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Arbitration clauses in sport governing bodies’ statutes: consent or constraint? Analysis from the perspective of Article 6(1) of the European Convention on Human Rights

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Abstract

General trend of the growing popularity of alternative dispute resolution is especially visible in the world of sport. There is a perception that arbitration tribunals, particularly the Court of Arbitration for Sport, have exclusive jurisdiction over sport-related disputes. This is enhanced by mandatory arbitration clauses inserted in statutes and bylaws of various sport governing bodies. These are safeguarded by a threat of imposing disciplinary sanctions on those who refrain from fulfilling the said obligations. Due to professionalization of sport and the monopolistic position of international federations, athletes, as well as clubs, have no other choice than to submit their disputes to arbitration. Although, the validity of these provisions can be questioned, they are upheld by the Swiss Federal Supreme Court. Jurisprudence of the European Court of Human Rights shows that private arbitration agreements tainted with constraints contravene the Article 6(1) of the European Convention on Human Rights, specifically the right to access to court. Although the horizontal effect of fundamental rights is limited, the concept of positive obligations allows for concluding that states and their organs, in this case particularly Swiss courts, are obliged to interfere in private relationships to secure the effective enjoyment of rights.

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Notes

  1. Article 61 of the Olympic Charter:

    “1. The decisions of the IOC are final. Any dispute relating to their application or interpretation may be resolved solely by the IOC Executive Board and, in certain cases, by arbitration before the CAS.

    2. Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the CAS, in accordance with the Code of Sports-Related Arbitration.”

  2. For this reason, encompassing high level of popularity and professionalization resulting with most serious legal disputes, this article concentrates on football-related issues. There the dependence of professional football players on regulations of governing bodies is exemplary. Nevertheless, note that conclusions drawn from the regulatory system of football relate to other sports, as similar provisions are included in statutes of other international federations, e.g. articles 9.5, 15.1.2 and 38 of FIBA General Statutes 2010, articles 24–25 and 56–59 of IIHF Statutes and Bylaws 2012–2014, articles 4.1 and 11.3 of FIH Statutes 2013, article 15 of IAAF Constitution, and as was mentioned above, to the International Olympic Committee.

  3. Article 66 of FIFA Statutes

    1. FIFA recognises the independent CAS with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, Members, Confederations, Leagues, clubs, Players, Officials and licensed match agents and players’ agents.

  4. Article 67 of FIFA Statutes

    Jurisdiction of CAS

    1. Appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by Confederations, Members or Leagues shall be lodged with CAS within 21 days of notification of the decision in question.

    2. Recourse may only be made to CAS after all other internal channels have been exhausted.

  5. FIFA Statutes Article 68 par. 2.

  6. FIFA Statutes Article 68 par. 3.

  7. FIFA Statutes Article 68 par. 3; national legislation would usually limit prohibition of arbitration to labour related disputes.

  8. FIFA.com (2011) “FIFA Executive Committee adopts a resolution to defend the statutes of football’s governing bodies”, http://www.fifa.com/aboutfifa/organisation/bodies/news/newsid=1529955/.

  9. Current article 68 par. 2.

  10. FIFA.com (2011) Circular no. 1314, http://www.fifa.com/mm/document/affederation/administration/01/66/93/85/circularno.1314-amendmentstothefifastatutes.pdf.

  11. FIFA.com (2011) Interview with M. Villiger, FIFA's Director of Legal Affairs, http://www.fifa.com/aboutfifa/organisation/footballgovernance/news/newsid=1519729/.

  12. FIFA.com (1997) “The Deportivo de La Coruña case—Fine and ban on the President, Lendoiro”, http://www.fifa.com/aboutfifa/organisation/news/newsid=70184/.

  13. Essam El Hadary v. Fédération Internationale de Football Association (FIFA) and Al-Ahly Sporting Club, judgment of 12 January 2011, 4A_394/2010.

  14. Respectively: CAS 2009/A/1881 and CAS 2009/A/1880.

  15. Contrary to El Hadary, the club did not question jurisdiction of CAS.

  16. Article 2.07 Regulations of the UEFA Europa League 2011/2012:

    “To be eligible to participate in the competition, a club must fulfil the following criteria:

    f) it must confirm in writing that the club itself, as well as its players and officials, agree to recognise the jurisdiction of the CAS in Lausanne as defined in the relevant provisions of the UEFA Statutes and agree that any proceedings before the CAS concerning admission to, participation in or exclusion from the competition will be held in an expedited manner in accordance with the Code of Sports-related Arbitration of the CAS and with the directions issued by the CAS;”.

  17. Article 59 par. 1 of UEFA Statutes:

    “Each Member Association shall include in its statutes a provision whereby it, its leagues, clubs, players and officials agree to respect at all times the Statutes, regulations and decisions of UEFA, and to recognise the jurisdiction of the CAS in Lausanne (Switzerland), as provided in the present Statutes.”

    Article 61 par. 1 of UEFA Statutes:

    “The CAS shall have exclusive jurisdiction, to the exclusion of any ordinary court or any other court of arbitration, to deal with the following disputes in its capacity as an ordinary court of arbitration:

    a) disputes between UEFA and associations, leagues, clubs, players or officials;

    b) disputes of European dimension between associations, leagues, clubs, players or officials.”

    Article 62 par. 1:

    “Any decision taken by a UEFA organ may be disputed exclusively before the CAS in its capacity as an appeals arbitration body, to the exclusion of any ordinary court or any other court of arbitration.”

    arbitration body, to the exclusion of any ordinary court or any other court of arbitration”.

  18. FIFA.com (2011) “FIFA Emergency Committee directs Swiss FA to execute decision related to transfer ban on FC Sion/Olympique des Alpes”, http://www.fifa.com/aboutfifa/organisation/news/newsid=1522313/index.html.

  19. 5. Obligations and Duties of Members

    5.1 All members shall:

    (..)

    (b) be subject to and shall comply with these Articles and any statutes, regulations, directives, codes, decisions and International Match Calendar promulgated by the Board, the Professional Game Board, the Non-Professional Game Board, the Judicial Panel Protocol, a Committee or subcommittee, FIFA, UEFA or the CAS;

    (c) recognise and submit to the jurisdiction of the CAS as specified in the relevant provisions of the FIFA Statutes and the UEFA Statutes;(…), http://www.scottishfa.co.uk/resources/documents/SFAPublications/ScottishFAPublications2012-13/SFA_HANDBOOK_53-136_Articles_of_Association.pdf.

  20. Replaced with new articles mentioned above.

  21. BBC Sport (2012)“Scottish FA will not challenge Rangers court ruling”, http://www.bbc.co.uk/sport/0/football/18270735.

  22. Lewis J (2012) “Fifa confirms contact with the SFA over Rangers”, http://www.bbc.co.uk/sport/0/football/18294684.

  23. Mcgowan S (2012) “Warning shot! Rangers at risk of tough action, threaten FIFA following court decision”, http://www.dailymail.co.uk/sport/football/article-2152423/Rangers-crisis-FIFA-punish-club.html.

  24. Kaufmann-Kohler 1999, p. 336: “Wherever a CAS arbitration takes place physically, it always has its legal place or seat in Lausanne. This applies to all CAS arbitrations, wherever the hearings take place, whether they are managed by the Lausanne office exclusively or in conjunction with a decentralized office, and it includes arbitrations handled on the site of the Olympic Games.” This was also conclusion of the Supreme Court of New South Wales—Court of Appeal, see: Angela Raguz v Rebecca Sullivan & Ors (2000) NSWCA 240 (1 September 2000), para 97–111, Australasian Legal Information Institute, http://www.austlii.edu.au/au/cases/nsw/NSWCA/2000/240.html.

  25. X v. Y, judgment of 3 May 2010, 4A_456/2009, par. 3.3.

  26. A v. Fédération Internationale de Football Association (FIFA) and World Anti-Doping Agency (WADA), judgment of 9 January 2009, 4A_460/2008, par. 6.2.

  27. Confederação Brasileira de Futebol.

  28. CAS 2007A/1370 FIFA v. Superior Tribunal de Justiça Desportiva do Futebol and Confederação Brasileira de Futebol and Mr Ricardo Lucas Dodô; CAS 2007/A/1376 Wada v. FIFA v. Superior Tribunal de Justiça Desportiva do Futebol and Confederação Brasileira de Futebol and Mr Ricardo Lucas Dodô.

  29. Superior Tribunal de Justiça Desportiva do Futebol.

  30. A v. Fédération Internationale de Football Association (FIFA) and World Anti-Doping Agency (WADA), par. 6.1-6.4: “Art. 1 (2) of the CBF Statutes provides, among other things, that a player belonging to the CBF must follow the FIFA Rules. Such a general reference to the FIFA Rules and thus to the appeal rights of FIFA and WADA contained in the FIFA Statutes is sufficient to establish the jurisdiction of the CAS pursuant to R47 of the CAS-Code, by analogy with case law which holds valid the global reference to an arbitration clause contained in the statutes of an association (…)”.

  31. Judgment of the Swiss Federal Tribunal of 9 January 2009, 4A_460/2008, par. 6.2: “Such a general reference to the FIFA Rules (…) contained in the FIFA Statutes is sufficient to establish the jurisdiction of the CAS pursuant to R47 of the CAS-Code, by analogy with case law which holds valid the global reference to an arbitration clause contained in the statutes of an association (Decision 4P.253/2003 of March 25, 2004 at 5.4, ASA-Bull. 2005 p. 128 ff., 136, and 4P.230/2000 of February 7, 2001 at 2a, ASA-Bull. 2001 p. 523 ff., 528 f., with references; also see BGE 133 III 235 at 4.3.2.3 p. 245 and 129 III 727 at 5.3.1 p. 735, with references)”.

  32. Decree of 13 July 2007.

  33. A and B v. the Flemish Tennis Federation and the World Anti-Doping Agency, judgment of 13 February 2012, 4A_428/2011, par. 3.1.2.

  34. As we know from the ECtHR’s jurisprudence, in certain types of cases traditional courts can be replaced with arbitration tribunals and less formalistic procedures. Nevertheless, this is still the exercise of state jurisdiction, where contrary to private alternative dispute resolution and all procedural guarantees of Article 6(1) of the ECHR should have full application.

  35. A and B v. the Flemish Tennis Federation and the World Anti-Doping Agency, par. 3.2.2.

  36. Ibidem, par. 3.2.3.

  37. X v. Y, judgment of 7 November 2011, 4A_246/2011: “In sport cases the Federal Tribunal reviews with a certain “benevolence” the agreement of the parties to call upon an arbitral tribunal; this is with a view to promoting quick disposition of the dispute by specialized courts which, as the CAS, offer comprehensive guarantees of independence and objectivity (BGE 133 235 at 4.3.2.3 p. 244 ff with references). The generosity of federal case law in this respect appears in the assessment of the validity of arbitration clauses by reference (…)”.

  38. The Europocentric approach of this article stems from the fact that Switzerland, the key state in discussion on arbitration in sport, is a signatory party to the European Convention.

  39. Delcourt v. Belgium, judgement of 17 January 1970, Series A no. 11, par. 25: “In a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 para. 1 (art. 6-1) would not correspond to the aim and the purpose of that provision.”, see also Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, par. 12-13 and 24, Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, par. 44 and 49.

  40. Among which, the first and the third are most important concerning voluntariness in arbitration in sport in the light of article 6(1) of the ECHR.

  41. Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, par. 49 : “Unlike certain other disciplinary sanctions that might have been imposed on the applicants (warning, censure and reprimand—see paragraph 32 above), the suspension of which they complained undoubtedly constituted a direct and material interference with the right to continue to exercise the medical profession. The fact that the suspension was temporary did not prevent its impairing that right (see, mutatis mutandis, the above-mentioned Golder judgment, p. 13, par. 26); in the "contestations" (disputes) contemplated by Article 6 par. 1 (art. 6-1) the actual existence of a "civil" right may, of course, be at stake but so may the scope of such a right or the manner in which the beneficiary may avail himself thereof.”

  42. Lithgow v. The United Kingdom, judgment of 8 July 1986, Series A no. 102, par. 201; see also Campbell and Fell v. The United Kingdom (Application no. 7819/77; 7878/77) judgment 28 June 1984, par. 76.

  43. Le Compte, Van Leuven and De Meyere v. Belgium, par. 49.

  44. Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, par. 35.

  45. Another issue is whether arbitration tribunals in sport, including CAS, in fact comply with all the procedural guarantees of Article 6(1) of the ECHR, although it is doubtful.

  46. “Both categories of question are equally crucial for the outcome of proceedings relating to "civil rights and obligations", Le Compte, Van Leuven and De Meyere v. Belgium, par. 51; Albert and Le Compte, judgment of 10 February 1983, Series A no. 58, p. 16, para. 29 in fine, and p. 19, para. 36).

  47. Le Compte, Van Leuven and De Meyere v. Belgium, par. 60: “The public character of the proceedings before the Belgian Court of Cassation cannot suffice to remedy this defect. In fact, the Court of Cassation “shall not take cognisance of the merits of cases” (Article 95 of the Constitution and Article 23 of Royal Decree no. 79); this means that numerous issues arising in “contestations” (disputes) concerning “civil rights and obligations” fall outside its jurisdiction”.

  48. “Art. 190

    (…)

    2 It can be challenged only:

    a. If a sole arbitrator was designated irregularly or the arbitral tribunal was constituted irregularly;

    b. If the arbitral tribunal erroneously held that it had or did not have jurisdiction;

    c. If the arbitral tribunal ruled on matters beyond the claims submitted to it or if it failed to rule on one of the claims;

    d. If the equality of the parties or their right to be heard in an adversarial proceeding was not respected;

    e. If the award is incompatible with Swiss public policy (order public).”

  49. Rigozzi 2011 p. 219: “The action may only seek the annulment of the award. 7 [See Article 77(2) SCA, which rules out the applicability of Article 107(2) SCA.] Thus, the Supreme Court can only confirm or set aside the award (or parts of the award), and if the challenge is upheld, the matter ought to be sent back to the arbitrators for a new decision. 8 [Decision 4A_244/2007 of 22 January 2008, at 3, ASA Bull (2008) 353 at 356, where the Supreme Court indicates that pursuant to Article 77(2) SCA, Article 107(2) SCA, which makes it possible for the Supreme Court to decide the matter itself, is not applicable to appeals against international arbitration awards].”

  50. Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, par. 37.

  51. Bramelid and Malmström v. Sweden, decision of the European Commission of Human Rights on 12 December 1983.

  52. Deweer v. Belgium, par. 49; see also Hakansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171, pp. 20–21, § 66: “The public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of Article 6 (art. 6-1). Admittedly neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public (…)”; Jakob BOSS Söhne KG v. the Federal Republic of Germany, The European Commission of Human Rights sitting in private on 2 December 1991: “The applicant company had voluntarily entered into an arbitration agreement and thereby renounced its right to have its civil rights determined in court proceedings for the conduct of which the State is responsible under the Convention”.

  53. Bramelid and Malmström v. Sweden, par. 76: “Lastly, there is nothing in the Convention to prevent a person from renouncing the exercise of certain rights guaranteed under Article 6, paragraph I, in the case of a dispute involving civil rights and obligations, provided that the person’s decision is taken freely and without coercion”.

  54. Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171, par. 66: “(…) a waiver must be made in an unequivocal manner and must not run counter to any important public interest (…)”.

  55. Deweer v. Belgium, par. 51.

  56. Ibidem, par. 54.

  57. Axelsson and Others v. Sweden, decision of the European Commission of Human Rights on 13 July 1990.

  58. Lundgren v. Sweden, decision of the European Commission of Human Rights on 17 May 1995.

  59. Suda v. the Czech Republic, judgment of 28 October 2010, no. 1643/06.

  60. Ibidem, par. 52.

  61. Ibidem, par. 53–55.

  62. Chadzitaskos and Franta v. the Czech Republic, judgment of 27 September 2012.

  63. Drzemczewski 1979 p. 168: “It seems clear that the authors of the Convention did not intend this instrument to possess a “third-party effect”.

  64. Pla and Puncernau v. Andorra, judgment of 13 July 2004 no. 69498/01, ECHR 2004-VIII, Dissenting opinion of judge L. Garlicki: “However, under our case law it is obvious that there may be certain positive obligations of the State to adopt measures designed to secure respect for Convention rights, even in the sphere of the relations of individuals between themselves.”. Appleby and Others v. the United Kingdom, judgment of 6 May 2003, no. 44306/98, ECHR 2003-VI, par. 39: “The Court reiterates the key importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals”.

  65. Waite and Kennedy v. Germany, judgment of 18 February 1999, no. 26083/94, par. 67: “It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective”.

  66. Deweer v. Belgium, par. 49: “(…) in a democratic society too great an importance attaches to the "right to a court" (…) any measure or decision alleged to be in breach of Article 6 (art. 6) calls for particularly careful review (…)”.

  67. Although Article 35 (3) of the Federal Constitution of the Swiss Confederacy obliges the authorities to “ensure that fundamental rights, where appropriate, apply to relationships among private persons”, the Federal Supreme Court is reluctant to give effect to these rights, when measures of other entities than the state, including those of sport governing bodies, are involved (see the judgment of the Swiss Federal Supreme Court of 11 June 2001, Abel Xavier v. UEFA, consid. 2 d, reproduced in Bull. ASA 2001, p. 566; partially published in ATF 127 III 429).

  68. see judgment of the ECtHR concerning domestic judicial interpretation of national private law in contradiction to provisions of the Convention: Pla and Puncernau v. Andorra.

  69. X. v. the Netherlands, Decision of the European Commission of Human Rights 3 May 1983 on the admissibility of the application No 9322/81: “In the Commission’s view it could be argued that the responsibility of the Netherlands Government is engaged to the extent that it is its duty to ensure that the rules, adopted, it is true, by a private association, do not run contrary to the provisions of the Convention, in particular where the Netherlands courts have jurisdiction to examine their application”.

  70. Although it has to be noted, that in the above-mentioned decision, the Commission ruled that the application of a Dutch football player concerning alleged forced or compulsory labour in terms of transfer regulations was inadmissible, because “in the instant case it is of the opinion that the applicant freely chose to become a professional football player knowing that he would in entering the profession be affected by the rules governing the relationship between his future employers.”

  71. Valloni and Pachmann 2011 p. 93, par. 257.

  72. Art. 192 (1) of PILA: “If neither party has a domicile, a place of habitual residence, or a place of business in Switzerland, they may, by an express declaration in the arbitration agreement or in a subsequent written agreement, exclude all appeals against the award of the arbitral tribunal. They may also exclude an appeal only on one or several of the grounds enumerated in Article 190, paragraph 2.”

  73. X v. ATP Tour, judgment of 22 March 2007, 4P.172/2006, par. 4.3.2.2.

  74. Ibidem.

  75. Ibidem.

  76. Ibidem, par. 4.3.2.3.

  77. In A and B v. the Flemish Tennis Federation and the World Anti-Doping Agency judgment, par. 3.2.3 :G. Kaufmann-Kohler, A. Rigozzi, Arbitrage international, 2nd ed. 2010, p. 128 footnote 150; P.-Y. Tschanz, in: Commentaire Romand de la Loi fédérale sur le droit international privé—Convention de Lugano, 2011, nr 149 ad Art. 178 PILA.

  78. A and B v. the Flemish Tennis Federation and the World Anti-Doping Agency, par. 3.2.3: “Whilst taking into consideration that requirement in good part (judgment 4A_358/20098 of November 6, 2009 at 3.2), the Federal Tribunal reviews with “benevolence” the consensual nature of sport arbitration with a view to enhancing speedy disposition of disputes by specialized arbitral tribunals presenting sufficient guarantees of independence and impartiality, such as the CAS (ATF 133 III 235 at 4.3.2.3).”

  79. For further reading on consensuality and validity of arbitration in sport see: Rigozzi 2005 par. 475 et seq. and par. 811 et seq.

  80. Kohlhofer qnd Minarik v. the Czech Republic, judgment of 15 October 2009, nos. 32921/03, 28464/04 and 5344/05, par. 90.

  81. Edificaciones March Gallego S.A. v. Spain, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, par. 34.

  82. Axelsson and Others v. Sweden: “From a more general perspective, arbitration procedures can also be said to pursue the legitimate aim of encouraging non-judicial settlements and of relieving the courts of an excessive burden of cases.”

  83. Waite and Kennedy v. Germany, par. 63: “(…) the Court points out that the attribution of privileges and immunities to international organisations is an essential means of ensuring the proper functioning of such organisations free from unilateral interference by individual governments. The immunity from jurisdiction commonly accorded by States to international organisations under the organisations’ constituent instruments or supplementary agreements is a long-standing practice established in the interest of the good working of these organisations. The importance of this practice is enhanced by a trend towards extending and strengthening international cooperation in all domains of modern society.”

  84. Ibidem, par. 67.

  85. As yet, World Anti-Doping Code, that in article 13 confirms jurisdiction of CAS, is a non-legally binding Appendix to the legally binding UNESCO International Convention Against Doping in Sport. The same non-legally binding status in the light of international public law has the Olympic Charter, which is a Statute of a Swiss private law association.

  86. Lüth, judgement of 15 January 1958, BVerfGE 7.

  87. Bürgschaft, judgment of 19 October 1993, BVerfGE 89.

  88. Panagiotopoulos 2011 p. 130–132: “There is no doubt that such a mandatory acceptance of the clause for arbitration constitutes a restriction to the right of the athlete to a free choice and therefore is problematic24 (See decision of the Athens Court of Second Instance 2085/2001) even if we accept the opinion25 [See id. 8827/1997 ΝοΒ 1986, 525] that the arbitration provided under statutory clauses of unions should be considered as an acceptable restriction. Therefore, the protection of the weak party of the contract (either player or team) is necessary in the case the arbitration clause is provided by such contracts26. [See art. 307 of the German Civil Code] (…) The resignation of the ordinary courts is considered to be in accordance with the Constitution and therefore valid only when it is based on “the will” of the party. It is therefore clear that this arbitration procedure provided by the regulations of sports federations or/and sports provisions and law, is a compulsory arbitration, partly because of the weak bargaining power of one of the parties (namely the athletes).”

  89. According to Author’s knowledge, there was only one case of athletes appealing to the European Court of Human Rights complaining on fairness of arbitration proceedings in sport (Russian skiers Larisa Yevgenyevna Lazutina and Olga Danilova Valeryevna, Application No 38250/03), but they withdrew their application during the course of proceedings.

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    Jan Łukomski

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Łukomski, J. Arbitration clauses in sport governing bodies’ statutes: consent or constraint? Analysis from the perspective of Article 6(1) of the European Convention on Human Rights. Int Sports Law J 13, 60–70 (2013). https://doi.org/10.1007/s40318-013-0010-8

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