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

1. INTRODUCTION

This quote from the celebrated automobile pioneer Henry Ford1 is the embodiment of the proverbial “Hobson’s choice”; to have Hobson’s choice is to have no choice at all. Its origin lies in the practice of the 17th century Cambridgeshire horse trader Thomas Hobson, whose customers, in theory, had a free choice but in practice always ended up with the horse closest to the stable door, which was Hobson’s “take it or leave it” choice.

By including an arbitration clause in their regulations, sports governing bodies place athletes in a situation that is quite similar to Hobson’s customers, namely to accept the arbitration or to refrain from participating in the relevant sport. In other words, sports arbitration is far from the traditional idea of arbitration being the consensual alternative dispute adjudication process that we read about in every textbook on arbitration.2 This reality was explicitly acknowledged by the Swiss Federal Supreme Court (the Supreme Court) in the wellknown Cañas decision of 22 March 2007:

Aside from the (theoretical) case of a famous athlete who, due to this notoriety, would be in a position to dictate his requirements to the international federation in charge of the sport concerned, experience has shown that, by and large, athletes will often not have the bargaining power required and would therefore have to submit to the federation’s requirements, whether they like it or not. Accordingly, any athlete wishing to participate in organised competition under the control of a sports federation whose rules provide for recourse to arbitration will not have any choice but to accept the arbitral clause, in particular by subscribing to the articles of association of the sports federation in question in which the arbitration clause was inserted, all the more so if the athlete in question is a professional athlete.” 3

In other words, it is clear that sports arbitration is fundamentally non-consensual in nature, since athletes have no other choice but to agree to whatever is contained in the statutes or regulations of their sports governing bodies. This article commences with an analysis of the relevance of the Cañas decision as to the validity of the waiver of the right to bring setting aside proceedings against an arbitral award before the Supreme Court (Section 2), which was the issue at stake in that case. It will then address the issue of whether, and to what extent, the ruling of Cañas is also applicable to the waiver of state court jurisdiction to rule on the merits of the dispute (being the essence of the arbitration agreement—Section 3) and to order provisional measures (on which the parties may agree in connection with an arbitration agreement—Section 4).