The Court of Arbitration for Sport (“CAS”) is the world’s leading arbitration institution for sports-related disputes.
Headquartered in Lausanne, Switzerland, the CAS has further branches (described as “decentralised offices”) in Sydney and New York City which have been in operation since the mid-nineties. It also functions as an ad hoc tribunal during the Olympic Games.
According to statistics published by the CAS, a total of 8,865 cases were submitted to the CAS between 1986 and 2021. Rather than adopt a one-size-fits-all approach to dispute resolution procedure, the CAS offers a suite of different dispute resolution services to serve the sports industry (see further below).
Frequently, cases are referred to the CAS by a regional or sport-specific organization or governing body as an appellate tribunal and hears disputes of the kind one would expect to arise in the world of sport including broadcasting rights, sponsorship agreements, disputes surrounding sporting competitions, transfers of players, and agent-sportsperson contracts.
In addition, the CAS hears disputes as to the correctness of a sporting body’s decision on matters including disciplinary actions, ethics violations, doping-related suspensions and sanctions, and measures for violations committed on the sporting field.
The purpose of the CAS
The CAS was created to meet a growing need in the world of international sports for a reliable and speedy resolution of disputes. It took shape in the early 1980s as an initiative of the International Olympic Committee (“IOC”) which the CAS initially grew out of. From the vantage point of the IOC, it was clear that there was a steady increase in international sports-related disputes (following the increasing institutionalization of competitive sports), without any specialized, independent international authority capable of hearing disputes arising from the sporting bodies’ decisions and issuing enforceable decisions.
A World Court for Sports Disputes
Following swiftly after the election to the Presidency of the International Olympic Committee of H.E. Mr. Juan Antonio Samaranch in 1981, the idea of creating a sports-focused tribunal was given voice. At the IOC’s 85th session in Rome, H.E. Mr. Samaranch mooted the notion of creating “an arbitration court, a kind of Hague Court in the sports world.”
This goes some way to encapsulating the purpose of the CAS:
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- to be an international arbitral institution (imitating the success of commercial arbitration and making use of the New York Convention); and
- to be a universal world court in the sports world.
Given the nature of the sporting world, the court would have to be adaptable, specialist and capable of settling international disputes and offering a flexible, rapid and inexpensive procedure. A working group was established during the IOC’s 85th Session, to prepare the statute of what would go on to become the CAS.
The CAS Statutes and Procedural rules
In 1983, the IOC officially approved the CAS Statute, which came into force on 30 June 1984, at which time the CAS came into being, with Judge Kéba Mbaye as its President and Gilbert Schwaar as its Secretary-General. Judge Kéba Mbaye was central to the creation of the CAS, bringing his experience as an ICJ judge to bear on the task of creating an international court of arbitration for sport. In 1984, Judge Mbaye described the CAS as follows: “It will have, as far as sport is concerned, exactly the same powers as any other international court of arbitration. Recourse to its jurisdiction will be optional, but once a case has been placed before it, its judgement will be binding.”
Later in 1984, the CAS Statute was reissued with accompanying Rules of Procedure (“The Statutes and Regulations of the CAS” (1984), accompanied by a layman’s guide to the CAS procedure: “How to settle lawsuits arising out of sports activities” (1984)), which were subjected to further, modest amendments in 1990.
At this time, the CAS Statute and Rules were relatively simple: The claimant filed a request to the CAS, accompanied by the arbitration agreement. A panel would then rule on the admissibility of the claim. The President of the CAS could direct that the parties first attempt to settle their dispute where this was considered an appropriate avenue- leaving resort to arbitration before the CAS as a measure of last resort.
In addition, and presumably inspired by Judge Mbaye’s familiarity with the International Court of Justice, the CAS had a separate jurisdiction by which it could produce advisory opinions. Under the advisory procedure, on application by a party, the CAS could give an opinion on a legal question concerning any activity related to sport. This advisory procedure was redesigned and narrowed progressively over time, until it was finally retired in 2013. There appear to have been only ten advisory opinions over the life of the CAS.
Role of the IOC
When it was first set up, the CAS consisted of a panel of sixty members appointed by the IOC, the International Federations, and the National Olympic Committees, as well as by the IOC President (15 members each). From the outset too, the CAS was wholly funded by the IOC. The CAS would come to be overhauled, and cut its ties with the IOC in due course in response to criticisms from the Swiss Supreme Court and further regular reforms and modifications have followed at intervals ever since to ensure the independence and impartiality of the court. Since its foundation, the CAS has shown itself to be an adaptable institution, and one which is willing to change to meet the expectations and needs of the stakeholders it serves.
Model Clauses
In 1991, the CAS published a guide to arbitration, which included a suite of model arbitration clauses to be inserted in the statues or regulations of sporting bodies. The international equestrian federation (Fédération Equestre Internationale, “FEI”) became the first such body to adopt one of the model clauses nominating the CAS for the resolution of disputes. Today, the CAS maintains a list of model clauses on its website.
The Swiss Supreme Court’s appraisal of the independence and impartiality of the CAS
The CAS received a shot in the arm from a steady rise in doping-related controversies, in which the CAS acted (as it continues to) as an appellate tribunal to hear athletes’ appeals against findings or disciplinary decision of sporting bodies in this relation.
In February 1992, a German-born equestrian athlete, Elmar Gundel, submitted a request for arbitration to the CAS, relying on the arbitration clause adopted by the FEI, seeking to overturn a decision made by that body in connection with horse doping. The award rendered by the CAS in October of the same year resulted in the reduction of the period of the athlete’s suspension from three months to one.
Elmar Gundel, unhappy with the CAS’s decision, proceeded to pursue his rights by way of an appeal to the Swiss Federal Court, challenging the validity of the CAS award on the basis that the CAS tribunal lacked the independence and impartiality necessary for it to be considered as an arbitral tribunal.
In its decision of March 15, 1993 (published in the Official Compilation of Federal Court Decisions 119 II 271), the Swiss apex court analysed the CAS’s independence and impartiality, concluding that the CAS was a genuine arbitral tribunal.
While recognition of the CAS’s legitimacy was welcome, the Swiss Federal Court also passed comment on the close interconnection between the IOC and CAS, including in its funding and the IOC President’s power to appoint CAS members. Such links, the court concluded, had the potential to call into question the independence of CAS should a dispute involving the IOC as a party to proceedings be brought before it.
Institutional Reforms
The Gundel decision spurred significant institutional reforms to the CAS, including the creation of an “International Council of Arbitration for Sport” (ICAS) as an overseeing body, to take over many of the functions hitherto fulfilled by the IOC. Furthermore, the CAS was given two distinct chambers: one appellate tribunal, and another freestanding ordinary arbitration tribunal.
Following the decision, a slew of reforms to the CAS was implemented. These reforms aimed to address concerns as to the independence and reach of the CAS as well as with regard to the acceptance of its jurisdiction, the number of its decisions, the extent of its non-judicial actions and the form of its interventions. Aside from reforms aimed at ensuring the institutional integrity and independence of the CAS, the ordinary and appeal procedures were optimized for time efficiency, so that ordinary cases were to have a duration of between a year and a year and a half, and the appeal procedures were to be decided within four months of submission to the CAS.
This would not be the last time that the decisions of the CAS came before the Swiss Federal Court which confirmed in its 2003 ruling in Lazutina (BGE 129 III 445), that the decision of the CAS had equivalent weight to decisions of the Swiss national courts and that it was independent from the IOC: the 1994 reforms had achieved their goals.
Also in 2003, the World Anti-Doping Agency designated the CAS as an appeal tribunal, which is one of the factors contributing to the popularity of the appeal procedure of the CAS today.
Independence and impartiality of the CAS
More recently, the European Court of Human Rights has further ratified the CAS’s institutional integrity in Mutu and Pechstein v Switzerland (Applications no. 40575/10 and no. 67474/10, ECHR 324 (2018)), recognizing that the CAS’s procedures are compatible with the Article 6(1) right to a fair trial. That said, the fact that proceedings were not held publicly was held to be a violation of the right to be heard.
Current Structure of the CAS
Both the ICAS and the CAS are governed by the CAS Statutes, and the CAS’s procedures are set out in the CAS Rules. The two texts are referred to collectively as the CAS Code. Though published in English, French, and Spanish versions, in the event of a discrepancy between the versions, the French text is authoritative.
Lists of Arbitrators of the CAS
To ensure that arbitrators appointed by the CAS are competent to resolve disputes quickly and properly, the CAS appoints arbitrators from its lists of arbitrators (there is a general list, and there are multiple specialized lists, including for example one for football-related disputes, and another for disputes heard by the anti-doping division).
Arbitrators appointed by the CAS must be legally trained, have relevant experience in international arbitration and sports law, and must be capable of working in one of the CAS’s working languages (English, French or Spanish).
Double-hatting (the practice of acting as arbitrator and counsel, or as an expert in different pending cases) is prohibited by the CAS Statues. This is noteworthy since the practice of double-hatting goes on in other areas of international arbitration, where it continues to generate controversy.
Divisions and types of CAS arbitration
The CAS consists of an Ordinary Arbitration Division, an Anti-Doping Division and an Appeals Arbitration Division. As such, institutional CAS arbitrations follow one of the three procedures of these three divisions. A fourth ad hoc procedure is also available, and is used for speedy dispute resolution during sporting competitions such as the Olympics.
The CAS continues to play an important supportive role in the world of sports, providing an international forum for the resolution of sports-related disputes. It has shown a willingness to adapt and improve in response to developments in the world of sports. That adaptability has allowed the CAS to endure and serve its purpose.
A future post will examine the rules of procedure used by the CAS.