Originally from The American Review of International Arbitration (ARIA)

PREVIEW PAGE

ABSTRACT

The expansion of international human rights law (“IHRL”) and the increasing use of arbitration as a private dispute resolution process in parallel have led arbitral tribunals, including arbitral panels of the Court of Arbitration for Sport (“CAS”), to face human rights claims. Yet, CAS arbitral panels have ruled, and continue to rule, inconsistently over whether IHRL can be applied in CAS arbitrations. This article explores the necessity of recognizing the application of IHRL to private relations, known as the “horizontal effect” of IHRL, in the context of sports disputes before the CAS. It discusses the concept of this “horizontal effect” and its direct and indirect forms and analyzes the inconsistent approaches CAS arbitral panels have taken towards the question. The article contends that the horizontal application of IHRL is legitimate and needed in CAS arbitrations due to the status of sports governing bodies and their ability to create rules unilaterally. Moreover, the unique features of the CAS, including its compulsory jurisdiction, warrant the horizontal application of IHRL, both on procedural and substantive grounds.

I.   INTRODUCTION

In recent years, international human rights law (“IHRL”) has become increasingly relevant in the world of sports. There has been growth in the academic literature on the intersection between IHRL and sports.  International sports governing bodies (“SGBs”) have begun referring to human rights in their statutes and bylaws.  Athletes have started claiming violations of IHRL before courts and tribunals.  Calls for respect for human rights, on and off the field, have grown louder.  However, despite a seemingly broadly shared desire to ensure that sport activities are conducted in a manner that respects human rights, the question of how human rights can be effectively protected and enforced when sports disputes are arbitrated has emerged as a pressing issue. The issue is particularly important if one takes into consideration that the parties to a sports dispute typically are private entities (e.g., athletes and SGBs), while, in principle, IHRL binds States.

It is notable that among the many developments experienced in international law at the turn of the century, two apparently unconnected developments stand out: a remarkable growth in IHRL litigation and an equally noteworthy expansion of international adjudication in general, and of arbitration in particular. During the past two decades, the caseloads of several international human rights bodies (judicial and quasi-judicial) have ballooned. The total number of pending communications on the docket of the United Nations Human Rights Committee jumped from 167 in 1999,  to 1,193 in 2020.  The number of cases reaching the European Court of Human Rights (“ECtHR”) yearly increased from 8,400 in 1999,  to 41,700 in 2020, with a peak of 65,800 in 2013.  At the same time, during the past three decades, the number of available arbitration forums for all manner of disputes (from business to sports, national, transnational or international), grew exponentially, and these various forums are being used more frequently than ever.

The two developments were bound to collide. Gradually, human rights claims started appearing in litigation before arbitral tribunals, forcing those tribunals to address the question of the applicability of IHRL. At the same time, international human rights bodies started to consider the extent to which arbitral tribunals are bound by the imperatives of IHRL.  The intersection is most problematic because private parties may be able to evade the application of IHRL through the mechanism of private arbitration. Parties could violate human rights  but then submit their disputes to alternative, private and confidential dispute resolution mechanisms, such as arbitration, instead of national courts, where the IHRL obligations of States are supposed to be upheld. Such a result could hardly be reconciled with the universal, all-encompassing, and all-pervasive nature of IHRL.  After all, if even the military cannot escape the application of IHRL, including in wartime,  why would private parties be allowed to insulate themselves from IHRL through arbitration?

Moreover, as this article will discuss, different arbitration panels can act inconsistently and unpredictably in respect of questions as to the applicability of IHRL. There are, therefore, specific reasons as to why the use of arbitration should not be permitted as a mechanism to escape the reach of IHRL.