Sports Arbitration – a perspective from Spain

This is the sixth article in Clyde & Co’s series covering the topic of sports arbitration. In this piece, Michelle Donovan and Rafael Iglesias explore the Spanish legal regime for sports disputes and explore the challenges and opportunities for sports law arbitration.

Despite the controversies during the parliamentary process, on 22 December 2022, the Spanish Congress approved the Law 39/2022, of 30 December, known as the "Sports Law", whose enforcement implied, among other milestones, the promotion of extrajudicial dispute resolution mechanisms in the sports field.

Throughout this article, we elaborate on the existing Spanish legal regime for sports, the main bodies for the resolution of sports disputes in Spain, as well as the challenges and opportunities it poses.

A. The legal regime of sports governance in Spain: public-private collaboration.

Article 43.3 of the Spanish Constitution of 1978 mandates the public authorities in the following terms: "The public authorities shall promote health education, physical education and sport. They shall also facilitate the appropriate use of leisure time".  

Therefore, a public model of sport management is clearly implemented in Spain. However, the public authorities delegate both its management and the power to impose sanctions to the different sports federations.

In this context, the Spanish Sports Council (known as CSD in Spanish) is the body responsible for the promotion, planning and coordination of sport in Spain. Among its attributions are the regulation, control and supervision of the different sports federations. Furthermore, through the Administrative Court of Sport (hereinafter "TAD" its acronym in Spanish), it is ultimately responsible for the resolution of conflicts and disputes.

On the other hand, we are faced with the rules issued by private sports organisations. They refer to the statutes or federative regulations, professional leagues, competition regulations, disciplinary regimes, etc.

B. Law 39/2022 on Sport. The promotion of extrajudicial dispute resolution mechanisms.

The recent Law 39/2022 on Sport has introduced significant changes and modernisations to the legal framework for sport in Spain. These include the objective of promoting the values of equality, inclusion and social integration, the protection of athletes' rights, the regulation of sports federations and clubs, efficient and participatory management models, and the promotion of the use of arbitration for the resolution of disputes in the sports field.

At this point, Title VIII deals with the resolution of conflicts in sport and, in addition to conventional means, Article 119.3 obliges Spanish sports federations and professional leagues to establish in their statutes or regulations a common out-of-court dispute resolution mechanism. 

Moreover, in a clear reference to the Court of Arbitration for Sport (CAS), the law stipulates that in the event of opting for an international system, there must be a procedure for the enforcement of the awards or agreements adopted.

C. Overview of sports dispute resolution in Spain.

In accordance with the regulations outlined in the preceding sections, sports disputes in Spain can be resolved mainly through two channels: judicial and extrajudicial (arbitration and mediation).

Judicial channels

Many athletes, clubs and associations have been using the traditional judicial channel as a way of resolving sports-related disputes. Thus, depending on the matter in question, administrative jurisdiction (e.g. stadium or stadium closures), labour jurisdiction (conflicts related to contracts between athletes and sports entities), civil jurisdiction (shared use of sports facilities, transfers of players in lower categories and other economic issues) and/or criminal jurisdiction (aggression, injuries or offences against honour) may come into play.

Extrajudicial channels

With the previous and now derogated Law 10/1990 of 15 October 1990 on Sport, the extrajudicial channel for the resolution of conflicts in sport was opened for the first time, whose main objective was to alleviate the judicial burden, in search of quicker, less costly and more efficient procedures. The most widely used has been arbitration, being its main institutions, the ones analysed below:

The TAD

The TAD is the main collegiate body at state level, affiliated to the CSD.

It is regulated by Royal Decree 53/2014, of 31 January, which develops its structure, organisation and functions. Furthermore, all its decisions are immediately enforceable and terminate administrative proceedings. However, those entitled may lodge an appeal within a period of two months. This is detrimental to sports clubs or athletes who participate in state competitions since, in the event of an appeal, they must submit their dispute to a conventional body, which results in a considerable delay in decisions and a loss of efficiency in the imposition or non-imposition of sanctions.

TAD ultimately decides on all issues related to three main areas: doping, sport discipline and legality in the electoral processes of the different sport federations.

Thus, in terms of sanctions, it has resolved highly controversial matters such as the 'Cheryshev case', known for the improper alignment of a former Real Madrid player which, in the end, led to the club's elimination from the Copa del Rey, or the recent disqualification for three years of the former president of the Spanish Football Federation, Luis Rubiales, for kissing the player Jennifer Hermoso and the gestures made during the celebration of the Women's World Cup won by Spain.

In relation to Doping, it is worth highlighting the Operation Galgo (Marta Domínguez) in which the TAD declared itself incompetent to resolve the case as it was of an international nature, referring the matter to the Court of Arbitration for Sport (CAS) - which imposed a three-year sanction.

Finally, and in relation to the legality of electoral processes, it should be noted that TAD recently annulled the electoral process that elected Pedro Rocha as president of the Royal Spanish Football Federation after he overstepped his duties as interim president, delayed the call for elections and the existence of alleged irregularities among the assembly members.

Spanish Court of Arbitration for Sport (TEAD in Spanish) 

Although less well known than the TAD, the TEAD is also a body for the resolution through arbitration, mediation and conciliation of litigious matters in sporting issues. In addition, it has a consultative character, so any sports entity can request an opinion on legal issues related to the practice or activity related to sport.

The governing and administrative body of this tribunal is the Sports Arbitration Commission, which is part of the Spanish Olympic Committee (COE in Spanish). 

The TEAD has a list of up to 50 arbitrators, 25 of whom must be practising lawyers. Arbitration awards rendered by the TEAD have the effect of res judicata and can only be appealed for annulment, without the option of pursuing an appeal.

TEAD has excelled in resolving contractual and financial disputes through arbitration, offering a faster and less formal alternative to the ordinary courts. Among the most well-known resolutions is the imposition of a €2.5 million compensation on Racing Santander -a football team from Cantabria- for the breach of a television rights agreement signed with the G-30 (a famous group formed by 30 sports clubs).

However, although the TEAD was born to be the equivalent of the CAS in Spain, the truth is that at present it does not have a great impact.

Specific Arbitration Tribunals

In addition to the above, over the years, specific Arbitration Tribunals have been created for sports with great national relevance, such as football. Thus, in July 2001, the Football Arbitration Tribunal (TAF) was founded, which was a body set up for the resolution of contractual and disciplinary disputes between clubs, players and coaches. However, the TAF was dissolved due to regulatory changes and conflicts of interest, which has meant that disputes in Spanish professional football were redirected to the ordinary courts or the CAS.

E. Conclusions, challenges and opportunities for arbitration in Spain.

As we have seen, in Spain, the intervention of public authorities and bodies in the resolution of this type of conflict continues to predominate.

In fact, despite the attempt since the 1990s and the imposition of the new Sports Law to promote arbitration, the truth is that in Spain there is no consolidated arbitration body specialised in the resolution of sports disputes. In fact, most of them are submitted to the CAS, especially since it is possible to litigate in Spanish, as it is one of the official languages.

In any case, there is no doubt that the figure of arbitration is acquiring a notable role in the resolution of disputes within the sports industry. The high degree of specialisation of the bodies, the guarantee of impartiality and neutrality of the arbitrators and the confidentiality of the proceedings offer a series of significant advantages in the resolution of sports disputes that allow the integrity and stability of sport to be maintained, while protecting the rights and interests of the parties involved.

In Spain, it is essential that the new Sports Law is developed and that the different sports associations, federations and clubs assume and recognise an authentic arbitration body to settle their disputes, reflecting significant progress towards a more effective system of sports justice adapted to the needs of the field.

The series continues next week with a perspective from the UAE.