Hotel California At The Court Of Arbitration For Sport: Can Athletes Ever Truly Leave?

Hotel California at the Court of Arbitration for Sport: Can Athletes Ever Truly Leave? 

I. Introduction 

“You can check out any time you like, but you can never leave.” ¹ The Eagles’ celebrated lyrics from the song Hotel California captures, with uncanny precision, the dilemma confronting professional athletes who wish to compete at the highest level of organised sports. The mandatory arbitration clause, often hidden in entry forms and federation regulations, presents athletes with a proverbial Hobson’s choice: accept the compulsory jurisdiction of the Court of Arbitration for Sport (‘CAS’), or sacrifice a professional career altogether. There is, in substance, no real choice at all. 

This article attempts to examine whether athletes truly consent to CAS arbitration or whether they are coerced by the structural monopoly of sports governing bodies (‘SGBs’). The question is not merely academic. It hits at the legitimacy of CAS itself and at the broader architecture of international sports dispute resolution. As an arbitration practitioner and scholar, I find the tension between the consensual foundations of arbitration and the compulsory reality of sports arbitration to be one of the most pressing unresolved issues in the field. 

II. Consent as the Cornerstone of Arbitration 

Without fail, international treaties and national laws recognise consent as a precondition to arbitration.² The New York Convention mandates a written arbitration agreement for an award to be enforceable.³ The UNCITRAL Model Law permits refusal of an award where parties lacked capacity or where the agreement was invalid under the governing law.⁴ The Indian Arbitration & Conciliation Act 1996 emphasises that the parties should have an agreement, “to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.”⁵ The Supreme Court of Canada, in TELUS Communications Inc v Wellman, linked the consensual nature of arbitration directly to the principle of party autonomy, observing that an arbitration agreement “crystallizes the parties’ consent” to private dispute resolution.⁶ Even the United States Supreme Court has acknowledged that “arbitration under the Federal Arbitration Act is a matter of consent, not coercion.”⁷ 

This near-universal consensus on consent makes sports arbitration an outlier. In disciplinary and doping matters, athletes do not negotiate the terms of their submission to CAS. They sign because they must. 

III. The Hobson’s Choice: Mandatory Arbitration Clauses in Sport 

Mandatory arbitration clauses are pervasive in professional sport. The FIFA Statutes (2022 Edition) expressly require national federations to insert arbitration clauses in favour of CAS in their regulations and impose that appeals against final decisions of FIFA’s legal bodies “shall be lodged with CAS.”⁸ The Olympic Charter, through Bye-law 6 to Rule 44, mandates arbitration agreements for athletes participating in the Olympic Games. Athletes are not typically direct members of sports federations; rather, the regulations of SGBs either contain an arbitration clause favouring CAS or require athletes to sign a specific arbitration agreement as a precondition for participation in an event.⁹ 

The Swiss Federal Tribunal (‘SFT’) has upheld the validity of “arbitration agreements by reference,” examining them with “a certain goodwill in order to promote the fast resolution of disputes by specialised courts.”¹⁰ The practical consequence, however, is stark: athletes must accept these agreements owing to the monopolistic structure of organised sport. They have no meaningful alternative forum, no genuine bargaining power, and no real choice.¹¹ 

IV. Judicial Perspectives: From Cañas to Pechstein and Beyond 

Two landmark cases, Cañas and Pechstein, have shaped the judicial discourse on compulsory consent in sports arbitration, and their reasoning warrants close examination. 

The Cañas Case 

In Guillermo Cañas v ATP Tour, the SFT acknowledged in an important obiter dictum that athletes have “no choice but to accept the rules contained in the regulations issued by the SGBs.”¹² To participate in ATP tournaments, Cañas was required to sign a “Player’s Consent and Agreement to ATP Official Rulebook”, which, inter alia, waived his right to bring setting aside proceedings against CAS awards.¹³ The Court upheld CAS’s jurisdiction but concluded that the waiver of setting aside proceedings was entirely lacking in consent due to the compulsory nature of sports arbitration. It affirmed, crucially, that athletes retain the right to challenge CAS awards through setting aside or revision proceedings, regardless of any waiver in the sports regulations.¹⁴ 

The Pechstein Case 

Claudia Pechstein, a German speed skater, signed an entry form containing an arbitration agreement favouring CAS to compete in ISU-organised championships.¹⁵ The SFT, referencing Cañas, acknowledged the “forced” nature of such arbitration, noting that “even though the clause was not imposed by law but by the regulations of the ISU, the acceptance of the jurisdiction of the CAS by the claimant must be understood as a ‘forced’ arbitration.”¹⁶ In Germany, the Higher Regional Court (‘OLG’) of Munich initially invalidated the arbitration agreement under competition law, citing ISU’s abuse of its dominant position.¹⁷ The German Federal Court of Justice (BGH), however, overturned this decision, affirming the agreement’s validity whilst recognising ISU as a monopoly.¹⁸ 

In 2018, the European Court of Human Rights (‘ECHR’), in Mutu and Pechstein v Switzerland, held that Pechstein had not waived her Article 6(1) rights by accepting the arbitration clause, as her consent was not freely given.¹⁹ The ECHR emphasised that procedural rights under Article 6(1), including the right to a public hearing, apply in full when CAS arbitration is mandatory.²⁰ This led to amendments to the CAS Code permitting athletes the right to public hearings.^21</sup 

These cases were not isolated. The Tribunal de Grande Instance de Paris stated that “a participant in a sporting event cannot be deprived of [the right to take legal action] by the rules of the competition.”²² In Portugal, the Court of Arbitration for Sports ruled that mandatory arbitration clauses conflicted with constitutional principles of access to justice and fair trial.²³  

The saga further continued when the Court of Justice of the European Union, in International Skating Union v European Commission, found that the SFT’s standard for reviewing CAS awards inadequately protected economic rights under EU competition law.²⁴ In the wake of this decision, UEFA announced Dublin, Ireland, as an alternative arbitration seat for its competitions, a development with significant implications for aligning CAS procedures more closely with EU law.²⁵ 

V. Case for Reform: Transparency, Independence, and Procedural Safeguards 

Notwithstanding these judicial developments, there remains a compelling case that CAS must reform from within if it is to maintain legitimacy. 

1. Transparency in Award Publication. From 1986 to 2022, the number of arbitrations submitted to CAS grew from 2 to over 800 per year. Yet CAS publishes only a limited fraction of the awards rendered by its Appeals Division. The data from CAS Annual reports indicate an average publication rate of approximately 17.5% from 2009 onwards. This makes CAS, paradoxically, one of the most prominent yet most secretive transnational courts in the world. Athletes and the public at large are unable to critically assess or rely upon the majority of the jurisprudence.²⁶ The systematic publication of all awards is necessary to secure transparency and legitimacy.
2. Transparency in Arbitrator Appointments. The CAS website provides limited information on its arbitrators, in some cases, no more than a couple of lines. Full access to arbitrators’ jurisprudential records, past nominations, and contractual relationships with SGBs would reduce information asymmetry and enable athletes to make truly informed choices. Drawing upon the IBA Guidelines on Conflicts of Interest in International Arbitration (2024), the arbitrators should be required to make comprehensive disclosures regarding any conflicts of interest, and that non-disclosure should constitute a ground for challenging the appointment.²⁷
3. Independence of ICAS. The International Council of Arbitration for Sport (ICAS) decides who becomes a CAS arbitrator, who leads the Appeal and Ordinary Divisions, and who serves as Secretary General.²⁸ These decisions are taken without publishing minutes or reports, leading to a troubling lack of transparency about why certain individuals are selected over others. While the ECHR in Mutu and Pechstein accepted that CAS's financial dependence on the Olympic movement is not inherently problematic, it stressed that ICAS and the President of the Appeals Division must operate transparently and independently from SGBs. A reformed selection procedure, one that includes meaningful representation for athletes, is essential to buttressing the perception and reality of independence.
4. Procedural Safeguards. Short appeal periods, such as UEFA’s ten-day limit, can be particularly burdensome for athletes in developing countries where awareness of specialised sports arbitration lawyers is minimal.²⁹ A review and possibility to extend the time limits for appeals would not only improve the access to justice but also strengthen procedural fairness. Similarly, the waiver of state court jurisdiction for interim measures under Article R37 of the CAS Code requires reconsideration to ensure that athletes are not left without an effective interim relief.³⁰ 

VI.  Conclusion: Balancing Compulsion with Fairness 

The legal and sporting level playing field would be genuinely at risk if national courts, rather than dedicated sports arbitral tribunals like CAS, were to decide sporting disputes. National courts would likely interpret sporting rules inconsistently, leading to unequal application of regulations across jurisdictions, a French athlete receiving a two-year suspension for a doping offence, whilst a Norwegian athlete faces a lifetime ban for the same violation.⁴⁴ Mandatory arbitration therefore serves a legitimate purpose in ensuring uniformity, efficiency, and specialisation.³¹ 

However, the current framework cannot continue to hide behind a fictional arbitration label to evade full compliance with the procedural rights enshrined under Article 6 § 1 of the ECHR. If CAS wants to retain its title of the “supreme court of world sport,” it must earn that title through transparency, independence, and procedural fairness, not merely through the structural compulsion that brings the athletes before it. 

A balanced approach that preserves the benefits of unified dispute resolution at the same time addressing the legitimate concerns of athletes is not only desirable but also essential. The brief suggestions drawn in this article, namely, from the systematic publication of awards to meaningful athlete representation in the selection of ICAS members, are progressive and attainable. If properly implemented, it will make sports arbitration more equitable, legitimate, and sustainable, which would benefit the athletes and sports federations likewise.  

Footnotes

^{1 Eagles, "Hotel California" Lyrics, Genius, https://genius.com/Eagles-hotel-california-lyrics}

^{2 Benson Lim and Adriana Uson, 'Relooking at Consent in Arbitration' (Kluwer Arbitration Blog, 12 February 2019).}

^{3 New York Convention, Art. II(1,2), Art. V.}

^{4 UNCITRAL Model Law on International Commercial Arbitration, Art. 35}

^{5 The Indian Arbitration & Conciliation Act 1996, S. 7(1)}

^{6 TELUS Communications Inc v Wellman [2019] 2 SCR 144, 2019 SCC 19, para 52.}

^{7 Volt Information Sciences v Leland Stanford, Jr. University 489 US 468 (1989).}

^{8 FIFA, FIFA Statutes (2022), Arts 57(1) and 58.}

^{9 Antonio Rigozzi and Erika Hasler, ‘Sports Arbitration Under the CAS Rules’ in M Arroyo (ed), Arbitration in Switzerland - The Practitione’s Guide (2013) ch 5.}

^{10 SFT, decision of 7 November 2011, 4A_246/2011, para 2.2.2.}

^{11 SFT, decision of 22 March 2007, 4P.172/2006, para 4.3.2.2.}

^{12 Antonio Rigozzi and Fabrice Robert-Tissot, ‘“Consent” in Sports Arbitration: Its Multiple Aspects - Lessons from the Canas Decision’ in ASA Special Series (2015) 61.}

^{13 Ibid.}

^{14 SFT, decision of 22 March 2007, 4P.172/2006 (Guillermo Cañas v ATP Tour); ATF 133 III 235, 243, para 4.3.2.2.}

^{15 German Federal Court of Justice (BGH), Pechstein v International Skating Union, 2016, Az. KZR 6/15, para 2.}

^{16 Antoine Duval, 'The "Victory" of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS' (Asser International Sports Law Blog, 10 October 2018), p. 2.}

^{17 Higher Regional Court (OLG) Munich, 15 January 2015 - U 1110/14 Kart.}

^{18 BGH, Pechstein v International Skating Union, 2016, Az. KZR 6/15, paras 55, 59.}

^{19 Elizabeth Brimer SC, 'Sports Arbitration – Consent, Independence and Impartiality' (2019) The Arbitrator & Mediator 92.}

^{20 Mutu and Pechstein v Switzerland, ECtHR, Application Nos 40575/10 and 67474/10, Judgment of 2 October 2018, paras 113, 115}

^{21 R57, CAS Code: Procedural Rules}

^{22 Tribunal de Grande Instance de Paris, 26 January 1983, Recueil Dalloz [D] 1986, Somm 366, obs Gabriel Baron (translated from French).}

^{23 Antonio Judice Moreira, 'Portuguese Court of Arbitration for Sports: Constitutional Award No 781/2013 of 20 November 2013' (2013) EIAR 257.}

^{24 CJEU, Case C-124/21 P, International Skating Union v European Commission, Judgment of 21 December 2023.}

^{25 UEFA Circular Letter No. 33: UEFA Authorisation Rules Governing Int’l Club Competitions (Ed 2024).}

^{26 Saverio Spera, ‘Time for Transparency at the Court of Arbitration for Sport’ (Asser International Sports Law Blog, 31 January 2017).}

^{27 IBA Guidelines on Conflicts of Interest in International Arbitration (Adopted 25 May 2024).}

^{28 ICAS Statutes, Arts S6(2), S6(4), S6(7).}

^{29 UEFA Statutes (2021), Art. 62(3).}

^{30 CAS Code (2022), Art. R37; UEFA v FC Sion/Olympique des Alpes SA, CAS Arbitration 2011/O/2574 (31 January 2012), Award, paras 20-21.}

^{31 Ruggie, J.G. (2016), For the Game, for the World: FIFA and Human Rights, Corporate Responsibility Initiative Report No. 68, Harvard Kennedy School, p. 26.}

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