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

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.