Fast track procedures at the Court of Arbitration for Sport (CAS)
Preamble
The Court of Arbitration for Sport (CAS) is an international body established in Lausanne, Switzerland, that has the competence to settle sport-related disputes. Ever since CAS handled its first case in 1986, there has been a steady growth, and in 2020 it handled just under 900 cases. The framework for CAS procedures is regulated in the CAS code.
CAS handles two types of cases. Firstly, CAS can handle cases as an ordinary arbitration tribunal, in accordance with the CAS-code R38. These cases will normally be sports-related disputes arising out of a contract, hereunder contractual disputes between clubs and football players. CAS is competent to hear these disputes, given that the parties have agreed that any dispute arising out of the contract should be settled by CAS. Secondly, cases that have been dealt with by other sports bodies can, with some restrictions, be appealed to CAS in accordance with CAS-code R47. Both of these categories of cases will generally follow ordinary procedures. However, from time to time, a case requires a quick resolution, and for these cases CAS has established fast track procedures.
Procedures in ordinary cases
The vast majority of cases handled by CAS will follow an ordinary procedure, i.e., not fast track. The process will start with the Appellant or the party requesting arbitration sending a request for arbitration, as regulated in the CAS Code art. 38, or a statement of appeal, as set out in art. 47. Ordinarily three arbitrators will be appointed in a case, whereas each of the parties appoint one arbitrator each from the closed list of about 400 CAS arbitrators, while the CAS president appoints the president of the panel. The parties, or the Division President, may also determine that a sole arbitrator shall be appointed. Once the Panel is formed and the advance costs have been paid, the CAS Court Office will transfer the file to the arbitrators. In appeals arbitration procedures the transfer of the file to the arbitrators determine the deadline of communicating the operative part of the award to the parties, as this should be done no later than three months after the arbitrators have received the file, pursuant to Article R59 of the CAS Code. However, this deadline may be extended by the President of the Division if requested by the President of the Panel. In practice, the deadline is extended rather frequently, and in many cases the operative part of the award is communicated much later than three months after the arbitrators have received the file. A similar deadline does not apply to ordinary CAS arbitration procedures.
Fast track procedures
Quite frequently disputes handled by CAS require a quick resolution. In particular it will be essential to quickly resolve cases regarding suspensions on clubs, athletes and national associations for alleged breaches of sports regulations, such as doping or match fixing, as the suspension will affect the possibility for these parties to take part in sports activities. Further, fast track procedures will be required in cases that influence ongoing or upcoming competitions, hereunder eligibility to take part in a competition. In such cases delayed decisions could lead to denied justice, as a challenge of a decision of suspension from a competition or tournament would be worthless if the award is given after the tournament is finished. A good example of a such a case was CAS 2018/A/5546 Jose Paolo Guerrero vs. FIFA, where Peruvian international footballer Guerrero had his doping case heard just a few weeks before the 2018 World Cup. The CAS panel reduced his suspension, and for that reason he was allowed to participate in the World Cup.
In CAS’ ordinary arbitration cases, pursuant to the CAS Code art. 44.4, the Panel may proceed with the case in an expedited manner with the consent of the parties. In CAS’ appeals arbitration cases the panel may decide to proceed in an expedited manner with the agreement of the parties, pursuant to the CAS Code art. 52. The question of whether a case should follow a fast track procedure could arise either following the request from one of the parties, or following the initiative from the Panel. Although the wording of the CAS Code articles 44.4 and 52 are somewhat different, a general criterion for a fast track procedure is that all the parties’ accept such a procedure. However, in some cases a fast track procedure is regulated in sports regulations, such as in the tournament regulations for UEFA Champions League, which requires that the participating clubs must accept to recognise the jurisdiction of CAS and agree that any proceedings before the CAS concerning admission to, participation in or exclusion from the competition will be held in an expedited manner in accordance with the CAS Code and with the directions issued by the CAS.
Fast track procedure in practice
Fast track arbitration can be defined as a full arbitration process compressed into a shorter period for a quicker resolution of the dispute. Once a CAS panel has decided to proceed in an expedited manner, the panel shall issue appropriate directions for such procedure.
In practice, the Arbitrator(s) and the parties shall in a fast track procedure act in an efficient and expeditious manner and make every reasonable effort to ensure that any award is legally enforceable. It will to a large degree be up to the panel and the parties to decide on specific measures that ensure that the case is handled as quickly as necessary. Typical measures are shorter time limits for the parties to submit their documents and exhibits, conducting hearings by video conference instead of physical hearings in Lausanne, Switzerland, and the use of a sole arbitrator instead of a panel of three arbitrators.
There has been a tendency in recent years that a larger portion of cases are handled by a sole arbitrator, and in particular fast track procedures. According to Johan Lindholm, 13 percent of all cases are decided by a sole arbitrator[1], and the tendency is rising. All though the use of a sole arbitrator would normally lead to a faster procedure, the appointment of a sole arbitrator such a procedure will override the parties’ possibility to appoint one of the arbitrators in a panel of three, which could negatively affect the parties’ autonomy, and therefore give rise to a challenge of the award on the basis that the tribunal has not been constituted according to the parties’ will.
It is worth noting that although the CAS-code has few provisions regarding fast track procedures, other arbitration institutes have established rather detailed regulations for fast track arbitration procedures , such as The Arbitration Institute of the Stockholm Chamber of Commerce (SCC) which has developed rules for expedited arbitrations.
Conclusion
The nature of sport is such that quick resolution of disputes and disciplinary cases is essential, as an award would have little or no effect if not rendered quickly. Sports competitions and tournaments will not be put on hold to await the outcome of disputes or other legal processes, and such cases must be resolved quickly and fair. CAS has established fast track procedures that aims to reduce the time of a procedure in cases where that is essential, to meet these challenges.
[1] Johan Lindholm: The Court of Arbitration for Sport and its jurisprudence – An Empirical Inquiry into Lex Sportiva p. 258.
