스포츠중재관할의 범위와 한계

The increase in international sports competitions, coupled with the increasingly global nature of sports, fuelled a proliferation of international sports disputes. International sports competitions are based on an agreement between sports organizations and sport athletes. The efficient managing of the competitions appears to require a uniform body of international lex sportiva and a uniform dispute resolution process. This driving force has created the Court of Arbitration for Sport (CAS) to provide specialized sports arbitral tribunals to resolve sports disputes harmoniously within the sports family. Sports is characterized by a hierarchical and vertical structure. As a result, athletes are often forced, without meaningful choice, to consent to arbitral clauses excluding all setting aside proceedings written unilaterally by the sports organizations. The concerns are raised to the consensual nature of the arbitral clauses and in turn their validity. Furthermore, courts are reluctant to invalidate arbitral awards rendered by CAS. IOC and international federation rules effectively force athletes to submit, foregoing their right to judicial review, to CAS jurisdiction in order to participate in international sports competitions. This raises a concern whether narrow judicial review of arbitral awards may undermine rights and interests of the athletes. Broader judicial intervention would fragment uniformly applied lex sportiva. Therefore, it is desirable to apply uniform lex sportiva to athletes across borders and limit the scope of judicial review. Sports arbitration has achieved effective and uniform dispute resolution within sports community by specialized sports arbitral tribunals aligned with specific factors inherent in the filed of sports. As the concerns are raised about whether jurisdiction of sports arbitral tribunals based on an arbitration agreement effectively protects the rights and interests of athletes, it remains debatable whether CAS is a supreme body resolving sports disputes. Taking into account the hierarchical structure of sports, specificity of sports disputes, less need to protect athletes than consumers and workers, it is legitimate for arbitral jurisdiction of CAS to strike the reasonable balance between fundamental rights of athletes and objectives of sports organizations. It remains to be seen whether CAS’s arbitral jurisdiction will develop a uniform and foreseeable lex sportiva.