The functioning of the Court of Arbitration for Sport (CAS)

Arbitration is an alternative method of dispute resolution consisting, for the parties to the dispute, in conferring power on one or more arbitrators to settle their dispute (s). Since its creation on 30 June 1984, the place of the Court of Arbitration for Sport (TAS), or Court of Arbitration for Sport (CAS), in sports justice has increased exponentially due in particular to the development of its awarding skills and its subsequent case-law relevance. The first major reform of the CAS, in 1994, thus established:

• the International Council for Arbitration in Sport (CIAS) whose role is in particular to manage the functioning and financing of the CAS in place of the International Olympic Committee (IOC)

• a Sports Arbitration Code (hereinafter: the Code) providing for two arbitration chambers: the ordinary arbitration chamber and the appellate arbitration chamber.

As for the news, it is overflowing, as evidenced by the recent referral to the CAS by Michel PLATINI, ex-President of the European Union of Football Associations (UEFA), contesting his suspension of 8 years from all activities related to football by the Independent Ethics Committee of the International Federation of Football Association (FIFA). The study of this institution therefore requires addressing the following points:

• The major role of the International Sports Arbitration Council (CIAS) (I)

• The application of the Code (II)

• The arbitration procedure before the CAS (III)

• The rules of law applicable to the resolution of disputes by the CAS (IV)

• The remedies for the CAS arbitration award (V)

• The specific procedure for the fight against doping (VI)

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I. The major role of the International Sports Arbitration Council (CIAS)

The CIAS was created on June 22, 1994, as part of the signing of the “Convention relating to the establishment of the International Sports Arbitration Council”, known as the “Paris Convention”. Since the signing of this Convention, all international Olympic federations and numerous National Olympic Committees have recognized the CAS and have inserted, in their statutes, an arbitration clause in favor of the CAS. The CIAS has several missions:

• the adoption and modification of the regulations applicable to the CAS (A.)

• the election of the representative bodies of the CAS (B.)

• the appointment of arbitrators (C.)

• the operation and financing of the TAS (D.).

A. The adoption and modification of the rules applicable to the CAS

Under article S8, paragraph 2, of the Code, the CIAS is competent to amend the Code if it obtains a two-thirds majority of the members of the ICAS. According to articles S2 and S6 of this Code, the CIAS is also competent to promote the settlement of sports disputes through mediation. It is in this sense that the CIAS adopted the CAS Mediation Rules, which came into force on 1 September 2013, and amended on 1 January 2016 in order to adopt a new scale of mediation fees.

B. The election of the representative bodies of the CAS

For one or more renewable periods of 4 years, the CIAS has elected its own President, Me John D. COATES since 2011, the President of CIAS also being the President of the CAS. The CIAS elects its two Vice-Chairperson (s), Ms. Michael B. LENARD and Ms. Tjasa ANDREE-PROSENC, in charge of acting in place of the President, if necessary. The election of the President and its Vice-Presidents takes place after consultation with the IOC, the Association of International Olympic Summer Sports Federations (ASOIF), the Association of International Olympic Winter Sports Federations (AIOWF), the Association of National Olympic Committees (ACNO) .The President of the Ordinary Arbitration Chamber (ACNO) .The President of the Ordinary Arbitration Chamber, Ms. Carole MALINVAUD, and that of the Appeals Arbitration Chamber, Ms. Corinne SCHMIDHAUSER, are also elected by the CIAS. The President, his Vice-Presidents, the President of the Ordinary Arbitration Chamber and the President of the Appeals Arbitration Chamber form the Bureau of CIAS.

C. The functioning and financing of the TAS

According to article S6, paragraph 5, of the Code, the CIAS is responsible for financing CAS and more specifically for:

• the receipt and management of the funds allocated to its operation; • the approval of the CAS budget prepared by the CAS Registry

• the approval of the CAS annual accounts prepared by the CAS Registry composed of the Secretary General, appointed by the CIAS, and Advisers.

All the funding of the TAS is therefore managed by the CIAS, which is the keystone of the operational arrangements of this institution.

D. Appointment of arbitrators

According to article S6, paragraph 3 of the Code, the appointment of arbitrators is the competence of the ICAS, which “designates the arbitrators constituting the list of CAS arbitrators and the mediators constituting the list of CAS mediators, it may also remove them from these lists”. Arbitrators should only be appointed in the presence of a dispute where the statutes or regulations of the said sports organizations or a particular agreement so provide. Paragraph 4 of the same article adds that it “decides the issues of recusal and dismissal of arbitrators and exercises the other functions conferred on it by the Rules of Procedure” .As this is a jurisdiction specific to the world of sport, the arbitrators do not depend on the International Court of Arbitration at the International Chamber of Commerce (ICC) but only on the ICAS. The CIAS therefore designates, beforehand, all the arbitrators making up the CAS.

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II. The application of the Sports Arbitration Code

Article S1 of the Code provides that the settlement of disputes in sports matters may also be achieved through mediation. The provisions applicable to mediation by the CAS are governed by the CAS Mediation Rules, which came into force on 1 September 2013, which provide for the possibility of concluding a mediation agreement, or even a mediation clause, in order to submit a dispute, or a potential dispute, to CAS mediation. With regard to arbitration, the new edition of the Code, amended by the CIAS, is composed of 70 articles divided into two parts:

• Articles S1 to S26 relating to the Statute of bodies involved in the settlement of disputes in sport

• Articles R27 to R70 relating to the Rules of Procedure.

The jurisdiction of the CAS in matters of arbitration is provided for in article R27 of the Code, according to which: “these Rules of Procedure apply when the parties have agreed to submit a sports-related dispute to the CAS. Such a submission may result from an arbitration clause contained in a contract or regulation or from a subsequent arbitration agreement (ordinary arbitration procedure), or relate to the appeal of a decision rendered by a federation, association or other sports body where the statutes or regulations of that body or a particular agreement provide for appeal to the CAS (appellate arbitration procedure)”. The development of disputes submitted to the CAS results, therefore, from this article, which allows the parties to provide for its jurisdiction through:

• an arbitration clause in a contract

• of a regulation

• a subsequent arbitration agreement

The second paragraph of this article also provides that such disputes may relate to questions of principle relating to sport, to pecuniary matters, to questions relating to the development of sport as well as to any activity or case relating to sport. The Code therefore provides for broad attribution to the CAS, which, since its creation in 1984, has never declared itself incompetent due to the non-sporting nature of a dispute. In principle, two types of disputes can be submitted to the CAS: disciplinary disputes and commercial disputes. Disciplinary disputes generally include appeals filed against decisions made by sports federations in the context of disciplinary cases (acts of brutality on the field, insults to referees). With regard to commercial disputes, they essentially include disputes relating to the execution of contracts, for example in the field of sponsorship, the sale of television rights, the organization of sports events, player transfers and relationships between players or coaches and relationships between players or coaches and clubs and/or agents (employment contracts, agent contracts).

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III. The arbitration procedure before the CAS

The ordinary arbitration procedure before the CAS is initiated by the filing of a request for arbitration at the CAS Registry: it is therefore appropriate to mention the role of the CAS Registry (A) before addressing the question of the determination of the arbitrator (s) (B).

A. The role of the CAS Registry

Unless it appears from the outset that there is clearly no arbitration agreement referring to the CAS, the CAS Registry takes all appropriate measures to implement the arbitration (article R39 of the Code): • It communicates the request to the defendant; • It calls upon the parties, where appropriate, it questions the parties on the choice of law applicable to the merits of the dispute; • It sets time limits for the respondent to provide any useful information concerning the number and choice of or arbitrators listed on the CAS list of arbitrators; • He may submit a response to the request for arbitration.

B. The determination of the arbitrator (s)

According to article S12 of the Code, the CAS establishes Panels, which are responsible in particular for resolving disputes submitted to them through ordinary arbitration — which should be distinguished from appellate arbitration proceedings, reserved for the appeal of a decision rendered by a federation, association or other sports body when the statutes or regulations of this organization or another sports organization when the statutes or regulations of this body or another sports organization where the statutes or regulations of this body or another sports organization or a particular agreement provide for appeal to the CAS (article R27, paragraph 1 of the Code) — which have the responsibility to enable the resolution of disputes arising in the field of sport. The Panel is composed of one or three referees. According to article R40.1 of the Code, the number of arbitrators participating in the resolution of the dispute before the CAS is determined as follows:

• Or the arbitration agreement specifies the number of arbitrators

• Otherwise, the President of the Chamber decides on the number of arbitrators taking into account the circumstances of the case. With regard to the appointment of arbitrators, the parties generally agree on the method of appointing the arbitrators on the CAS roster. In the absence of agreement, the arbitrators are appointed as follows (article R40.2 of the Code)

• If the agreement provides for a sole arbitrator: the parties shall appoint him by agreement within 15 days after receiving the arbitration request

• In the absence of agreement on the appointment of this sole arbitrator: the President of the Chamber shall appoint

• If the agreement, or the President of the Chamber, provides for the appointment of 3 arbitrators:

— The applicant shall designate an arbitrator in the request or within the time limit fixed at the time of the decision on the number of arbitrators, the request being deemed withdrawn in the absence of such appointment

— Upon receipt of the request, the respondent appoints an arbitrator within the time limit set by the CAS Registry, the President of the Chamber shall proceed with the appointment in place of the defendant, in the absence of an appointment by the defendant.

— The two arbitrators named above then choose, by mutual agreement, the President of the Panel within a period fixed by the CAS Registry. In the absence of agreement within the time limit set by the CAS Registry, the President of the Chamber appoints the President of the Panel.

Arbitrators are deemed to be appointed only after confirmation by the President of the Chamber of compliance with the conditions of article R33 of the Code, namely impartiality, independence, inclusion on the list established by the CIAS, proficiency in the language of the arbitration or the availability necessary to conduct the arbitration to its conclusion.

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IV. The rules of law applicable to the resolution of disputes by the CAS

The implementation of the arbitration procedure by the CAS Registry, provided for in article R39 of the Code, implies that the parties are asked to choose the law applicable to the merits of the dispute. The principle is freedom of choice, between the parties, of the law applicable to the merits of the dispute. The parties may, therefore, authorize the Panel to rule on an equitable basis. In the absence of a choice, the Training decides according to Swiss law insofar as the CAS is based in Lausanne.

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V. Appeals to the CAS arbitral award

Once the award “rendered by a majority or, in the absence of a majority, by the President of the Panel alone” is notified by the CAS Registry, it is final and enforceable (article R46 of the Code). According to this article, the sentence is “not subject to any appeal”. However, article R47, paragraph 2 of the Code, states that “an appeal to the CAS may be made against an award rendered by the CAS acting as a court of first instance, if such a double degree of jurisdiction is expressly provided for by the rules of the sports federation or organization concerned”. Finally, the appeal of an arbitration award rendered by the CAS is also possible by means of an appeal, in civil matters, of this award.

Indeed, articles 176 and following of the Swiss federal law of 18 December 1987 on private international law (LDPI) apply. Article 190 of this law thus provides for an appeal of the arbitration award to the Swiss Federal Court in the presence of:

• irregular constitution of the CAS

• CAS incompetence

• sentence rendered ultra petita or a denial of justice; • violation of fundamental principles of procedure

• violation of material public order.

The Swiss Federal Court, in its judgment of 15 March 1993, thus considered that “the appeal [...] is only open against the CAS award on the twofold condition that this decision is in fact an international arbitration award, within the meaning of art. 176 ss LDIP, and that it concerns points of law, and that it relates to points of law, therefore that it does not have as its sole object the rules of the game whose application is in principle beyond any legal control” (Federal Court Switzerland, 15 March 1993, no. 4P.217/1992). In addition, on 21 February 2006, the first civil court of the Swiss Federal Court refused to challenge a CAS ruling, considering that the process of interpreting the contract in question was not governed by “the principle of contractual fidelity” and could therefore not “lend itself to the claim of violation of public order” (Swiss Federal Court, 1st Court, Feb. 21, 2006, no. 4P314/2005).

Where appropriate, the Swiss Federal Court finally does not hesitate to condemn certain arbitration awards, as evidenced by a judgment of 27 March 2012 in which the Tribunal annulled a CAS award for violating “substantive public order” (Swiss Federal Court, 27 March 2012, no. 4A558/2011). The deadline for appealing the arbitral award is thirty days from the date of communication of the award, with this appeal generally being dealt with within 4 to 6 months from the filing of the appeal against the CAS award.

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VI. The specific procedure for the fight against doping

Since its creation, the CAS has been competent for disputes relating to doping. It is in this sense that in February 1992, Elmar GUNDEL, a German rider, referred it to him to challenge a decision, rendered by the International Equestrian Federation (FEI), pronounced following a case of horse doping, sanctioning him in particular with disqualification. The CAS then reduced, from 3 months to 1 month, the suspension of the rider by the FEI (cf. arbitration CAS 92/63 G. c/ FEI, CAS Reports 1986-1998). It was only in March 2003, during the World Conference on Doping in Sport, that the Olympic Movement and numerous governments promulgated the World Anti-Doping Code (CMA).

Article 13 of the CMA thus provides that all international disputes relating to doping give rise to a right of appeal before the CAS. The IOC Executive Board then delegated to the CAS Anti-Doping Chamber its powers to rule on any violation of the CMA occurring during the Olympic Games, in accordance with the provisions of Rule 59.2.4 of the Olympic Charter. This Anti-Doping Chamber has its own organization and, in particular, a President, an Alternate President, arbitrators from a special list and a Registry. It rules in accordance with the IOC anti-doping rules applicable during the Olympic Games (Olympics), applicable regulations, Swiss law and general principles of law. The award is enforceable as soon as it is notified and may be appealed, within 21 days from the date of notification of the award, before the Ad Hoc Chamber of the CAS, created on the occasion of each edition of the Olympics, including arbitrators from a special list, a President, a Co-President and a Registry.

Consequently, the analysis of the prerogatives and the functioning of the CAS highlights the gradual increase in its responsibilities and in its field of application. This evolution is part of a global desire to professionalize sports justice, which adapts both to sporting specificities and to economic challenges through the enactment of sui generis regulations. The CAS is therefore now the highest sports authority.