The Research On International Sports Arbitration

The commercialization and globalization of sports give rise to many sports disputes, and how to solve these disputes has become a common topic among researchers majored in law and sports. Using arbitration to resolute sports disputes has been approved by more and more national and international sports arena.First of all, generally speaking, all sports-related disputes are sports disputes and can be determined through arbitration without considering whether it is technically sports dispute at all. Although there are many advantages to arbitrate sports disputes, such as fast, less expensive and confidentiality, the main focus is on its efficiency. And as a new subject matter of legal research, sports-related disputes'resolution should be considered as an important part in international sports law, so international sports arbitration should be given similar importance as well. However, it should be remembered that although international sports arbitration have differences as well as similarities with other international arbitration (public international law arbitration and international commercial arbitration), the international sports arbitration still has its own special characteristics.Secondly, from national perspective, some countries with high sports levels have established their own sports arbitration system, such as United States, Canada, Australia,Germany, England, etc. As a result of the development of professional sports, the sports arbitration in America can be divided into amateur and professional sports arbitration. But the related rules and regulations provide that almost all sports disputes in America can be arbitrated by American Arbitration Association, and some of the amateur sports arbitration decisions can be appealed to the Court of Arbitration for Sport. While professional sports arbitration cases are mainly about collective bargaining agreements, especially the four major professional leagues established their own arbitration system and among which the most representative is baseball arbitration. The professional sports arbitration in Canada is similar to that of America, but as to amateur sports arbitration, there is not a domestic sports disputes resolution institution in Canada. In Australia, almost all national sports bodies have their own internal rules and decision making institutions, and parties to sports disputes can plead to National Sports Disputes Centre or CAS for the resolution of their disputes. As to England, except for football arbitration, Sports Disputes Resolution Panel also make use of arbitration to settle sports disputes. Other European countries such as Germany, Italy, Belgium, etc have also established sports arbitration systems, with the exception that France make use of mediation instead of arbitration to settle sports disputes. However, sports disputes resolution through arbitration can not exclude national courts'jurisdiction over these sports disputes, especially when such cases come down to natural justice or due process.Again, and the most important sports arbitration institution is the Court of Arbitration for Sport (CAS). CAS was established in 1984 by International Olympic Committee, thereafter it set up two decentralized courts separately in America and Australia, and from 1996 it began Olympic ad hoc arbitration in the cities of Olympic Games. The IOC has also set up a Council for the Arbitration of Sports Disputes to supervise CAS and give it help financially. After FIFA and IAAF's approval of subjecting to CAS's jurisdiction, all international Olympic sports federations and some non-olympic international sports federations have recognized CAS's jurisdiction and its supreme power to supervise these bodies'decisions. The jurisdictional bases of CAS include arbitration agreements between parties to disputes, constitutions of national and international sports bodies, Olympic Charter and entry forms for Olympic Games, etc., and mandatory arbitration clauses in the latter bases should be given special attention especially. As to the procedure, CAS procedure can be divided into two kinds of procedures as a result of the nature of disputes: ordinary and appeal procedures. In addition to these, the Olympic arbitration practice makes Olympic arbitration procedure a special procedure that different from CAS procedure to some degree.The sports related disputes that subject to CAS arbitration are mainly about doping cases and cases other than doping. And the related legal questions about these disputes include the principle of proportionality, strict liability in doping cases, IFs'examination over national sports governing bodies'decisions, the right of a fair hearing, nulla poena sine culpa, the principle of non-intervention, etc. And the strict liability of doping cases has its own rules about guilty presumption and burden of proof. Non-doping cases include cases about sponsor contract, eligibility, nationality, commercial advertisement, ect. But compared with doping cases the quantity of cases other than doping is quite small.As to the choice of law, the choice of law in international sports arbitration is similar to that of private international law, and it also relates to substantive and procedural questions. The choice of law about the merits of disputes is globalized through the use of general principles of law (include party autonomy, ex aequo et bono), and the choice of law of the court procedure is governed by Swiss law as a result of the seat of CAS. The recognition and enforcement of CAS decisions can be based upon New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards.Some national courts also made some awards related to sports disputes and arbitration. The parties to a dispute can appeal a CAS award to Swiss Federal Court if they think that the rendered awards were made unjustly, or with no respect to parties'right of fair hearing, or in conflict with public order, or the tribunal has no jurisdiction at all. However, almost all national courts'awards were made in favor of CAS, and national courts were hesitate to examine sports bodies'decisions except for reasons of some procedural questions or public order.In the end, although China has not communicated with CAS in all aspects, as a result of China's important status in international sports arena and the upcoming Beijing Olympic Games in 2008, we should pay more attention and energy to the research of international sports arbitration. At the same time we should establish and consummate our national sports legislation, institute sports arbitration system, set up sports arbitration institutions and give lectures and publicity about sports law and arbitration rules to these who participate in sports. The author think that only these ways can accelerate or promote the development of China sports arbitration system and keep up with the development of international sports arbitration .