The National Courts play an important role in the process of arbitration but the
most challenging avatar played by it is relating to the enforcement of the
foreign arbitral awards. When an arbitral award is passed the executing Court
may refuse to enforce it on the grounds as specified in Article- V of the
Convention on the recognition and Enforcement of Foreign Arbitral Awards 1958.
(Also known as New York Convention).
These restrictions are incorporated in the
national Legislation of most Countries signing the New York Convention and
adopting the UNCITRAL Model Law. Public policy is one of the raison d'être as
contained in the New York Convention based on which a party can challenge the
enforcement of the foreign arbitral awards. At the outset also public policy
remains an important weapon in the hands of a national court wishing to
interfere with the arbitral process.
To enable a fast and cost-effective forum
for resolving international sporting disputes and having regard to the
jurisdictional issues faced by the athletes in bringing disputes with
information sporting bodies before national courts, the CAS (Courts of
Arbitration For Sports) was created. International arbitral awards rendered by
the CAS may be recognized and enforced by courts under the New York Convention
1958. The CAS has a wide jurisdiction to entertain disputes that arises between
parties pertaining to sports activities and where they have mutually agreed
either with or without a prior arbitral agreement for the submission of their
dispute to the CAS. Arbitral awards have the same enforceability as a Court
Judgments and is final unless the parties have made an appeal or have the award
As the latest trend and practice in the field of adjudication mechanism in
dispute resolving procedure relating to the branch of sports conflicts, the
International Court of Arbitration for Sports (CAS) plays a very vital role as
an alternative efficacious dispute settlement body and caters to the unique
requirement of sports-related conflicts.
It acts as a means for the speedy
justice delivery system and also maintains the dignity of the sporting events by
keeping confidentiality as required in such awards and along with it also works
wonder, in reducing the cost of dispute resolution. Various sports-related
adjudicating authorities have been set up to adjudicate disputes, through
Alternative Dispute Resolution (ADR) Mechanism Courts of Arbitration for Sports
(CAS) is being identified as the Apex body in the field of sports Arbitration.
CAS was established in the year 1983 at Lausanne, Switzerland by the
International Olympic Committee (IOC). It is considered as Supreme Court in the
dispute settlement pertaining to sports. Every International Sports Federation
administers their sports dispute which arises between themselves or relating to
any sportsperson by submitting to the authority of CAS for adjudication of the
Objective & Scope
This research paper primarily focuses and relies upon upon the below-mentioned
points, which are carefully drafted and relied upon, as its primary objective
and scope of research and specifying the same as its field of the study area,
which is thoroughly and fundamentally relied on and analyzed in details.
- What are Sports Arbitration and its avenues?
- What are the different adjudication modes available for the settlement
of disputes in the Sports Industry?
- Binding effect of the arbitration award on the parties and specific
provisions of laws?
- What are the various International Conventions which are supporting
- Enforcement of sports arbitral awards passed by CAS and various other
arbitration tribunals pertaining to the settlements of sports disputes and the
challenges faced by the statutory sports bodies?
For bonafide research work on this present topic, the author has relied
basically on Secondary Data, i.e. Papers on various research articles,
publication in journals concerning or relevant to the present topic, e-reports
and repositories containing a reliable source of documents that are used and
extensively referred to in various studies and research works. The various
sources from which the data has been collected are referred to in the last part
of this article in the reference Column.
In writing this research paper, the
author has done the extensive studies as required and formulated, analyzed the
hypothesis and arrived at a conclusion or finding giving due credit to the
documents as obtained and relied upon by the author from various sources as
stated above. The same documents may be used by any other researcher on carrying
out further studies pertaining to this present topic, or any other topic, which
is related on the same subject matter.
Functions Of CAS
The CAS functions only when any natural or legal person refers any dispute to it
which is directly or indirectly arising out of sports activities including
commercial issues. The law applicable in CAS is generally, the Swiss Laws unless
otherwise agreed by the parties. The CAS exercises a very wide jurisdiction
within the sports field and the disputes arising out of it to settle the same
between the parties who agree to submit to its jurisdiction.
The procedure and
rules apply to those cases where the parties voluntarily agreed about referring
their dispute to the CAS. The official language of CAS shall be either French or
English as decided by the parties vide agreement or contract. The CAS has two
divisions which are (1) The Ordinary Arbitration Division- which handles matters
of the first instance. (2) The Appellate Arbitration Division- which deals with
appeals from the decision of federation association and other sports bodies and
According to Article R47 of the CAS code an appeal against a decision of a
federation, association, or sports-related body maybe filed with the CAS if the
statute and regulations of the authority so stipulate and if the parties to the
dispute have made a specific arbitration agreement and has exhausted all the
legal remedies available to him, before making an application to the CAS for
appeal. The CAS also exercises certain advisory jurisdiction, pertaining to
non-contentious matters and allows certain sports bodies to seek an advisory
opinion from the CAS.
Also, the CAS exercises mediation procedure too, where the
parties seek the same. The International Council for Arbitration for Sports (ICAS)
is the supreme body, which safeguards the independence of the CAS and protects
the rights of the parties. Its looks like the administration and financing part
of CAS. It has 20 members who are all high-level jurists and are well versed in
arbitration and sports laws.
Jurisdiction Of CAS
A very significant decision pertaining to jurisdiction of CAS arose from the
Sydney Olympics (1999) whereby the Australian Court in the case of Raguz Vs.
Sullivan refused to exercise jurisdiction on the basis of lack of
jurisdiction. The Australian Court has pointed out that in the agreement for
reference to CAS for arbitration form was signed by the parties does not come
within the ambit of domestic arbitration agreement within the commercial
Arbitration Act 1984 but was a foreign agreement, hence it was outside the
jurisdiction of Australian Courts.
Prima facie it is observed that the National Courts orders are not binding on
non-national parties but are binding to those who fall within its jurisdictions.
In India in case of sports disputes the International Forum as CAS is not being
accessed on a regular basis as compared to other nations, but recently in the
case of Aswini AC, Priyanka Panwar, Sini Jose, and Tiana Mary Thoma, as they
were representing India in the Common Wealth Games and Asian Games, they were
found positive on a doping test and were suspended for a period of 1 year, by
the National Anti-Doping Disciplinary Panel
(NADDP). In an appeal to NAADP
by World Anti Doping Agency
(WADA) for enhancement of suspension period of the
above-said sportspersons who found positive on dope testing, the WADA has cited
many rulings of the CAS while making his submissions before the NADP.
Hence it is crystal and clear that in case of
Sports-related disputes, the CAS plays an important part in global disputes
resolution, pertaining to sports conflicts but in the context to the Indian
Courts, the decisions passed by the International arbitration Institution such
as CAS, it is doubtful and shaky after the findings as laid down by the Supreme
Court of India pertaining to Venture Global Engineering Vs. Satyam Computer
Services Ltd and Others. In this case, the Hon'ble SC has held that the
Indian Courts could exercise their jurisdictions to set aside foreign arbitral
awards in pursuance of the the ratio of Bhatia International Case.
Intervention Of Indian Courts Pertaining To International Arbitral Agreements And Awards:
The arbitration and Conciliation Act of 1996 was enacted to amend the law
pertaining to domestic arbitration, international arbitration and enforcement of
foreign arbitral awards and also to define the law pertaining to conciliation
and for matters connected therewith and incidental thereto. Part-1 of the
Arbitration and Conciliation Act is largely based on the the framework of United Nation International Trade Law
(UNCITRAL) MODEL. The UNCITRAL RULES
as adopted by the General Assembly of the UN and also recommended the use of
such rules by all Member Countries in cases of any dispute that arises into the
context of International Commercial relations and where the parties seeks
amicable settlement of their disputes vide recourse to conciliation.
The preamble of the Arbitration and Conciliation Act 1996, also lays down
that the Model Law and Rules make a significant contribution in the
establishment of a unified legal framework, for the fair and efficient
settlement of the disputes which arise out of international commercial
relations. While Part-I of the Arbitration and Conciliation Act deal with
UNCITRAL Model Law and is applicable where the Place of Arbitration in India
And Part-II of the Act gives effect to the Geneva and New York Convention for
enforcement of Foreign Arbitral Awards.
However, the Hon'ble Supreme Court has eroded the distinction between domestic
and foreign awards in its finding and judgment as pronounced in the Bhatia
International Case. The SC has opined that Section-9 could be invoked to
support foreign Arbitral proceedings. Hence Part I of the Arbitration and
Conciliation Act was no longer limited to application for domestic awards but
also extends its applicability to foreign awards.
New York Convention And Uncitral Model Law And Rules
The New York Convention and UNCITRAL Model
law has been with an objective
to facilitate enforcement of foreign arbitral awards. However, it prescribes
certain limitations on the enforcement of foreign arbitral awards as has been
contained in Article-V of the Convention. Article –V of the convention
prescribes the below-mentioned grounds that are to be proven by a party in order
to be successful in desisting the enforcement of the award.
Those restrictions are as stated below:
- Where the party to the arbitration agreement was having incapacity.
- Where the arbitration agreement itself is invalid.
- Where the arbitral award which is the subject matter of enforcement was
already seaside at the place where it was passed.
- Where the arbitration award has no binding effect on the parties.
- Where the arbitral award is not passed in accordance with the arbitral
agreement between the parties or is against the general law or public policy
where the arbitration proceedings took place.
- Where the issues decided in the arbitration proceeding and the award was
not in concurrence with the purpose of submission for arbitration.
- Where the arbitral tribunal was affected by procedural unfairness and
Even several nations have laid down their own
legislation which excludes the enforcement of foreign arbitral awards that
depart from the plain language and go beyond the exclusion list as contained in
the New York Convention. For example: Article-459 of the Vietnamese CPC which
prohibits enforcement of a foreign arbitral award that is contrary to the basics
principle of Vietnamese Law.
Other Sports Arbitral Bodies
In UAE and many other GCC Countries at par with international practice sports
disputes are routinely adjudicated through arbitration. The Arbitration
Committee of UAE Football Association( UEFA) is the perfect example of how the
UAE Sports Federation has established arbitral; bodies to settle their
sports-related dispute vide.
In Parlance with the Federation International De Football Association
hereinafter referred to as (FIFA) statute, the UAEFA Statues also prohibits
their members, players, officials, agents, etc from taking their sports disputes
to the local Courts, unless it is specifically permitted within the ambit of
UAEFA and FIFA Statutes. Another International Arbitral body is Basketball
herein as referred to as (BAT), which was created by
Federation International De Basketball
herein as referred to as (FIBA). It was
created with an option for the parties to settle their conflicts pertaining to
basketball-related international disputes by resolving the same through an
efficient and effective mode of dispute settlement by submitting their disputes
to the BAT jurisdictions.
Challenges In Enforcement Of Sports Arbitral Awards
The basic challenges faced in the enforcement of Sports arbitral awards are as
- The Parties are forced to sign the arbitration agreement. The Courts has
explicitly stated that the arbitration agreement which was signed by an
athlete was void because the Sports authorities have a monopolistic and
dictatorial attitude thereby not allowing the athletes to make a choice of
signing or not signing the agreement. Rather the athletes are compelled to
sign the agreement if they wanted to participate in the game.
- Another challenge faced relating to the non- enforcement of
international Sports arbitration award is because it violates sometimes the
public policy. The German Courts are not treating it as binding, of the
findings of CAS, if the
arbitral award is against the German Public policy, within the meaning of
Section-1061 of German Code of Civil procedure (ZPO) in conjunction with
Article-V of the New York Convention. The fundamental part of German Law is
considered an integral part of Germany's public policy.
There has been no defined notion or definition pertaining to
Public Policy or International Public Policy as it is deemed to be not
possible to confine the meaning within a specified boundary. The most
substantiated meaning is contained in the case of Parsons and Whitten more (US
Court of Appeals) 1994 in which the Judge has stated that enforcement of the
foreign award should be denied, ‘Only where enforcement would violate the forum
state's most basic notions of morality and justice.
Enforcement Of CAS Awards By FIFA
The CAS awards are enforced by FIFA through its internal disciplinary power.
The Swiss Federal Court all though recognizes the CAS independence very much and
hence implements its awards without any question and hassle. The CAS awards have
their own complexity at the time of execution due to their Global character.
Hence it does not need a judicial intervention while executing the same or for
compliance. It is enforced through disciplinary sanctions within the sports
federations by using the dominant and monopolistic character of the sports body
But the problem arises when enforcement of an
award of CAS is pertaining to the decision that is rendered in the ordinary
procedure of CAS. Although Article-64 of the FIFA Disciplinary Code which lays
down provisions to pay penalty to the FIFA, in case a player, a coach, or a
club does not obey the award.
Sports In India & Dispute Settlement Body
In India, sports-related activities are booming in a significant manner. Indian
players are gaining a high reputation in the international sports arena. many
sports bodies like Indian Hockey League, Indian badminton League, Pro-Kabaddi League, Indian Premier League
has been established which
regulates sports activities in their specified field.
Since the sports activities are prowling day by day, simultaneously
sports-related disputes also increasing in manifold between the sports players
or between the sports authorities and players. There are many sports laws in
India, i.e. National Sports Policy 2001, Youth affairs and Sports Department of
Sports, Sports Authority of India, the sports Broadcasting Signals Mandatory
Sharing with Prasar Bharati Act).
These sovereign Sports authorities acts as a
watchdog to protect sports laws and also regulates and makes new law as and when
As because the sportspersons career are very
short and they need immediate relief in case of disputes, hence our traditional
way of the adjudicatory mechanism through courts are not fit and proper in
resolving sports disputes because the procedures are very lengthy and time
taking and also very tiring. So a sportsperson cannot afford to wait for such a
long period of time in order to short out his disputes pertaining to his sports
activities. Therefore it caused a challenge for sportspersons and sports
authorities to adjudicate their disputes and conflicts.
In order to do away with this unsupportive and sorry state of affairs in the
sports dispute adjudication mechanism in India, the International Olympic Association
as directed by the International Olympic Committee
to establish an Indian Court of
Arbitration for Sports:
(ICAS) to adjudicate disputes related to sports in
India. The ICAS was set up in the year 2011 and it consists of eight Supreme
Court of India retired Judges and resolves disputes in a very fast-paced manner.
It works even better than a regular civil court. The ICAS adjudicates disputes
pertaining to national sports, whilst the CAS adjudicates international Sports
disputes. The ICAS has given a sigh of relief to all the National Sports persons
who now can adjudicate their sports-related disputes domestically by approaching
the ICAS which in turn decided their case in an efficacious and speedy manner
and also in a very cost-effective way.
The CAS is an adjudicatory body or alternative dispute settlement mechanism
which is independent of any sports organization and which provides settlement of
disputes in the sports arena through arbitration and mediation process and by
interpreting the rules and regulations which are meant for Sports. The judgments
and awards of CAS has the same effect and force as in the case of the judgments
passed by the ordinary Courts. The CAS also allows parties to sort out the
disputes and differences through conciliation, where both the parties to the
dispute signify by an agreement, to sort out their differences by such means.
Any disputes related to the sports industry maybe submitted to CAS for
adjudication even though it may be of commercial in nature. In order to refer a
dispute to CAS for adjudication, there must be a written agreement between the
parties which may be in nature of a contract pertaining to a sports
organization. The Parties in CAS Court may represent their case either in person
or through a representative who may not necessarily be a lawyer.
Ordinarily, the procedure and law applies in CAS are of SWISS LAW, unless
otherwise agreed by the parties and governed by sports arbitration. In case of
the ordinary procedure the facts and cost of arbitrators are calculated on the
fixed scale along with the share of the cost of the CAS.
And in case of disciplinary proceedings and appeals it's free of cost but except
for the court fee. The ordinary procedure of CAS are confidential in nature but
the appeal procedure is not confidential. The award of the CAS is final and
binding on the parties and is enforced in accordance with the New York
Convention which is signed by 125 nations.
Challenging the CAS awards are limited on very specific grounds, such as lack of
jurisdiction, violation of the natural procedure, failure to adhere to
procedural laws etc and appeal against CAS award lies to SWISS Federal Tribunal
only, that is to be made within 30 days of passing of the award. In India
however the local Courts many a time intervene and refuse to enforce the award
of CAS, if the Courts feel that there exists a disparity, which limits
bargaining power between the parties to the dispute.
In such cases, in order to prevent victimization of a weaker person, who are
always the sports individual and to ensure justice, the awards passed by the CAS,
are sometimes seaside by the Indian Courts, Under Section-34 of the Arbitration
and Conciliation Act 1996. Hence the award passed by the CAS has to undergo
scrutiny by the Indian Courts. But this supervisory power, as used by the Indian
Courts in a very least number of cases and only with great circumspection.
Therefore it can fairly be said that, the sports-related arbitration mechanism
like CAS and other statutory adjudication bodies are in fact a welcome
initiative to adjudicate and settle a dispute, pertaining to the sports industry
and that to in a speedy and efficacious manner. Hence CAS is no doubt,
definitely proved to be an asset, as dispute settlement authority, pertaining to
the sports arena, but last but not least, it is my personal opinion and
suggestion that, if this international adjudicatory body (CAS) would be
established locally in every nation and country by opening its branches, it
would lead to more efficacy in terms of enforcement of its awards, as well as it
will provide a shy of relief to those poor marginally oppressed players and will
enable them to file their cases locally, vindicating their sports-related
disputes, which they are currently unable to do so, because of their financial
scarcity and by default, they refrain from approaching the international sport
adjudicatory body, the CAS Court.
Written By: Mr.Chinmoy Patra
- Raguz v/s, Sullivan NSWCA, 290.
- Venture Global Engineering Ltd Vs. Satyam Computer Services Ltd & Others
- Claudia Pechstein Vs. The International Skating Union(ISU) Case
- Damian Strurzaker & Kate Goddard, The Olympic legal legacy Melbourne
Journal of International Law(2001),2 P.g-241, 242.
- The Swiss International Arbitration Law Reports,2007-2009, Volume - 1 –
3 Consolidated (Juris Net, Newyork 2012).
- IJAL, Volume-1, Issue-1, Devyani Jain, Indian Courts on Sports
- Gabrielle Kaufmann Kohler, Arbitration at the Olympics, The Hague (2001)
- Matthie Reeb, Digest of CAS Awards Vol-1, Bem (1988) & Vol- II & III,
The Hague (2002 & 2004)
- Convention on the Recognition and enforcement of Foreign Arbitral Awards
(New York Convention) 1958.
- Journal of International Dispute Settlement, Vol-1, No-1,(2010),
- Arbitration and Conciliation Act 1996.
has completed his 5 years Integrated Law (B.A LLB Hons.) from Madhusudan
Law College, now Madhusudan Law University
Cuttack in the year 2004. He is Pursuing his 1-year L.L.M
Degree with specialization in (Corporate and Financial Law ) for the Academic
Year 2019-20, from Siksha O Annusandhan National Institute Of Law
Email id- [email protected]
, PhNo- 9861076210 / 7008846740
Address- C.D.A Plot No-1348/5/C, Sector-6, P.O- Avinab Bidanasi, P.S- Markat Nagar, District-Cuttack, Pincode-753014, Odisha. India