Sports Arbitration: How the Structure and Other Features of Competitive Sports Affect Consent As It Relates to Waiving Judicial Control – Vol. 20 No. 1

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Author: Andrea Marco Steingruber*

Published: April 2010




In 2007, the Swiss Federal Tribunal for the first time set aside an arbitral award by the Court of Arbitration for Sport (“CAS”) in a doping case. In the landmark Cañas4 decision, the Swiss Federal Tribunal recognized and stressed the peculiarities inherent in international sports and sports arbitration. In contrast to the business world, where parties typically5 face each other in a horizontal relationship as parties to a contract with similar bargaining power, athletes find themselves in a vertical relationship with sports organizations: they are forced to accept the rules and regulations in order to take part in international competitions. As a consequence, provisions of the Swiss Private International Law Act (“SPILA”), tailored as they are to commercial arbitration, have to be adapted to take into account specific factors inherent in the field of sports.

Building on this, the Swiss Federal Tribunal found that a waiver of appeal pursuant to Article 192 of the SPILA cannot be derived from provisions contained in the regulations of sports organizations. Rather, any such waiver must be derived from an express declaration, signed by the athlete, and be based on a voluntary agreement between the parties. In sports, however, this is generally not the case, and therefore, for all practical purposes, a waiver within the meaning of Article 192 of the SPILA can never be considered as granted by the athletes. The same applies in the case discussed below, where the formal provisions may have been met per se, but the agreement on the part of Cañas to waive his right of appeal could not be regarded as binding.

The article begins with a brief overview of the facts of Cañas (Section II) and outlines the reasons presented to the Swiss Federal Tribunal by the appellant as to why a waiver of the right to appeal in the context of sports arbitration should be ineffective (Section III). Then the structural organization of sports in general and of the ATP Tour, in particular, is briefly described (Section IV), followed by an overview of the fundamental features of arbitration (Section V) and the use of arbitration for resolving sports-related disputes (Section VI). Later, the relationship between arbitration and Article 6(1) of the European Convention on Human Rights (“ECHR”) regarding consent is briefly mentioned (Section VII). A longer discussion follows (Section VIII), devoted to Article 192 of the SPILA, the provision dealing with the waiver of setting aside proceedings. Finally, the principle of equality of treatment is considered (Section IX) and conclusions drawn (Section X).

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*PhD, Queen Mary University of London, Attorney-at-Law. I am grateful to Professor Loukas Mistelis, Clive M. Schmitthof Professor of Transnational Commercial Law and Arbitration, Queen Mary University of London, for encouraging me to write an article on sports arbitration for The American Review of International Arbitration and to him and Dr. Philipp Ritz for their comments. Errors of fact and judgment are, of course, mine.