Situating Specialised Arbitration In The Realm Of Sports
Author: LawSphereX
Category: Arbitration & ADR
Published:
Updated:
SITUATING SPECIALISED ARBITRATION IN THE REALM
OF SPORTS
Akanksha Tiwari, LL.B. (Hons.), OP Jindal Global University
ABSTRACT
This article examines the increasing significance of specialist arbitration within the sporting domain, identifying weaknesses in generalist arbitration systems to resolve sector-specific issues. As sports become increasingly commercialized and internationalized, legal disputes have become more technical and time-sensitive, requiring specialist adjudication. The study evaluates critically the history, organization, and operation of the Court of Arbitration for Sport (CAS), and its distinct mechanisms like accelerated proceedings, specialized panels of arbitrators, and affordable delivery of justice. It also compares CAS with other global platforms like BAT and WIPO, and assesses India's national effort—the Sports Arbitration Centre of India (SACI).
The paper discusses case studies and court precedents and establishes the argument for institutionalising specialized arbitration as a key instrument in the pursuit of timely, equitable, and specialist resolution of sports disputes. It ends on a note that calls for reforms to increase transparency, independence, and access to justice in sports arbitration across the world.
I. INTRODUCTION: ARBITRATION v SPECIALISED ARBITRATION
With the growing nature of global disputes, the booming economy, multi-faceted commercial disputes, and contractual breaches, there is a dire need for urgent redressal and recovery of damages. Hence, arbitration is gaining popularity as a promising solution for providing prompt and faster relief than courts. The two most popularly used Arbitration frameworks include Ad Hoc Arbitration and Institutional Arbitration. 1 The process grants autonomy to the parties to select the respective Arbitrators and Institutions of their choice. However, under these two frameworks, arbitration proceedings have traditionally maintained a generalist character, capable of handling a wide range of disputes without industry-specific requirements.
But in recent years, with the advent of specialised Arbitral Institutions, the frameworks offer industryspecific rules, regulations, procedures, protocols and adjudicators. 2 The nature of the dispute in terms of increasing complexity and technicality remains unrepresented due to the lack of nuanced expertise of the generalist arbitrators thereby highlighting the demand for specialist arbitrators, who through their practical experience in the relevant industries, possess expert skill and knowledge and can conduct complex forms of dispute resolution, taking into account the details characterizing disputes in the particular industry. The key advantages of specialised arbitration institutions lie in their ability to provide sector-specific rules and procedures in consonance with the nature of the dispute in question.
This approach delivers efficiency, clarity, and effectiveness in dispute resolution. Hence, specialisation in dispute resolution is no longer optional, rather it has become an essential feature of modern resolution practices and is embodied in several industry-specific arbitration centres such as the Court of Arbitration for Sport (CAS) addressing sports-related disputes, the Chambre Arbitrale Maritime de Paris dealing with maritime conflicts, and the WIPO Arbitration and Mediation Centre resolving intellectual property issues. 3 Thus, the specialisation of arbitration is revolutionary and a game-changer for four-fold reasons4 - 1 Nihareeka Ghadage & Tanisha Kedari, Specialised Arbitration And The Transformation Of Indian Dispute Resolution, LIVELAW (May 22, 2024), https://www. livelaw. in/articles/specialised-arbitration-transformationindian-dispute-resolution-258593? fromIpLogin=28656.
604445713052, (accessed May 5, 2025).
2 Id.
3 Grigori Lazarev, Thoughts on specialist arbitration: centres, rules and arbitrators, THOMSON REUTERS (May 9, 2016), http://arbitrationblog.practicallaw.com/thoughts-on-specialist-arbitration-centres-rules-andarbitrators/, (accessed May 5, 2025).
4 Ghadage & Kedari, supra note 1.
Firstly, the system incorporates the inclusion of experts. The difference between a specialist arbitration centre and a generalist arbitration centre is that it involves systematic changes such as the inclusion of experts on arbitral panels as per the subject matter in dispute. For instance, Construction Arbitrators or the London Maritime Arbitrators Association (LMAA) have introduced selection mechanisms to ensure that arbitrators possess the required subject matter expertise. Additionally, taking inspiration from the Hong Kong International Arbitration Centre (HKIAC)5, the generalist arbitration centres can also establish specialist rosters, such as the Panel of Arbitrators to cater to specific disputes.
In case systemic changes are not entertained, the generalist institutions can implement tailor-made procedural rules to cater to specific sectors to enhance clarity, confidence, and convenience for the parties, which are designed specifically for their particular type of dispute. Secondly, there is an urgent need for specialised arbitrators. 6 In common traditional practices, Arbitration is often relegated to a secondary status. Thus, the step towards specialisation can be welcomed only if the focus is on the arbitrators themselves. Justice Hima Kohli in an event hosted by the International Arbitration and Mediation Centre, Hyderabad (IAMC),7 emphasized the need to establish a Specialised Arbitration Bar comprising professionals and legal practitioners who are fully committed to arbitration.
Such recruitment ensures that the arbitrators are thoroughly trained and invested in the practice of Arbitration. The Arbitrators are expected to be well-versed in the subject matter in question ensuring that the awards are not misinterpreted or susceptible to challenges. Hence, recruiting a qualified individual as an arbitrator is essential to minimise the possibility of challenging the award. Thirdly, it will change the outlook towards Arbitration as a "secondary treatment. " Quite often, the practice of Arbitration is seen as a breeding ground for retired judges and advocates choosing arbitration as an alternative profession. Such a trend has often compromised the quality of justice being delivered. It is imperative that judges, by habit and experience, diverge from expeditious approaches which are likely to undermine the fundamental purpose of
5 Lazarev, supra note 3.
6 Antonio Rigozzi and William McAuliffe, Sports Arbitration, THE EUROPEAN, MIDDLE EASTERN AND
AFRICAN ARBITRATION REVIEW (2013), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://lkk.com/wp-content/uploads/RIGOZZI-MCAULIFFE-GAR-Euro.-Middle-East.-and-Afr.-Arb.-Review-2013.pdf, (accessed May 5, 2025).
7 Ghadage & Kedari, supra note 1.
Arbitration. Hence, it is crucial to recruit professionals who are primarily indulged in the practice of arbitration. And fourthly, it will introduce the global practice and trend of arbitrating efficiently. Recently, the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA) have introduced procedural amendments to prioritise efficiency, costeffectiveness, and speed. These reforms are a reflection of specialised arbitration frameworks which have recognised the global urgency in instituting such systems. Thus, considering that the key arbitral institutions such as the ICC, LCIA, SIAC, HKIAC, and SCC are generalist institutions,8 there has been a popular emergence of industry-specific courts such as the Court of Arbitration for Art (CAfA) and the Court of Arbitration for Sport (CAS).
In an attempt to explore the subject in a simplified and streamlined manner, the paper is focused primarily on the area of sports. The advent of globalisation and commercialisation in the sports industry has witnessed expansion in terms of transforming into a more commercialised set-up involving the internationalisation of the sports industry giving rise to various leagues such as LaLiga, National Basketball Association (NBA), Indian Super League, World Kabbadi League and more. 9 Subsequently, such an expansion in the industry undoubtedly creates the possibility of legal disputes leading to a cohesive integration of law and sports. Thus, the increase in disputes within the sports industry requires speedy adjudication and the establishment of wellknown specialised courts to specifically deal with the said subject matter.
Like any other sector, sports arbitration is a mechanism for resolving disputes by referring them to a tribunal or arbitrator whose decision is final and binding. Although the procedure is similar to commercial arbitration, such as neutrality, procedural flexibility, and the involvement of specialised arbitrators, sports arbitration presents its own unique set of challenges. However, unlike commercial or investment arbitration, sports arbitration does not fall under the framework of the New York Convention. 10 The disputes are typically governed by internal 8 Elizabeth Montpetit, The era of specialised arbitration: Part one: Art, sport, finance, THOMSON REUTERS (May 7, 2020), http://arbitrationblog. practicallaw. com/the-era-of-specialised-arbitration-part-one-art-sportfinance/, (accessed May 6, 2025). 9 Aman Sisodia & Dr.
Ekta Gupta, A Contemporary Analysis of Sports Arbitration in India, INTERNATIONAL
JOURNAL
OF
INTEGRATED
RESEARCH
IN
LAW
Volume
IV
Issue
II,
chromeextension://efaidnbmnnnibpcajpcglclefindmkaj/https://ijirl.com/wp-content/uploads/2024/04/A- CONTEMPORARY-ANALYSIS-OF-SPORTS-ARBITRATION-IN-INDIA.pdf, (accessed May 6, 2025). 10 Kanika Arora and Vidyotma Malik, Arbitration in the Realm of Sports Law, SCC Online (April 13, 2022), https://www.scconline.com/blog/post/2022/04/13/arbitration-in-the-realm-of-sports-law/, (accessed May 6, 2025).
rules and regulations, leading to a different enforcement mechanism for arbitral awards in the sports industry vis-a-vis commercial and investment arbitrations.
II. THE JURISPRUDENCE OF DISPUTE RESOLUTION THROUGH ARBITRATION
IN THE REALM OF SPORTS
Before analysing the emergence of the specialized arbitral framework for sports, it is essential to establish the need for addressing and adjudicating disputes related to sports through arbitration. The old saying "where there is money to be combat about, there are problems to emerge," aptly captures the rationale for employing arbitration of sports-related disputes. 11 The high stakes involved in the sports industry compel the parties to exercise caution and precision in drafting contracts to avoid any possible disputes. However, if in case, disputes have arisen, they must be resolved with greater efficiency and minimal costs. This can only be achieved through opting for arbitration for the resolution of disputes arising in the field of sports. Arbitration in sports is gaining quite a momentum.
Considering that sports careers are short-lived, Arbitration provides a better choice, in comparison to litigation, by assisting the players with swift relief and guarding them from lengthy and strenuous legal proceedings. 12 Upon recognising these challenges, many international sports organisations have incorporated arbitration in their procedures for dispute resolution. Additionally, when arbitrators trained in sports law and with a prior understanding of rules concerning the specific sport are employed, the process becomes even more effective. Their expertise not only ensures accurate interpretation of the regulatory framework but also enhances the quality and credibility of the decision-making process. In essence, arbitration in sports offers a practical, athlete-centric approach to justice.
As the field continues to grow, it serves as a lucrative method of dispute resolution catering specifically to the world of sports. The year of 1980s marked a remarkable increase in international sports-related disputes. The absence of any independent framework and adjudicating matters specifically related to sports, necessitated the creation of an arbitral jurisdiction solely dedicated to resolving disputes, both directly and indirectly, concerning sports, for a flexible, and cost-effective mechanism. Thus,
11 Sisodia & Gupta, supra note 9.
12 Rigozzi & McAullife, supra note 6.
to cater to the increasing international sports dispute, the Court of Arbitration for Sport (“CAS”) was incorporated. The CAS was instituted in 1984 in Lausanne, Switzerland as an initiative of the President of the International Olympic Committee (“IOC”), Juan Antonio Samaranch, who recognised the necessity of such an independent adjudicating body, which would be responsible for taking up the role of “the Supreme Court of world sport. ”13 Given the commercial nature of the sporting world, it requires an independent international authority that is adaptable and issues flexible and enforceable decisions. The arbitration procedure followed by CAS is the same as commercial arbitration comprising of notice of arbitration; appointment of the tribunal; statement of claim and defence; exchange of evidence; final hearing; providing award and its enforcement.
14 However, as per Rigozzi and McAuliffe15, the practice of sports arbitration is distinct from general and commercial arbitration. Although sports arbitration is similar in many ways to that of commercial and investment arbitration, the CAS has established an organised structure for the sports industry and is distinct from non-sports arbitration in several ways - Firstly, the proceedings before the CAS are transparent. The CAS in comparison with other forms of arbitration is extremely transparent when it comes to releasing their awards. Hence, the CAS awards are publicly available. However, a certain level of confidentiality is also maintained at the request of the athletes in disputes engaged in misconduct, and the arbitrators are bound to confidentiality from disclosing any facts to third parties.
16 Thus, the failure to maintain confidentiality by the arbitrator may lead to the cancellation of the empanelment. Secondly, the most prominent feature of a sports arbitration is its speed. The legal maxim of 'justice delayed is justice denied' stands more relevant while resolving disputes in the realm of sports. 17 Considering that the sports industry is entirely contingent upon strict schedules and 13 Louise Reilly, Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in International Sports Disputes, An Symposium, JOURNAL OF DISPUTE RESOLUTION 2012 J. Disp. Resol. (2012), https://scholarship. law. missouri. edu/jdr/vol2012/iss1/5, (accessed May 6, 2025).
14 Sisodia & Gupta, supra note 9.
15 Rigozzi & McAullife, supra note 6.
16 Michelle Sunita Kummar & Diana Sulamazra Abdul Rahman, Stepping into a Niche: Exploring the World of International Sports Arbitration,
KLUWER
ARBITRATION
BLOG
(Oct. 27, 2020), https://arbitrationblog.kluwerarbitration.com/2020/10/27/stepping-into-a-niche-exploring-the-world-ofinternational-sports-arbitration/, (accessed May 6, 2025).
17 Rigozzi & McAullife, supra note 6.
timelines, urgent redressal and resolution of disputes before a particular competition is of utmost importance. Hence, at the Ad Hoc division of CAS, there is normally a strict 24-hour period which comprises of one round of written submission and oral rounds upon which the tribunal enters into deliberation. Most notably, the 2012 London Olympics witnessed the conclusion of 11 cases where one of them was decided within four hours of its filing. Thirdly, the arbitrators must be selected from the official CAS List, as required by Article R33 of the CAS Code.18 To maintain the expertise on the panel, CAS arbitrators are mandated to undertake appropriate legal training which involves proficiency in sports law and exposure to sports awareness and knowledge in general. Initially, the CAS List of Arbitrators only included
60 members. As of now, it comprises nearly 300 arbitrators from 87 countries. Despite its
importance, the practice of maintaining a closed list has been heavily criticised. Nevertheless, the Swiss Supreme Court in the case of Larissa Lazutina & Olga Danilova v CIO, FIS & CAS,19 upheld the system of selection of arbitrators from within the list. Fourthly, apart from the arbitrator's responsibilities, the rules regarding the publication of awards differ on the basis of whether the case is brought under the Ordinary Division or the Appeals Division of CAS. In the Ordinary Division, proceedings are strictly confidential. No party is permitted to disclose information to any third party without prior approval from CAS and mutual consent between the parties. In contrast, under the Appeals Division, awards are made public unless the parties specifically agree to keep them confidential. However, the authority of the awards passed does not carry a binding value to them.
While the arbitrators are free to deviate from the precedents, the CAS panels often refer to the previously decided cases for harmonisation. Furthermore, the most remarkable advantage of sports arbitration is the ease of enforcement20 of the awards. While parties have the option to enforce a sports arbitration award under the New York Convention, it is rarely necessary to take this route. In practice, sports governing bodies typically comply with arbitral awards on their own. They possess adequate internal authority and enforcement mechanisms to ensure that the awards are implemented against their members. Fifthly, regardless of whether they originate from regular or ad hoc divisions, all arbitration proceedings are seated in Lausanne, Switzerland. This mandatory seat contributes to the
18 Code of Sports-related Arbitration, 2023, Art. R33.
19 Larissa Lazutina & Olga Danilova v CIO, FIS & CAS, Swiss Supreme Court, ATF 129 III 445.
20 Kummar & Rahman, supra note 16.
efficiency of the process by removing any potential disputes between the parties regarding the appropriate jurisdiction, thereby streamlining the proceedings from the outset. Sixthly, as far as the costs are concerned, CAS provides justice to athletes who might not otherwise have the financial means to pursue a claim. Contrary to the popular stereotype of millionaire footballers and athletes such as David Beckham, independent athletes are dependent upon government subsidies, sponsorships and funds from the clubs for sustenance in professional sports. However, keeping in mind such financial challenges, the CAS provides relief to the athletes in three ways21 - first, the filing fee is fixed at 1,000 Swiss francs; second, provides a system of contribution for legal costs; and third, the arbitration cost regime in disciplinary cases is extremely comfortable.
Additionally, as per Article R64 of the CAS Code,22 ‘the Panel has discretion to grant the prevailing party a contribution towards its legal fees and other expenses. ’ The CAS arbitrators work at a minimum rate of CHF 250 (US$ 270) which is absurdly lower than the commercial rate thereby catering to the thousands of professional athletes who barely earn enough to sustain. The CAS is mindful of athletes without sufficient financial capabilities and hence, appeals of a disciplinary nature under the Appeal Arbitration Procedures are rendered free. Hence, the cost of CAS procedures is based on the nature and procedure of the disputes. And finally, there are certain mandatory rules and regulations in CAS proceedings that parties cannot override.
One such rule is the principle of strict liability under anti-doping regulations, which mandates the immediate disqualification of athletes and the forfeiture of any medals or prizes associated with the event upon testing positive for a banned substance. This was exemplified in Alain Baxter v. International Olympic Committee,23 where the British skier was disqualified from the Alpine Skiing Slalom event at the Salt Lake City Olympics after testing positive for a prohibited substance listed under the Olympic Movement Anti-Doping Code. The CAS panel upheld that athletes bear strict responsibility for any substances found in their bodies, meaning that disqualification does not require proof of intent or negligence. From the above analysis, it is evident that the level of authority and independence enjoyed by the CAS is sacrosanct.
The independence of CAS is most eloquently captured in the case of
21 Rigozzi & McAullife, supra note 6.
22 Code of Sports-related Arbitration, 2023, Art. R64.
23 Alain Baxter v. International Olympic Committee, CAS 2002/A/376.
USOC v IOC24. However, this contention is not free from criticism as the media and academic journals continue to argue that the CAS is not entirely independent from its parent organisation, that is, the International Olympic Committee (IOC). The 2016 judgement by the German Federal Tribunal25 raised concerns about the independence and impartiality of CAS and suggested institutional reforms to enhance CAS's independence and fairness.
III. OTHER SPORTS ARBITRATION FORUMS: INTERNATIONAL & NATIONAL
(INDIA)
International Forums such as Basketball Arbitral Tribunal (BAT) and World Intellectual Property Organisation (WIPO) Arbitration and Mediation Centre have their own mechanism for resolving disputes arising from the field of sports. However, most of these systems are not entirely independent as sports organisations are largely responsible for their constitution. The BAT, previously known as the FIBA (Federation Internationale de Basketball Amateur) Arbitral Tribunal,26 was established in 2006 to resolve disputes in basketball effectively and affordably. Cases are handled by a sole arbitrator from a closed list, ensuring expedient proceedings and a focus on key issues. Like the CAS, BAT arbitration has an uncomplicated enforcement process, and its awards are published on the FIBA website for transparency.
Similarly, the WIPO Arbitration and Mediation Centre offers Alternative Dispute Resolution (ADR) for disputes related to internet domain names covering both IP and non-IP cases. In the realm of sports, it resolves disputes including settlement of domain names, broadcast rights issues, and patent license disputes. Notable cases include those involving the World Wrestling Federation and the domain name www. worldwrestlingfederation. com; registration of NIKE under the domain name nike. net,27 as well as FIFA's successful challenges against unauthorized uses of its trademark "WORLD CUP" in various domains. On the national level, the increase in sports-related disputes has necessitated the emergence of national-level arbitration centres to adjudicate matters efficiently without compromising the quality of awards being issued.
For instance, in India, guidelines for dispute resolution in sports were finally welcomed following the notification issued by the Youth Affairs and Sports
24 USOC v IOC, CAS 2011/O/2422.
25 Bundesgerichtshof (BGH) Judgment, KZR 6/15 OLG München LG München I (June 7, 2016).
26 Sisodia & Gupta, supra note 9.
27 Id.
Ministry after the Sushil Kumar v. Union of India28 case. The lack of speedy and efficient redressal led to the institution of the Sports Arbitration Centre of India (SACI) in Ahmedabad, Gujarat in 2021. It serves as an independent fast-track dispute mechanism system thereby attracting credibility across the sports industry. While the incorporation of SACI has farreaching impacts, it is not enough. For further development of sports in India, it is essential to draft appropriate rules, and regulations, invest in promising amenities and grant equitable access to rights and justice to all sportsmen.
IV. CONCLUSION
In the words of Swiss Federal Tribunal, "There appears to be no viable alternative to this institution, which can resolve international sports-related disputes quickly and inexpensively."29 From the above analysis, it stands clear that specialised arbitration bodies have proven to be an extremely efficient system of dispute resolution especially in the field of sports. Despite challenges such as lack of diversity in the closed list, addressing the increasing number of disputes, and delivering high-quality services, CAS serves as the watchdog to ensure fairness in the sporting industry.
28 Sushil Kumar v. Union of India, 2016 SCC OnLine Del 3660.
29 Reilly, supra note 13.