Faster, higher, stronger - Court of Arbitration for Sport

11 June 2015

Jamie Herbert

Arbitration analysis: What role does the Court of Arbitration for Sport (CAS) play in the world of sports law? Jamie Herbert, associate at Bird & Bird, explores the past, present and future of the CAS and examines its vital role.

What is the primary function of the CAS for Sport?

The CAS is a unique institution, being the only truly global arbitral body devoted to resolving disputes directly or indirectly related to sport. It was first established in 1983, when then International Olympic Committee (IOC) President Juan Samaranch envisioned a sport-specific dispute resolution service that was quick, in-expensive and flexible. In its early years, the CAS retained extremely close links to the IOC but, following the Paris Agreement of 1994, signed by the IOC, the Association of Summer Olympic International Federations, the Association of International Winter Sports Federations, and the Association of National Olympic Commit-tees, the International Council of Arbitration for Sport (ICAS) was created. Independent of the IOC and its federations, ICAS remains the 'supreme organ' of the CAS and is responsible for:

  • funding of the organisation
  • maintaining the strict independence
  • the autonomy of the CAS
  • the rights of the parties to CAS arbitration

Since its creation in 1994, the CAS has heard nearly 4,000 cases. All Olympic international federations and many national Olympic committees (NOCs) include in their statutes an arbitration clause referring disputes to the CAS. Since the World Conference on Doping in Sport, held in March 2003, the Olympic movement and numerous governments have promulgated the World Anti-Doping Code 2015, art 13, which states that the CAS is the appeals body for all international doping-related disputes. In recent years, football's international federation, FIFA, has included a right of appeal to CAS in a variety of its statutes, rules and regulations and, today, a significant proportion of the CAS caseload involves such cases.

The main CAS headquarters is in Lausanne, Switzerland, but in recent years, CAS has opened a number of regional offices in, for example, New York and Abu Dhabi.

What is the structure of the CAS?

Today, proceedings before the CAS are governed by the Code of Sports-related Arbitration and Mediation Rules (CAS Code), which sets out four different dispute resolution procedures:

  • the ordinary arbitration procedure--allowing first instance disputes to be heard and adjudicated by CAS
  • the appeals arbitration procedure--allowing CAS panels to hear appeals from first instance de-cisions, often taken by a tribunal convened under the rules of a sports governing body
  • the advisory procedure--which is non-contentious and allows certain sports bodies to seek advisory opinions from the CAS
  • a new mediation service--the procedures for which are non-binding and informal

The ICAS is composed of 20 members who must all be high-level jurists well-acquainted with the issues of arbitration and sports law. Among other things, it is responsible for:

  • amending the CAS Code
  • electing arbitrators to the CAS standing panel
  • resolving disputes regarding challenges to arbitrators by a party to CAS proceedings

Today, there are 330 CAS arbitrators sitting on arbitrations before the CAS. Each arbitrator is appointed by ICAS on a four-year term, following a proposal by either the IOC, an international federation or an NOC and, according to the CAS Code, must possess legal training and 'recognised competence with regard to sport'.

In reality, of the 330 arbitrators included on the CAS list, only a small proportion regularly sit on CAS arbitral panels--some have not sat on a single such panel since their appointment.

In addition to providing its regular arbitral services, since 1996, CAS has operated 'ad hoc divisions' for major sporting events, such as:

  • the Summer and Winter Olympics
  • the FIFA World Cup
  • the UEFA European Championships

At these events, a small grouping of CAS personnel, usually two co-presidents and up to 12 arbitrators, are present throughout the event and stand ready to determine disputes that arise within a very short timeframe, often within 24 hours.

Have there been any important developments or case studies in recent years?

January 2015 saw a landmark ruling by the Munich Higher Regional Court that could, if left to stand, have significant implications for the CAS.

The case concerned the German speed skater, Claudia Pechstein, who had been banned for two years for blood doping by the International Skating Union (ISU)--a ban upheld by CAS and then by the Swiss Federal Tribunal. Ms Pechstein took her fight against the ISU to the domestic courts, challenging the legality of her doping ban and seeking EUR 4.4m in damages. The ISU defended the challenge by pointing to the fact that the CAS decision was final and binding on all parties. However, the first instance Munich court found that the provision of the ISU's anti-doping rules requiring all disputes to be submitted to the CAS was not a valid and binding arbitration agreement, because it was not voluntarily entered into--instead, it was imposed upon speed skaters as a condition of participation in the sport. Nonetheless, the first instance court found that, whether or not the original arbitration agreement was freely entered into, Ms Pechstein had voluntarily submitted herself to the CAS's jurisdiction by proceeding with her first appeal and she was therefore bound by its award.

Pechstein appealed this decision to the Munich Higher Regional Court, which agreed with her that her doping ban was illegal and that the substantive case should be heard on the merits, notwithstanding the CAS award. The basis of its decision was that the ISU's rule compelling athletes to submit doping appeals to CAS was an abuse of a dominant position, in breach of German competition law because the structure of the CAS is biased in favour of governing bodies, and against athletes. The court found such bias on the basis that, while parties to CAS arbitrations are able to select their own arbitrators, they are only able to choose from a closed list. Furthermore, the chairman of each CAS panel of arbitrators is selected by the President of the CAS Appeals Division, who is selected by ICAS. The court found that Ms Pechstein had not waived that ob-jection by voluntarily submitting herself to the CAS, because she had no choice but to do so if she wanted her case heard in time for the 2010 Olympics. It concluded that the CAS decision was not binding on her, as it was unlawful and contrary to public policy.

This decision has provoked widespread commentary, with stakeholders unsure of its implications for the uni-fied system of sports arbitration provided by the CAS for so many years. Indeed, the decision was so con-troversial and potentially damaging for the CAS that it prompted the CAS to issue a media release to address it and launch a strong defence of its place in the legal and sporting landscape:

'The CAS and international arbitration generally provide for the only system capable of international applica-bility and consistency for international sport...The fact that state courts would reopen cases involving their national athletes endangers the international effectiveness and the harmony of the decisions rendered in dis-ciplinary matters related to sport. Decisions related to disciplinary matters could take many years after the actual competition to become final, while all the numerous legal remedies are being exhausted. The risk of contradictory decisions would be also higher with athletes being able to compete in certain countries but not in others. This would affect the credibility of sport more generally. It must be emphasized that, also in Ger-many, various state courts have previously recognized and upheld the jurisdiction of the CAS. The CAS was created to answer a need of all the stakeholders of international sport...However, the CAS cannot prevent a foreign court contradicting the decisions of the Swiss Supreme Court. The CAS is active in almost all coun-tries around the world and adapting its system and procedures to accommodate each national jurisdiction is not feasible. It is always prepared to listen and analyse the requests and suggestions of its potential us-ers...However, such consultation must be independent of individual interests related to an existing dispute. The CAS will continue to improve and evolve with changes in international sport and best practices in inter-national arbitration law.'

Sports law practitioners await the promised evolution of CAS procedures with interest.

Interviewed by Ioan Marc Jones.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor

This article was first published on Lexis®PSL IP & IT on 15 May 2015. Click for a free trial of Lexis®PSL.