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

HEADNOTE

In sports-related arbitration concerning disciplinary sanctions imposed on a professional athlete by a private association, a waiver of the right to bring setting aside proceedings against future arbitral awards by a player and member of the association (an exclusion agreement) is not valid even if it is express.

The parties’ right to present their case is breached where an arbitrator fails to satisfy his minimum duty to consider allegations, arguments, or evidence that were essential in order for an award to be made. There is no duty on an arbitrator to examine each and every point raised by the parties in their pleadings.

SUMMARY OF THE DECISION

Professional tennis player X. tested positive for a prohibited substance and was suspended for two years by the Anti-doping Tribunal of the Association of Tennis Professionals (ATP). X. appealed the decision to a Court of Arbitration for Sport (CAS) panel, which affirmed the decision in part, reducing the length of the suspension to 15 months. X. then filed this application to set aside against the decision of the CAS panel, claiming that the CAS panel’s award breached his right to present his case and was contrary to procedural public policy. The ATP objected that the application to set aside was inadmissible on the basis that X. had signed an express declaration waiving setting aside proceedings against any award made by an arbitral tribunal. According to article 192 FPILA, such waivers were admissible. Alternatively, the ATP argued that if the setting aside proceedings were admissible, then the CAS panel’s award was to be considered inconsistent with articles 190(2)(d) or (e) FPILA.