Sports Arbitration - a perspective from China

This is the fourth article in Clyde & Co’s international arbitration series covering the topic of Sports Arbitration. In this piece, Legal Director, Christian Liu explores the significant amendments to China's Sports Law and the formal establishment of the China Sports Arbitration Commission (CSAC).

The resolution of sports disputes in China has changed significantly since the amendment of the Chinese Sports Law in 2022 (the Sports Law). Before the amendment of the Sports Law, although there were provisions for sports arbitration in Chinese law, there were no detailed rules and regulations to facilitate the resolution of sports disputes in practice. After the amendment of the Sports Law, a diverse settlement path has been established, with sports arbitration as the main mode of dispute resolution, supplemented by other methods such as internal dispute resolution institutions, litigation before the People's Court and the labour dispute arbitration commission etc. This article takes an academic look at the landscape of sports dispute resolution in China after the watershed amendment.

The watershed amendment: sports arbitration is formally implemented

At the domestic level, China promulgated and put into effect the Sports Law in 1995, which was subsequently amended in 2016. Prior to the 2022 amendment, the Sports Law received little attention. Although Article 32 (2016 version), stipulated that sports disputes shall be mediated and arbitrated by a "sports arbitration institution", the State Council did not actually set up a sports arbitration institution.

The 2022 amendments resolved these problems and drastically changed resolution of sports disputes in China. These amendments added a special chapter on sports arbitration, which stipulates in paragraph 1, Article 93, Chapter 9: "The administrative department of sports under the State Council shall, in accordance with this Law, organize the establishment of a sports arbitration commission, and develop sports arbitration rules." This marked the formal establishment of China's sports arbitration institutions, with the consequence of sports arbitration becoming an independent professional arbitration system parallel to labour, civil and commercial arbitration. The amendment of the Sports Law also clarified the scope of sports arbitration and the effect of a single and final award. This has helped resolve an issue under the previous regime where a final definitive resolution could be difficult to achieve.

First of all, Article 92 of the Sports Law stipulates the scope and basis of sports arbitration, including "arbitration agreements, statutes of sports organizations and rules of sports events". The sports arbitration can only be commenced if there is an agreement between the parties (either prior agreement or subsequent agreement), or the internal statute of the sports organization stipulates that the dispute should be resolved by arbitration, or the rules of the sports event stipulate that the dispute can be resolved by means of sports arbitration.

Next, the scope of arbitration is clarified through the legislative approach of "enumeration + fallback provision + exclusion", which delineates the boundaries between sports arbitration and simple "arbitrable disputes" and "labor disputes".

Articles 95 and 96 provide for the encouragement of the establishment of internal dispute resolution mechanisms and cohesion between these internal mechanisms and sports arbitration. The preference is for parties to deal with the conflicts through the internal dispute resolution mechanism first, and when the internal dispute resolution mechanism does not exist or fails to resolve the disputes in a timely manner, then arbitration can be initiated. Any internal dispute resolution mechanism is not mandatory, nor does it have final effect. It only plays a similar role as mediation to resolve conflicts. If you are not satisfied with the result, you can still commence arbitration to get a legally enforceable decision.

Finally, Article 97 provides for the effect of a single and final award, and Article 99 provides for the enforceability of the decision. Article 91, paragraph 2, provides for the independence of sports arbitration, which is conducted in accordance with the law and free from interference by administrative authorities, social organizations, and individuals.

Institutional sources of sports arbitration

Although sports arbitration is a special type of arbitration, it is still a form of arbitration. Accordingly, its procedural rules largely draw on and reference the fundamental system of domestic civil and commercial arbitration.

For example, in respect of the constitution of the arbitral tribunal, sports arbitration follows the rules for the constitution of civil and commercial arbitration, and the provisions of the Sports Arbitration Rules are similar to those of the Chinese Arbitration Law in respect of the number of persons, the manner and the notice of constituting the tribunal, as well as in respect of the disclosure obligations, and the disqualification and the replacement of the arbitrators.

In terms of arbitration hearings, both are based on the principle of in camera hearings, with public hearings as an exception. Due to the special nature of sports arbitration, more detailed provisions on confidentiality and disclosure of information have been respectively made in Articles 38 and 39 of the Sports Arbitration Rules. For example, in sports arbitration relating to anti-doping, if an athlete or other natural person party applies for a public hearing, the arbitral tribunal must hold the hearing in public.

With regard to the effectiveness of arbitration, sports arbitration, like traditional civil and commercial arbitration, implements the system of a single and final award, and the award is binding once it is made. If a party applies for arbitration to an arbitration commission or institutes an action in a People's Court regarding the same dispute after an arbitration award has been made, the arbitration commission or the People's Court shall not accept the case. Therefore, once an award has been made, it cannot be appealed on substantive matters. Only in the case of procedural errors can an application be made to the court to vacate the award. For sports arbitration, the circumstances for applying to vacate the award include: (a) The application of laws and regulations are indeed erroneous; (b) The matters to be adjudicated do not fall under the scope of acceptance of sports arbitration; (c) The composition of the arbitration tribunal or the arbitration procedure violates the relevant provisions, which is sufficient to affect the impartiality of the award; (d) The evidence on which the award is based is forged; (e) The opposing party has concealed evidence sufficient to affect a fair ruling; (f) The arbitrator has solicited or accepted bribes, practiced favoritism, or rendered a ruling by bending the law when arbitrating a case. Such circumstances are similar to those enumerated in Article 58 of the Arbitration Law.

China Sports Arbitration Commission

On 25 December 2022, the General Administration of Sport (GAS) formally released the "Rules of Sports Arbitration" and the "Organizational Rules of the China Sports Arbitration Commission" on its official website, which came into force on January 1, 2023. On 11 February 2023, the GAS established the China Sports Arbitration Commission (CSAC). CSAC is the only arbitration institution in China established by GAS in accordance with the law, which specializes in handling disputes in the field of sports.

In 2023, CSAC selected and recruited the first batch of arbitrators to complete the adjudication of three cases, involving disputes over participation eligibility, termination of youth training agreements, and technical issues. In these cases, the arbitration fully demonstrated the characteristics of neutrality, confidentiality, and speed that are essential in sports arbitration. In particular, in a dispute over eligibility to participate in the Fourteenth Winter Ice Hockey Event, special arbitration procedures were applied, ensuring timely decisions that protected the rights of the involved parties. As of now, CSAC has accepted 24 applications for sports arbitration, and has concluded 6 cases.

According to the Sports Law, the Rules of Sports Arbitration and the Organizational Rules of China Sports Arbitration Commission, the duties performed by CSAC in accordance with the law include: formulating and amending the statute, appointing and dismissing arbitrators, and arbitrating sports disputes in accordance with the Arbitration Rules, etc. In terms of composition, CSAC is composed of representatives of the administrative departments of sports, sports organizations, athletes, coaches, referees and experts in sports and law, with a total of no more than twenty-one persons in the singular. The scope of cases to be handled includes the following sports disputes beyond those designated in the Arbitration Law and labor disputes stipulated in the Labor Dispute Mediation and Arbitration Law: (a) Disputes arising from dissatisfaction with the disqualification, cancellation of competition results, banning and other handling decisions made by sports social organizations, athlete management entities, and sports event organizers in accordance with the provisions on doping management or other administrative provisions; (b) Disputes arising from the registration and communication of athletes; (c) Other disputes arising from competitive sports activities.

Conclusion

In the context of the construction of a strong sports nation, the amendment of the Sports Law and the formal establishment of the sports arbitration system appear particularly timely and important. The sports arbitration system in China is still in its infancy. It is believed with steady operation, it will gradually accumulate experience and, by integrating practical exploration, improve the system to be a mainstay in resolving sports disputes.

The series continues next week with a perspective from Munich.