"Consent" in Sports Arbitration: Which Lessons for Arbitrations Based on Clauses in Bylaws of Corporations, Associations, etc.? - Chapter 5 - Sports Arbitration: A Coach for Other Players? - ASA Special Series No. 41
Arbitration is a consensual dispute resolution method. The touchstone of arbitration is indeed the parties’ consent to refer an existing dispute, or future disputes, to arbitration and to exclude the jurisdiction of national courts.1
Whether arbitration is consensual in sports disputes between athletes and sports federations is, however, often doubtful. As pointed out by the Swiss Federal Tribunal in the Cañas v. ATP decision:
[a]side from the (theoretical) case of a famous athlete who, due to his 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 organized 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.2
In that case, the Swiss Federal Tribunal had to decide, inter alia, on the enforceability of a waiver to bring setting aside proceedings against the award. It ruled that such waiver, which had been signed by the athlete,3 did not result from a freely expressed intent and therefore could not be binding on him.4 The Swiss Federal Tribunal however limited the scope of its ruling to the waiver to bring setting aside proceedings, highlighting why the same conclusion does not necessarily apply to the validity of the arbitration agreement. Noting that it might seem ““illogical, in theory, to treat differently the requirements of formal and intrinsic validity for an arbitration agreement on the one hand, and the same requirements for a waiver of setting aside proceedings [on the other]”,5 the Swiss Federal Tribunal then explained why an arbitration agreement imposed by sports regulations may be deemed valid, despite the fact that an athlete has no choice but to accept it.