Author: Esteban Carbonell O’Brien 🇵🇪

The article is also available in French and Spanish:

Published by the firm WD Associés | Translated with the assistance of AI

ABSTRACT

This article presents the principal findings and arguments developed in the Manual on Sports Mediation and Arbitration (Comparative Law: Peru, Argentina, Brazil, Mexico, Spain, Italy and France), drawing on the author’s experience as a sports mediator and arbitrator. It examines the functional distinction between mediation and arbitration in sport, the role of the Court of Arbitration for Sport (CAS/TAS) as a global source of jurisprudential guidance, the challenges that e-Sports pose to traditional sports-law theory, and the tensions that arise between international arbitral jurisprudence and national legal systems. The article concludes that consolidating alternative dispute-resolution mechanisms informed by comparative law is essential to provide greater predictability and legitimacy to Latin American sports law.

1. Introduction

When I decided to write the Manual on Sports Mediation and Arbitration, I did so based on a conviction that I have maintained throughout my career as a mediator and arbitrator: sport, as an activity that involves passions, financial interests and reputations, requires dispute-resolution mechanisms as sophisticated as those demanded by any other global industry. In the Spanish-speaking world, however, this remained a relatively unexplored field from a systematic and comparative perspective. This was the underlying reason that led me to undertake the project and largely explains the structure and scope ultimately adopted by the work presented here in article form.

The starting point is a practical reality that I have observed repeatedly in my professional practice: sports disputes—whether between federations and athletes, between clubs, or concerning disciplinary sanctions and sponsorship arrangements—rarely receive an adequate response from the ordinary courts. Procedural delays, the lack of specialisation among ordinary courts and their limited connection with the particular logic of elite sport often make conventional litigation counterproductive for the parties involved.

Against this background, the Court of Arbitration for Sport, internationally known as the CAS or TAS, has become the undisputed authority in this field. Nevertheless, its operation, precedents and interaction with the domestic legal systems of individual countries are not always readily accessible to a lawyer handling a case of this nature for the first time. This was precisely the gap that I sought to address.

For this purpose, I structured the research as an exercise in comparative law, examining the experiences of Peru, Argentina, Brazil, Mexico, Spain, Italy and France. The study is not a catalogue of juxtaposed rules. It is a deliberate attempt to identify common patterns and significant differences in the way each legal system has incorporated—or, in certain cases, resisted—mediation and arbitration as suitable means of resolving disputes arising in sport.

Each national section was conceived not as a translation of rules, but as a critical examination of the way in which the relevant legal system engages, or fails to engage, with international standards of sports arbitration.

2. The Value of Mediation in Comparison with Sports Arbitration

One of the central themes running through the research is the distinction—often blurred in practice—between sports mediation and arbitration. The two mechanisms are frequently discussed as though they were interchangeable, when in fact they follow different rationales and, above all, apply at different stages of a dispute.

With the assistance of a neutral third party, mediation enables the parties to construct their own solution. In many cases, this helps preserve the relationship between an athlete and a club, or between a federation and an athlete. This is particularly valuable in a field where the parties will often need to continue working together after the dispute has been resolved.

Arbitration, by contrast, provides a binding decision when negotiation is no longer possible. It offers the safeguards associated with an adjudicative process, but it also comes at a relational cost: the relationship between the parties rarely emerges entirely intact.

The study devotes several pages to examining how different international federations have progressively adopted multi-tiered dispute-resolution clauses requiring the parties to attempt mediation before commencing arbitration. This approach has effectively become standard practice in European professional football, but remains at an early stage of development throughout much of Latin America.

The comparative evidence considered in the study suggests that systems incorporating a preliminary mediation stage resolve disputes more quickly and with less institutional strain, without preventing the parties from subsequently proceeding to arbitration if negotiations fail.

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3. The Court of Arbitration for Sport as an Essential Point of Reference

A substantial part of the research is devoted to analysing the Court of Arbitration for Sport, which is based in Lausanne and whose jurisprudence has developed into a genuine body of global sports law.

The study considers not only the CAS’s institutional structure and procedural rules, but also the principles it has progressively established in areas such as doping, player transfers, athlete eligibility and disciplinary sanctions imposed by international federations.

The purpose was to demonstrate how these precedents, although issued by a tribunal based in Switzerland, ultimately influence the way national courts in each of the seven countries under examination decide comparable disputes, even where there is no formal obligation to follow CAS jurisprudence.

The comparative analysis also identified areas of friction: cases in which CAS jurisprudence conflicts with the public-policy rules of a national legal system or with procedural guarantees constitutionally recognised in countries such as Peru and Brazil. Particular attention is given to the way national courts have addressed these tensions when recognising or enforcing CAS awards, and to the lessons that may be drawn from those experiences to strengthen legal certainty throughout the system.

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4. e-Sports as a New Frontier of Sports Law

The section devoted to e-Sports was particularly stimulating to develop. Many questions remain unresolved: what is the legal nature of the relationship between a professional player and their team? How should the intellectual property associated with a video game be protected in relation to the rules governing competition? Which body has jurisdiction when a dispute crosses borders and involves digital platforms that are not always connected to a clearly identifiable jurisdiction?

Addressing these questions not only brings the discussion up to date, but also confirms one of the study’s central premises: sports mediation cannot remain confined to traditional football or athletics. It must be prepared to accommodate disciplines that already attract audiences and generate economic activity comparable to those of many Olympic sports.

This is probably the field in which comparative legal scholarship still has the furthest to go.

5. Scope and Intended Audience of the Study

This research was conceived with a specific reader in mind: a lawyer who is not necessarily a sports-law specialist but is faced with a case of this nature and needs clear guidance on how such disputes are resolved, which institutions are available and which comparative experiences may inform their approach.

It is also intended for sports mediators and arbitrators, who often develop their practices in relative isolation and without sufficiently systematic references concerning the way their counterparts operate in other jurisdictions. The study is equally relevant to students and academics working in sports law, a discipline that is still establishing its place within law faculties across our region.

Particular recognition should also be given to the contribution made by Alberto Elisavetsky, President of ODR Latinoamérica, in his foreword to the book. Drawing on his experience in online dispute resolution, he offers a perspective that enriches the work and places it within the broader global trend towards the digitalisation of dispute-resolution mechanisms.

He thereby situates sports arbitration within a wider phenomenon: the development of specialised justice that increasingly moves away from traditional courts and towards agile, technical mechanisms adapted to the nature of the disputes they are designed to resolve.

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6. Conclusions

The comparative examination of seven legal systems supports the conclusion that sports mediation and arbitration are becoming indispensable mechanisms for bringing speed, specialisation and legitimacy to the resolution of disputes in contemporary sport.

The European experience, particularly in professional football, demonstrates that multi-tiered clauses requiring mediation before arbitration reduce institutional strain without sacrificing the parties’ procedural safeguards. Furthermore, although the jurisprudence of the Court of Arbitration for Sport is not formally binding upon national courts, it exerts a de facto normative influence that requires domestic legal systems to establish clear criteria for its recognition and enforcement.

Finally, the rise of e-Sports presents a challenge that comparative legal scholarship is only beginning to explore and that will require specific legislative and jurisprudential development in the coming years.

In this context, it is hoped that the study will contribute to consolidating sports mediation and arbitration as a distinct area of expertise within Latin American sports law, supported by comparative standards that allow our countries to engage on equal terms with the European systems that have thus far remained at the forefront of the field.

7. References

  • Carbonell O’Brien, E. (2026). Manual de mediación y arbitraje deportivo. Derecho Comparado: Perú, Argentina, Brasil, México, España, Italia y Francia (Prólogo de A. Elisavetsky). Lima: Editorial SEPÍN.
  • Court of Arbitration for Sport (CAS). Code of Sports-related Arbitration. Lausana: Tribunal Arbitral du Sport.
  • Fédération Internationale de Football Association (FIFA). Reglamento sobre el Estatuto y la Transferencia de Jugadores.
  • Elisavetsky, A. Resolución de disputas en línea (ODR) y su aplicación en el ámbito deportivo. ODR Latinoamérica.