The Role of the Court of Arbitration for Sport - Case Study Example

THE ROLE OF THE COURT OF ARBITRATION FOR SPORT (CAS) Introduction In 1983, the Court of Arbitration for Sport (CAS) was established by the International Olympic Committee (IOC) after there was a substantial increase in the number of international sports-related disputes and there was no independent or authoritative body to deal with them. According to CAS General Secretary Matthieu Reeb: “The idea of creating an arbitral jurisdiction devoted to resolving disputes directly or indirectly related to sport had been firmly launched. Another reason for setting up such an arbitral institution was the need to create a specialized authority capable of settling international disputes and offering a flexible, quick and inexpensive procedure. The initial outlines for the concept contained provision for the arbitration procedure to include an attempt to reach a settlement beforehand. It was also intended that the IOC should bear all the operating costs of the court. Right from the start, it was established that the jurisdiction of the CAS should in no way be imposed on athletes or federations, but remain freely available to the parties.”i The main reason for setting up such an arbitral institution was the need to create a specialized authority capable of settling international disputes and offering a flexible, quick and inexpensive procedure. The CAS is also known by its French name, Tribunal Arbitral du Sport (TAS). The CAS has its headquarters in Lausanne, Switzerland but has two other courts in Sydney, Australia and Denver, Colorado. The CAS also has the authority to set up courts in other countries, which it does during the Olympics. The language for the CAS is either French or English. Until 1991-92, a wide range of cases involving issues such as the nationality of athletes and contracts concerning employment, televisions rights, sponsorship and licensing were submitted to the CAS. Subsequently numerous doping cases were also brought before the CAS.ii After that a new development occurred wherein the structure of the CAS was evolved. The CAS became more independent of the IOC, both in organization and financial terms. The International Council of Arbitration for Sport (ICAS) The International Council of Arbitration (ICAS) is the supreme body of the CAS. The main task of the ICAS is to safeguard the independence of the CAS and the rights of the parties. It is concerned with the administration and financing of the CAS. The ICAS is composed of 20 members who are all high level jurists well-acquainted with the issues of arbitration and sports law.iii The Court of Arbitration for Sport (CAS) The CAS is an institution that is independent of any other sports organization and was created to facilitate the settlement of sports-related disputes through arbitration or mediation. The CAS has about 300 arbitrators from 87 countries. Two arbitration divisions – Ordinary Arbitration Division and Appeals Arbitration Division, was created to make a clear distinction between disputes of sole instance and those arising from a decision taken by a sports body.iv International Code of Sports Related Arbitration The procedure to be followed in case of disputes is governed by the “International Code of Sports related Arbitration”. This Code governs the organization and arbitration procedures of the CAS. Four specific procedures are provided under the Code: 1. The ordinary arbitration procedure. 2. The appeals arbitration procedure. 3. The consultation procedure which allows certain sports entities to request advisory opinions from CAS. 4. The mediation procedure. Ad Hoc Divisions In addition to ordinary and appeals divisions, CAS forms special ad hoc divisions to hear urgent cases that arise during the Olympic Games. The turn-around time for arbitration decisions made by the ad hoc division is as short as 24 hours. In 1996, the ICAS created a CAS ad hoc division with the task of settling any disputes arising during the Olympic Games in Atlanta, within a 24 hour time limit, although the Ad Hoc Division President has the power to extend this time frame if required. To ensure easy access to the Ad hoc division for all those taking part in the Olympic Games, a special procedure that was simple, flexible and free of charge was created. Following the success of the Atlanta Ad Hoc Division, several other ad hoc divisions were created on various occasions. The Role of the Court of Arbitration for Sport (CAS) The main task of CAS is to settle sports related disputes through arbitration. This is done by pronouncing arbitral awards that have the same enforceability as judgments of any other ordinary court. The CAS also settles disputes through mediation. It also gives advisory opinions on legal questions related to sports. This concept is similar to ‘expert determinations’ in the commercial world, but does not have a binding effect on the parties. The CAS can hear and settle any disputes directly or indirectly related to the sport, including commercial issues, for example, a dispute over a sponsorship contract. Any natural person, association or company can bring a case before the CAS. “The CAS may have jurisdiction expressly conferred upon them by relevant domestic rules over questions of fact as well as questions of law; and over questions as to the severity of the penalty properly to be imposed in disciplinary cases. Such an arbitral body differs conceptually from a court in that its jurisdiction arises not from the general law of the land, but from the content of the rules establishing its constitution and powers.”v An important decision of the CAS is that of United States Olympic Committee (USOC), Michael Johnson, Antonio Pettigrew, Angelo Taylor, Alvin Harrison, and Calvin Harrison / International Olympic Committee (IOC) and International Association of Athletics Federation (IAAF), CAS 2004/A/725. In Sydney Olympic Games, the U.S.A. relay team was a declared gold medal winner in 1,600 (4 x 400m) metre relay. The team was made up of six sprinters. Jerome Young was one of them. He ran in the opening and semifinal rounds but did not run in the final anchored by Michael Johnson. The International Association of Athletics Federation (IAAF) received confirmation of Youngs positive doping test after the Olympic Games. The IAAF Council decided that Young was ineligible and "disqualified", and that the results of the USA team be annulled. The U.S. Olympic Committee and the five of the relay members challenged this decision on the basis of lack of authority on the part of the IAAF. In this case, the Panel faced an interpretative issue of the Rules of the International Association of Athletics Federation (IAAF). As a matter of the interpretation of Rule 59.4, does the IAAF have the authority to forfeit the medals given to the members of a relay team where one of the members (who did not run in the finals) was found in violation of a doping offence? Rule 59.4 of the IAAF Rules provided: ‘If an athlete is found to have committed a doping offence and this is confirmed after a hearing or that athlete waives his right to a hearing, he shall be declared ineligible. In addition, where testing was conducted in a competition, the athlete shall be disqualified from that competition and the result amended accordingly. His ineligibility shall begin from the date of suspension. Performances achieved from the date on which the sample was provided shall be annulled.’ Rejecting the IAAFs argument that the Article should be read "purposively", the Panel held the plain reading of the Article dictates that the Article provides the authority to forfeit the medals given to individual athletes, but not to a team. The Panel held that "the decision taken by the IAAF Council...interpreting its rules is incorrect" and set aside the IAAFs decision.vi Advantages of CAS The CAS is popular for adjudication of international disputes because it eliminates many of the problems that often arise in these cases. The CAS provides a single jurisdiction that is universally applicable throughout the world to a wide variety of sporting events. In Volkers v. FINA, the CAS was able to resolve the dispute in accordance with the rules of FINA and also in accordance with the general principles of law. Presentation of case before the CAS requires expertise in more than one legal system. In the Beeuwsaert case, the CAS had to take into account the Community law while deciding the dispute between the parties. In AEK Athens FC and Slavia Prague FC v. UEFA, the CAS applied both the Swiss law as well as the competition law provisions of the Treaty of Rome to decide the dispute before it. This only shows that although Swiss Law is applied for resolving disputes, various other laws are also taken into consideration depending upon the facts of the case presented before the CAS.vii The decisions of the CAS reflect and promote the distinct sporting principles of fair play and good sportsmanship while applying technical rules, constructing sport related rules and ensuring equality of sports personnel before the law. The arbitrators of CAS are prominent legal personalities chosen for their skill and experience in sports law disputes. “The Court of Arbitration has shown a distinction between issues involving technical decisions, standards or rules that essentially concern rules of the game are beyond arbitral or judicial scrutiny and should not be reviewed, e.g M.v Assoc.Internationale de Boxe Amateur (AIBA), CAS Ad Hoc Div. (O.G.Atlanta 1996) reported in Reeb, M, Digest of Awards of CAS Awards 1986 – 1998, (1999), Berne:Staempfli, where case was made to review a referee’s decision when Boxer M was disqualified for landing a below-the-belt punch on his opponent.”viii The CAS provides the jurisdiction, the parties choose the applicable law, the procedure is governed by the "International Code of Sports related Arbitration" and the language is either French or English. The procedures are preferred by the parties because they are flexible and not very formal. All these factors pave way for accommodating the needs or desires of the parties involved. In 2003, in A. & B. v. Int’l Olympic Committee (IOC) and Int’l Ski Fed. (FIS), Swiss Fed. Trib., the status of the CAS was considered by the Swiss Federal Supreme Court. In an appeal of a finding of doping offenses against two skiers, the Court reviewed the steps taken to reorganize the CAS in 1994 and held it to be a fully independent and impartial arbitral tribunal, separate from the IOC.ix The CAS hearings are usually conducted in private and awards are confidential unless the parties agree otherwise. Last but not the least; the CAS is able to provide arbitration decisions in a time frame that is appropriate for the circumstances to the particular dispute. For example, during the Olympics, awards are required to be made within 24 hours. The appeal procedures of the CAS are also relatively quick. The procedural rules mandate that a decision must be rendered within four months from the filing of the statement of appeal. Disadvantages of CAS The Court of Arbitration has developed a separate set of international legal norms that is being applied to sports, but whether these norms conform to the general principles of national legal systems is something that needs to be looked upon. Although some Courts have accepted the binding nature of the code used by the CAS in settling disputes, there is still a general perception that these norms cannot be enforced at the national level and that the aggrieved sportspersons are forced to approach the CAS for its decisions. Another major issue is that the decisions of the CAS can be appealed only under certain restricted conditions. In some cases the domestic courts refuse to entertain challenges and attempts to set aside awards of the CAS. A leading case in this regard is that of Raguz v. Sullivan, decided by the New South Wales, Australia, Court of Appeal in 2000. It involved a dispute over which of two Australian Judo athletes was properly nominated by the Australian Olympic Committee. The case was decided by a CAS panel physically present in Australia, as part of the 2000 Olympics; but the local court declined to intervene because the athletes had agreed to an arbitration situated legally in Switzerland. Furthermore, there is still a suspicion in the minds of the athletes that the CAS is not truly independent of the governing bodies like IOC, FIFA etc.x Conclusion The Court of Arbitration for Sport (CAS) sometimes referred to as the ‘Supreme Court of World Sport’ is supposed to be the best hope for future management of international sports dispute resolution. It has proved to be a very popular and effective body for settling a wide range of sports disputes with a fair amount of reasoning, effectiveness and speed in a cost effective manner, within the arena of sports rather than in the usual costly and slow environment of the ordinary courts. Its procedures are user friendly and flexible and most of them are usually settled within months rather than years. As the cases that come up before the CAS are varied and come from all over the sporting world, including the commercial side, the CAS serves the needs of sports, which continues to be an ever-expanding global, social and business phenomenon. Read More