Sports arbitration: The Court of Arbitration for Sport (CAS)
Preamble
The Court of Arbitration for Sport (CAS) has the competence to settle sport-related disputes. CAS was created by The International Olympic Committee (IOC) in 1983 and is located in Lausanne, Switzerland. CAS also has branch offices in New York and Sydney, and at major sports events, such as the Olympic Games, the football World Cup and the European Football Championships, ad hoc offices are created to deal with violations of regulations in the current sports event. Since the first case was handled by CAS in 1986, there has been a large increase in cases in recent years, and in 2016-19 it handled just under 600 cases per year. The framework for CAS's competence, as well as provisions on procedures, deadlines, etc. is regulated in the CAS code.
The competence of the Court of Arbitration for Sport (CAS)
CAS handles two types of cases within sports arbitration. Firstly, CAS will be able to hear general sports-related disputes arising out of a contract, including sponsorship contracts and media rights. A condition for CAS to hear these cases is that the parties have agreed that CAS shall have the competence to settle the dispute, either in the contract that the dispute arises from, or in an agreement made after the dispute has arisen. These cases follow normal arbitration procedures. Secondly, CAS is the appeals body in cases that have been dealt with by other bodies. This can be both disciplinary action such as sanctions imposed by international federations as a result of violations of sports regulations, and disputes that have been dealt with by a legal sports bodies. There are two conditions for CAS to handle these cases. Firstly, the statutes or regulations of the sports organization in question, e.g. FIFA or UEFA, must recognize CAS as the appeal body for the case in question. Secondly, all other internal legal remedies must be exhausted. If the sports organization for example has established an appeals body, the case cannot be appealed directly from the first body to CAS, as it is only when the sports organization's appeal body has made a decision that this decision can be appealed to CAS.
Nominating the arbitrator and the further process
The parties to a sports arbitration case can choose from a list of just under 400 CAS arbitrators appointed by the CAS Board on the basis of their competence in sports or international arbitration. Over half of CAS's cases concern football, and CAS has for this reason created a separate list of sports arbitrators with expertise within football. Arbitrators must be independent and cannot be related to the parties or previously have been involved in the dispute. The process where CAS is the agreed arbitration tribunal differs from the process where CAS operates as an appeals body.
This article explores the role of the arbitrator in the Court of Arbitration for Sport.
CAS as ordinary arbitration tribunal, CAS-code R38
Where CAS operates as an ordinary arbitration tribunal in sports related disputes, the process is similar to commercial arbitration, and starts by either party requesting arbitration. The other party will then have the opportunity to give a response before both parties are given an opportunity for a further pleading. Requests for further pleadings will be decided by the chairman of the arbitration tribunal. There will be one or three arbitrators in a case, depending on the requests from the parties. If the parties do not agree on the number of arbitrators, this may be determined by CAS. The parties can agree on how the appointments shall take place. If they do not reach an agreement and one arbitrator is appointed, CAS will give the parties a time limit to agree on which arbitrator from the list of CAS judges that shall be appointed. If they do not agree, the arbitrator will be appointed by CAS. If three arbitrators are to be appointed, each of the parties designates one arbitrator each, while the president of the panel shall be appointed by the two appointed arbitrators.
After the parties have completed the written pleadings, a hearing will normally be held at the CAS premises where the parties are allowed to present the evidence and hear witnesses. The panel will normally settle the dispute based on the legislation elected by the parties, or based on Swiss legislation and sporting legal principles (lex sportiva). The panel will usually emphasize comparable cases from CAS, but are not bound by CAS jurisprudence.
CAS as appeals body, CAS code R47
If the conditions for CAS to act as an appeal court are fulfilled, an appeal to CAS will start with a party from the previous legal body sending CAS a statement of appeal and paying an administration fee of 1 000 Swiss francs. CAS code R48 sets certain terms for what the statement of appeal should contain. In the statement of appeal the party should nominate an arbitrator from CAS’ list of arbitrators. If the body which has given the decision appealed against has not set an appeal deadline, the appeal deadline is 21 days from the decision was received. It is important to note that many organisations operate with other appeal deadlines. For example, decisions by UEFA bodies will have a ten-day appeal deadline, according to the UEFA statutes. Normally three arbitrators will be appointed in a case, whereas each of the parties appoint one arbitrator each, while the CAS president appoints the president of the panel. The parties may also agree that only one arbitrator shall be appointed, typically in cases where it is important to minimise costs. Also, CAS can decide that a case will be handled with one arbitrator.
Within ten days after the expiry of the deadline for the statement of appeal, the appellant must send an appeal brief, presenting the factual and legal aspects of the case. In the appeal brief, the documents and evidence of the case should be enclosed. CAS 'administration will consider whether the conditions for the appeal are present, and then send the appeal to the respondent, which will have to submit an answer within 20 days. Normally, the parties will not be given the opportunity to supplement or amend their requests or arguments, but the parties may agree that they will be given the opportunity to supplement with further submissions and evidence. The president of the panel can also make authorise further submissions. Normally there will be a hearing at CAS's premises in Lausanne, but the panel may decide that the decision will be made on the basis of the written documents of the case. The panel may further decide that evidence that has not been presented by the parties to previous instances shall be omitted from the case. The panel will be able to consider whether previous judicial bodies have assessed the facts and legal aspects of the case correctly. The panel will make a final award and communicate the award to the parties.
The panel will decide which law shall be applicable to the merits. Normally a dispute will be decided on the basis of the relevant sport's own regulations, including the sporting legal principles (lex sportiva). National and Swiss legislation may also be relevant. CAS is not bound by previous CAS jurisprudence but will usually emphasize comparable cases from CAS.
Costs for dealing with cases before CAS
The cost of a case before CAS will depend on the type and magnitude of the case. Where CAS acts as the appeal body in disciplinary cases, the costs of the parties under the CAS code R65 are limited to the parties' costs and the appellant must pay a fee of 1 000 Swiss francs. The parties will generally be responsible for their own costs, but CAS may order the losing party to cover all or part of the counterparty's costs.
In ordinary sports arbitration disputes, the costs will be somewhat higher, according to the CAS code R64. In addition to the parties' costs, the parties will also be responsible for CAS’ expenses. Firstly, the parties will be responsible for administrative costs, calculated on the basis of the size of the claim, and range between 2,000 - 25,000 Swiss francs. Secondly, the parties will be responsible for the arbitrators' fees and travel expenses. The hourly rate for the arbitrators varies between 300 - 500 Swiss francs. Even in ordinary sports arbitration disputes, the parties will normally be responsible for their own costs, but CAS may order the losing party to cover all or part of the counterparty's costs.
CAS awards
CAS awards, both appeal awards and awards in ordinary arbitration disputes, are written and are sent to the parties. CAS decisions are final but may in some cases be challenged by Swiss courts. Under Swiss law, Swiss courts will only review a decision of CAS if essential procedural requirements are not fulfilled, if the decision may be in breach of national law or if the equality of the parties or their right to be heard in an adversarial proceeding was not respected.
