Choice of law in the court of arbitration for sport: overview, critical analysis and potential improvements

Abstract

At the time of writing this article, the All Blacks had won the 2011 Rugby World Cup, Andre Agassi had released his controversial autobiography, FC Bayern Munchen had just lost to Chelsea FC in the UEFA Champions League Final, Rafael Nadal and Novak Djokovic were due to head off in the final of the Italian Open, and athletes and fans all over the world were eagerly awaiting the London 2012 Olympics. Whether one realises it or not, sport permeates our lives on a daily basis. We are surrounded by it in the media, on the streets, in stores and the now international sport is causing the legal world to take notice. The Court of Arbitration for Sport (CAS) is an international arbitral tribunal that settles international sports-related disputes such as breaches of employment contracts; eligibility, suspension, qualification and transfer of players; sponsorship and television rights disputes; disciplinary action and athlete doping, etc. These types of disputes will all be submitted to CAS if the contract between the parties contains an arbitration clause in favour of CAS, or if the statutes, rules or regulations of a sports-related body designate CAS as the appeal body of their decisions. The dispute is then designated to either the Ordinary Arbitration Division or the Appeal Arbitration Division for determination. Given CAS’s international dimension, it is necessary for CAS to first determine the governing law of the contract or dispute, before applying this law to the merits of the dispute. The Code of Sports Related Arbitration provides two “choice of law” rules for this purpose (the CAS Approach). I seek to comprehensively outline the CAS Approach for determining the governing law in both the Ordinary and Appeal Arbitration Divisions. I then seek to critically and comparatively analyse the CAS approach against the choice of law rules contained in EC Regulation No 593/2008 on the law applicable to contractual obligations 2008, and use this analysis as the basis for my suggestions for improvement to the CAS Approach.