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# The specificity of arbitrating sports-related disputes

Marc Peltier

► To cite this version:

Marc Peltier. The specificity of arbitrating sports-related disputes. International Journal of Arab Arbitration, 2013, 2, pp.3. hal-05019641

HAL Id: hal-05019641

https://hal.science/hal-05019641v1

Submitted on 3 Apr 2025

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Tunisian National Committee of Arbitration for Sport, Sports Tribunal, case n° 96/2012, 12 March 2012, *Club Sportif Sfaxien vs Player Ch. Dh., Tunisian Football Federation, Club Sportif Hammam Lif & Etoile Sportive du Sahel*.

1.- The arbitration of sports-related disputes should develop in Arab countries with the imminent opening of an alternative hearing centre for the Court of Arbitration for Sport hosted by the Cairo Regional Centre for International Commercial Arbitration. The arbitral award issued by the Tunisian National Committee of Arbitration for Sport in a dispute opposing the Tunisian Football Federation, a football player and three Tunisian football clubs is a typical example of the characteristics of sports litigation.

2.- Like other countries, such as France, Belgium or Italy, Tunisia has its own national sports-related disputes arbitration centre created in 2010 by the Tunisian National Olympic Committee: the National Committee of Arbitration for Sport. The organisation of this arbitration centre is mostly based on the model of the Court of Arbitration for Sport (CAS). Two bodies have been created within the National Committee of Arbitration for Sport in order to settle sports-related disputes through arbitration: the Council of Arbitration for Sport and the Sports Tribunal. The Council of Arbitration for Sport is responsible for the administration and financing of the arbitration centre, adopts and amends the applicable procedural rules, appoints the arbitrators... The Sports Tribunal, like CAS, has the responsibility to resolve disputes arising in the context of sport by arbitration.

3.- In the commented case, the player had signed a first contract of employment with a first Tunisian football club to run from 15 January 2008 to 30 July 2012. On 14 July 2011, the player informed the club by writing that he intended to terminate the contract. Without notice, he signed on 15 July 2011 a second contract of employment with a second Tunisian football club to run from 1 August 2011 to 30 June 2015. Three days later, on 18 July 2011, the same player signed a third contract of employment with the first Tunisian football club to run from 1 July 2011 to 30 June 2014¹...

4.- The issue of the dispute is to determine if the player should be qualified to play for the first club or the second club. The Board of the Tunisian Football Federation decided that the third contract of employment should be implemented and imposed a sanction on the football player of a three-month suspension. The second Tunisian football club lodged an appeal against that decision before the National Committee of Arbitration for Sport.

5.- As far as sports litigation is concerned, it is noteworthy that ordinary arbitration procedures are a minor part of the activity of sports arbitration centres. The major part of their activity consists in resolving disputes resulting from decisions taken by the internal bodies of sports organisations through an appeal arbitration procedure<fnref n="2" />. The commented arbitral award

<footnote n="1">¹ In order to draw a complete picture of the contractual issues, the player was finally transfered on 22 December 2011 from the first Tunisian football club to a third Tunisian football club.</footnote>

<footnote n="2">² In 2011, 365 cases were submitted to the Court of Arbitration for Sport, of which 71 were ordinary arbitration procedures and 294 were appeal arbitration procedure.</footnote>
underlines the importance of procedural issues<fnref n="3" />, especially with regard to the assessment by
the panel of its own jurisdiction (1) and its choice of the applicable law (2)<fnref n="4" />.

1 – Assessment of the jurisdiction of the panel

6.- According to the arbitral award, the jurisdiction of the National Committee of Arbitration for Sport derives from a text, an article of the Tunisian Football Federation Statutes, but also from the behaviour of the parties.

7.- As far as arbitration proceedings are concerned, the source of the jurisdiction is usually an arbitration clause or an arbitration submission agreement. This distinction is made in the Tunisian Arbitration Code. Article 3 of the Tunisian Arbitration Code defines an arbitration clause as the undertaking by a party to a contract to refer to arbitration the disputes which might arise from this contract. Article 4 of the Tunisian Arbitration Code defines an arbitration submission agreement as an undertaking by virtue of which the parties to a dispute that has already arisen refer this dispute to an arbitral tribunal.

8.- In this specific case, the jurisdiction of the arbitration centre is based, as is often the case in sports-related disputes, on the regulations of a sport governing body, the Tunisian Football Federation statutes. Article 56 of the Tunisian Football Federation Statutes provides: "Any decision taken by the Appeal National Commission may be disputed before the National Committee of Arbitration for Sport as provided by the Tunisian Olympic Committee statutes". Article 56 of the Tunisian Football Federation Statutes is completed by a binding obligation on its members. "The Tunisian Football Federation, the members, the match agents and players agree (...) to comply with the final decisions passed by the National Committee of Arbitration for Sports".

9.- This text is in full compliance with Article 68 of the International Football Federation (FIFA) statutes which provides that "recourse to ordinary courts of law is prohibited unless specifically provided for in the FIFA regulations. Recourse to ordinary courts of law for all types of provisional measures is also prohibited. The Associations shall insert a clause in their statutes or regulations, stipulating that it is prohibited to take disputes in the Association or disputes affecting Leagues, members of Leagues, clubs, members of clubs, Players, Officials and other Association Officials to ordinary courts of law, unless the FIFA regulations or binding legal provisions specifically provide for or stipulate recourse to

<footnote n="3">³ As far as the procedure is concerned, three preliminary hearings were necessary before all the parties were authorised to develop their oral arguments. During the first hearing, the panel failed to resolve the dispute by conciliation.</footnote>

<footnote n="4">⁴ As far as the constitution of the panel is concerned, Article 9 of the applicable Procedural rules provides that the claimant and the respondent, in this case the Tunisian Football Federation, nominate one arbitrator each. The President of the National Committee of Arbitration for Sports appoints the president of the panel. In this case, two other Tunisian football clubs intended to participate as parties to the arbitration but they waived a right to nominate one arbitrator and agreed on the constitution of the panel by the main parties and the president of the National Committee of Arbitration for Sports.</footnote>

<footnote>A third party is not authorised to raise a specific claim but only to support the claims raised by the main parties.</footnote>
ordinary courts of law. Instead of recourse to ordinary courts of law, provision shall be made
for arbitration. Such disputes shall be taken to an independent and duly constituted arbitration
tribunal recognised under the rules of the Association or Confederation or to CAS".

10.- The use of Article 56 of the Tunisian Football Federation statutes to justify the
jurisdiction of the arbitration centre requires additional comments.

11.- First, it has to be underlined that, in this case, the disputed decision was not issued by the Appeal National Commission of the Tunisian Football Federation, but by the Board of the Tunisian Football Federation. Although the dispute was originally a disciplinary action before the Tunisian Football Federation, the Board decided to take up the case on its own initiative on the basis of Article 35 of the Tunisian Football Federation statutes. An important condition of Article 56 is not met as the contested decision was not taken by the Appeal National Commission. The arbitral award does not develop any reasoning on the application of this text when the Board of the Tunisian Football Federation stands in for the Appeal National Commission.

12.- Second, the textual basis of the jurisdiction of the arbitration centre are the statutes of an association of which the football player is not a direct member. Under the terms of Article 10 of its statutes, the members of the Tunisian Football Federation are corporate bodies, i.e. clubs. The football player, who is an employee of a club, should not directly be bound by the statutes of an association of which he is not a member. It would be like extending an arbitration clause to a third party that did not sign the original contract<fnref n="5" />. Indirectly, athletes usually become bound by such statutes when signing an employment contract or filling a licence or registration form where they abide by the rules of the sport governing body which organises the competition.

13.- Sports related disputes are a fertile ground for discussions on the validity of
arbitration agreements by reference. Athletes could challenge the arbitration agreement by
invoking the fact that they did not freely consent to it. However, the Swiss Federal Tribunal,
which rules on the appeals lodged against CAS arbitral awards, applies a pro-arbitration
approach when ascertaining whether there was consent to arbitrate. The liberal approach of
the Swiss Federal Tribunal on the consent issue aims at favouring a quick resolution of
disputes by specialised tribunals like the CAS that present sufficient guarantees of
independence and impartiality<fnref n="6" />. This is the same liberal approach which seems to have guided
the arbitrators in this award (paragraph 2 of the award).

14.- This approach also relies on the basis of the principles of good faith where the
behaviour of parties must be taken into account. In paragraph 3 of the commented award, the
Panel insists on the fact that the jurisdiction of the Tunisian National Committee of

<footnote n="5">⁵ J. El-Ahdab, The arbitration clause and third parties, Doctorate in law, University of Paris I Panthéon-Sorbonne, 2003.</footnote>

<footnote n="6">⁶ Swiss federal tribunal, 20 January 2010, 4A_548/2009.</footnote>
Arbitration for Sport has not been disputed by the defendants. Parties that take part in arbitration but fail to raise a jurisdiction issue when they may have been entitled to do so, risk losing the right to object. It would be incompatible with the principles of good faith that one party which concretely and effectively participates in the arbitral procedure would then be entitled to challenge the jurisdiction of the arbitration centre on the basis of its absence of consent to arbitration<sup>7</sup>.

## 2 – The choice of the applicable law

15.- No point is made in the arbitral award on the applicable law. In so far as the dispute only opposes Tunisian parties, the application of Tunisian law should seem appropriate. Yet, it seemed to have been the will of the panel to develop a reasoning which would not be bound by Tunisian law only. Such a reasoning is also often developed in the awards issued by the CAS: applicable sports regulations have primacy over national laws which should only apply complementarily<sup>8</sup>.

16.- As far as football international transfers are concerned, Article 25.6 of the FIFA Regulations on the Status and Transfer of Players provides that “the Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge (as the case may be) shall, when taking their decisions, apply these regulations whilst taking into account all relevant arrangements, laws and/or collective bargaining agreements that exist at national level, as well as the specificity of sport”. This text clearly means that transnational rules issued by FIFA are applicable while national laws should only be taken into account.

17.- In this specific case, the arbitral award not only makes reference to Tunisian law (mainly the international private law, labour and contract codes), but it also cites the European Court of Justice case law, especially to the *Bosman* case<sup>9</sup> (paragraph 34 of the award) and Article 18 of the FIFA Regulations on the Status and Transfer of Players (paragraph 42 of the award). Yet, the award does not explain why this text would be applicable to the case. As a general rule, the transfer of players between clubs belonging to the same national football federation is governed by specific regulations issued by the national federation concerned. Yet, Article 18 of the FIFA Regulations on the Status and Transfer of Players are binding at national level and must be included without modification in the association’s regulations. Article 18 of the FIFA Regulations on the Status and Transfer of Players should thus not be directly applicable to the case, but indirectly through a transposition into national federation rules.

18.- Finally, the commented award refers to fundamental principles (paragraph 35 of the award), principles of sports law, such as the specificity of sport as it is mentioned in the FIFA- and Tunisian Football Federation- statutes (paragraph 38 of the award). In the name of

<footnote n="7"><sup>7</sup> Swiss federal tribunal, 20 January 2010, 4A_548/2009.</footnote>

<footnote n="8"><sup>8</sup> CAS, 2010/A/2071, IFA vs FAI, Kearns & FIFA, 27 september 2010, § 32.</footnote>

<footnote n="9"><sup>9</sup> ECJ, case n° C-415/93, Union Royale Belge des sociétés de football association ASBL, Royal Club Liégeois SA, UEFA vs Bosman: European Court Reports 1995, p. I-4921.</footnote>
flexibility. This is why the parties may raise new claims which had not been contained in the request for arbitration or in the answer to the request<fnref n="15" />.

24.- Yet, it is also the panel's view that the parties, especially the appellant, are not allowed to raise sudden and ill-timed claims at the latest stage of the procedure. The panel bases its reasoning on the principles of loyalty, straightforwardness and transparency, namely estoppel (paragraph 12 of the award). The doctrine providing that where the conduct of one party has induced legitimate expectations in another party, the first party is estopped from changing its course of action to the detriment of the second party is recognised by sports arbitration centres, such as CAS<fnref n="16" />, defining it as a general principle of law "firmly established in common law and known in other legal systems even though under a different heading (e.g. reliance in good faith, venire contra factum proprium) [...] that arises when one makes a statement or admission that induces another person to believe something and that results in that person's reasonable and detrimental reliance on the belief"<fnref n="17" />.

[...]. By accepting the entries for the two athletes for both Slalom and Giant Slalom, SLOC induced them to prepare and train for both disciplines for which they were properly entered. To exclude them from competing in these two disciplines at this late stage would be unfair and contrary to the above doctrine of estoppel".

25.- Furthermore, the panel stresses that this procedure is an appeal against a decision where it has full power to review the facts and the law. A general principle of "immutability of the case" applies to such a procedure. New claims and new evidence should only be admitted under exceptional circumstances (paragraph 14 of the award).

26.- The award makes reference to Tunisian law, transnational sports rules, FIFA rules, national sports rules, Tunisian Football Federation rules... and finally decides on equity. According to Article 14 of the Tunisian Code of Arbitration, "the parties may authorise the panel to decide ex aequo et bono"<fnref n="18" />. Yet, the arbitral award does not mention if the parties really entrusted the panel with the mission of arbitrators in equity.

27.- Yet, settling an appeal case ex aequo et bono might surprise. As far as CAS is concerned, if Article R45 of the Code of sports-related arbitration, i.e. the procedural rules applicable before CAS, provides that the parties may authorise the Panel to decide ex aequo et bono, it is only in the frame of the ordinary arbitration procedure. As far as the appeal arbitration procedure is concerned, no reference is made to the possibility of deciding the disputes in equity.

<footnote n="15">15 The parties are sometimes able to submit further observations after the examination of witnesses or even after the final hearing: Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International, 1999, p. 691.</footnote>

<footnote n="16">16 CAS, 2008/O/1455, Boxing Australia vs AIBA, 16 April 2008. § 16.</footnote>

<footnote n="17">17 CAS, ad hoc Division (OG Salt Lake City) 02/006, New Zealand Olympic Committee (NZOC) / The Salt Lake Organizing Committee for the Olympic Winter Games of 2002 (SLOC), award of 20 February 2002, § 18.</footnote>

<footnote n="18">18 Abd Al-Hamid Ahdab, Jalal El-Ahdab, Arbitration with the Arab countries: Kluwer Law International, 2011. TN-160, p. 758:</footnote>
28.- As far as the possibility to appeal an award made by arbitrators in equity is concerned, it is obvious of the control by a state court would not be an easy task<fnref n="19" />. However, according to Article 8.6 of the Tunisian National Olympic Committee statutes, awards passed at a national level by the Tunisian National Committee of Arbitration for Sport are final and binding<fnref n="20" />.

Marc Peltier

Senior lecturer - University of Nice Sophia-Antipolis (France)

Director of the sports law centre.

peltier@unice.fr

<footnote n="19">¹⁹ Tunisian Court of Cassation, ruling n° 99-73538, 23 February 2000 : Rev. arbitrage 2001, p. 597, commented by A. Ouerfelli.</footnote>

<footnote n="20">²⁰ The award finally refers to Article 67.3 of the FIFA statutes which provides that the Court of Arbitration for Sport does not deal with appeals arising from decisions against which an appeal to an independent and duly constituted arbitration tribunal recognised under the rules of an Association or Confederation may be made.</footnote>