Court of Arbitration for Sport

Question 1

Where does CAS fit on the Sports Governance framework?

Answer 1

• CAS sits at the Global Sports Law level with ISFs

* National DRB is at the Domestic Sports Law level with NGBs

Question 2

What is the structure of the Sporting Justice Framework?

Answer 2

CAS
ISFs-Disciplianry Committee
-Appeal Committee
Confederations-Disciplianry Committee
-Appeal Committee
NGBs-Disciplianry Committee
-Appeal Committee

Question 3

Explain the order of the sporting justice framework

Answer 3

• Most start at NGB level with disciplinary proceeding e.g. betting violation by Joey Barton
• Then player may go to Appeal Panel at NGB level e.g. National DRB
• proceedings may end at national level but may have the right to appeal to higher level
• May appeal at confederat level and then ISF level and finally CAS
• Parties cannot skip levels e.g. appeal straight to CAS as you may be turned away for not having jurisdiction

Question 4

Why did ISFs feel the need to introduce a sporting justice framework?

Answer 4

In order to keep autonomy of sport and prevent cases going to public law

Question 5

How did the Gundel vs FEI case impact CAS?

Answer 5

In 1994, CAS reconstituted itself to ensure it was suitably independent & had no potential conflict of interest with organisations such as the IOC

Question 6

What has CAS been a key driver in?

Answer 6

• Modernisation and standardisation of the rules and procedures of sporting bodies
• Ensuring autonomy of sport by developing lex sportiva (sports law)

Question 7

What two important documents govern the working and jurisdiction of CAS?

Answer 7

• Statutes of the Bodies Working for the Settlement of Sports Related Disputes (internal aspects of CAS)
• Procedural Rules (most important)

Question 8

What is rule 27 under Procedural Rules?

Answer 8

Mechanics of Jurisdiction

“These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute to CAS

Question 9

What are the mechanics of jurisdiction?

Answer 9

1. arbitration clause contained in a contract
2. regulations
3. by reason of a later arbitration agreement (ordinary arbitration proceedings)
4. appeal against a decision rendered by a federation, association or sports-related body where appeal to CAS is allowed(appeal arbitration proceedings)”

Question 10

Explain the mechanic of an Arbitration Clause?

Answer 10

Any dispute arising from or related to the present contract will be submitted and awarded by CAS in accordance with the Code

Question 11

Explain the mechanic of Regulations

Answer 11

• Reference to CAS in sporting body regulations
e.g. FIFA statutes
“FIFA recognises the independent CAS… to resolve disputes involving FIFA members

Question 12

What are the two forms of arbitration that can be heard by CAS?

Answer 12

• Ordinary arbitration

* Appeal arbitration

Question 13

Explain the mechanic of an appeal arbitration

Answer 13

• Parties may be appeal to appeal decision to CAS e.g. FIFA statutes
“Decisions by the Appeal Committee shall be irrevocable and binding on all the parties concerned. This provision is subject to appeals lodged with (CAS)”

Question 14

What are the main steps in the ordinary arbitration process?

Answer 14

• File request for arbitration (Rule R.38)
• Formation of Panel (Rule R.40)-sole arbitrator or panel
• Written submissions/Oral hearing (Rule R.44)-choice
• Award (R.46)-binding and taken to NGB for implementation

Question 15

Explain the panel for CAS proceedings

Answer 15

• Most before panel of 3 arbitrators but can be sole

* Each party choose one arbitrator from CAS list and independent arbitrator

Question 16

What are appeal arbitrations?

Answer 16

Appeals from the decisions of ISFs to CAS which rehear a dispute and come to the final verdict

Question 17

What are the key aspects of appeal arbitrations

Answer 17

• Appeal (Rule R.47): if there is submission of jurisdiction and the appellant exhausted all legal remedies available e.g. should go to NGB appeal panel first
• Filing the statement of appeal (Rule R.48)-claim form
• Time limits on the appeal (Rule R.49): in the absence under the regulations, it is 21 days from the receipt of the decision
• Appointment of arbitrator/arbitrators (Rule R.54)
• Submissions and Hearing (Rules R.56&57)
• Award (Rule R.59)

Question 18

What have most of the commercial disputes of CAS related to?

Answer 18

Many recent decisions relate to the complexity of the FIFA Regulations for the Status and Transfer of Players

Question 19

Explain the commercial dispute of the FC S Donetsk v Matazulem and R Zaragoza and FIFA (2008) case and the impact of CAS

Answer 19

• Wide range of issues related to breach of contract. CAS had to determine: (1) The law applicable to the dispute; (2) Whether a release clause was a properly constructed liquidated damages clause or a genuine buy-out clause; (3) The sum to be calculated following this breach of contract
• The case demonstrates some of the benefits of a specialist sports tribunal, especially for ISFs such as FIFA. e.g. costs, time, lack on interogation of FIFA regs

Question 20

What are eligibility disputes?

Answer 20

rare but can involve complex, unusual and wide-ranging areas of law

Question 21

Explain some cases of eligibility disputes

Answer 21

• Pistorius v IAAF (2008) re. disability discrimination. IAF decision was not a conclusion that could be reasonably be drawn from scientific evidence
• Gibralter Badminton Association v IBF (2001) re. eligibility to compete as a country. Decision by IBF was not discriminatory and for the benefit of the sports as a whole
• IFA v FAI, Daniel Kearns and FIFA (2010) re. eligibility criteria at international level. Upheld decision of FIFA Players’ Status Committee re. Article 15, 16, 17 and 18 on eligibility for the Republic of Ireland.

Question 22

Explain the case law on Doping disputes

Answer 22

WADA Code nominates CAS as the final tribunal for international events
• Doping appeal is one of the most common cases heard by CAS

Question 23

What important doping cases have gone to CAS?

Answer 23

• Baxter v IOC (2002) re. the duty is on the athlete to ensure no prohibited substance enters their body
• Raducan v IOC (2000) re. no need to prove fault, intention, knowledge or negligence by the athlete, especially substances banned as performance-enhancing. Considered to undermine integrity of the result
• ITF v Gasquet and WADA v Gasquet (2009) re. acting without fault or negligence in case involving small traces of cocaine

Question 24

Explain the issue of Challenges to CAS Before the Swiss Federal Tribunal

Answer 24

• The SFT is the Supreme Court in Switzerland and can review CAS decisions to ensure it is acting lawfully, in adherence to rules of natural justice and in accord with public policy
• It does not act as an appeal court-has to be about procedural fairness
• Increased challenges from CAS to SFT, but few decisions overturned

Question 25

Explain some of the key cases of challenges to CAS by the SFT

Answer 25

• As a result of Gundel v FEI (1992) challenge before the SFT, CAS reconstituted itself to ensure its independence
• The first decision to be overturned was: WADA v IIHF and Busch (2008). CAS did not have jurisdiction to hear the case due to time limits
• The Matuzalem decision. The decision to impose an indefinite playing ban by the FIFA DRC and CAS were found to be a grave encroachment on privacy rights and contrary to public policy. The ban was annulled

Question 26

Why is the influence of CAS on administration of sport globally likely to widen and deepen?

Answer 26

1) Finality of its authority on issues such as doping
2) Consistency of approach to legal principles and policy, might ultimately deserve the label lex sportiva

3) Disciplinary panels at all levels look to CAS for guidance across a range of issues, resulting in a body of legal sporting jurisprudence
• WHat else is currently better

Question 27

What future development of CAS may be put in place to improve CAS?

Answer 27

Make all hearings public to ensure scrutiny

Question 28

What is the background of the Claudia Pechstein vs CAS case

Answer 28

• Feb 2009 – Blood testing under the ISU’s Anti-Doping Programme found increase of immature red blood cells
• ISUDC banned her for 2 years for an anti-doping violation
• Appealed to the CAS under the ISU Anti-Doping Rules stating natural causes (genes)
• November 2009, the appeal is dismissed by the CAS
• Appealed to the Swiss Federal Tribunal on the ground of new scientific evidence, but the appeal rejected

Question 29

What was the 2nd stage of the Pechstein case?

Answer 29

• Appealed to the Swiss Federal Tribunal second time alleging procedural unfairness and natural justice. The appeal rejected again.
• Dec 2012 - Dissatisfied with both, the CAS and the SFT, issued claim for damages (4M Euros) at her local German Regional Court in Munich (Landesgericht)

Question 30

What was the decision of the Regional court from the 2nd stage of Pechstein?

Answer 30

Feb 2014-court took a different stance to claim

1. Arbitration agreement between Pechstein and the ISU is invalid, this is due to the structural imbalance between the athlete and monopolistic ISU.
2. The arbitration agreement is not voluntary but rather prerequisite to enter into competition and specific for CAS. This is contrary with the German competition rules.
3. However, res judicata effect (a matter already judged), therefore ban stands.

Question 31

What was the 3rd stage of the Pechstein case?

Answer 31

•Appealed to the German Higher Regional Court in Munich

Question 32

What was the ruling of the German higher regional court from the 3rd stage?

Answer 32

Feb 2015
• The arbitration agreement is invalid as it is contrary with the German competition rules.
• ISU’s insistence on the agreement (being prerequisite for the competitions and specifically for the CAS as an appeal court) is an abuse of dominant position.
• Arbitration panel selection is unlawful
• decision of CAS is unlawful.

Question 33

What is the 4th stage of the Pechstein case?

Answer 33

• After ruling ISU announced appeal to the German Federal Court of Justice (Bundesgerichtshof).
• June 2016 – Pechstein announced an appeal to the German Constitutional Court and human rights
• Lost human rights case

Question 34

What was the ruling of the German federal court from the 4th stage of the Pechstein case?

Answer 34

• The Court dismissed Pechstein’s case and it is a victory for CAS.
• The arbitration is not a forced one as athletes have freedom to enter into those agreements.
• There is no structural balance in the set of CAS and the procedural rules of CAS give athletes enough rights to achieve a balance.
• Furthermore, the arbitration system of CAS offers advantages to both the sport organisations & the athletes with regard to consistency & promptness of decisions & is needed for effectively fighting doping on a global level.

Question 35

What was the importance of the final ruling by the German Federal Court on CAS?

Answer 35

• The ruling suggested the court wanted to strike a balance between keeping CAS due to importance to sport and prompting changes
• As a result of the hearing, CAS brought more representatives of athletes on boards

Question 36

Explain Sport Resolution in the UK

Answer 36

• Independent, private dispute resolution organisation for UK sports bodies
• Consensual jurisdiction and rules are similar to CAS
• Useful for sports bodies who can use experienced UK panel experts
• SR UK typically deals with issues related to discipline such as bans; doping and match-fixing; and selection disputes
• Growing importance of SR UK