Sports arbitration can broadly be defined as a method of resolving sport-related disputes by a final and binding arbitral decision. Today, arbitration has been firmly established as the predominant method for resolution of sports disputes, mainly thanks to the uniform practice and abundant, publicly-available caselaw of the Court of Arbitration for Sport (the “CAS”), based in Lausanne, Switzerland, colloquially referred to as the Supreme Court for sports disputes.
Since the establishment of the CAS in 1984, sports arbitration has developed into a specialized body of law, with fairly unique rules and procedures, and a rapidly growing number of cases. An increasing number of sports-related disputes comes as no surprise considering the significant growth in the sport industry over the past years.[1] The CAS has experienced significant changes since its establishment 30 years ago – not only in terms of its organization and structure, but also in an increasing number and volume of the cases.
Sports Arbitration and the CAS: History and Organization
The CAS was established in 1984 in Lausanne by the International Olympic Committee (the “IOC”) with the idea of creating a supreme instance for sports disputes and moving them away from the jurisdiction of national courts. From its establishment in 1984 until 2016, the CAS has registered more than 5,000 arbitration proceedings.[2] More than 900 procedures were initiated only in 2020, despite the global effects of COVID-19. In addition to its headquarters in Lausanne, the CAS also has two permanent decentralized offices in Sydney, Australia, and in New York, the United States, which were created in 1996 to increase its overseas presence. Working languages of the CAS are English and French.
The CAS has its own set of procedural rules called the “Code of Sports-related Arbitration and Mediation Rules” (the “CAS Code”).
Over the past 30 years, the CAS Code was amended several times, i.e., in 1994, 2004, 2010, 2011, 2012, 2013, 2016 and 2017, 2019, with the most recent amendments in 2020, which entered into force on 1 January 2021.
The CAS Code is divided into two main sections. The first part sets out the statutes of the International Council for Arbitration for Sport (the “ICAS”) and CAS (Articles S1–S26); whereas the second part contains the Procedural Rules (Articles R27–R70), divided as follows:
1. General Provisions (Section A)
2. Special Provisions Applicable to the Ordinary Arbitration Procedure (Section B)
3. Special Provisions Applicable to the Appeal Arbitration Procedure (Section C)
ICAS is the supreme organ of the CAS, whose main task is to safeguard the independence of the CAS and rights of the parties. The ICAS looks after the administration and financing of the CAS[3] and performs a very similar role to any other arbitration institution. The ICAS is responsible, for instance, for overseeing the application of the CAS Code, the appointment of arbitrators from the CAS list of approved arbitrators and the challenge and the removal of the arbitrators.[4]
The CAS provides necessary infrastructure, effects the constitution of Panels, and oversees the efficient conduct of the proceedings, in order to ensure the efficient resolving of sports-related disputes by arbitration and/or mediation pursuant to Procedural Rules (CAS Code, Article S12). The CAS has two main divisions:
- The CAS Ordinary Division – which functions in a very similar way as any other arbitration institution;
- The CAS Appeals Division – which acts as the court of final appeal for decisions taken by competent sport bodies, on a national or international level.[5]
Once received, arbitration requests submitted to the CAS are immediately assigned by the CAS Court Office, either to the Ordinary or to the Appeals Arbitration Division. In practice, however, the vast majority of cases at the CAS (more than 90%) are dealt with by the CAS Appeals Division.
What Types of Disputes Can be Submitted to the CAS?
Any arbitrable dispute directly or indirectly linked to sport may be submitted to the CAS.[6] This is explicitly provided in Article R27 of the CAS Code:
R27 Application of the Rules
These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) or may involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS (appeal arbitration proceedings).
Such disputes may involve matters of principle relating to sport or matters of pecuniary or other interests relating to the practice or the development of sport and may include, more generally, any activity or matter related or connected to sport.
“Sports-related dispute” is therefore defined very broadly in the CAS Code. In practice, various kinds of sports disputes may be brought to the CAS, from commercial disputes (e.g., issues involving sponsorship agreements, media rights, transfer regulations and employment issues) to sport-specific disputes (e.g., doping, eligibility, accidents or incidents on the field). The only requirement is that the dispute must be directly or indirectly linked to sport. In practice, sport-related disputes overlap with many different areas of law, which is why certain commentators consider sports law to be an “amalgamation” of various areas of law.[7] Sports disputes accordingly may involve anything from personality rights, association law, contract law, tort law, company law, intellectual property law, competition law, to criminal law and more. [8] The arbitrability of disputes is determined by the CAS ex officio.[9]
Seat of Arbitration at the CAS
One unique distinction of the CAS system is that, unlike in commercial arbitrations, the parties are deprived of the freedom to choose the seat of arbitration. All CAS arbitrations are seated in Lausanne, by default, as explicitly provided in Article R28 of the CAS Code:
R28 Seat
The seat of CAS and of each Arbitration Panel (Panel) is Lausanne, Switzerland. However, should circumstances so warrant, and after consultation with all parties, the President of the Panel may decide to hold a hearing in another place and may issue the appropriate directions related to such hearing.
The default seat of arbitration has important legal implications, as it gives effect to the exclusive jurisdiction of the Swiss Federal Tribunal when a party wants to have a CAS award set aside. Accordingly, all CAS arbitration proceedings are governed by Swiss arbitration law, which is not necessarily bad, as Swiss law is regarded as “arbitration friendly” and an award may be set aside only on very limited grounds (see Reform of Swiss Arbitration Law – Key Changes and Developments).
Law Applicable to the Merits of the Dispute in Sports Arbitration
In the CAS Ordinary Procedure, the Parties may choose the substantive law to govern their dispute, as provided in Article R45 of the CAS Code:
R45 Law Applicable to the Merits
The Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law. The parties may authorize the Panel to decide ex aequo et bono.
The parties are therefore free to choose the law applicable to the merits, which may include national laws, transnational law, general legal principles, lex mercatoria or making a decision ex aequo et bono.[10] In case the parties fail to choose the law to govern the merits of their dispute, Swiss law applies by default, as provided in Article R45 of the CAS Code. This is something parties should be aware of when drafting arbitration clauses providing for the jurisdiction of the CAS.
Regarding the applicable law to the merits in the CAS Appeals Arbitration Procedure, Article R58 of the CAS Code provides:
R58 Law Applicable to the merits
The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.
Accordingly, in the CAS Appeals Procedure, regardless of the choice of law, the tribunal will nevertheless always apply the relevant regulations of the sports body. If the parties have failed to make a choice, the arbitral tribunal can decide according to the law of the country where the association is domiciled or according to those rules of law that are deemed appropriate. In practice, however, as most international sports federations are based in Switzerland, in the majority of cases Swiss law is applied as the substantive law. Moreover, as most international federations have their own set of rules and statutes, arbitral tribunals often apply these regulations, without even referring to a specific national law.
Certain Unique Features of Sports Arbitration: CAS Appeals Procedure
The CAS Appeals Procedure, regulated by Articles R47 et seq. of the CAS Code, is considered as one of the unique features of the CAS system and of the sports arbitration in general. Article R47 of the CAS Code provides:
R47 Appeal
An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body.
An appeal may be filed with CAS against an award rendered by CAS acting as a first instance tribunal if such appeal has been expressly provided by the rules of the federation or sports-body concerned.
Certain commentators consider that the designation “appeals procedure” is misleading in this context, even though CAS appeals tribunals are focused on reviewing the legality of decisions by sports organizations, since the CAS is not acting as a “further component of an association’s internal legal process”.[11] Rather, they consider that even in the appeals arbitration procedure the CAS, in fact, carries out first instance arbitration proceedings in which the legality of the federation’s or association’s decision is reviewed by an independent tribunal.[12]
This is somewhat true, especially considering that CAS appeals tribunals have the power to de novo review the facts and the law underlying the decision (Article R57 of the CAS Code). This means that the CAS tribunal is not bound by the facts, legal findings or evidence of the previous instance. CAS tribunals may fully or partially annul a decision and either replace it with a new decision (which frequently occurs in practice) or send it back to the previous instance.
Expedited Nature of CAS Arbitration Proceedings
Another unique feature of the CAS Appeals Procedure, and sports arbitration in general, is its short time limits. For the CAS Appeals Procedure, typically, appellants must initiate arbitration within short time limits, as provided in Article R49 of the CAS Code:
In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or of a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against.
Each step in the appeals process has a defined time limit. For instance, the operative part of the award is to be communicated to the parties within three months of the transfer of the file to the tribunal (CAS Code, Article R59(5)).
Parties to the CAS Ordinary Arbitration Proceedings may also agree to expedite the procedure, as provided in the CAS Code, Article R44.4. Ordinary proceedings typically last from six to twelve months whereas the fastest proceedings were only 19 days.[13] This is less than the average duration of commercial, and most certainly investment, arbitrations.
The speed and efficiency of CAS proceedings are important as time is of the essence in many sports disputes. This is especially true during major sports events, such as the Olympic Games or the World Cup, where the applicants’ participation in the competition depends on the prompt decision of the tribunal. For this reason, the CAS formed a special Ad Hoc Division, introduced for the first time after the Olympic Games in Atlanta in 1996, with the aim of providing all participants with quick and efficient access to justice (see Arbitration Rules applicable to the CAS Ad Hoc Division for the Olympic Games). The Ad Hoc Arbitration Rules provide that a panel of arbitrators shall be relocated to the host city of the event for a certain period of time and remain on standby should any urgent dispute arise. The time limit for rendering arbitral awards is typically 24 hours for the Olympic or Commonwealth Games and 48 hours for the European Championships and the World Cup.
Transparency of CAS Proceedings and Publication of Awards
A further unique feature of the CAS system, which stands in contrast with one of the key features of arbitration – confidentiality – is the publicity of awards. While Ordinary Proceedings are, in general, confidential, and publication of the awards is permitted only if the parties so agree, the principle is reversed in the CAS Appeals Proceedings, as explicitly provided in Article R59 of the CAS Code. Considering that CAS appeals constitute the vast majority of its total caseload, cases are published as a matter of principle.[14] A comprehensive Digest of CAS awards, and an online database publicly available on the CAS’ website, provide access to CAS decisions rendered since 1986.[15]
Even though CAS awards are publicly available, CAS proceedings are mostly held behind closed doors, unless the parties agree otherwise, or at the sole request of the athlete in disputes relating to misconduct.
Publishing CAS decisions is beneficial, as it helps promote greater transparency and consistency between decisions and awards in the sporting world. As most CAS awards are publicly available, they are frequently cited by other tribunals, which has led to the emergence of a harmonized body of sports regulation and jurisprudence (known as lex sportive), which sports arbitration users can rely upon.
Provisional or Conservatory Measures
Another common feature of sports arbitration is the frequency of provisional or conservatory measures granted by the tribunals. Article R 37 of the CAS Code sets out the procedure for seeking provisional or conservatory measures. The applicant seeking preliminary relief must show “irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the Applicant outweigh those of the Respondents”, which is a standard most arbitration practitioners would be familiar with. What is unique, however, is that sports arbitration tribunals regularly issue orders in response to requests for provisional or conservatory measures. These typically include, for instance, requests for a stay of the execution of the decision under appeal in cases where the tribunal has not yet been appointed. In addition, most sports arbitration bodies also have their own internal mechanisms whereby a designated person, or a member of a designated group, may grant provisional measures pending the appointment of the tribunal.
Provisional or conservatory measures issued by sports arbitral tribunals are therefore a more effective remedy in sports arbitration than in commercial or investment arbitration. This is unsurprising, considering that most sports governing bodies voluntarily comply with any orders issued by tribunals and there are rarely problems with the enforcement of awards. In any event, if a CAS decision is not voluntarily complied with (which is rare in practice), the interested party may still seek enforcement pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards as is the case with any other arbitral award.
Closed List of Arbitrators
Finally, another specific feature of CAS arbitration, frequently criticized by the arbitration community, is that only the individuals listed on the “CAS List of Arbitrators” can be appointed to act as arbitrators (CAS Code, Articles R38, R39 and R48). If a party appoints an arbitrator who is not on the list, the CAS will set a new time limit to rectify the appointment or will appoint an arbitrator instead of the party who failed to appoint an arbitrator from the list.
The CAS List of Arbitrators today counts almost 400 arbitrators from various continents and with diverse legal backgrounds, each appointed for a renewable period of four years. A provision introduced in the reform of the CAS Statute in 2009 provides that CAS arbitrators and mediators may not act as counsel for a party before the CAS (CAS Code, Article S18). This rule was introduced after criticism that CAS arbitrators who act as counsel before other CAS panels may have access to “insider knowledge” and benefit from a strategic advantage – a danger which was accordingly eliminated. Despite criticism, there are certain advantages to this closed system, however, as a closed list system may ensure that the arbitrators have experience and expertise in sport disputes and deeper knowledge of various sport rules and regulations.
Conclusion
Sports arbitration, with a number of unique features that are tailored to the specific needs of the sports industry, may certainly be regarded as a specific area of law, or “niche”,[16] with different rules and procedures in comparison to general arbitration practice.[17] If one takes a closer look at the underlying principles and basic rule of arbitral procedure, however, it is immediately apparent that sports arbitration shares many characteristics with other arbitrations. This comes as no surprise, as many sports arbitrators sit both in commercial and investment cases and sports arbitration remains, in its essence, just another variation of general arbitration.
[1] The sports industry reached a value of nearly USD488.5 billion in 2018, and is now estimated to be worth over USD500 billion, see https://www.torrens.edu.au/en/blog/why-sports-industry-is-booming-in-2020-which-key-players-driving-growth
[2] See CAS Website, CAS Statistics 1984-2016, available at: https://www.tas-cas.org/fileadmin/user_upload/CAS_statistics_2016_.pdf
[3] See CAS Website, available at: https://www.tas-cas.org/en/general-information/history-of-the-cas.html
[4] See ICA’s Statute, available at: https://www.tas-cas.org/en/icas/code-icas-statutes.html
[5] The rules of a respective federation, association or other sports organization, have to explicitly provide for a referral of its decisions to the CAS. One such example is World Anti-Doping Agency, which allows athletes to appeal any decision regarding doping violations to the CAS.
[6] See the CAS Website, FAQ, https://www.tas-cas.org/en/general-information/frequently-asked-questions.html
[7] T. Davis, “What is Sports Law?” (Marquette Sports Law Review, Vol 11, Issue 2, 2001).
[8] D. Girsberger, N. Voser, “Chapter 10: Sports Arbitration”, International Arbitration: Comparative and Swiss Perspectives (Kluwer Law International, Third Edition, 2016).
[9] D. Mavromati, M. Reeb , The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials (Kluwer Law International, 2015), Article R27 CAS Code, para. 95.
[10] D. Girsberger, N. Voser, “Chapter 10: Sports Arbitration”, International Arbitration: Comparative and Swiss Perspectives (Kluwer Law International, Third Edition, 2016).
[11] U. Haas, “The Time Limit for Appeal”, Arbitration Proceedings before the Court of Arbitration for Sport (CAS) (German Arbitration Journal, Kluwer Law International; 2011, Volume 9, Issue 1) pp. 1 – 13.
[12] U. Haas, “The Time Limit for Appeal”, Arbitration Proceedings before the Court of Arbitration for Sport (CAS) (German Arbitration Journal, Kluwer Law International; 2011, Volume 9, Issue 1) pp. 1 – 13.
[13] See the CAS website, available at: www.tas-cas.org/en/20questions.asp/4-3-228-1010-4-1-1/5-0-1010-13-0-0/.
[14] W. McAuliffe, A. Rigozzi, “Sports Arbitration”, The European & Middle Eastern Arbitration Review, (Global Arbitration Review, 2012).
[15] See The CAS Website, Jurisprudence, available at: https://www.tas-cas.org/en/jurisprudence/recent-decisions.html
[16] See “Stepping into a Niche: Exploring the World of International Sports Arbitration” (Kluwer Arbitration Blog, October 2020).
[17] https://lk-k.com/wp-content/uploads/RIGOZZI-MCAULIFFE-GAR-Euro.-Middle-East.-and-Afr.-Arb.-Review-2013.pdf