Originally from Sports Arbitration: A Coach for Other Players? - ASA Special Series No. 41

1. INTRODUCTION

In most cases, the relationship between an athlete (or a coach) and his or her club is to be characterized as an employment contract.1 In the sport context, employment disputes are regularly subject to arbitration, in particular before the Court of Arbitration for Sport (CAS).2

This paper examines if and to which extent the CAS experience could foster the resolution of employment disputes by way of arbitration in other industries?

Is the CAS model appropriate to manage arbitrations concerning employment disputes in other sectors of the economy such as banking and finance?

This paper is only concerned with “individual” employment disputes. It does not deal with so-called collective employment disputes resulting from collective employment contracts between labor unions and employers or associations of employers.3 It is nevertheless interesting to note that such collective employment disputes are often subject to arbitral mechanisms which may be provided for in the collective employment contract or imposed by law.4

In the Canton of Vaud, for instance, the Law concerning the prevention and resolution of collective disputes (Loi sur la Prévention et le Règlement des Conflits Collectifs, LPRCC)5 of 28 October 2003 provides for conciliation and arbitration of all collective employment disputes before a cantonal office established by law.6

These statutory arbitral mechanisms raise interesting issues. In particular, the nature—public or private—of the arbitral proceedings is ambiguous and the legal regime governing the challenge of the award is controversial.7 In my opinion, the award is subject to ordinary challenge proceedings available in classic arbitrations of civil matters—today a direct recourse to the Swiss Federal Tribunal, Art. 389 Code of Civil Procedure—and an action before administrative courts is not possible to challenge the award.8

I will however not enter into these issues further and will limit the topic to individual employment disputes.

Before turning to the CAS experience, it is important to examine whether arbitration is appropriate in the first place to deal with employment disputes and also to describe the restrictions and difficulties of arbitration in the field of labor law.