THE AUTHOR:
Tatevik S. Karapetyan, PhD, Director of Resolve Academy
Meline Nurijanyan, Founder of Resolve Academy
Introduction
International sports arbitration has developed into one of the most distinctive forms of transnational dispute resolution, which reflects a unique governance structure of modern sport. It operates within a regulatory ecosystem shaped by international federations, athlete eligibility rules, anti-doping regimes, disciplinary procedures, and principles of sporting fairness. The emergence of specialised arbitral institutions, most notably the Court of Arbitration for Sport (“CAS”), has transformed sports disputes into a field where private adjudication interacts with public regulatory concerns and fundamental rights.
A comparative examination of sports arbitration frameworks reveals significant differences in institutional design, procedural guarantees, and approaches towards judicial review. While the CAS model has become the dominant global mechanism for resolving international sporting disputes, other jurisdictions have developed alternative approaches that place greater emphasis on national courts, constitutional safeguards, and supranational legal control.
The European experience illustrates the growing tension between the autonomy of sports organisations and the requirement that arbitration mechanisms comply with broader principles of due process, independence, and effective judicial protection.
The debate concerns a fundamental question of legal architecture: whether sports arbitration represents a genuinely autonomous transnational legal order (lex sportiva) or whether its authority must remain embedded within national and international legal frameworks. Recent decisions of European courts have intensified this discussion by examining whether CAS procedures satisfy standards of impartiality and judicial review, particularly where arbitral decisions affect athletes’ fundamental rights and professional livelihoods.
This article provides a comparative analysis of major sports arbitration frameworks, focusing on the CAS system, national arbitration models, and European approaches to judicial oversight. It explores how different legal systems balance three competing objectives: preserving the autonomy and global uniformity of sports governance, ensuring procedural legitimacy, and protecting individual rights. The analysis argues that the future development of sports arbitration will depend on establishing a hybrid model of governance: one that recognises the specialised expertise of arbitral bodies while accepting that transnational sports justice cannot operate entirely outside the reach of legal accountability.
Discussion
Lex sportiva, similar to the historical evolution of lex mercatoria, reflects the capacity of arbitration to generate legal principles that operate across national boundaries and provide coherence within a fragmented regulatory environment. As James A.R. Nafziger argues, international sports law has developed into a distinctive body of rules, principles, institutions, and procedures governing transnational sporting activity (See, J. Nafziger, ‘Lex Sportiva in the Court of Arbitration for Sport 1984–2004’, T.M.C. Asser Press, 2006).
The concept of lex sportiva is closely associated with the jurisprudence of CAS, whose awards have progressively contributed to the creation of a framework for resolving international sports disputes. Although CAS decisions do not formally constitute binding precedent, the institution’s authority has enabled the gradual consolidation of consistent interpretative approaches. Through repeated adjudication, CAS panels have developed principles concerning proportionality of sanctions, procedural fairness, legitimate expectations, good faith, equality of treatment, and the harmonisation of sporting standards. These principles function as a form of transnational legal reasoning that allows sports disputes to be resolved according to norms that transcend individual domestic legal systems.
The analogy with lex mercatoria is particularly significant. Both legal orders developed from the practical needs of transnational communities requiring predictable dispute resolution mechanisms beyond traditional state-based law. In international commerce, arbitral tribunals contributed to the development of autonomous commercial principles through repeated application and interpretation of contractual practices. Similarly, sports arbitration has transformed regulatory texts adopted by international federations into a more coherent body of legal principles. Accordingly, CAS does not only apply sports regulations, but it participates in shaping their meaning and establishing the foundations of a global sports jurisprudence. Lorenzo Casini describes this process as the “making” of lex sportiva, where CAS contributes to the construction of global sports law through adjudication and interpretation (See, L. Casini, ‘The Making of a Lex Sportiva by the Court of Arbitration for Sport’, German Law Journal 20 (2019)).
However, the comparison with lex mercatoria should not obscure a fundamental distinction between the two systems. While lex mercatoria primarily developed from commercial practices and the autonomous choices of private parties engaged in international trade, lex sportiva originates largely from regulatory frameworks created by sports governing bodies themselves. International federations, such as those responsible for Olympic sports and international competitions, establish rules concerning eligibility, discipline, anti-doping, and competition structures. CAS panels subsequently interpret and apply these privately created norms. This creates a unique legitimacy dilemma: the same institutional actors that formulate the rules of global sport also determine, directly or indirectly, the framework within which disputes concerning those rules are adjudicated.
According to Ken Foster, lex sportiva should not be understood as a fully autonomous legal system in the traditional sense but rather as a process through which general legal principles are applied to sporting disputes. He identifies several interconnected functions of lex sportiva in CAS jurisprudence, including the harmonisation of standards among international federations, protection of procedural fairness, promotion of good governance, and application of equitable principles (See, K. Foster, ‘Lex Sportiva and Lex Ludica: The Court of Arbitration for Sport’s Jurisprudence’, Entertainment and Sports Law Journal 3 (2) (2005)).
This regulatory structure distinguishes lex sportiva from other forms of transnational law and raises fundamental questions regarding democratic legitimacy, accountability, and judicial oversight. The challenge is not whether sports arbitration has successfully created a transnational legal framework, but whether such a framework can maintain legitimacy when its foundational norms originate primarily from private organisations with limited external democratic control. The future of lex sportiva therefore depends on reconciling two competing objectives: preserving the autonomy and expertise of sports governance while ensuring that transnational sports justice remains consistent with broader principles of fairness, transparency, and fundamental rights.
From Party Autonomy to Regulatory Arbitration
The conventional understanding of arbitration is deeply rooted in the principle of party autonomy. International commercial arbitration derives its legitimacy from the voluntary agreement of private actors who consciously choose to remove their disputes from national courts and submit them to a neutral adjudicatory mechanism. Sports arbitration challenges this traditional paradigm. Its underlying logic is fundamentally different, although it employs the language, procedures, and institutional architecture of arbitration. International sports arbitration frequently operates not as an expression of negotiated consent but as a mechanism of regulatory governance. Athletes, clubs, and other participants often access international competitions only by accepting the rules imposed by sports governing bodies, including mandatory arbitration clauses referring disputes exclusively to CAS. Consequently, sports arbitration represents a hybrid form of dispute resolution: formally private and contractual, yet functionally regulatory and quasi-public.
CAS jurisprudence has gradually transformed fragmented sporting regulations into a coherent body of principles concerning proportionality, procedural fairness, good faith, legitimate expectations, and equal treatment. The contrast between commercial arbitration and sports arbitration can therefore be understood through five fundamental differences.
Consent: Negotiated Choice versus Regulatory Necessity
In commercial arbitration, consent is usually explicit, negotiated, and reciprocal. The legitimacy of arbitration rests on the assumption that parties have voluntarily transferred adjudicatory authority from domestic courts to a private tribunal.
In sports arbitration, the athlete’s “consent” is frequently embedded within registration forms, participation agreements, licensing requirements, or federation statutes. While these instruments technically constitute contractual acceptance, the practical reality is that athletes rarely possess meaningful bargaining power. Refusal to accept arbitration clauses may effectively exclude them from professional competition.
The decision of the European Court of Human Rights in Mutu and Pechstein v. Switzerland (Applications Nos. 40575/10 and 67474/10, Judgment of the European Court of Human Rights, 2 October 2018), illustrates this tension. The Court recognised that sports arbitration may involve situations where participation requires acceptance of arbitration, particularly in professional sport where athletes have limited practical alternatives. However, it concluded that compulsory arbitration is not incompatible with Article 6 of the European Convention on Human Rights (“ECHR”) provided sufficient guarantees of independence and impartiality exist.
The importance of this distinction is that consent in sports arbitration cannot be assessed exclusively through formal contractual analysis. A more substantive approach is required, examining whether athletes possess genuine autonomy or merely accept arbitration as a condition of participation within a regulatory hierarchy.
Equality of Parties: Commercial Symmetry versus Institutional Asymmetry
International commercial arbitration generally assumes that parties operate on relatively equal legal footing. Even where economic differences exist, commercial actors are presumed capable of protecting their interests through negotiation and legal representation.
Sports arbitration frequently involves a different relationship: the athlete or club versus an international federation exercising regulatory authority. Sports organisations define eligibility criteria, establish disciplinary procedures, impose sanctions, and determine access to competitions. The relationship therefore resembles administrative regulation more than a conventional contractual dispute.
As Lorenzo Casini argues, the development of lex sportiva reflects the constitutional features of global sports governance, where private organisations exercise functions traditionally associated with public authorities. CAS does not merely resolve individual disputes; it contributes to maintaining coherence within a global regulatory system.
This institutional imbalance explains why procedural guarantees assume greater importance in sports arbitration. The question is not only whether the arbitrators are independent but whether the entire dispute-resolution structure provides adequate protection for participants subject to regulatory power.
Institutional Choice: Freedom of Selection Versus Exclusive Jurisdiction
A defining characteristic of commercial arbitration is the freedom of parties to choose the arbitral institution that best reflects their preferences. Parties may select the ICC, LCIA, SIAC, or other institutions depending on their commercial objectives.
In sports arbitration, a different model is followed: CAS jurisdiction is frequently established through federation regulations, leaving athletes with little ability to choose another arbitral forum. This concentration of jurisdiction has significant advantages: it promotes consistency, expertise, and the development of a uniform transnational sports jurisprudence. However, it also creates concerns regarding neutrality and institutional dependency.
The debate surrounding CAS independence reflects precisely this tension. Critics argue that because sports governing bodies historically influenced the creation and financing of CAS, additional safeguards are necessary to ensure structural independence. Recent scholarship continues to examine whether CAS satisfies the standards of institutional separation required for a legitimate transnational adjudicatory body.
The issue is therefore not whether specialised arbitration is desirable, but whether a single dominant institution exercising global authority requires stronger constitutional safeguards.
Enforcement: New York Convention versus Regulatory Compliance
Commercial arbitration derives much of its legitimacy from the international enforcement regime created by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the “New York Convention”). The enforceability of arbitral awards across jurisdictions provides arbitration with commercial certainty and makes it attractive to international businesses.
Sports arbitration operates within a different enforcement ecosystem. CAS awards are not primarily effective because of state-backed enforcement mechanisms; rather, they are reinforced through the regulatory authority of sports organisations. A suspension, eligibility decision, or disciplinary sanction becomes effective because federations control access to competitions, rankings, and professional participation.
In Mutu v. Chelsea Football Club (CAS 2008/A/1644), the FIFA Dispute Resolution Chamber awarded Chelsea approximately €17.17 million plus interest against Adrian Mutu. Mutu appealed to CAS, which upheld the decision in its Award of 31 July 2009. He subsequently challenged the award before the Swiss Federal Supreme Court (Decision 4A_458/2009) unsuccessfully. Chelsea then applied to the US District Court for recognition and enforcement under the New York Convention. The court stated that an international arbitral award is generally to be enforced unless one of the Convention defences is established (No. 10-24028-CIV-MORENO, 13 February 2012).
This creates a distinctive form of transnational authority. The effectiveness of lex sportiva depends less on national enforcement and more on institutional compliance within the sporting community. The result is a legal order that resembles global administrative governance rather than traditional private arbitration.
Procedural Fairness: Private Justice versus Transnational Governance
The different foundations of commercial and sports arbitration inevitably influence the interpretation of procedural principles. In commercial arbitration, fairness primarily concerns equal opportunity between autonomous parties. In sports arbitration, fairness must address the relationship between individuals and powerful regulatory organisations.
Consequently, concepts such as neutrality, independence, and due process require contextual analysis. The question is not simply whether arbitrators are personally impartial but whether the institutional structure protects participants from regulatory dominance.
The continuing judicial scrutiny of CAS demonstrates this evolution. European courts have increasingly examined sports arbitration through the lens of fundamental rights rather than purely contractual autonomy. The debate has moved from “whether arbitration exists” to “whether arbitration exercising regulatory power satisfies constitutional standards”.
In RFC Seraing v. FIFA, Judgment of the Grand Chamber of the Court of Justice of the European Union, Case C-600/23, 1 August 2025, the dispute concerned FIFA’s third-party ownership rules and a CAS award that had been upheld by the Swiss Federal Supreme Court. The CJEU observed that CAS arbitration is imposed on clubs and players rather than freely chosen. It also stated that arbitration cannot deprive individuals of the protection guaranteed by EU law. Member State courts must be able to conduct an effective and sufficiently intensive review of CAS awards where EU public policy/fundamental EU-law rules are concerned, and national procedural rules, including those on res judicata, cannot preclude such review.
Towards a Distinct Legitimacy Theory for Sports Arbitration
The comparison between commercial arbitration and sports arbitration demonstrates that they share procedural similarities but rest upon fundamentally different legal philosophies. Unlike commercial arbitration, which is based on autonomy, negotiation, and voluntary delegation of adjudicatory authority, sports arbitration is based on regulatory necessity, institutional hierarchy, and the need for uniform governance of global sport.
Accordingly, the legitimacy of lex sportiva cannot be measured exclusively through the traditional standards of commercial arbitration. The central challenge for sports arbitration is not merely preserving efficiency and expertise but ensuring that a privately created transnational legal order remains accountable, transparent, and compatible with fundamental legal principles.
The future of sports arbitration therefore lies neither in complete autonomy from state and supranational law nor in excessive judicial intervention. Instead, legitimacy will depend on developing a constitutional model of lex sportiva: one that preserves the advantages of specialised arbitration while recognising that global sports governance exercises regulatory power affecting individual rights.
Conclusion
The future of sports arbitration will not be determined by choosing between two opposing visions: complete autonomy of lex sportiva or unrestricted intervention by national and supranational courts. The emergence of lex sportiva represents one of the most remarkable examples of transnational legal development. Through decades of arbitral practice, sports arbitration has demonstrated that law can be created beyond the traditional boundaries of the state. CAS jurisprudence has transformed fragmented sporting regulations into a coherent body of principles, thus providing predictability and stability to a global community of athletes, federations, and sporting institutions.
However, the comparison with commercial arbitration also reveals the fundamental vulnerability of lex sportiva. Unlike commercial arbitration, where legitimacy originates primarily from negotiated consent between autonomous parties, sports arbitration often derives its authority from regulatory structures imposed by governing bodies. The athlete does not usually negotiate the arbitral clause, select the institution, or shape the rules under which disputes will be resolved. Consent exists, but frequently as a condition of participation rather than as an expression of equal bargaining power. This difference changes the entire legitimacy equation. The central question for the future of sports arbitration is how it should justify its authority.
The growing involvement of European courts should not be interpreted as an attack on the autonomy of sport, but it reflects a broader constitutional transformation of transnational governance: private regulatory systems exercising public-like functions are increasingly expected to demonstrate accountability.
The future model of lex sportiva should therefore be understood as constitutionalised autonomy. Sports organisations must retain sufficient independence to preserve the unique characteristics of sport, including competitive fairness, global uniformity, and specialised expertise. At the same time, autonomy must operate within a framework of procedural justice, transparency, and respect for fundamental rights. The legitimacy of sports arbitration will not come from escaping external legal scrutiny, but from demonstrating that internal mechanisms can meet universal standards of fairness.
