Arbitration hearings in sport are too secretive — that was the thrust of a recent article in The Times, and there is certainly some weight to that argument.
But analysis of the issue of secrecy needs to be broken down a little further. The criticism in that article was that it is wrong for sports arbitration’s processes and decisions to be confidential to the parties.
Arbitration is a tried and tested dispute resolution system that operates outside of national courts, but whose judgments or awards are enforceable through those courts. Arbitration has existed in one form or another for more than 200 years and is commonly used to settle commercial and other disputes.
Many countries promote their own arbitration systems and their courts, including those in England, take a pro-arbitration stance when it comes to enforcing awards and other support mechanisms. A key feature of arbitration in some, but not all, jurisdictions is that the process and the award is confidential to the parties. That is uncontroversial for a commercial dispute, including a sports dispute about, for example, the terms of a sponsorship contract.
And there is a specific arbitration body — the Court of Arbitration for Sport (CAS), based in Switzerland — that deals with both underlying disputes and appeals from the decisions of many national sporting bodies around the world.
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Most arbitration hearings and awards are confidential to the parties. However, there is a move to publicise disciplinary and ethical decisions in regulated professions including in sport. The allegations of racism at Yorkshire County Cricket Club, for example, were widely publicised this year and the decision of the England and Wales Cricket Board disciplinary commission is a matter of public record.
In fact, both the Football Association Premier League and the English Football League have procedures for publicising their own awards that are considered to be of general importance to participants. The CAS website also publishes awards that the parties agree to be publicised.
The publication of these types of arbitration awards occurs because regulatory bodies exist to some extent to protect the public and so it is important that decisions that have wider implications or may set a precedent are made public. Disciplinary decisions against football agents made by the FA regulatory commission are made public on the Football Association website.
It is important not to demonise arbitration awards simply for being confidential. The parties agreed to this process when they contracted with each other at the outset of their relationship.
However, a combination of supervision of the arbitration process by national courts and the publicising of disciplinary awards means that arbitration is a suitable process for dealing with disputes in sport.
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Mark Buckley is a partner at the law firm Fladgate
