SETTLING SPORTS DISPUTES BY EXPERT DETERMINATION IN SWITZERLAND
Generally speaking, sports-related disputes particularly lend themselves for settlement outside the ordinary courts system, that is, by some form of alternative dispute resolution (ADR), the most common being arbitration. This is also the case in Switzerland, where we have the Court of Arbitration for Sport, which has been settling sport disputes for more than forty years.
Although arbitration is important and effective, it is not the only form of ADR for settling sports-related disputes relatively quickly and cheaply. One other form, which should be considered, according to the particular circumstances, is ‘expert determination’.
For example, expert determination is particularly appropriate for settling disputes arising under sports marketing agreements, especially merchandising and licensing agreements, which often involve questions of intellectual property law, as well as valuation and accounting issues.
The expert determination process involves the parties in dispute agreeing on the appointment of an expert, with specialist knowledge and expertise on the subject matter of the dispute and their further agreement to abide by the expert’s decision. In other words, the decision is intended to be final and binding on them. To agree otherwise, defeats the whole purpose of appointing an expert to settle the dispute in the first place.
Having settled on an appropriate expert and agreed his/her professional fees and expenses, which are usually shared equally, the process is quick and confidential, which, the sports community generally prefers. Rather than, so to speak, the parties ‘washing their dirty sports linen in public’ for all to see!
The distinction between expert determination and arbitration, under Swiss Law, namely the Code of Civil Procedure, is well illustrated by the Decision 4A_254/2011 of the Swiss Federal Supreme Court, and depends upon the express terms of appointment.
As will be seen, expert determination is a flexible process and the key to its success, of course, is finding the right expert, that is, the person with the appropriate knowledge and experience of the particular aspect of sports law involved in the case.
We act as experts in expert determination cases and also provide expert opinions on Swiss sports law in court cases.
For further information and advice, please contact by email either Dr Lucien Valloni at ‘valloni@valloni.ch’ or Noemi Delli Colli at ‘dellicolli@valloni.ch’.