Sports arbitration: A matter of choice for athletes?

Article 6 of the European Convention on Human Rights provides a litigant with a right to a fair and public hearing by an independent tribunal established by law, which must pronounce its judgment publicly.

Yet, the rules of sports governing bodies typically provide for the resolution of disputes involving participants in their sports by a private arbitral process. Do such rules involve impermissible derogations from the Article 6 rights of those participants?

This issue was considered by the Court of Appeal in England in Stretford v the FA [2007] EWCA 238. Reference was made in that case to a line of ECHR jurisprudence which decided that, where parties have voluntarily entered into an arbitration agreement, they are to be treated as having waived that part of their Article 6 rights which entitles them to a public hearing. Arbitration was said to be compulsory, as opposed to voluntary, only where it was “required by law”. The Court of Appeal decided that Mr Stretford, a football agent who had agreed (as a condition of being licensed by the FA to undertake agency activities) to be bound in relation to those activities by the FA Rules (including the Rule K requirement that all disputes be submitted to arbitration under the provisions of that Rule), had waived his Article 6 rights to a public hearing. The fact that Rule K had to be agreed to by anyone who wished to have such a licence did not make the arbitration agreement contained within that Rule required by law or compulsory. The FA Rules formed part of a private law relationship, which was regulated by contract.