Does the Loss of Chance Doctrine Have a Chance in International Sport Arbitration?

Authors

Dmitry A. Pentsov

First Page

37

Abstract

The Article analyzes whether and, if so, how, the loss of chance doctrine providing the basis for claims against person who deprived victims of a chance of occurrence of a certain result or decreased this chance could be used in international sport arbitration at the Court of Arbitration for Sport (CAS). It provides a comparative analysis of applicability of this doctrine under English law, French law, and the law of the State of New York to sport competitions and outlines potential problems of utilizing this doctrine in the CAS arbitration through domestic law based on choice-of-law rules. The Article argues that the result of application of these rules would be either unpredictable or predominantly unfavorable to athletes, because the CAS panels would likely end up with the application of Swiss law currently not recognizing this doctrine. Such an outcome may encourage the athletes to turn their eyes to state courts, undermining many years of attempts to uniformize resolution of international sport disputes, which started with the creation of the CAS in 1984. Following an explanation of the CAS role in the uniformization of legal regulation of international sport, the Article argues in favor of incorporation of the loss of chance doctrine into the so-called Lex Sportiva as an independent supra-national concept by the CAS, outlines its content, identifies potential objections against this concept and addresses them.

Recommended Citation

Dmitry A. Pentsov, Does the Loss of Chance Doctrine Have a Chance in International Sport Arbitration?, 50 Brook. J. Int'l L. 37 (2024).
Available at: https://brooklynworks.brooklaw.edu/bjil/vol50/iss1/2