Definition and characteristics of arbitration in sports
Arbitration is a legal concept in which parties agree to submit an existing or future dispute for resolution to a third party, called the arbitrator.
The most important characteristic of arbitration is its voluntary nature. Based on the autonomy of will, parties can decide to withdraw a specific dispute from the state court and submit it to an arbitrator. Arbitration is only valid if each party has expressly agreed to it. After all, it is an exception to the basic right of access to justice.
Terms and Conditions of Sports Arbitration
Arbitration in sports or sports arbitration has become an inherent part of sports. The regulations of sports organizations often contain arbitration clauses. As with disciplinary law, an athlete who is a member of a club affiliated with a sports organization is also subject to the regulations of that sports organization.
Despite several critical reservations from the doctrine, the case law accepts in the vast majority of cases that such an arbitration clause sufficiently respects the autonomy of the parties’ will. An arbitration clause included in the regulations of a sports organization is therefore valid. However, recently in Belgium there was a striking decision by the Court of Appeal in Brussels in which FIFA’s arbitration clause was not considered valid. This ruling followed proceedings between FIFA and RFC Seraing in the context of a dispute over Third Party Ownership. This judgment had a lot of international resonance (for more information, see link).
Not every sports dispute is subject to arbitration. According to Article 9 of the Act on the Employment Contract for Paid Sportspersons, the employer and athlete cannot agree in advance to submit a dispute regarding the performance of their employment contract to arbitration. The Flemish decree-maker, in turn, states in Article 7 of the decree establishing the status of non-professional sportspersons that no arbitration agreement can be concluded before a dispute arises.
A section in the Judicial Code is devoted to arbitration. Articles 1676 to 1723 Ger.W. determine under what conditions an arbitration award is valid. Article 1717 Ger.W. contains the grounds on which an arbitral decision can be set aside by the court of first instance. This is the case, for example, when the decision is insufficiently motivated or when the ruling is contrary to public order.
Internal and external arbitration
Sports organizations often provide internal dispute resolution mechanisms. These decisions are usually subject to appeal to an external arbitration body such as the Belgian Court of Arbitration for Sport (BAS) or the Court of Arbitration for Sports (CAS).
Belgian Court of Arbitration for Sport (BAS)
In 2012, the then Belgian Arbitration Commission for Sport (link), founded by the BOIC, replaced by the Belgian Court of Arbitration for Sport. In the form of a non-profit organization, the BAS handles disputes in sports matters assigned to it by the regulations of sports organizations or by an arbitration agreement.
A case is handled by 3 arbitrators who form a board. Each party can choose an arbitrator from a list drawn up by the Appointments Committee. The two chosen arbitrators in turn choose a third arbitrator, who will sit as chairman.
The statutes of the BAS explicitly state that Part VI of the Judicial Code applies to disputes handled by the Arbitration Court. Article 27 of the BAS regulations stipulates that the arbitral award is made in the last instance. Based on article 1717 Ger. However, an action for annulment before the court of first instance is always possible.
As already mentioned in a previous contribution, the BAS does not only engage in arbitration. In many cases it acts as an appeal body against decisions taken by internal disciplinary bodies of sports organizations.
Court of Arbitration for Sports (CAS)
The Court of Arbitration for Sports (link) was founded in 1984 in Lausanne, Switzerland. After the Gundel case in 1994, in which its independence from the IOC was questioned, the CAS underwent some reforms.
The CAS has several departments, Divisions in which different types of disputes are settled. The Ordinary Arbitration Division handles disputes arising from her be submitted to an arbitration agreement.
The department in which most cases are handled is the Appeals Arbitration Division. As mentioned, sports organizations often provide an appeal option to the CAS against decisions taken by an internal arbitration body.
The Ad Hoc Division is competent for disputes that arise during major sporting events and where a certain degree of urgency is therefore required.
An action for annulment against a decision of the CAS can be filed with the Swiss Federal Court on the basis of: the grounds listed in Article 190 of the Swiss Federal Code on Private International Law (PILA).
Questions about arbitration (within sports or beyond)? Do not hesitate to contact us via telephone number 09/334.94.70, via contact form or via sport@everest-law.be
Dispute resolution series in sports: Introductory article – disciplinary law