Unlocking Sports Arbitration: the Essentials Revealed

This is also the case in the field of sports law, where its steady growth has been largely fuelled thanks to the role of the Court of Arbitration for Sport/Tribunal Arbitral du Sport (CAS/TAS), established in Switzerland, in facilitating dispute resolution in sports law.

The primary and critical distinguishing aspect of sports arbitration is its speed. This urgency arises because the sports industry operates on a calendar filled with frequent events and competitions. To be effective, resolution of a sports dispute typically needs to be completed before a specific event or competition begins. Moreover, the swift resolution of sports disputes is crucial because athletes typically have generally short careers. A prolonged dispute could therefore significantly undermine a sportsperson’s career and his or her earnings. Time is therefore of the essence.

The athlete’s role in concluding the arbitration agreement

How come sports disputes are typically resolved through arbitration?

The basis for arbitration is the consent of the parties choosing this dispute resolution method, usually in an arbitration clause inserted in a contract, to resolve their dispute instead of national courts.

Athletes are often bound by arbitration clauses, not by their explicit consent, but by the web of organisational regulations that govern their sport. For example, a footballer may find himself bound by an arbitration clause providing for arbitration before the CAS contained in the FIFA Statutes because he or she is a member of a club, which in turn is a member of a national league, which in turn is a member of a national Federal Association (FA), which is a member of FIFA.

This “arbitration by reference” has been justified in sports cases on the grounds that it facilitates prompt resolution by specialised arbitral bodies, provided that adequate levels of independence and impartiality are met as well as the basic requirements of due process.

But why are most, if not all, major sports arbitrations held at CAS in Lausanne, and what exactly is CAS?

Echoes of the past: a journey through history of the CAS

The Court of Arbitration for Sport (CAS or TAS in its French abbreviation) was created in 1984 in response to the rising number of international sports disputes and the lack of an independent authority specialising in sports issues capable of making enforceable decisions through a flexible, rapid and cost-effective procedure (see here for the full history of the CAS).

The CAS is seated in Lausanne, Switzerland – where also an important number of sports federations are based – and is certainly today’s most important arbitration institution in sports law. It operates with a closed list of arbitrators, and it is the CAS panels – comprising either a single arbitrator or three arbitrators – who decide on the cases by rendering an arbitral award.

The CAS operates two distinct types of arbitration proceedings by means of its two divisions: the “Ordinary Arbitration Division”, which adjudicates disputes submitted for the first time, and the “Appeals Arbitration Division”, which reviews decisions made by the first instance level of sports federations (if any).

The appeals procedure is the predominant procedure at CAS, accounting for over 90% of its cases in recent years. These procedures typically involve challenges against sports-related legal measures imposed by organizations, such as disciplinary sanctions, financial claims, fines for rule violations, training compensation, or solidarity payments.

Initially, there were legitimate concerns of the CAS’ close relationship with the IOC (at the beginning the IOC bore all the operating costs of the CAS) and thus the lack of impartiality and independence of CAS arbitration. This issue was first addressed in 1993 in the Gundel case according to which the Swiss Federal Tribunal recognised CAS as a legitimate arbitral tribunal but yet highlighting the still important connections between the CAS and the IOC (Gundel v FEI, SFT 119 II 271, Judgment of 15 March 1993). Consequently, the CAS underwent major reforms to establish it as truly independent from the IOC.

In 2003, the Swiss Federal Tribunal reaffirmed the CAS’s independence from the IOC in the Lazutina & Danilova case (Lazutina & Danilova v IOC, SFT 129 III 445, Judgment of 27 May 2003). The Swiss Federal Tribunal then described the CAS as the “true Supreme Court of world sport’” emphasising that CAS provides the essential assurances of autonomy and fairness, qualifying its awards on par with those of state courts. This was ultimately confirmed by the Swiss Federal Tribunal in recent decisions and most importantly by the European Court of Human Rights in the well-known Mutu and Pechstein v. Switzerland judgment dated 4 February 2019 (available here).

Nowadays, the CAS has a list of nearly 300 arbitrators from 87 countries and has administered on average 300 sport disputes cases every year (as per its website). Yet in 2023, the CAS registered 942 procedures (out of which 695 appeal procedures). After French and English, the CAS adopted in 2020 Spanish as the third working language of the CAS considering the importance of the Spanish language in the sports arbitration world, in particular in football (see our previous blog on this here).

Types of cases heard by CAS

About 45% of CAS cases involve appeals from FIFA decisions, typically revolving around international employment disputes between clubs and players, or inter-club conflicts regarding players’ transfers, training compensation and the solidarity mechanism.

Another 30% of CAS cases focus on anti-doping violations. The introduction of the World Anti-Doping Code in 2004 led to an increase in CAS’s workload, establishing it as the final appellate body for anti-doping cases across international sports organisations.

Furthermore, approximately 10% of CAS cases involve international commercial disputes, which are heard by the Ordinary Arbitration Division and the remaining 15% of cases are other types of appeals, including selection and eligibility disputes, political disputes over governance and elections, and disciplinary cases such as match-fixing and corruption.

The central role of Switzerland in sports arbitration: the Swiss applicable law and the Swiss Federal Tribunal as unique setting aside authority of CAS arbitral awards

The fact that the CAS is physically located in Lausanne is not the only reason why sports arbitration is associated with Switzerland.

There are two main reasons for this:

1)—The subsidiary application of Swiss law. In ordinary proceedings, in the absence of a choice of law from the parties, it is provided that the CAS arbitral panel shall decide the dispute according to Swiss law (R45 of the CAS Code).

The same applies in appeals proceedings, whereby the law of the country where the sports federation is based – most of which are based in Switzerland – is subsidiarily applicable in the absence of a choice of law from the parties (R58 of the CAS Code)

Moreover, the FIFA Statutes also provide that in any CAS proceedings related to FIFA decisions – which amount to most cases before the CAS –, the CAS panel shall apply the regulations of FIFA “and, additionally, Swiss law” (Art. 49(2) of the FIFA Statutes).

2)—The CAS and the individual arbitration panels have their seat in Lausanne, Switzerland (R28 of the CAS Code). Accordingly, the legal framework for the seat of international arbitration is set out in Chapter XII of the Swiss Private International Law Act (the PILA) meaning that CAS arbitral awards can only be challenged in Switzerland’s highest court, the Swiss Federal Tribunal (Art. 191 PILA).

Challenges can only seek the annulment of the award as per the specific grounds outlined in Art. 190(2) PILA, and the Swiss Federal Tribunal’s jurisdiction is limited to confirming or overturning the award (or parts thereof). If the challenge is successful, the matter is typically remanded to the arbitrators – or a new panel of arbitrators – for them to take a new decision.

This explains why the Swiss Federal Tribunal has developed an important – and quite unique in the world – jurisprudence related to sports matters which is closely followed and analysed by all the actors in the sports field. It must also be emphasised that only a small number of CAS awards have been overturned by the Swiss Federal Tribunal, reflecting its pro-arbitration stance. —

While CAS arbitral awards can be enforced worldwide by means of the New York Convention of 10 June 1958, several sports federations have incorporated rules into their statutes or regulations that mandate their members to adhere to all decisions rendered by CAS. Failure to comply with these CAS decisions can lead to disciplinary sanctions against the non-compliant party (as implemented by FIFA, for instance).