During a recent trip to London to attend LawInSport’s Football Law Conference 2025, I participated in a roundtable discussion on dispute resolution in sport with various lawyers and arbitrators in the sports dispute space. One of the key issues brought up and discussed in length during the discussions was the issue of confidentiality in safe-guarding matters in sport. While the focus was on the importance of maintaining confidentiality in disputes concerning issues of child-safety, sexual offences and the like, these discussions sparked a further train of thought: How do we strike the balance between confidentiality and legal certainty in sports related disputes, particularly in disciplinary matters and factually similar sports commercial disputes?

One of the main issues that I have encountered in my nascent steps in the sports dispute world is the lack of readily available information and recent decisions rendered by sports arbitral panels and quasi-judicial authorities – particularly in disciplinary matters or non-commercial disputes against Sports Governing Bodies. This is a sentiment which was also shared by several colleagues at the Conference. Due to such information asymmetry, neither do I have any reliable and consistent authority to determine how previous arbitrators have decided on disciplinary matters, nor do I have an appropriate response to clients (players, clubs, agents) as to the plausibility/likelihood of success of the disciplinary dispute, or measures for them to adopt to mitigate risk of litigation and/or the imposition of sanctions. This not only brings about a deep level of uncertainty for stakeholders but also distorts the equity between the one-time litigants (athletes/players and their lawyers) and the regular litigants (Sports Governing Bodies and their lawyers). This is because the regular litigants have access to a greater variety of cases that they were a part of, which are largely unpublished and thereby have a better legal strategy to deter conduct that might lead to future disputes. To further accentuate the lack of equity, arbitral panels such as the Court of Arbitration for Sport (Appeals Division), often rely on its previous and consistent jurisprudence, even unpublished decisions, while deciding on issues or devising solutions. Therefore, even though the doctrine of stare decisis does not apply strictly, the Appeals Division of CAS has adopted a practice to rely on past decisions to promote consistent decisions, unless there was a compelling reason not to do so, in the interest of justice (refer CAS 96/149 A.C./FINA award of 13 March 1997). This has in turn rendered the Appeals Division of CAS as a transnational apex court of sports law, and a key shaper of sports jurisprudence. 

Under this context, the key feature of arbitration, namely, confidentiality, comes at cross-roads with the necessity to promote transparency, legal certainty, and the legitimacy of the arbitral panel. In sports disputes, particularly disciplinary matters, the importance of having access to the list of arbitrators, the process by which they are appointed, their past jurisprudence rendered, as well as the manner by which similar disciplinary matters were decided by such arbitrators are essential to establishing legal certainty, consistency as well as maintaining the independence and impartiality of the arbitral panel. However, with confidentiality surrounding such matters, there is a dearth of information particularly in the method or basis by which the sanction/award was imposed against a party and a lack of a concise platform to view the past judicial decisions rendered by various arbitrators. 

The question I therefore reiterate, is how do we strike a balance or is confidentiality and legal certainty mutually exclusive to one another? 

After reviewing various opinions and research articles on the necessity of confidentiality in arbitration as well as the peculiarities of international sports arbitration, I am of the opinion that in international sports arbitration, especially in disciplinary matters before the Appeals Division at CAS, the benefits of promoting legal certainty and transparency outweigh the benefits of maintaining confidentiality. This position also gains prominence if viewed in context of the recent attacks lashed against the legitimacy and continuity of CAS before the Court of Justice of the European Union, as the improvement in the system of publication of CAS Awards as well as the information of the CAS List of Arbitrators may pave the way for CAS to defend its legitimacy and retain its status as an apex body of lex sportiva.  

As a justification of the above, it is first necessary to understand why parties opt for arbitration and specifically what information do parties generally want to keep confidential in such arbitrations? Parties generally value arbitration over litigation in sports disputes for a variety of reasons, such as, greater efficiency in terms of both cost and time, greater party autonomy, greater predictability as to the applicable law, reduced time spent on solving jurisdictional or preliminary issues, subject matter expert-arbitrators, and also greater ability to enforce awards in foreign countries. Apart from this, confidentiality of the entire hearing and award is also a valued feature of arbitration over litigation. For instance, parties in an arbitration may not want certain positions taken by them during the proceedings to be disclosed to the public, or even not want to have certain allegations made against them disclosed to the public as such allegations could tarnish their image irrespective of the final outcome of the dispute. Similarly, parties to an arbitration may not want a ‘loss’ publicised as it may affect their future business. Lastly, confidentiality helps also protect trade secrets and confidential business information. 

While the above position for maintaining confidentiality is important, its relevance is diluted in international sports arbitration due to the key difference between international sports arbitration (especially before the Appeals Division at CAS) and commercial arbitration – the lack of free consent of the parties to refer their disputes to CAS. In most cases, such as FIFA competitions, or even the Olympics, participants have no option but to accept the jurisdiction of CAS as a pre-condition to their participation in the competition. This forced nature of arbitration therefore doesn’t really justify or rather represent a party’s insistence on choosing arbitration for its ‘confidential’ nature. On the contrary, if the arbitration before CAS was based on the free will of the parties (like an ordinary arbitration procedure), the upholding of confidentiality vis-à-vis transparency may be justified. Even in this situation, it may be argued that the choice of an alternate forum doesn’t necessarily mean that the parties do not value the rule of law but instead chose such a forum which would better suit their needs, such as expert arbitrators. Furthermore, in appeal proceedings before CAS, cases are not purely commercial in nature but also involve a range of disciplinary matters against Sports Governing Bodies. Such issues involve a wider public interest and thereby warrant a greater burden on CAS to uphold procedural fairness and legitimacy as opposed to maintaining the confidentiality of the award and parties involved. 

Considering the above, greater transparency would result in many of the following benefits: 

• First, prompt publication of reasoned awards would lead to the development of a consistent sports jurisprudence in disciplinary matters which often rely on precedents to determine the nature of sanction to be imposed. 

• Second, reasoned awards also bring about predictability and legitimacy to the system as parties know what to expect and can also deter their conduct to prevent litigation or imposition of sanctions. 

• Third, published awards also raise awareness amongst the public at large and the relevant stakeholders as to the nature of disputes, method of analysis, reasoning generally involved, past cases and also serves as a check on the system from arbitrary exercise of power. 

• Fourth, publication of awards may also force the faster implementation of awards as public scrutiny may serve as a compelling factor for a judgment debtor to satisfy all obligations towards the creditor under an award. 

• Fifth, regular publication of awards also enable the collection of data as to the list and nature of cases adjudicated by a particular arbitrator and if he/she would be an appropriate arbitrator for a particular dispute. 

• Lastly, the entire dispute resolution benefits as stakeholders have the ability to analyse and critique the system. 

Admittedly though, Article R59 of the Code of Sports Related Arbitration (CAS Code) meets this standard of transparency to a certain extent as it provides that “the original award, a summary and/or a press release setting forth the results of the proceedings shall be made public by CAS, unless both parties agree that they should remain confidential” as opposed to Article R43 of the CAS Code which mandates for strict confidentiality in disputes before the Ordinary Division of CAS. 

In practice, however, there still lies several flaws in the manner by which the CAS awards are published – the particular issue being that not all awards are published, or if published, are not promptly done after the award has been rendered. This again benefits the disputing parties involved in that case as opposed to other litigants and hampers the predictability and coherence of CAS jurisprudence. For instance, two CAS panels may be handling similar disciplinary cases but at different stages. If one panel issues its award earlier, that decision could help guide the other to ensure consistency. However, if the first award isn’t published promptly, this coherence in the law can be lost. 

As an example of the delay or lack of promptness in the publication of CAS Awards, a brief review of the recent decisions published on the CAS Website is analysed in comparison to the date of the CAS Award below: 

It is evident from the above that the lack of promptness in the publication of awards, as well as the opaque and discretionary publication policy unconnected to the subject matter of the cases severely affects parties, especially one-time litigants from sufficiently pre-empting and devising legal strategies based on established awards, which other litigants, may have access to. This lack of transparency therefore becomes a central issue for CAS, which has positioned itself as a significant influencer of lex sportiva and raises concerns about its legitimacy when reference to such established jurisprudence (which is unpublished) is relied upon by arbitrators in the adjudication of disputes. 

Despite the above, I am still an advocate for maintaining the legitimacy of CAS as despite its flaws, it still remains as a platform to ensure uniformity in international sports disputes and further is a cost effective and quick dispute resolution system as opposed to local courts. However, to fix the above flaws and establish the CAS as a “court of record”, I believe that the CAS administration should pay necessary heed to the following: 

• The publication of awards at the appeal stage before CAS should be made the binding rule and the parties should be precluded from agreeing otherwise except in specific cases involving safe-guarding issues such as sexual abuse and harassment, physical abuse, online abuse etc. Alternatively, the CAS could also 

• The publication policy of CAS should be revamped to ensure a prompter publication of cases. In this regard, if certain cases are not published, a press-release stating the brief content of the matter and the reasons for non-publication should be sufficiently disclosed to the parties. 

• The CAS website and database should also be modernised to enable easier access to awards and relevant information pertaining to arbitrators, their past cases and/or any judicial opinions or commentaries rendered by the arbitrators. 

• If a party to a dispute or even an arbitrator relies on an unpublished award in a proceeding, the opposite party must also be served a copy of the award and be allowed to make necessary changes to their pleadings based on the unpublished award relief on by the opposite party/arbitrator. 

Disclaimer

Views expressed are purely personal in nature and the publication of this blog does not necessarily represent an endorsement of the views of the author by the publisher. Further, this blog is not a legal opinion or legal advice and has no binding value before any court of law, tribunal or quasi-judicial authority.