The Use of Arbitration in Resolving Sports Disputes
For many years now, arbitration has been widely preferred to court litigation for the resolution of sports disputes. Like all systems, it has its advantages and drawbacks, but it is consistently deployed by a wide variety of sporting bodies, both national and international. In this article, we examine some of the benefits of arbitration that have led to its establishment as the default means for resolving sports disputes.
Expediency and Flexibility
A key advantage to the arbitral system is the speed with which it allows disputes to be resolved, and on an urgent basis where necessary. This is particularly useful in the world of sport, where some disputes – especially those concerning selection for competition and of a regulatory nature, such as anti-doping matters – must be resolved rapidly to ensure the fairness and integrity of competitions. There are, of course, procedures for urgent hearings in the courts, but there is competition for listing space and ultimately, in the wider context of civil justice, sport cannot expect to be prioritised in ordinary domestic courts. In the High Court in England, it is common for disputes requiring a trial over numerous days to be heard well two or more years after the claim is issued. By contrast, the Court of Arbitration for Sport (CAS) records that its ordinary arbitration procedure (i.e. non-appellate proceedings) typically lasts 6-12 months.
By providing for the automatic jurisdiction of specialist dispute resolution bodies (such as the CAS or FIFA Dispute Resolution Chamber), or by a governing body providing for its own oversight and administration of mandatory arbitration proceedings (such as the Football Association (FA)’s “Rule K” arbitration process), disputes within sport can be afforded the attention and flexibility needed to protect the underlying competitions. Ultimately, the private nature of arbitration allows the parties or relevant sport governing authority to determine the urgency of, and thus timeframes for, a dispute. Arbitrators with relevant experience and necessary availability can then be found to hear the case on that timeframe. This generally obviates issues with backlog and resourcing priority.
Examples of the system at work include standby arbitrators for major events, such as the Olympics. These are experienced, specialist arbitrators who are effectively employed to work at the tournament, ready to adjudicate on ad hoc disputes as soon as they arise, and thus to provide rapid resolutions that allow the competition to continue unhindered. Consider, for example, a disputed red card at a rugby tournament or an in-competition adverse analytical finding (i.e. a failed doping test). It is important for the integrity of the competition that such matters can be challenged, prosecuted and defended, but there is only real purpose in doing so if a resolution can be found in time to allow the relevant athlete to continue participating, or to impose a suspension/ban on their participation (as the case may be). Domestic courts could not be expected to have specialist judges on standby to hear these cases through every tournament; only through private arbitral arrangements can that degree of speed by achieved.
Accessibility for Participants
Sports arbitration procedures are also typically simpler than civil disputes procedures under domestic law. Taking the example of England and Wales as a jurisdiction, proceedings in the civil courts are governed by the Civil Procedure Rules and the attendant Practice Directions – a wide-ranging, inter-locking system of rules and requirements, much of which can only be properly understood and applied in conjunction with the substantial mass of case law that interprets it. For anyone not represented by a specialist disputes lawyer, it can be daunting and difficult to understand and comply. Though the courts will typically show leniency to unrepresented litigants, many sports arbitration processes make the system easier to follow and significantly less prescriptive. Procedural matters such as service are kept simple and deadlines are clearly identified. Similarly, arbitral panels are typically given discretion to make such case management rulings as are appropriate to the case, without major constriction by the codified rules.
A prime example is the aforementioned Rule K FA system, the rules of which are approximately 8 pages. This allows the less affluent clubs and players, as opposed to those at the elite end of the game, to use the system without the need for large teams of specialist lawyers, but still allows for disputes to be resolved formally and effectively. However, given the general powers of a tribunal to make case management orders, the system can be adapted to larger, more complex disputes (such as the competition law challenge to the FA Football Agent Regulations[i]), where that is necessary and desirable.
Sport throws up a unique variety of disputes, many of which have few, if any, parallels in other sectors. Some, like anti-doping issues, are effectively unique to the world of sport; others, like employment issues in the context of a transfer system, lean on the wider law to some extent, but also depend on sport-specific contexts and systems that are incomparable with any other sector. Giving participants a single, comprehensible mechanism for resolving those disputes before arbitrators with appropriate sector and legal expertise is fundamental to ensuring that sports’ self-governance is effective and that contests and participation are able to continue despite the inevitability of disputes arising.
Appropriateness of Forum and System
For similar reasons, arbitration has the advantage of allowing sports disputes to be resolved by bodies more suited to the rules and remedies in question. A large number of sports disputes revolve around rules of sport, rather than issues of national or international law. Whether financial fair play and sustainability provisions, anti-doping regulations or betting restrictions, many arbitral proceedings in sport arise from regulations to which the participants have agreed to be bound, but which do not have the force of law and are not based on any domestic or international legislation. Similarly, the sanctions and remedies available are often very distinct from those that might be available in the civil courts.
For example, banning athletes from competition for breaches of the agreed regulations is an accepted and practical sanction in the world of sport, but it has few civil court equivalents (perhaps the closest being the disqualification of directors). Similarly, consider points deductions in team competition, such as those that have grabbed recent headlines in the Premier League, or grid penalties in Formula One. It is difficult to conceive of a court making an order that a football club be ‘docked’ points in its current league standings, or that a driver start 10 places back on the grid next Sunday. These are highly specific mechanisms designed to protect and promote an equally specific – and often diffuse - set of principles, interests and desired outcomes. In simple terms, sporting wrongdoing typically requires a sporting remedy and specialist bodies are best placed to administer them. By adopting an arbitral system for doing so, that specialisation and specificity can be achieved, while still affording participants an opportunity to plead, and where applicable appeal, their case in a similar manner to the court system.
Privacy and Open Justice
A final advantage to arbitration as a method for resolving sports disputes is its flexibility in relation to privacy and open justice. Typically, parties to a bilateral arbitration agreement will specify that the proceedings are confidential. However, arbitral bodies can be empowered to rule that the arbitral decision and related information are permitted or required to be publicly released. Sports governing bodies will often incorporate a right to publish the findings of disciplinary and regulatory procedures into their rules, and that will be the default position in such proceedings (it is also the default position in regulatory appeals to the CAS). This case-by-case flexibility is useful in sport where there is substantial public interest in the subject matter of many disputes, but it is not always in the best interests of the sport and its participants for those matters to be public knowledge.
Naturally, most domestic courts are able to restrict information from the public record where appropriate – for example, in cases relating to child safeguarding (an issue touching almost all sports), the courts are also able to protect the identity of minors in the case. However, sport is a sector in which reputation and publicity plays an enormous and impactful role in commercial operations and decision-making. Participants in sport are more vulnerable than most to the reputational harm that can come with being the subject of regulatory proceedings or the defendant in a commercial dispute. As such, commercial disputes between participants are often subject to default rules of confidentiality (e.g. the ordinary arbitration procedure at the CAS and the FA’s Rule K process). By ensuring that confidentiality is the default starting point between warring participants, sporting bodies are able to prevent parties from applying undue pressure in disputes by weaponising media coverage and adverse publicity. This assists with the fair disposal of the disputes themselves, as well as protecting the wider reputation of the sport as a whole.
Concluding Remarks
As this article highlights, there are undoubtedly many benefits to utilising arbitration in sport as a means of effective dispute resolution. However, it is not without issue. Whilst it is more expedient than general court litigation in most counties, especially in England, there have been criticisms levied at how long it can take for decisions to be handed down
Further, in respect of the CAS, the seat of every arbitration is Lausanne, Switzerland. As such a CAS award can only be challenged before the Swiss Federal Tribunal and only on very narrow grounds.[ii] Where sports bodies have opted to have the CAS as the sole forum for dispute resolution, that has been challenged in recent years as constituting a restriction on free competition, with parties seeking extraordinary recourse before the European Court of Human Rights (as with the case of Mutu and Pechestein). Whilst such cases are rare in practice, they cannot be ignored.
In addition, whilst many sports organisations and athletes are grateful for the privacy afforded by arbitral proceedings, that privacy has come under fire from advocates who believe that there should be more open justice in sport (as in civil courts). The main reasons cited are that open justice encourages fair and proper decision making, and that sport is a matter of public interest – if hearings are held in public, then those who choose to follow a case are better able to understand the decision-making process, inspiring greater public confidence therein. Overall, it is sometimes argued that adopting more of an open justice system with sports disputes would encourage a higher standard of resolution in sports disputes, making them fairer and more accountable.
That said, the arbitral frameworks and processes available for the resolution of sports disputes are sophisticated, to allow for justice to be done in a way that serves the best interests of those seeking to exercise their rights (be that an athlete or sports body). The standard of arbitrators available to the CAS alone is world class and it is no surprise that many sports bodies continue to opt for that forum as a means of resolving issues.
As with all forms of dispute resolution, there are pros and cons. However, when it comes to sport, it seems that it is undeniable that justice is best served by those who are truly expert and understand sport, its administration and its operation.
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[i] In June 2023, various football agencies commenced Rule K arbitration proceedings to challenge the FA’s National Football Agent Regulations on the basis that they would be in breach of the Competition Act 1998. In November 2023, the FA Rule K Tribunal declared that if the FA implemented certain of the regulations as proposed, specifically those dealing with Fee Caps and Pro Rata Payments, it would be in breach of said Act. Those provisions of the Regulations are currently suspended, a move that is replicated worldwide until a decision by the European Court of Justice is handed down. The latest version of the Regulations came into force on 1 January 2024 containing highlights to the currently suspended articles.
[ii] Those listed in the Swiss Private International Law Act (PILA).
