Abstract

In China’s newly revised Sports Law regarding sports arbitration system provisions, there are three main issues: excessive restriction on sports arbitration case acceptance scope, incomplete internal dispute resolution mechanisms in sports organizations, and lack of parties’ freedom to choose sports dispute resolution mechanisms. First, combining the special nature of sports labor disputes and sports commercial disputes, it is recommended to expansively interpret the sports arbitration case acceptance scope to enable jurisdiction over these two types of cases. Second, it is recommended that sports associations improve relevant provisions on dispute handling mechanisms in their articles, establish internal dispute resolution mechanisms, and achieve effective coordination with litigation, arbitration, and other mechanisms. Finally, it is recommended to respect party autonomy in selecting arbitration institutions, allowing parties to independently determine jurisdictional institutions for sports property disputes according to arbitration agreements, to truly benefit the protection of sports dispute parties’ rights and interests.

Keywords: Sports Arbitration; Jurisdictional Scope; Industry Autonomy; Dispute Handling

Sports arbitration can be considered the application of the arbitration system in sports, referring to the process by which sports dispute parties resolve disputes through sports arbitration. Sports activities here refer to competitive sports activities. Sports arbitration is essentially a non-litigation dispute resolution system, with unparalleled advantages over ordinary dispute systems in terms of arbitral award timeliness, specialization, technicality, and effectiveness, making it the primary choice for international sports circles and countries with developed sports dispute resolution systems. China’s new Sports Law was revised in 2022, with the most prominent highlight being the addition of a special chapter on sports arbitration, changing the previous situation where sports arbitration lacked clear provisions to follow, which is of significant importance for sports dispute parties to safeguard their rights and interests. However, in the process of applying sports arbitration provisions to guide practice, some new issues have emerged, with the most important being disputes and reflections on jurisdictional scope and dispute handling mechanism coordination. This article analyzes and summarizes controversial issues in practice, and combines the nature of sports disputes themselves to explain and improve the sports arbitration system, striving to benefit the healthy development of sports.

I. Distinctive Characteristics of China’s Sports Arbitration System

A. Determination of Arbitrable Types by Sports Arbitration Committee

Article 92 of the new Sports Law provides: “Parties may apply for sports arbitration according to arbitration agreements, sports organization articles, and sports event rules for the following disputes: (1) Disputes arising from dissatisfaction with decisions made by sports social organizations, athlete management units, and sports event organizers regarding cancellation of qualification, cancellation of competition results, and bans according to anti-doping or other management regulations; (2) Disputes arising from athlete registration and transfer; (3) Other disputes occurring in competitive sports activities. Disputes arbitrable under the Arbitration Law and labor disputes under the Labor Dispute Mediation and Arbitration Law are not within the scope of sports arbitration.” This article adopts the legislative expression of “enumeration plus supplement plus exclusion,” clearly limiting the types of disputes within the sports arbitration scope.

According to the exclusion in Article 92, Paragraph 2, disputes arising from athlete registration and transfer should in principle be limited to disputes arising from management acts concerning determining athlete representative units and competition qualifications. Disputes arising from derivative contractual and other property disputes and labor disputes from athlete registration and transfer are not within the sports arbitration scope. Clearly distinguishing sports arbitration from labor arbitration is because the legislature has formed a systematic and mature handling mechanism for labor dispute arbitration, and applying labor arbitration is more helpful for effectively resolving disputes that are essentially labor disputes. This approach’s advantage is providing clear normative guidance for sports dispute resolution and avoiding mutual shirking between institutions. However, the drawback is equally clear: sports dispute types have their own special nature, making it difficult to fix them under a specific dispute resolution mechanism through classification. Excessive emphasis on mechanism non-crossing反而容易 make sports disputes无所适从.

The same restrictions from Article 92 of the Sports Law on case acceptance scope also apply to contract disputes and other property disputes between citizens, legal persons, and other organizations in the sports field. The Court of Arbitration for Sport (CAS) of Switzerland is the highest dispute resolution institution for sports disputes, and according to CAS relevant provisions, case acceptance types include any disputes directly or indirectly related to sports, commercial disputes (such as sponsorship contract disputes, player transfer disputes, employment contract disputes), and disciplinary disputes (anti-doping disputes, disciplinary disputes, competition qualification disputes), all may apply for arbitration. Compared with international arbitration provisions, China’s Sports Law imposes relatively strict restrictions on case acceptance scope, still requiring continuous expansion and improvement based on practical needs to achieve integration with international arbitration provisions.

B. Relationship Between Sports Arbitration and Litigation and Other Arbitration Mechanisms

In June 2023, the Supreme People’s Court released a batch of typical civil cases involving sports disputes, including not only substantive issues such as training institution security obligations, athlete labor relationship determination, sports event-related intellectual property protection, and unfair competition behavior determination, but also procedural issues such as behavior preservation measures and jurisdictional scope of sports arbitration and people’s courts, reflecting innovative joint governance of litigation source management. For sports dispute parties, sports arbitration and litigation mechanisms are parallel choices; where parties have not reached sports arbitration agreements, courts should not refuse to accept cases on grounds that disputes should be arbitrated by sports arbitration institutions. After parties choose sports arbitration, due to the “one arbitration award, final” effect of sports arbitration, parties cannot again choose litigation to resolve the same dispute. Sports arbitration and other arbitration mechanisms are mutually exclusive; labor disputes specified in Article 92, Paragraph 2 of the Sports Law are not within the sports arbitration scope but apply the “arbitration before litigation” system, where arbitration does not have “one arbitration, final” effect.

Due to sports disputes’ special nature, sports arbitration committee members better understand sports dispute cores and related issues; exploring cross-jurisdiction by various arbitration mechanisms for sports labor disputes is more helpful for leveraging sports arbitration’s professional characteristics, avoiding information gaps leading other arbitration mechanisms to unable to fairly and comprehensively handle issues in sports labor disputes, and also invisibly increasing other arbitration institutions’ arbitration burden. Additionally, although Article 97 of the Sports Law provides that after awards are issued, if parties apply again for sports arbitration or sue in people’s court regarding the same dispute, sports arbitration committees or courts shall not accept. However, this article does not clarify the “arbitration before litigation or arbitration or litigation” issue, which is also a source of issues causing few sports arbitration type cases in practice, and sports arbitration authority and professionalism are also damaged to a certain extent.

Finally, with the long-term absence of domestic sports arbitration institutions, parties in dispute resolution mostly choose international sports organization resolution institutions or CAS, especially among clubs introducing foreign aid—this has consistently been the case. The Sports Law’s clear division of arbitration mechanisms may not only create difficulties for single mechanisms to resolve issues but also is not conducive to expanding sports arbitration cases in domestic arbitration institutions.

II. Issues in China’s Sports Arbitration System

A. Excessive Restriction on Sports Arbitration Case Acceptance Scope

According to Article 92, Paragraph 2 of the Sports Law, disputes concerning athlete work contracts should belong to labor disputes, only able to apply for arbitration to labor dispute arbitration committees according to Article 5 of the Labor Dispute Mediation and Arbitration Law, and if dissatisfied with arbitration awards, may sue in people’s court. However, in practice, courts have not formed unified understandings on case jurisdiction for such disputes. In the labor dispute case of Shenyang Dongjin Football Club Co., Ltd. and Wang Mian, the first instance court held that although the contract between the parties was called a work contract, it was actually a labor contract, and disputes over owed wages belonged to labor disputes; if dissatisfied with labor dispute arbitration awards, parties may sue in people’s court. The second instance court held that such disputes should be arbitrated by the Chinese Football Association Arbitration Committee, excluding people’s court jurisdiction, conforming to football industry characteristics; professional football players and clubs belong to special labor relations, and according to the principle that special overrides general, courts should not have jurisdiction.

In typical sports field cases released by the Supreme People’s Court, Example 8 indicates that athletes holding wage IOUs may be handled as ordinary civil disputes. According to Article 15 of the Supreme People’s Court Interpretation (I) on Issues Concerning the Application of Laws in Trials of Labor Dispute Cases, if laborers directly sue with employer’s wage IOUs, and claims do not involve other labor dispute issues, arbitration is not required as a prerequisite procedure. Supporting athletes in seeking labor compensation through litigation can timely and effectively protect athlete labor rights and interests.

Sports disputes are disputes arising from sports-related activities where relevant parties have disputes over rights and obligations in sports. According to case nature, they can be divided into four types: contractual sports disputes, management sports disputes, technical sports disputes, and security sports disputes. Some views also categorize them into sports commercial disputes, sports labor disputes, sports organization disputes, and sports penalty disputes. Sports dispute type diversity not only demonstrates the extensiveness of disputed cases but also shows any sports dispute case has mixed attributes, making it difficult to unambiguously classify into one dispute type. Artificial type segmentation increases rights protection costs; athletes may need to apply to different arbitration institutions for the same dispute, causing judgment chaos. Due to football industry characteristics, work contracts between football players and clubs differ from ordinary labor contracts, such as special agreements on high liquidated damages and football players not being given rights to unilaterally resign during contract periods according to Labor Contract Law. Although athletes as workers’ basic rights should receive equal protection with other workers, other factors make it difficult for judges unfamiliar with the sports industry to make judgments solely based on Labor Contract Law and other laws. Excluding labor disputes from sports arbitration case acceptance scope not only does not conform to the institutional purpose of establishing sports arbitration in the Sports Law but also is not conducive to protecting sports dispute parties’ legitimate rights and interests.

B. Deficiency in Internal Sports Organization Dispute Resolution Mechanisms

The revision of the Sports Law added sports dispute handling methods including sports arbitration, general arbitration, labor dispute mediation and arbitration, and litigation, and added provisions in Article 95, Paragraph 1 encouraging sports organizations to establish internal dispute resolution mechanisms for fair, just, and efficient dispute resolution. Due to natural institutional deficiencies in judicial resolution of sports disputes requiring strict procedures, long cycles, and high costs, establishing internal dispute handling mechanisms can effectively prevent sports disputes, protect parties’ sports rights, and achieve internal resolution of sports disputes. How to improve internal dispute handling mechanisms in sports organizations and achieve effective coordination with other mechanisms is the core issue for resolving sports dispute conflicts.

First, applying internal dispute handling mechanisms to sports disputes has theoretical support. Under joint support of social governance theory and social contract theory, having sports industry organizations undertake partial sports affairs management functions can establish effective governance structures among association members, through collective agreement to elect management personnel, jointly discuss articles, and vote on specific matters, essentially establishing a sports autonomy system with organizational autonomy, rule autonomy, and dispute resolution autonomy as main content.

Second, handling sports disputes through combined internal and external approaches is global sports industry practice, but internal dispute handling mechanisms in China’s practice still have many issues. According to scholars’ 2021 statistics, among 32 national individual sports associations, 10 have established specialized dispute resolution institutions, but provisions on sports dispute resolution have ambiguity, lacking transparency and relatively simple content with many gaps. Analysis of rule text and operation practice shows deficiencies in external supervision mechanisms, internal remedy mechanisms, and limited arbitration institution independence, with room for improvement in case acceptance scope, arbitration application, and hearing procedure settings.

Finally, internal dispute resolution mechanisms should achieve effective coordination with arbitration mechanisms and others. Article 95, Paragraph 2 of the Sports Law provides that where sports organizations have no internal dispute resolution mechanism or internal mechanisms do not handle disputes timely, parties may apply for sports arbitration. This article provides sports arbitration’s supplementary role but does not clarify whether mandatory sequence exists. In reality, some sports autonomous organizations may stipulate mandatory priority for internal handling mechanisms in their articles.

C. Need for Party Autonomy in Sports Dispute Mechanism Selection

According to Article 92, Paragraph 2 of the Sports Law, contract disputes and other property disputes related to sports activities are also not within the sports arbitration acceptance scope. Excluding property dispute cases is helpful for clarifying boundaries between commercial arbitration and sports arbitration and avoiding sports arbitration being affected by economic disputes. However, the sports industry itself is difficult to completely separate from commerce; commercial models provide extremely important support for sports industry development, and this complex combination shapes sports relations through mutual influence rather than maintaining independent operation after contract signing. Facing such new property relations, commercial arbitration has certain limitations and may not well adapt to and resolve such disputes.

Second, according to the articles of institutions resolving sports-related disputes established by the International Sports Arbitration Institution (CAS), its jurisdictional scope includes commercial arbitration cases. In the Jose Ignacio Urquijo Goitia v. Liedson Silva Muniz case, the arbitration institution could have jurisdiction over sports contracts between athletes and agents. In the Michel Platini v. FIFA case, the arbitration tribunal also had jurisdiction over the sports economic dispute between Michel Platini and former FIFA President Joseph Blatter. Including sports commercial disputes in sports arbitration case acceptance scope can well integrate with international provisions, forming a sports commercial dispute handling mechanism connecting domestic sports arbitration and international CAS.

Finally, both arbitration and litigation essentially provide parties with dispute resolution pathways, and party autonomy is the prerequisite for choosing dispute resolution mechanisms. If parties can choose industry autonomy or litigation for sports dispute resolution, why not grant parties autonomous choice of arbitration institutions? Sports-related property dispute controversies such as endorsement contracts, agent contracts, and sponsorship contracts are essentially disputes between equal parties; according to basic civil law principles, parties should be permitted to choose to submit to sports arbitration or ordinary civil and commercial arbitration institutions for handling.

III. Suggestions for Improving China’s Sports Arbitration System

A. Sports Arbitration Case Acceptance Scope Should Include Labor Disputes

Regarding Article 92, Paragraph 2 of China’s Sports Law, it is recommended to include sports labor dispute type disputes in the sports arbitration case acceptance scope. First, work contract disputes between athletes, coaches, and clubs have extremely high timeliness requirements. Although such disputes can be accepted and handled by labor dispute mediation and arbitration institutions under current law, due to athletes’ relatively short career spans, long arbitration and litigation procedures are not conducive to professional athletes’ rights protection. Sports arbitration, with its professional characteristics, can more conveniently provide dispute resolution pathways for athletes and accelerate dispute resolution. Additionally, unlike workers’ fixed and long-term work at institutions, athletes and coaches may have higher fluidity among different clubs, with higher demand for rapid dispute resolution; the sports field also has special institutional designs such as priority registration, joint compensation, and contract protection periods. For these characteristics, sports arbitration has higher efficiency and stronger timeliness advantages compared to labor arbitration.

Second, in sports practice, sports labor dispute disputes not only involve labor relation aspects; complete exclusion of labor dispute type cases seems to leave professional matters to professional institutions but ignores practical accumulation during periods of unclear regulations. Under athlete registration mechanisms, labor dispute disputes are closely connected to athlete registration, making management and disputes intertwined; ordinary courts or labor dispute arbitration institutions do not have the capability to handle issues related to labor disputes. Sports arbitration institutions have already accumulated rich practical experience in dispute handling; compared to labor dispute arbitration institutions, they may better understand how to holistically handle labor disputes and related issues. Sports arbitration’s professional personnel team is also something labor dispute arbitration institutions do not possess.

Finally, according to CAS caseload statistics, labor-capital disputes represented by transfers are approximately 10.3%. Including sports labor dispute disputes in sports arbitration case acceptance scope is also beneficial for integrating with international systems. Facing compound sports labor disputes that may simultaneously include property, labor dispute, and personal nature issues, the best approach is including them in the sports arbitration case acceptance scope, and according to the principle of party autonomy, allowing parties to independently choose dispute resolution mechanisms for handling.

B. Improve Coordination of Internal Dispute Resolution Mechanisms in Sports Organizations

Regarding Article 95 of China’s Sports Law, suggestions can be proposed from two aspects: improving internal dispute resolution mechanisms and coordinating with other dispute resolution mechanisms. According to the aforementioned issues, sports organizations’ internal articles may pre-regulate dispute handling mechanisms and limit case acceptance to requiring sports organizations to first make judgments. Some scholars therefore propose that Article 95 consider adding one paragraph: “Any provisions in sports association articles aiming to deprive parties of submitting to external arbitration or seeking judicial remedy in courts should be determined invalid.” This is also helpful for sports arbitration departments to obtain more cases and further promote their own development. In fact, regarding choice of sports dispute handling mechanisms, parties’ self-exclusion should be invalid. Article 95 essentially establishes the basic principle of “exhausting internal remedies”; after sports disputes arise, industry autonomy should be applied as the priority mechanism for dispute resolution, and only when corresponding rules or remedies are not available within the industry should external arbitration or litigation be submitted.

First, establishing internal dispute resolution mechanisms depends on establishing sports industry dispute resolution institutions; currently more sports associations have not established corresponding dispute resolution institutions. For those with necessity to separately establish dispute handling institutions, establishment should be accelerated. For those without necessity to add dispute handling institutions, it is recommended to add provisions on sports arbitration institution jurisdiction in internal association articles, providing guidance for parties to resolve disputes.

Second, sports associations should improve corresponding provisions in internal association articles combining new provisions on sports arbitration in the Sports Law. The Chinese Basketball Association Articles have completed revision of provisions on democratic consultation and dispute resolution mechanisms, effectively integrating with the Sports Law; institutions that have not completed revisions should quickly finish sports arbitration content revisions. The basic principle of “exhausting internal remedies” is a unified rule formed on the basis of domestic and international sports dispute handling practice and is for efficient dispute handling mechanisms with strong professionalism in sports disputes. International single sports federations usually regulate sports disputes within their jurisdiction; judiciary should maintain restraint in intervening in sports disputes, and judgments should follow sports professionals’ internal organizational rules; only when internal dispute resolution mechanisms cannot provide sufficient rights protection for parties can judiciary intervene and play final adjudicative roles.

Finally, priority application of internal dispute resolution mechanisms in sports industry organizations over judiciary reflects judiciary’s respect for sports industry autonomy, but judiciary fairness is always the final defense for dispute resolution. Although internal dispute resolution mechanisms have high professionalism, they may反而因内部习惯而无法使问题得到公正的解决. From sports arbitration institution settings, whether arbitration institution personnel composition or funding sources are closely related to the sports industry; power extension may interfere with dispute resolution. In this situation, introducing external judicial mechanisms as supervision is necessary; judiciary has final revocation rights over autonomous dispute resolution mechanism results. Sports autonomy spirit runs through internal and external sports dispute handling; autonomy independence is core to sports dispute resolution, but to ensure dispute resolution balancing efficiency and fairness, judicial arbitration and litigation mechanisms should provide external supervision, and the two should always maintain benign interaction.

C. Party Autonomy for Sports Property Dispute Resolution Mechanism Selection

Regarding Article 92, Paragraph 2 of China’s Sports Law, it is recommended that sports property dispute jurisdictional institutions be determined by parties according to arbitration agreements under party autonomy. According to the above, sports property dispute cases have diversity and occupy the main part of sports dispute conflicts; completely assigning them to ordinary commercial arbitration institutions would seriously narrow the space where sports arbitration system can play a role. For commercial disputes in the sports industry, sports arbitration institutions may have professional personnel advantages, while commercial arbitration institutions have also accumulated certain experience; neither is superior. The Sports Law’s clear provisions on sports arbitration case acceptance scope aim to provide clear guidance for different types of dispute cases, avoiding various arbitration institutions shirking responsibility and being unfavorable to actual dispute resolution. However, this purpose can also be achieved through expanding case acceptance scope and party autonomy.

The establishment of the sports arbitration system originally aimed to leverage sports arbitration’s professionalism and complete integration with international arbitration; restricting sports arbitration case acceptance scope is instead self-binding and not conducive to the above purposes, and limits sports arbitration’s self-development. From the ultimate goal of sports dispute resolution, whether sports arbitration, litigation, or other arbitration methods, essence is providing parties with convenient dispute resolution pathways; put another way, costs of choosing litigation mechanisms should be allocated to parties themselves to bear, and parties should independently choose the most suitable arbitration institution, rather than restricting parties’ claimable rights.

Party autonomy is the key core for fully leveraging various sports dispute handling mechanism functions, aimed at protecting dispute parties’ legitimate rights and interests; the way to achieve this purpose is providing parties with as many dispute handling mechanism choice pathways as possible. The function of party autonomy needs expanding sports arbitration case acceptance scope to protect parties’ rights to freely choose, in domains not requiring mandatory judicial intervention, especially for property dispute type sports disputes, parties should as much as possible be allowed rights to choose remedy mechanisms, testing various systems’ actual functions in practice and thereby defining reasonable boundaries among various mechanisms.