1. Introduction
International sports arbitration is a dispute settlement mechanism applicable to international sports disputes. Although international sports arbitration is very similar to international commercial arbitration, due to the specialization of international sports disputes, international sports arbitration is regarded as a special type of international arbitration. As international sports organizations increasingly adopt arbitration as the method to resolve disputes in sports, international sports arbitration standards and procedures have gradually become more systematic. In order to provide more unified and standardized international sports arbitration services, the International Olympic Committee established the Court of Arbitration for Sport (CAS) in 1984. After more than 30 years of development and reform, CAS has developed into a neutral, authoritative, and efficient international sports arbitration institution.
CAS is a civil society legal person established in accordance with Swiss law. It is headquartered in Geneva and has branches in New York, Sydney and Shanghai. Many world-renowned large-scale international events are governed by CAS with exclusive jurisdiction. Since the most important international sports organizations in the world, such as the International Olympic Committee, the World Anti-Doping Agency, and the International Sports Federation, all accept the jurisdiction of CAS, the jurisdiction of CAS is very extensive, involving the Olympic Games, Asian Games, FIFA World Cup, European Football Championships, Commonwealth Games and other sports events. It can be said that CAS has jurisdiction over “all sports-related disputes, unless the Olympic Charter provides otherwise” (Song & Lin, 2001). Consequently, the interpretation and application of arbitration laws, as well as the corresponding awards of the CAS have an important impact on the formation and development of international sports arbitration rules.
The laws applied by CAS can be divided into two categories: procedural and substantive laws. Furthermore, according to different types of disputes, the existing substantive law can be subdivided into three sub-categories: 1) application of the law under ordinary arbitration procedures, which mainly resolves sports-related contractual relations and infringement disputes; 2) application of the law under the appeal process, which mainly resolves disputes arising from decisions made by the internal bodies of sports organizations; 3) Olympic Ad Hoc Arbitration Tribunal, which resolves disputes related to Olympic Games arising from decisions in accordance with the Olympic Charter, applicable regulations, general legal principles, and legal rules.
2. Application of Procedural Law
Arbitration procedural issues are generally considered to be governed by relevant arbitration procedure law. Arbitration procedure law refers to the legal principles and rules governing arbitration procedures formulated by one country or by multiple countries through the conclusion of international conventions (Zhu, 1999). Generally speaking, it includes the arbitration agreement between the parties, the arbitration rules of the arbitration institution or ad hoc arbitration institution, domestic arbitration legislation, and relevant bilateral or multilateral treaties (Liu, 2010). Regarding the relationship between the arbitration rules and the arbitration law, on the one hand, there are many overlaps in their scope and contents; on the other hand, the feasibility, independence, and efficiency of arbitration are dependent on the support of domestic law. In the framework of domestic law, because the procedural issues involved in the treaty are extremely limited, and the provisions on procedural issues usually do not exclude the reference to the domestic arbitration laws of the contracting states, domestic arbitration legislation plays a vital role in the legal structure of the domestic arbitration.
Regarding the application of procedures in international sports arbitration, Article 27 of the Code of Sports-related Arbitration (Code) stipulates that the Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute to CAS. At the same time, Article 28 stipulates that the seat of CAS and of each Arbitration Panel (Panel) is Lausanne, Switzerland. However, should circumstances so warrant, and after consultation with all parties, the President of the Panel may decide to hold a hearing in another place and may issue the appropriate directions related to such hearing. Therefore, for all arbitration applications accepted by CAS, regardless of where the actual venue of the hearing is located, the country of arbitration with legal significance is Switzerland; all procedures submitted to the International Court of Arbitration for Sport are subject to the laws of Switzerland without exception, regardless of whether the application for arbitration is submitted to the ordinary arbitration branch, the appeal arbitration branch or the ad hoc arbitration branch.
3. Application of Substantive Law in Ordinary Procedure
The Code of CAS provides for the substantive law applicable to arbitral tribunals to resolve disputes. Article R45 of the Code states that the Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide ex aequo et bono. All published judgments of the International Court of Arbitration for Sport have used this provision on the issue of applicable law.
3.1. The Boundary of Party Autonomy
In arbitration, party autonomy is recognized and accepted by almost all scholars or countries (Xiao, 2003). According to Article R45 of the Code, CAS recognizes that the law freely chosen by the parties should be applied first to resolve substantive disputes in ordinary procedures, which undoubtedly reflects party autonomy in international sports arbitration laws. But party autonomy does not mean unlimited free choices by the parties. We can have a better understanding of party autonomy in international sports arbitration by discussing the scope of choice of the parties in a dispute.
Regarding the “rules of law chosen by the parties”, Article R45 of the Code adopts the expression “rules of law” but does not specify the scope of such “rules of law”. At the same time, Switzerland’s Federal Code on Private International Law, which applies when no rules of law are chosen by the parties, does not clarify the scope of such “rules of law” either. At present, scholars summarize that there are two types of “rules of law”: legal regulations and sports rules. Specifically, legal regulations refer to the sports legislation of a specific country, as well as sports-related treaty practices that are sufficient as a legal basis in the adjudication of cases within a country. While sports rules are non-domestic legal norms, in particular the rules and regulations of the relevant sports federations, sports associations, or other sports organizations. Some scholars also advocate for a broader scope of “rules of law”, that is, all substantive laws, if not in violation of basic legal principles or the public interest of Switzerland, can fall within the scope of “rules of laws” for the parties to choose from. Those substantive laws include national laws, international laws, regional legislation, international commercial customary law, various non-governmental organization norms, CAS case law, etc. (Yang, 2013). However, one should be cautious as to whether unwritten and relatively uncertain legal principles and precedents can be used by CAS as the applicable law.
3.2. Application of Swiss Law
According to Article 45 of the Code, when the parties have not chosen the applicable law, the Swiss law (including both procedural and substantive laws) should be applied, but the International Court of Arbitration for Sport has expanded the application of this clause. In COC & Beckie Scott v. IOC, the arbitral tribunal ruled that, where the dispute cannot be resolved by applying the rules chosen by the parties, the arbitral tribunal will follow Article 45 of the Code of Sports-related Arbitration and apply Swiss law”.
First of all, if parties explicitly choose Swiss law, the tribunal shall apply Swiss law. Secondly, when the parties have not made a choice of law, for example, the arbitration agreement does not contain a choice of law clause, the CAS will naturally apply Swiss law. Thirdly, if the parties have made a choice of law but the chosen law cannot resolve the dispute, the tribunal shall consider whether Swiss law can be applied. For one, if the law chosen by the parties is completely unable to resolve the sports dispute, the arbitration court shall apply Swiss law; for another, the law chosen by the parties can resolve a portion of the dispute but not all of it. In this case, the CAS should choose to apply both the law chosen by the parties and the Swiss law.
3.3. The Principles of Fairness and Good Faith
Arbitrating with fairness and good faith (decide ex aequo et bono) or arbitrating as an amicable umpire (decide as amiable compositeu) is not a new notion in the field of arbitration. Both of the principles mean that an arbitrator may not strictly follow legal rules, but can make an award based on his understanding of fairness and understanding of good faith (Liu, 2011). This method can make up for the unavoidable problems of the law itself, that is, the legal provisions themselves are too broad, the details and regulations are unclear due to the pursuit of universality, and the legal design is too delicate, resulting in the application process being too rigid and difficult. Regarding the specific method of applying the principles of fairness and good faith, there are two methods that the arbitral tribunals can apply, i.e. conducting arbitration directly on the basis of the principles of fairness and good faith, and the arbitral tribunal choosing which law to apply for arbitration based on the principles of fairness and good faith.
4. Application of Substantive Law in Appeal Proceedings
Article 58 of the Code provides that “the Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision”. In the appeal procedure, the arbitral tribunal shall give due consideration to the specific norms of the sports organization applied in the penalty decision of the appeal. The choice of such norms reflects the previous consensus of the parties. In the absence of a consensus between the parties, the arbitral tribunal will exercise its discretion and choose to apply the domestic law of the relevant sports federation, sports association or sports organization, or other laws that are suitable for the arbitral tribunal.
4.1. The Parties Choose Only the Rules of the Sport and Not the Laws of the Country
In Andrea Anderson et al. v. IOC, the arbitral tribunal held that the “applicable rules” were the provisions of the Olympic Charter, which had been consented to by the athletes when they participated in the Sydney Olympic Games, and the application of the Olympic Charter was agreed by both parties and cited. At the same time, the arbitral tribunal noted that the parties did not agree on the application of any specific national law. The IOC is a federation established under Swiss law and its domicile is in Lausanne. Therefore, according to Article 58 of Code of the CAS, Swiss law applies to the case (Arbitration, CAS 2008/A/1545). Similarly, in Ruslan Sheykhov v. Fédération Internationale des Luttes Associées (FILA), the arbitral tribunal held that when the rules of the sport did not provide for the applicable law, since FILA was seated in Switzerland, Swiss law would apply to the dispute (Arbitration, CAS 2008/A/1594).
However, in another case, the arbitral tribunal found that “because the place of the complaint is in Switzerland and the parties have not chosen a different governing law, according to Article 58 of the Code, the arbitral tribunal must rule in accordance with the regulations of the International Ice Hockey Federation (IIEF) and Swiss law” (Arbitration, CAS 2001/A/357). Again, no reason was given for the application of the IIHF regulations. Actually, the IIHF regulations were applied as the primary source of law in that case and Article 58 of the Code was just applied as a supplement.
In Edita Daniute v. International Dance Sport Federation (IDSF) and International Bodybuilding and Fitness Federation (IFBB) v. International World Games Association (IWGA), the CAS arbitral tribunal held that rules concerning sports associations should be primarily applied, while Swiss law is supplementary.
4.2. The Law of the Country Chosen by the Party Is the Same as the Law of the Country Where the Sports Organization Is Located
In Pistorius v. IAAF, the Monaco law chosen by the parties is the same as the law of the country where the IAAF is located (Arbitration, CAS 2008/A/1480). In the case International Tennis Federation (ITF)/K., the parties chose English law, and the seat of the ITF is also located in London, England (Arbitration, CAS 99/A/223, 1999). In British Equestrian Federation (BEF) v. Federal Equestrian Association (FEI), the parties jointly chose Swiss law, and the seat of FEI itself is in Switzerland (Arbitration, CAS 2010/A/2058). In fact, most parties choose the national law of the country where the sports organization is located.
4.3. National Law Chosen by the Parties Is Different from the Law of the Country Where the Sports Organization Is Located
In B. v. International Weightlifting Federation (IWF), the parties agreed at the beginning of the hearing that Swiss law should apply (Arbitration, CAS 2004/A/607). The arbitral tribunal also found no reason to apply other laws. Ultimately, the law of the country chosen by the parties was applied, while the law of the country where the sports organization was located, in this case, the Hungarian law, was not applied.
5. Substantive Law Applicable to CAS ad hoc Division for the Olympic Games
Article 17 of Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games provides that “The Panel shall rule on the dispute pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate”.
5.1. “Applicable Regulations”
“Applicable regulations” generally refer to the internal regulations of relevant domestic sports associations or international sports federations, including the regulations on doping issues formulated by the International Olympic Committee Medical Committee, and the relevant regulations formulated by the international sports federations. In international arbitration, the “applicable regulations” include conflict of law norms with respect to proximity or the legal system with which the dispute is most closely connected (Beloff et al., 1999). However, there are still some special circumstances. Special arbitration rules were formulated for the Atlanta, Nagano, Sydney, and Salt Lake City Summer and Winter Olympic Games. Such special rules were approved and adopted by the International Council of Arbitration for Sport in New Delhi on October 14, 2003, which opened up the way for the further standardization and unification of sports arbitration in the Olympic Games. The CAS ad hoc Division for the Olympic Games always follows the “3F” principle, namely, Fast, Fair, and Free. “Fast” means that the case must be concluded within 24 hours; “fair” means that the arbitrator handles the case independently and impartially; “free” means that the arbitral tribunal does not charge any trial fees for hearing the case, but the parties themselves shall bear the costs incurred in hiring lawyers or representatives and collecting evidence.
5.2. General Principles of Law
The scope of general legal principles is relatively wide, including the freedom of contract involved in international contracts, force majeure, changes in circumstances, good faith, protection of legally available rights and interests, the necessity of seeking the intentions of the parties, and the inconvenience of documents when there is ambiguity. It is worth noting that principles of fairness and good faith have been fully reflected in international sports arbitration.
Article 17 of the Code indicates that the CAS ad hoc Division for the Olympic Games fully respects party autonomy by allowing the parties to jointly choose the applicable law. According to Article 28 of the Code, the award of the ad hoc arbitration tribunal established in the host city of the Olympic Games, as well as the award made in other places as the situation requires, can be regarded as the award made in the territory of Switzerland. Therefore, the application of the law of the ad hoc arbitration tribunal during the Olympic Games is a limitation to the principle of party autonomy.
6. The Main Problems and Debates on the CAS Arbitration Rules
6.1. The Neutrality of ICAS and CAS Personnel
ICAS is the governing body of CAS and has a direct influence on the list of CAS arbitrators. Article S2 of the Code stipulates that ICAS is responsible for the administration and financing of CAS. Therefore, the neutrality of ICAS directly affects the neutrality of CAS. ICAS is composed of 20 members, most of whom are closely related to sports organizations, so it is difficult to justify their independence. In terms of the composition of arbitrators, the CAS arbitrator list is formulated by ICAS and is a closed list. Some cases challenged the list of CAS arbitrators, arguing that it cannot represent the interests of athletes (Guo, 2018).
6.2. Neutrality in the Composition of CAS Arbitral Tribunals
Regarding the specific composition of the arbitral tribunal in the CAS appeal case, athletes can only appoint one arbitrator from the CAS arbitrator list, while sports organizations can designate another arbitrator while affecting the appointment of the presiding arbitrator (the presiding arbitrator is appointed by the Chairman of the CAS Appellate Arbitration Division). However, the Constitution and Arbitration Rules of the Court of Arbitration for Sport do not stipulate the conditions and procedures for the appointment of the Chairman of the Appeal Arbitration Office. For cases involving a sole arbitrator, the chairman of the CAS Appellate Arbitration Division can directly appoint him/her. Therefore, the composition of the CAS arbitral tribunal lacks sufficient neutrality.
6.3. Mandatory Jurisdiction
FIFA, FINA and the International Gymnastics Federation directly stipulate in their respective charters that the International Court of Arbitration for Sport has independent, exclusive and exclusive jurisdiction over disputes involving these organizations. When athletes participate in international sports events, in many cases they will be required to sign a participation license containing exclusive international sports arbitration clauses, which has actually become a prerequisite for enrolment of the competition. This kind of compulsory jurisdiction makes it impossible for athletes to choose the most suitable method for relief when their own rights and interests are violated. Compulsory international sports arbitration jurisdiction actually puts the institution in a monopoly position. According to Article 6 of the European Convention on Human Rights, everyone has the right to an independent and fair trial. Such rights are de facto deprived in the field of sports arbitration. The German Federal Constitutional Court once clearly stated in the case of ice skater Claudia Pechstein that since one party used its dominant position to impose an arbitration clause that did not provide public hearings on the other party, the ruling of the arbitration is void for violation of German competition law.
6.4. Right to a Fair Hearing
The principle of fair hearing is a basic principle stipulated in the 1968 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which emphasizes that courts and arbitral tribunals should respect the procedural rights of the parties when conducting trials. Switzerland, as the contracting member of the New York Convention, is naturally bound by it. Take Chinese athletes as an example. In 1998, Chinese athletes used this principle to appeal to the Swiss Federal Supreme Court for the first time. Four Chinese athletes including Wang Wei appealed against FINA because the ruling of CAS violated the right to a fair hearing. Their appeal was not supported (Huang, 2005). In 2011, Chinese judo athlete Tong Wen successfully obtained the support of the CAS arbitration tribunal for the first time on the grounds that the International Judo Federation violated procedural justice and overturned the ruling of the International Judo Federation (Song, 2011). This means that not only the CAS arbitration tribunal and the Swiss Federal Supreme Court but also sports organizations should comply with the principle of fair hearing.
The debate on whether the principle of fair hearing has been effectively practiced mainly focuses on one issue, that is, whether the arbitral award of CAS violates the principle of fair hearing under a country’s domestic law or human rights law. For instance, in Adrian Mutu v. Chelsea (CAS 2008/A/1644, 2009), the European Court of Human Rights conducted a procedural review of the case and found that the award violated the rights of athletes under Article 6 of the European Convention on Human Rights (right to a hearing) (ECHR, 2018). However, the European Court of Human Rights has recognized the neutrality and independence of CAS in most of its rulings and therefore believes that the ruling of CAS does not violate the principle of fair hearing (Freeburn, 2021). In addition, scholars usually use the neutrality of the CAS arbitral tribunal as the standard to assess whether the principle of fair hearing has been violated (Bondulich, 2016).
6.5. Arbitration Transparency
In practice, CAS plays a judicial role, which is an inevitable trend brought about by the strong autonomy in the field of sports. This requires that the transparency of CAS rulings should be improved to maintain its fairness, and the confidentiality of arbitration should be allowed to a certain extent. Although the Code has provided some clauses to enhance the transparency of sports arbitration (e.g. Article S15 of the Code stipulates that ICAS shall publish such lists of CAS arbitrators and mediators), in practice there are still transparency requirements that are not fully implemented. It is difficult to meet the needs of the parties for transparency.
6.5.1. Limited Transparency of Arbitrators’ Information
According to the Code, CAS should have at least 150 arbitrators, and the general list and the list of anti-doping divisions (ADD) should be announced respectively. Among them, the arbitrators in the special anti-doping list cannot be in the CAS arbitral tribunal in any capacity. All arbitrators are required to undertake to be fully objective, independent, and impartial by signing a formal statement after the appointment. But these regulations on ensuring the impartiality of arbitrators and the transparency of their information are far from enough in practice.
CAS announced on its official website that there are currently 425 arbitrators in office, but the relevant information on arbitrators is very limited and cannot meet the needs of the parties. First of all, the information that parties can learn from the official website is only basic information such as their nationality, name, graduate school, and professional history, which is not enough in selecting an arbitrator. Some arbitrators even do not have such basic information posted on the website. Only a small number of arbitrators’ resumes can be downloaded. Secondly, the parties cannot learn from the official website about the arbitrator’s previous arbitration experience and whether the arbitrators have unfair arbitration records. Furthermore, the official website contains a table classifying arbitrators by nationality. The only information included is nationality, name, and continent. Currently, only the basic information of arbitrators is accessible on the website. The parties are more interested to know the arbitration history and experience of the arbitrators.
6.5.2. Limited Disclosure of Appeal Decisions
Whether an arbitral award should be published is dependent on the nature of the dispute. CAS appeal arbitration mainly resolves disputes arising from decisions made by internal agencies of sports organizations. According to Article R59 of the Code, most of the CAS appeal awards should be published. In practice, CAS obviously does not pay enough attention to the transparency of the appeal rulings. First, the number of awards that are public is limited; second, the disclosure of the awards is untimely. According to the information on the CAS official website, although the number of public appeal awards has increased, less than 50% of the appeal awards were published in the past ten years. Also, the awards were usually posted on the website years after the decisions were made.
In practice, arbitrators often refer to previous awards of the same type in order to ensure the consistency of their awards. However, it is difficult for the parties to refer to previous awards because only a small portion of them are public and the published awards are outdated. This also hampers the consistency and predictability of the arbitral process (Spera, 2017). Due to the lack of predictability, many athletes give up arbitration.
The following measures can contribute to more transparent sports arbitrations: when the arbitral tribunal is engaging arbitrators, it is preferable to increase the proportion of arbitrators with both legal and sports backgrounds and ensure that those arbitrators’ engagement is prioritized. When publishing the list of arbitrators, the arbitral tribunal can categorize arbitrators as “experts in law” and “experts in both law and sports”. For those arbitrators expertized in both law and sports, the arbitral tribunal can further specify which sports the arbitrator is familiar with. Basic information and expertise of arbitrators shall also be published to improve the transparency of information and facilitate the selection of arbitrators by the parties.
7. Conclusion
The arbitration rules of CAS are the most important part of international sports arbitration rules. Although Swiss law is dominant in procedural issues, this does not prevent us from thinking about how other laws can be applied in international sports arbitration, such as international law, domestic law, and general legal principles. Sports customs and various rules of sports can also play an important role in arbitration.
From the perspective of China, China has not promulgated special international sports arbitration rules, nor has it established a special international sports arbitration institution. However, with the successful host of the 2022 Beijing Winter Olympics, China is incentivized to promote a more advanced sports arbitration system. On June 24, 2022, the revised Sports Law of PRC China was published, and the construction of China’s sports arbitration system was added to the ninth chapter of the new Sports Law. On November 1, 2022, the State Sports General Administration issued the Organizational Rules of the China Sports Arbitration Commission (Draft for Comments) and the Rules of Sports Arbitration (Draft for Comments). But overall, there is room for improvement in China’s current sports arbitration system.
The following methods can contribute to a better competition environment and promote internationalization in China: 1) China’s domestic sports arbitration rules should be continuously improved, and China’s own international sports arbitration institutions should be established. This can ensure that international sports activities or competitions held in China have laws to follow in the event of disputes, and provide sufficient legal protection for the athletes involved. Especially for Chinese athletes, it is more beneficial to protect their legal rights by allowing them to choose Chinese laws instead of foreign laws or foreign sports arbitration institutions that they are not familiar with; 2) rules and regulations of the relevant sports federation, sports association or other sports organization should be standardized. These rules can also become the category of substantive rules chosen by the parties; 3) Promote the training of international sports arbitrators. According to the Code, the arbitrators can interpret arbitration rules. As a result, the application of the general legal principles and the principle of fairness and good faith will largely affect the arbitration result. Therefore, China should cultivate international sports arbitration talents, and actively recommend Chinese arbitrators to serve in CAS; 4) Actively adjust China’s existing legal system to facilitate the enforcement of arbitration awards. China’s current Arbitration Law and Civil Procedure Law adopt a dual-track system for arbitral awards, that is, conducting a comprehensive review of the procedures and facts of CAS awards. This may affect the independence of CAS awards (Xiong, 2018). Although some countries have conducted de facto review of CAS awards, it is better to conduct only a procedural review of CAS awards; 5) Strengthen the study of international sports arbitration rules and train a professional legal service team. Lawyers with a professional background and practical experience in international sports arbitration are still relatively scarce in China, which is extremely detrimental to protecting the rights of athletes.
This article is the periodic achievement of the project of the Beijing Research Base for Foreign Exchange and Foreign Affairs Management. The team members of this research project, including Zhewei FU, Xintao MU, Beichen DING, Sangyu CHENG, Haoyue JIANG and Qianmei XU, have made indispensable contributions to the research. I would especially like to thank them for their production work and research assistance.