports sector in a fast, transparent and very accountable manner.”
The prominent issue which SACI aims to look after is Access to Justice for Athletes. SACI will help the athletes to get speedy justice in their disputes because having pending legal disputes before the courtroom ongoing with wide media coverage is a sort of mental distraction which ultimately affects the performance of the athlete and may lead to the downfall of his or her career. Another important concern which SACI will be looking into is the Time Factor i.e., a long duration is taken to address the issues of the athletes. For any active Sportsperson, time lost during his career and opportunity to compete in events revoked creates havoc on their career prospect.[3]
Arbitration Clauses in Sports Contracts
Arbitration clauses are commonly included in sports contracts as a means of resolving disputes that may arise between athletes, teams, and organizations. These clauses typically require that any disputes be resolved through arbitration rather than through the courts.
Types of Arbitration Clauses:
There are several different types of arbitration clauses that may be included in sports contracts, including:
- Mandatory arbitration: This type of clause requires that any disputes be resolved through arbitration, and that the parties waive their right to have the dispute heard in court.
- Voluntary arbitration: This type of clause provides for arbitration as an optional method of resolving disputes, but does not require that disputes be resolved through arbitration.
- Multi-tiered dispute resolution: This type of clause requires that the parties attempt to resolve disputes through negotiation or mediation before proceeding to arbitration.
Enforceability of Arbitration Clauses:
The enforceability of arbitration clauses in sports contracts can be a complex legal issue, as it depends on the specific language of the clause, as well as the laws and regulations that apply to the contract.
In general, arbitration clauses are favored by courts as a means of resolving disputes because they are seen as more efficient and less costly than litigation. However, there are circumstances in which a court may refuse to enforce an arbitration clause, such as:
- The clause is unconscionable: If the arbitration clause is so one-sided that it is fundamentally unfair to one party, a court may refuse to enforce it.
- The clause is invalid: If the clause is invalid under the law of the contract’s jurisdiction, such as if the parties lacked the legal capacity to enter into the agreement.
- The dispute falls outside the scope of the clause: If the dispute is not covered by the arbitration clause, a court may refuse to enforce it.
Overall, the enforceability of arbitration clauses in sports contracts is an important consideration for athletes, teams, and organizations, as it can have a significant impact on the resolution of disputes and the overall outcome of the contract.
Duties and Responsibilities of Arbitrators:
Arbitrators in sports arbitration have a number of important duties and responsibilities, including:
- Ensuring a fair and impartial arbitration process: Arbitrators must ensure that both parties are given a fair opportunity to present their case, and that the arbitration process is conducted in an impartial manner.
- Applying the law: Arbitrators must apply the relevant laws and regulations to the dispute in order to make a decision.
- Resolving disputes efficiently: Arbitrators are responsible for resolving disputes in a timely and efficient manner, in order to minimize the impact of the dispute on the parties involved.
- Issuing a final and binding decision: Arbitrators must issue a final and binding decision that is enforceable under the relevant laws and regulations.
- Overall, the role of arbitrators in sports arbitration is critical to the effective resolution of disputes in the sports industry. By selecting experienced and impartial arbitrators and ensuring that they fulfill their duties and responsibilities, athletes, teams, and organizations can ensure that their disputes are resolved fairly and efficiently.
Challenging and Enforcing Sports Arbitration Awards
After the arbitrators issue an award, it is final and binding on the parties. However, there are some limited grounds on which the award can be challenged or set aside. Similarly, once the award is finalized, it needs to be enforced by the parties.
Grounds for Challenging an Award:
The grounds for challenging an award are usually limited and vary depending on the governing law and arbitration rules. However, the most common grounds for challenging an award are:
- Lack of jurisdiction: If the arbitrators exceeded their powers or acted outside the scope of the arbitration agreement, the award can be challenged.
- Procedural irregularity: If the arbitration procedure was not conducted in accordance with the agreed procedure or was conducted unfairly, the award can be challenged.
- Public policy: If the award is contrary to public policy or violates the law, the award can be challenged.
Sports Arbitration in Practice
Sports arbitration has become increasingly common in the sports industry, with numerous high-profile cases in recent years. Here are some examples of sports arbitration cases:
- Lance Armstrong[4]: In 2012, Lance Armstrong was stripped of his seven Tour de France titles and banned for life from cycling after being found guilty of doping. Armstrong appealed the decision to the Court of Arbitration for Sport (CAS), but the decision was upheld.
- Maria Sharapova[5]: In 2016, tennis star Maria Sharapova was banned for two years after testing positive for the banned substance meldonium. Sharapova appealed the decision to the CAS, and the ban was reduced to 15 months.
- Sun Yang[6]: In 2020, Chinese swimmer Sun Yang was banned for eight years after refusing to cooperate with drug testers during an out-of-competition test. Sun appealed the decision to the CAS, but the ban was upheld.
Case Studies of Sports Arbitration:
- Pechstein v. International Skating Union[7]: This case involved German speed skater Claudia Pechstein, who was banned for two years for doping in 2009. Pechstein argued that the doping test results were inaccurate and challenged the decision at the CAS. The CAS rejected her appeal, but Pechstein continued to fight the decision in the German courts, arguing that the arbitration agreement was invalid. The case eventually reached the German Federal Court of Justice, which ruled that the arbitration agreement was valid.
- Mutu v. Chelsea Football Club[8]: This case involved Romanian footballer Adrian Mutu, who was fired by Chelsea Football Club in 2004 after testing positive for cocaine. Mutu challenged his dismissal at the CAS, arguing that the club had breached his contract by failing to support him during his addiction. The CAS ruled in favor of Chelsea, and Mutu was ordered to pay compensation to the club.
In conclusion, sports arbitration has become an important aspect of the sports industry, with numerous high-profile cases in recent years. These cases demonstrate the importance of having a fair and effective arbitration system in place to resolve disputes in the sports industry.
Criticisms and Future of Sports Arbitration
Criticism:
- Lack of Transparency: One of the criticisms of sports arbitration is the lack of transparency in the process. The confidentiality of the proceedings often leaves fans, athletes, and other stakeholders in the dark about the reasoning behind decisions.
- Limited Appellate Review: In some cases, sports arbitration decisions are final and binding, with limited scope for appeal, which could lead to the perception of a lack of justice.
- Lack of Consistency: The lack of legal precedent and guidance in sports arbitration can lead to inconsistency in decisions, especially in complex cases.
The Future of Sports Arbitration:
- Despite its criticisms, sports arbitration will continue to play a significant role in the resolution of disputes in the sports industry. Here are some potential future developments:
- Increased Transparency: To address concerns about transparency, sports organizations and arbitration bodies may consider greater public access to hearing transcripts and decisions.
- Improved Appeals Process: To ensure the perception of justice and fairness in sports arbitration, there may be a need for an appeal process that provides greater clarity and consistency in decisions.
- Inclusion of Independent Experts: Including independent experts in sports arbitration panels may lead to more informed and impartial decisions.
- Use of Technology: With advancements in technology, sports arbitration may become more efficient, streamlined, and accessible to all parties involved in the dispute.
In conclusion, while sports arbitration is not perfect, it is a vital tool in resolving disputes in the sports industry. It is important for stakeholders to continue to engage in discussions to improve the process and address concerns to ensure a fair and effective resolution of disputes.
Suggestions and Conclusion
Sports arbitration has been a crucial mechanism for resolving disputes in the sports industry for many years. Despite its usefulness, the process has faced criticisms over the years. In this article, we will explore some potential suggestions for addressing these criticisms and improving the sports arbitration process.
Firstly, one of the primary criticisms of sports arbitration is the lack of transparency in the process. To address this concern, sports organizations and arbitration bodies may consider greater public access to hearing transcripts and decisions. This could include publishing summaries of awards, making transcripts of hearings available to the public, and releasing anonymized versions of the decisions for educational purposes.
Secondly, to ensure the perception of justice and fairness in sports arbitration, there may be a need for an appeal process that provides greater clarity and consistency in decisions. This could involve creating a clear and consistent appeals process that follows a set of established guidelines, providing detailed explanations for decisions, and ensuring that decisions are based on legal principles and precedents.
Thirdly, including independent experts in sports arbitration panels may lead to more informed and impartial decisions. These experts could include lawyers, sports scientists, and other relevant professionals with expertise in the area of the dispute. By having an independent expert on the panel, parties could have greater confidence in the decision-making process, and the process could become more efficient and effective.
Lastly, with advancements in technology, sports arbitration may become more efficient, streamlined, and accessible to all parties involved in the dispute. This could involve using online tools and platforms for document sharing, communication, and virtual hearings. Such advancements would not only make the process more convenient but could also lead to faster resolutions of disputes.
In conclusion, while sports arbitration has faced criticisms over the years, it remains a crucial mechanism for resolving disputes in the sports industry. Implementing these suggestions could improve the sports arbitration process, making it more transparent, consistent, impartial, and accessible. By continuing to engage in discussions and making necessary changes, we can ensure that sports arbitration remains a fair and effective tool for resolving disputes in the sports industry.
Moreover, the criticisms of sports arbitration include concerns regarding transparency, consistency, impartiality, and accessibility. These concerns may have significant implications for the sports arbitration process, as parties may lose confidence in the process, leading to a breakdown in the resolution of disputes.
To address these criticisms, sports organizations and arbitration bodies may need to consider implementing some of the suggestions proposed, including greater transparency in the process, the inclusion of independent experts in arbitration panels, and using online tools and platforms to make the process more efficient and accessible.
In conclusion, sports arbitration remains a crucial mechanism for resolving disputes in the sports industry, and by addressing the concerns raised and implementing necessary changes, we can ensure that the process remains a fair and effective tool for resolving disputes in the future
[1] TAS/CAS https://www.tas-cas.org/en/general-information/frequently-asked Accessed 15/11/2022.
[2] https://llbmania.com/2021/12/02/role-of-arbitration-in-resolution-of-sports-disputes/
[3] https://llbmania.com/2021/12/02/role-of-arbitration-in-resolution-of-sports-disputes/.
[4] Armstrong v. Tygart. “Case No. A–12–CA–606–SS. 2012-08-20” Armstrong v. Tygart, 886 F. Supp. 2d 572, (W.D. Tex. 2012).
[5] Arbitration CAS 2016/A/4643 Maria Sharapova v. International Tennis Federation (ITF), award of 30 September 2016
[6] CAS 2019/A/6148 World Anti-Doping Agency v. Mr Sun Yang & Fédération
International de Natation (FINA).
[7] Arbitration CAS 2009/A/1912 P. v. International Skating Union (ISU) & CAS 2009/A/1913
Deutsche Eisschnelllauf Gemeinschaft e.V. (DESG) v. International Skating Union (ISU),
award of 25 November 2009
[8] Chelsea Football Club Ltd. v. Mutu. “Case No. 10–24028–CIV. 2012-02-13” Chelsea Football Club Ltd. v. Mutu, 849 F. Supp. 2d 1341, (S.D. Fla. 2012)