Establishment of International Sports Arbitration System in China: Realistic Needs, Conditions and Specific Paths ()
1. Introduction
Over the past 40 years of reform and opening up, with the rapid development of China’s competitive sports and surrounding industries, the number of disputes in sports over disciplinary actions, labor, and distribution of sponsorship benefits has increased accordingly. The number of cases is large and the scope of disputes is broad. However, the dispute resolution method and its quality and efficiency have not been improved accordingly (Shang, 2022). From a domestic perspective, sports dispute applicants often have nowhere to turn for help (Shang, 2022). This is mainly due to the stagnation of sports arbitration legislation for a long time. As a result, an independent Chinese sports arbitration mechanism has not yet been established. Although Article 33 of the Sports Law passed in 1995 provides that the State Council shall separately stipulate the establishment method and scope of arbitration of sports arbitration institutions, the State Council has not made any regulations on this (Zhang, 2011). However, Article 8, Item 9 of the Legislation Law promulgated in 2000 clearly provides that the arbitration system can only be enacted by the National People’s Congress or its Standing Committee (Chen, 2003). In fact, until now, domestic laws and regulations on sports arbitration are still in the formulation stage. China should promote and improve domestic sports arbitration legislation, and jointly promote the construction of international sports arbitration rules.
2. China’s Realistic Needs for Constructing International Sports Arbitration System
2.1. International Sports Arbitration Is Not Widely Accepted in China
Conducting research on the case database of the CAS official website, it is not difficult to find that since 1998, CAS has ruled 2057 cases. It can be seen that its efficiency and professionalism in handling sports disputes have been recognized by many countries and international organizations. However, only 29 cases involve Chinese nationals as parties, and only 18 cases were brought to CAS by Chinese parties, accounting for only 0.8% of the total cases. Generally speaking, the number of cases submitted by Chinese parties to international sports arbitration is much less than that of other countries such as Europe and the United States. This undoubtedly reflects the unfamiliarity and neglect of Chinese parties to international sports arbitration (Jiang, 2022). To this end, it is necessary to promote Chinese athletes’ understanding of international sports arbitration rules and to enhance Chinese people’s trust and understanding of international sports arbitration.
2.2. The Proportion of Chinese Arbitrators Is Too Small
Under the framework of the existing sports arbitration rules, when appointing arbitrators, the CAS should consider the issue of fair representation from all continents of the world as much as possible. But the reality is that most of the arbitrators are from European and American countries, who, as a result, play an irreplaceable role in international sports disputes. On the contrary, the number of arbitrators from Africa and Asia is very small (Su, 1996). Data from CAS official website shows that currently there are 415 international sports arbitrators, 51% of which are European/US arbitrators, including 35 Swiss arbitrators, 34 British arbitrators, 26 French arbitrators, and 36 American arbitrators, while the number of arbitrators from China is only 10 (Jiang, 2022). In addition, there are also differences in the engagement of CAS arbitrators. Among the arbitrators, 42% of them have only participated in one or two arbitral awards, accounting for 6% of all appointed arbitrators, while 17 arbitrators have been appointed 996 times in total. That is to say, 7% of the arbitrators have been appointed more than 45% (Jiang, 2022). These arbitrators are called “super arbitrators”, among which Swiss arbitrators account for the highest proportion. Chinese arbitrators that have adjudicated most cases in CAS are LIU Chi (lawyer, an arbitrator of the previous session) and WU Wei (lawyer, an arbitrator of the current session), adjudicating four to five cases in total (Jiang, 2022). It can be seen that the number of Chinese arbitrators is too small and it is difficult for them to enter the core group of “repeated appointments”. It is another important reason for China’s lack of say in international sports arbitration. Thus, China needs to encourage professionals related to sports arbitration to enter the field of international sports arbitration, improve the training mechanism, and gradually increase China’s voice in the field of international sports arbitration.
2.3. Special Needs of Sports Disputes
In the face of growing sports disputes, China needs to create a dispute resolution mechanism, legal service environment and institutions that can meet the special needs of sports disputes. Sports disputes are fast-paced and professional. Special characteristics of sports disputes are as follows: 1) immediacy: sports arbitration has extremely high requirements on timeliness, and the arbitral tribunal needs to pay special attention to procedural efficiency. Different from ordinary commercial disputes, sports disputes, based on their special attributes, often involve time-sensitive disputes measured in days and hours. For instance, in doping investigations and competition qualification disputes, arbitral tribunals are required to complete the formation, hearing, and ruling within a very short period of time. In practice, CAS even requires that red card rulings for certain football matches need to be made within 24 hours, otherwise, it will substantially affect the progress of major events and the sports career of athletes; 2) professionalism: for example, the settlement of disputes arising from prohibited drugs involves different regulations of various international sports organizations. At the same time, complex issues such as the scope of prohibited drugs, conditions and procedures for sampling, testing, and analysis require extreme professionality and rigorous scientific procedures. If such cases are all adjudicated by courts, the courts’ burden will be greatly increased. On the contrary, if the arbitration institution is composed of experts from various fields to investigate and hear the case, it will not only ensure the quality of the case hearing but also improve work efficiency and reduce the burden on the court (Guo, 2004).
2.4. Great Potential Commercial Value of Legal Services in the Field of Sports
It is reported that in 2021, the value of legal services in the United States was approximately US$350 billion, while the value of the global cross-border legal services market reached US$890 billion, showing that the total commercial value of legal services is astonishing (Bai, 2022). According to the General Agreement on Trade in Services, international legal service trade is an important part of global service trade, and its proportion and total value are quite considerable. At present, China’s sports legal service industry is still in its infancy, and it is a field with broad development potential (Bai, 2022). In 2021, the total scale (output) of the national sports industry will be 3117.5 billion RMB, and the added value will be 1224.5 billion RMB. Compared with 2020, the total output of the sports industry increased by 13.9% and the added value increased by 14.1%. It is worth noting that this is the first time that the total scale of the national sports industry exceeded 3 trillion RMB, of which the added value of the sports service industry was 857.6 billion RMB, accounting for 70.0% of the added value of the sports industry, 1.3 percentage points higher than the previous year (General Administration of Sport, 2023). In the context of the vigorous development of the sports industry, the legal services related to international sports events and affairs will become the key content of the sports industry and the legal service industry, and play an important role in the cross-border and international development of legal services. Accordingly, China shall participate in the improvement of international sports rules. While promoting the development of the domestic sports arbitration industry, it is also vital for China to promote the “going out” of domestic sports arbitration and further enhance the development of the foreign-related legal service industry. Such actions can generate huge benefits and meanwhile strengthen China’s soft power.
3. Favorable Conditions for China to Construct an International Sports Arbitration System
3.1. Policy Support in the New Era
Since the 18th National Congress of the Communist Party of China, the Party Central Committee has put forward many times the idea of improving the rule of law in sports. “Rule of law” is a keyword and appears 12 times in the 13th Five-Year Plan for Sports Development. “Promoting the rule of law and improving the level of legalization of sports” has become a consensus during the “13th Five-Year Plan” period (Wang & Zhao, 2018). In the report of the 19th National Congress of the Communist Party of China and the 20th National Congress of the Communist Party of China, General Secretary Xi Jinping clearly proposed to promote the comprehensive development of mass sports and competitive sports and accelerate the construction of a leading sports nation (Xi, 2022). An advanced and complete dispute resolution mechanism for sports disputes is an indispensable element for the development of the sports industry. Since China targets to become a leading sports nation in the new era, there are many policies supporting the development of international sports arbitration.
3.2. Existing Legal Rules and Judicial Practice in China
3.2.1. Judicial Practice and Application of Sports Law
According to Article 32 of China’s current Sports Law, only disputes that occur in competitive sports activities can be regarded as internal sports disputes and are not subject to the jurisdiction of civil courts. Except for sports disputes, Chinese courts should have jurisdiction over all other disputes. However, due to the unsound sports dispute resolution mechanism and the lack of independent sports arbitration institutions, seeking relief from the judiciary has become an important choice for the parties in disputes. The most important way for Chinese courts to intervene in the sports industry is to mediate in sports civil disputes. According to the statistics from the China Judgment Documents Network sponsored by the Supreme People’s Court of China, as of January 2, 2023, the number of judicial documents with the keyword “sports” has reached 440,000.
Through judicial judgments, Chinese courts have recognized the autonomy of sports law. The Olympic Charter, FIFA Constitution, Chinese Basketball Association Constitution and other sports autonomous organization constitutions and sports technical rules are regarded as “soft laws”. Together with the laws and regulations on sports, these “soft laws” are quoted in the referee documents of individual cases by the courts. They are recognized as sources of law for adjudicating sports disputes (Zhao, 2016). Such legal sources and judicial practice will undoubtedly provide important materials and experience for China to improve the international sports arbitration rules.
3.2.2. Accession to the New York Convention
The 18th Meeting of the Standing Committee of the 6th National People’s Congress decided on December 2, 1986 that China would accede to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in New York in 1958 (Convention). The Convention took effect in China on April 22, 1987. At the same time, the Notice of the Supreme People’s Court on the Enforcement of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides that if China has acceded to a convention with different provisions from China’s Civil Procedure Law, the provisions of the international convention shall prevail. China actively implements the relevant provisions of the Convention and has already accumulated rich judicial experience in dealing with the recognition and enforcement of foreign arbitral awards.
In the field of sports arbitration, in December 2012, Argentine football player Gustavo Javier Canales filed a lawsuit with FIFA on his engagement contract against Dalian Albin Football Club Co., Ltd. The Dalian Intermediate People’s Court recognized the arbitration award made by CAS. This case became the first case in which the award of the International Court of Arbitration for Sport was recognized and enforced in China. Acceding to the Convention provides two favorable conditions for developing China’s future sports arbitration rules: first, it fully demonstrates that China respects the basic rules of international arbitration. There is no substantial obstacle to the recognition and enforcement of legal and effective international sports arbitration awards in China. Second, the arbitral awards made in China on sports disputes can also be recognized and implemented worldwide according to the Convention. It is conducive to the creation of an internationally competitive sports arbitration institution.
3.3. The Revised Draft of the Sports Law Further Connects China’s Sports Arbitration with the World
In October 2021, the revised draft of the Sports Law, with a special chapter on sports arbitration, covering the establishment of arbitration institutions and the scope of arbitration (Li, 2022). Article 91 of the Sports Law provides that China should establish an independent sports arbitration system, and Article 93 further stipulates that a sports arbitration committee should be established to enact sports arbitration rules. Reading the Sports Law together with the Arbitration Rules, the parties may authorize Chinese and foreign arbitration agents to handle arbitration matters. It is evident that China is actively improving its domestic sports arbitration rules and wants to participate in the international sports arbitration.
3.3.1. International Anti-Doping Regulations
Compared with the Sports Law passed in 1995, the Sports Law (Revised Draft) in 2021 proposed the chapter named “Anti-doping” for the first time, stipulating that China shall establish and improve the anti-doping system and the sports administrative department of the State Council is responsible for formulating anti-doping norms. At the same time, this chapter provides that China shall carry out international cooperation in accordance with relevant international conventions to fulfill its international anti-doping obligations. This shows that China’s anti-doping rules are becoming increasingly international. In 2022, Article 54 was added to the Sports Law (Revised Draft) (Second Review Draft), saying that the sports administrative department of the State Council, in conjunction with the drug supervision, health and health departments of the State Council, and the General Administration of Customs, shall formulate and announce a doping list. The doping list needs to be dynamically updated. This provision is in line with Article 4.1 of the World Anti-Doping Code.
3.3.2. Exhaustion of Internal Remedies of Sports Organizations
Article 92 of the Sports Law (Revised Draft) (Second Review Draft) provides that sports organizations are encouraged to establish an internal dispute resolution mechanism. If a sports organization does not have an internal dispute resolution mechanism or fails to resolve disputes in a timely manner, the parties may apply for sports arbitration. According to the CAS appeal rules, the appellant can appeal only if he/she has exhausted the available legal remedies in accordance with the institution’s charter or regulations before appealing. China’s regulations actually specify the conditions for initiating domestic sports arbitration as well as the basis of jurisdiction. They integrate the principle of exhaustion of internal remedies with China’s actual situation.
3.3.3. Supplementary Provisions of the Arbitration Rules
On November 1, 2022, the State Sports General Administration issued a notice, soliciting opinions on the Organizational Rules and Arbitration Rules. In the Supplementary Provisions of the Arbitration Rules, Article 74 provides that sports arbitration committees should strengthen their communication with foreign sports arbitration institutions and foreign sports organizations, and handle related affairs in accordance with the principle of reciprocity. This article clarifies that China’s sports arbitration committees are in a parallel relationship with foreign sports arbitration institutions and sports organizations. The two parties should handle affairs in accordance with the principle of reciprocity, and there is no subordinate relationship. This shows that China’s sports arbitration pays attention to the independent resolution of internal disputes and tries to avoid the internationalization of internal disputes. But at the same time, China respects the decisions of foreign sports arbitration institutions. Article 75 of the Supplementary Provisions further stipulates that English is a language recognized by China’s sports arbitration and awards in English also have legal effects. The Supplementary Provisions of the Arbitration Rules show that China is preparing to be more international in the field of sports arbitration.
3.4. Establishment of CAS Shanghai Alternative Hearing Centre and Beijing Winter Olympics
On November 12, 2012, the CAS Shanghai Alternative Hearing Centre (Shanghai Centre) was established. The Shanghai Centre is the first hearing institution established by CAS in Asia. As a branch of CAS, it hears international sports arbitration in East Asia and its main functions include international sports arbitration hearings and consulting, sports dispute resolution, training on international and domestic sports arbitration, etc. (Jiang, 2022). Since the establishment of the Shanghai Centre, it has undertaken hearings of many cases involving football clubs. The Shanghai Centre has complete hearing facilities and supporting services. The establishment of the Shanghai Centre undoubtedly enhances the relationship between China and CAS, and also establishes an international exchange platform for Chinese arbitrators, sports lawyers and scholars.
From the 2008 Beijing Olympic Games to the 2022 Beijing Winter Olympic Games, besides winning the reputation of “Double Olympic City”, Beijing has also witnessed the operation of the ad hoc arbitration tribunal for the two Olympic Games. The holding of the Olympic Games improves China’s influence in the field of international sports arbitration and the popularity of Chinese arbitrators. It also cultivates talents of sports arbitration in China.
3.5. The Training of Professionals in International Sports Arbitration
Universities in China have realized the importance and great potential of sports law. Independent sports law courses have been set up for undergraduates and postgraduates. In 1987, Beijing Sport University took the lead in offering compulsory courses in sports law for undergraduates who majored in sports management. In 1999, Tianjin Institute of Physical Education formally established a major in sports law for postgraduate students, and also started sports law undergraduate education (Zhang, 2019). In 2009, Wuhan University pioneered the admission of PhD students of sports law in China. China University of Political Science and Law began to admit PhD students in sports law in 2014 and began to admit postgraduates in Sports Law in 2020 (Jiang, 2022). Renmin University of China, Tsinghua University, Suzhou University and other universities have also carried out teaching and research on sports law in different ways.
At present, more than 20 colleges and universities in China have established sports law research institutions, such as Tianjin Institute of Physical Education, China University of Political Science and Law, Xi’an Institute of Physical Education, Shandong University, Peking University, Fudan University, Tsinghua University, Beijing Sport University, Wuhan University (Zhang, 2019). With the development of teaching and scientific research in the above-mentioned universities and research institutions, a large number of excellent sports law talents have entered the legal industry, playing an important role in the development of international sports arbitration in China.
4. The Specific Path for China to Build an International Sports Arbitration System
On June 24, 2022, China promulgated the revision of the Sports Law. Chapter 9 of the new Sports Law added provisions for the construction of China’s sports arbitration system. On November 1 of the same year, the State Sports General Administration issued the Organizational Rules and Arbitration Rules. Under this overall framework, China has established an institutional basis for enacting international sports arbitration rules. However, there are still many institutional imperfections in the above-mentioned laws and drafts, which will be further discussed below. The following sections will also propose suggestions to make the rules more reasonable.
4.1. Arbitration Institutions
China enacted the Sports Law in 1995, saying that “when there are disputes in competitive sports activities, sports arbitration institutions shall be responsible for mediation and arbitration.” However, in practice, there has always been a lack of sports arbitration institutions, so it is hard to find a forum to adjudicate sports disputes. Although the Sports Law (Revised Draft) in 2022 proposed the design of a sports arbitration committee, specific rules for the formation and setting of the arbitration institution are still unclear.
4.1.1. Refining the Departments of the Arbitration Institution
Article 9 and Article 12, Paragraph 2 of the Organizational Rules are related to the establishment of sports arbitration institutions, but the provisions are too broad and there is no detailed explanation. First of all, in view of the importance attached to “anti-doping” in sports competitions and the practice of CAS in establishing an anti-doping arbitration tribunal, the Chinese sports arbitration institution should set up a separate anti-doping tribunal to deal with doping-related disputes, supplemented by a group of specialized arbitrators. Secondly, the jurisdiction of the “ad hoc sports event arbitration institution” proposed in Article 12 of the Organizational Rules should be clarified. Similar to CAS, the Organizational Rules propose to set up ad hoc arbitration institutions for large-scale official national events, such as the National Games and the Universiade, to reflect the importance of the events and improve the event dispute resolution procedures. But at the same time, there should not be too many ad hoc arbitration institutions. For some large-scale commercial leagues (such as CBA), since they are commercial and unofficial, general sports arbitration procedures should be applied.
4.1.2. Further Clarification of Jurisdiction
According to the Sports Arbitration Rules of CAS, one of the important tasks of ICAS is to ensure the independence of CAS. Article 2 of the Organizational Rules delineate the functions of the China Sports Arbitration Commission. However, this provision lacks emphasis on the independence of jurisdiction. It is advisable to clearly mention the independence of the sports arbitration commission in the Organizational Rules, which will not only maintain its independence and authority in handling sports disputes but also help it connect with the international sports arbitration system.
At the same time, the jurisdiction of the sports arbitration commission should be further clarified. Article 92 of the Sports Law says that arbitrable disputes stipulated in the Arbitration Law of the People’s Republic of China and labor disputes stipulated in the Labor Dispute Mediation and Arbitration Law of the People’s Republic of China are not within the jurisdiction of sports arbitration. The Organizational Rules do not clearly define the scope of jurisdiction of the arbitration institute. A typical situation is the labor dispute in football as mentioned above. Considering the potential conflict of jurisdiction between sports arbitration and labor arbitration, it is recommended to exclude labor disputes from the jurisdiction of sports arbitration and make sports arbitration rules consistent with Sports Law.
4.1.3. Financial Independence of Arbitration Institutions
According to the Sports Arbitration Rules of CAS, ICAS is fully responsible for the funding of CAS to ensure that other sports organizations will not affect the independence and authority of CAS. However, Article 11 of the Organizational Rules stipulates that the funds of the sports arbitration commission shall be guaranteed by the finance department according to the law. The sports arbitration commission needs to have an independent accounting system. The financial system of the China International Economic and Trade Arbitration Commission (CIETAC) is a good example—CIETAC’s finances are subject to independent accounting, and funds of CIETAC are obtained from the parties’ arbitration fees, government funding and social donations.
4.2. Arbitrators
According to the Sports Arbitration Rules of CAS, CAS should have at least 150 arbitrators, and the general list (general list) and the list of anti-doping divisions (ADD) should be announced respectively. Among them, the arbitrators in the ADD list cannot be involved in any proceedings of the CAS appellate tribunal. The Organizational Rules and Arbitration Rules emphasize the qualifications and evaluation mechanisms of arbitrators. However, they pay much attention to the legal background of the arbitrators and neglect the requirements of their sports knowledge. There are also no detailed regulations on the number, proportion and information transparency of arbitrators.
It is recommended to increase the proportion of arbitrators who have both legal and sports knowledge when recruiting arbitrators and implement a priority appointment mechanism. At the same time, the sports arbitration committee should consider the proportion of arbitrators who understand the relevant knowledge of major sports events, so as to avoid a situation where no one knows about a certain event. When compiling the lists of arbitrators, arbitrators can be classified as “experts in law” and “experts in both law and sports”. The “experts in both law and sports” can be further classified according to the sports that the experts specialized in. When announcing the list of arbitrators, their basic information and the scope of business should be included to improve the transparency of information and facilitate the selection of the parties. In addition, drawing on the experience of CAS’ arbitrator lists, in order to maintain the fairness of the arbitration, arbitrators in the “Anti-Doping Arbitrator List” shall not participate in the appeal procedure of arbitrations according to Article 6 of Arbitration Rules.
4.3. Arbitration Procedures
In China, the Sports Law does not provide detailed sports arbitration procedures, while the Arbitration Rules only mention ordinary arbitration procedures and special procedures. According to Article 62 of the Arbitration Rules, the special procedure shall be used when disputes of a sports event need to be dealt with immediately during sports events or within ten days before the opening ceremony of the sports events. This is similar to the ad hoc arbitration procedures under CAS. However, it is worth noting that China’s sports arbitration rules do not set up an arbitration appeal mechanism. Thus, even for purely domestic cases under the jurisdiction of China’s sports arbitration commission, due to the lack of an appeal mechanism, the parties can only appeal to CAS when they are dissatisfied with the arbitral awards. This is not conducive to the development of Chinese athletes and the sports industry (Li, 2022). Therefore, in the future, the Arbitration Rules should add an appeal procedure, taking into consideration the practical problems faced by CAS in the appeal procedure (such as reviewing the reasonableness and legitimacy of internal rulings of the sports organizations).
4.4. Judicial Review
Under Article 61 of the Arbitration Rules, following the existing practice, China’s judicial review of sports arbitration is limited to the revocation or enforcement of sports arbitration awards. In terms of jurisdiction, the right to revoke a sports arbitration award belongs to the court where the arbitration institution is located. Standard procedures on enforcement of arbitral awards need to be followed when enforcing arbitral awards for sports arbitration. Usually, the intermediate people’s court of the place where the person subject to enforcement is located or where the main property is located has jurisdiction to enforce arbitral awards. For domestic sports arbitration awards, in view of the autonomy and professionalism of sports arbitrations, as well as the common practice of CAS, Chinese courts should focus on the procedural review. Domestic courts need to take into account public order and good faith while minimizing the review of substantive facts.
Regarding CAS arbitral awards, in light of China’s current Arbitration Law and the Civil Procedure Law of the People’s Republic of China, if domestic courts review substantive facts of the arbitral awards, the authority and independence of CAS will be affected (Xiong, 2018). Therefore, when enacting arbitration rules, China needs to respect the independence of CAS rulings and only review procedural issues therein.
5. Conclusion
Due to the lack of direct legislation on international sports arbitration, international sports arbitration has not been substantially developed in China, which has hindered the hosting of important international sports activities or events. However, in recent years, China has held many major international sports events, creating a huge market for legal services. With the increasing need for international sports arbitration and the maturity of legal talents in sports law, the development of international sports arbitration in China has a solid basis. There are also incentives from the policy level for an advanced sports arbitration system (such as the hosting of the Beijing Winter Olympics). China has the experience in handling and resolving international sports disputes, and has a stronger motivation to promote and establish better international sports arbitration rules. In 2022, China successively promulgated the new Sports Law, Organization Rules and Arbitration Rules. Provisions of these laws or drafts are still relatively broad, and more specific implementation rules and supporting measures are needed. By referring to the experience of CAS and relevant practices of other countries, China should further clarify relevant concepts and rules in aspects such as arbitration institutions, arbitrators, arbitration procedures, and judicial review, so as to align them with international standards. Moreover, with the gradual improvement of arbitration rules, more detailed mechanisms should be considered, such as the statute of limitations, arbitration transparency, equal protection, and protection of the weak.
Acknowledgements
This article is the periodic achievement of the project of the Beijing Research Base for Foreign Exchange and Foreign Affairs Management. The team members of this research project, including Zhewei Fu, Xintao Mu, Beichen Ding, Sangyu Cheng, Haoyue Jiang and Qianmei Xu, have made indispensable contributions to the research. I would especially like to thank them for their production work and research assistance.