Sports Arbitration before the CAS and International Commercial Arbitration

A Comparative Study of Legal Nature, Jurisdiction, and Enforcement Mechanisms

Introduction

Today, arbitration has become the backbone of cross-border dispute resolution, both in commercial and sports contexts. While international commercial arbitration emerged in response to the global economy’s need for a neutral and efficient legal environment, sports arbitration, represented by the Court of Arbitration for Sport (CAS), has evolved into a specialized judicial system that regulates competition and protects the stability of contractual relationships in professional sports.

Comparing the two systems raises a central question:
Does CAS arbitration represent an advanced sectoral model that can be applied in other fields, or is it an exceptional system imposed by the unique nature of sports?

First: Legal Nature and Institutional Structure

1 – CAS Arbitration
The Court of Arbitration for Sport was established in 1984 at the initiative of the International Olympic Committee, with its headquarters in Lausanne. It is a specialized arbitration institution, with an independent procedural code and a roster of arbitrators experienced in sports law.

CAS has a dual functional structure:

• Ordinary Arbitration Division
• Appeals Arbitration Division

This gives it a character closer to a full judicial system, particularly in disputes concerning appeals against decisions of international federations.

2 – International Commercial Arbitration
Commercial arbitration is based on the parties’ agreement and is typically administered by arbitration institutions such as:

• International Chamber of Commerce (ICC)
• London Court of International Arbitration (LCIA)
• Singapore International Arbitration Centre (SIAC)

It does not have an internal appellate structure unless explicitly provided by agreement. Commercial arbitration is also more diverse in terms of sectors and fields.

The key difference is that CAS performs a quasi-regulatory function within a unified sports environment, whereas commercial arbitration operates within a competitive multi-institutional legal market.

Second: Jurisdiction

1 – CAS
Jurisdiction is often mandatory under the regulations of sports federations. Players or clubs agree in advance to arbitration upon registration or participation in competitions. This has been confirmed by the Swiss Federal Tribunal in several rulings, holding that a player’s acceptance of the federation’s regulations constitutes acceptance of the arbitration clause.

2 – Commercial Arbitration
Jurisdiction is purely contractual. Arbitration arises only based on an explicit agreement, according to the principle of party autonomy.

Here, a philosophical difference emerges:

• In sports, arbitration is part of the regulatory system.
• In commerce, arbitration is a negotiation tool.

Third: Applicable Law

1 – CAS
Applied law includes:

• Relevant sports federation regulations
• General legal principles
• Swiss law as the procedural law of the seat

CAS often develops what is known as Lex Sportiva, i.e., established judicial principles in international sports law.

2 – Commercial Arbitration
Applied law includes:

• Law chosen by the parties
• Or law deemed appropriate by the arbitrators in the absence of choice
• Sometimes, cross-border international commercial law rules

Flexibility is greater here, but sector-specific specialization is less focused than in CAS.

Fourth: Procedures and Speed

1 – CAS
CAS is characterized by rapid rulings, especially in urgent cases such as:

• Disputes before major tournaments
• Appeals related to player eligibility

CAS has established an “Olympic Emergency Arbitration” system, resolving disputes within 24 to 48 hours.

2 – Commercial Arbitration
Procedures may take longer depending on the complexity and value of the dispute. While flexible, urgency is not as inherent as in sports arbitration.

Fifth: Appeals and Judicial Review

1 – CAS
Decisions are final, and appeals are possible only to the Swiss Federal Tribunal for very limited reasons, such as:

• Violation of public policy
• Lack of jurisdiction
• Denial of the right to be heard

This enhances legal stability.

2 – Commercial Arbitration
Appeals are filed before the courts at the seat of arbitration according to local law, usually also within a narrow scope.

Sixth: International Enforcement

Both systems rely on the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

However, CAS is unique in that sports federations may impose automatic sporting sanctions in case of non-compliance, such as:

• Deduction of points
• Player registration bans
• Competition suspensions

These self-enforcing measures are rare in commercial arbitration.

Seventh: Role of the International Federation of Arbitration (IFA)

The International Federation of Arbitration contributes to enhancing the effectiveness and neutrality of both sports and commercial arbitration by establishing clear professional standards and precise guidance for arbitrators. It also connects sector-specific expertise in sports with frameworks for commercial arbitration, helping to develop a unified and balanced arbitration system that ensures justice and facilitates cross-border dispute resolution efficiently and professionally.

Eighth: Critical Analysis

Key takeaways include:

1. CAS represents a highly organized specialized sectoral arbitration model.
2. Commercial arbitration is more flexible but less sectorally unified.
3. The CAS experience could serve as a model applicable in other sectors, such as:
   • Energy
   • Technology and Artificial Intelligence
   • International financial markets

Global sectoral arbitration bodies could adopt uniform rules and develop Lex Sectoria tailored to each field.

Conclusion

International commercial arbitration safeguards cross-border investment.
CAS arbitration protects competition stability and fairness of the game.
Both reflect the evolution of private justice outside national courts, yet the CAS model offers an advanced institutional specialization that may represent a new future for global sectoral arbitration.

References

1. Blackshaw, Ian. Sport, Mediation and Arbitration. T.M.C. Asser Press.
2. Kaufmann-Kohler, Gabrielle & Rigozzi, Antonio. International Arbitration: Law and Practice in Switzerland. Oxford University Press.
3. Mitten, Matthew. “Judicial Review of Olympic and International Sports Arbitration Awards.”
4. Swiss Federal Tribunal. Rulings on the independence of CAS (Gundel v. FEI).
5. FIFA. Regulations on the Status and Transfer of Players (RSTP).
6. New York Convention 1958 on the Recognition and Enforcement of Foreign Arbitral Awards.
7. Redfern and Hunter. Law and Practice of International Commercial Arbitration.
8. Born, Gary. International Commercial Arbitration.