Forced Arbitration and Regulatory Power in International Sport - Implications of the Judgment of the European Court of Human Rights in Pechstein and Mutu v Switzerland

41 Pages Posted: 10 Dec 2020 Last revised: 7 Jan 2021

Date Written: August 4, 2020

Abstract

This article presents a challenge to the conventional consent and contract-based conception of regulatory power in international sport. It presents this challenge by considering the implications of the judgment of the European Court of Human Rights in Pechstein and Mutu v Switzerland. That case involved the unusual, if not unique non-consensual, transnational, ‘arbitral’ jurisdiction of the Court of Arbitration for Sport (‘CAS’). While CAS has celebrated the judgment as having approved its ‘forced’ jurisdiction, this article contends that the position is not so straight forward. It is argued that the recognition by the ECtHR that international sports arbitration is non-consensual or ‘forced’ entails more than merely the compulsion of arbitration as a form of dispute settlement in lieu of a right to access to litigation in a state court. In conflict with the conventional conception of regulatory power in international sport, the judgment also entails recognition that the unilaterally determined, private, transnational regulatory regimes of international sports governing bodies are also forced. The consequences of this are neither recognised nor justified by the court and it is contended that the legal reasoning adopted to justify the imposition of arbitration in international sport is inadequate to justify the de facto power of international sports governing bodies. Serious questions therefore arise about the legality of the de facto power of international sports federations and the enforcement of this power by CAS. This issue is important because the ultimate result of the exercise of regulatory power in international sport is the non-consensual determination of substantive rights of individuals by private, transnational bodies that do not exercise any delegated state authority, and which lack any comparable or satisfactory foundation of legitimacy.

Keywords: Forced arbitration, regulatory power, international sport, human rights, Court of Arbitration for Sport, jurisdiction

JEL Classification: K29, K39, K49, Z22

Suggested Citation

Freeburn, Lloyd, Forced Arbitration and Regulatory Power in International Sport - Implications of the Judgment of the European Court of Human Rights in Pechstein and Mutu v Switzerland (August 4, 2020). Available at SSRN: https://ssrn.com/abstract=3706476 or http://dx.doi.org/10.2139/ssrn.3706476

Lloyd Freeburn (Contact Author)

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

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