Обязательные арбитражные оговорки в международных спортивных дисциплинарных спорах: особенности и проблемы

Abstract

Is international arbitration always consensual and based on the autonomy of will and free expression of the parties? The basic theory would undoubtedly answer this question affirmatively. However, in sports arbitration, things are somewhat more complex. Sports disputes can be broadly divided into two major groups: (1) commercial (transfers, sponsorship, contractual disputes with players, etc.) and (2) disciplinary (doping, violation of rules and statutes, failure to fulfill duties by both athletes and sports federations). In this sense, commercial sports disputes do not differ in any way, and they maintain a consensual element and the autonomy of the parties’ will. Meanwhile, the disciplinary sports disputes operate under a “mandatory arbitration model”, implying that without the consent of the parties, the Court of Arbitration for Sport in Lausanne (CAS) or internal bodies of sports federations, performing mandatory pre-judicial regulation, will be the only possible forums for resolving disputes with athletes. Is it right to permit the use of such a mechanism that clearly encroaches on personal autonomy? If so, should the coerced party be treated differently in any way? Why does CAS have exclusive jurisdiction over the majority of sports disputes, rather than, for example, the International Court of Arbitration of the International Chamber of Commerce (ICC)? This article will address all of the above questions.