Mandatory arbitration as a possible future for sports arbitration: the Portuguese example
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ORIGINAL PAPER
Mandatory arbitration as a possible future for sports arbitration: the Portuguese example Artur Flamínio da Silva1 · Daniela Mirante1
© T.M.C. Asser Instituut 2020
Abstract Arbitration of sports conflicts is not an unknown ground in the international sports law field. Nowadays, CAS’ is an important actor and its relevance cannot be denied. Nevertheless, there are still multiple lessons to be taken in what concerns the best configuration of an arbitral option for the resolution of sports conflicts. The criticism that surrounds CAS’ is proof of the need to evolve. In this context, the Portuguese Court of Arbitration for Sport and its mandatory arbitration configuration can help to shed some light in these matters. With this article, we aim to proceed to an analysis of the Portuguese CAS’ in order to explore the major difficulties related to mandatory arbitration, in order to ascertain if this can be an option for the future of the resolution of sports disputes. Keywords Sports law · Arbitration · Sports arbitration · Portuguese Court of Arbitration for Sport · Mandatory arbitration
1 Introduction Arbitration has consolidated its role as the main sports dispute resolution mechanism at international level. This consolidation process has been occurring since the creation of the Court of Arbitration for Sport (CAS), in 1984.1 One cannot deny CAS’ prominence as one of the world’s major arbitration centres. Nonetheless, this arbitral jurisdiction has been under major criticism, especially in what concerns its non-consensual basis. The stress point has been the consequences resulting from the lack of a voluntary adhesion of the weaker parties(athletes) to resort to CAS. A recent example to illustrate such scenario is the Claudia Pechstein case.2 With respect to the idea of consent as the cornerstone of arbitration and its absence in the sports conflicts’ field, there are diverse ways to frame the problem. We choose to depart
* Artur Flamínio da Silva [email protected] Daniela Mirante [email protected] 1
Centre on Law and Society of Nova Law School (FDUNL), Faculty of Law, Universidade Nova de Lisboa, Lisbon, Portugal
from the debate about the existence or absence of consent. Thus, we share the opinion of Kaufmann-Kohler and Peter: [o]ne may choose to cling to the dogma of consent and when no true and meaningful consent exists, rely on a fiction of consent. But if we merely preserve the appearance of consent, this justification for arbitration is no longer compelling. Indeed, it may be more accurate and intellectually honest to simply admit that arbitration without consent exists. Having made that admission, one can then investigate the requirements that have come to replace consent.3 However, the difficulties surrounding sports disputes’ arbitration go far beyond the issues regarding its consensual nature or the domain of CAS. Moreover, it is possible to 1
CAS’ success as a mechanism to handle sports disputes wasn’t immediate upon its establishment. As it happens, the first deca
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