The Court of Arbitration for Sport (CAS) - the role of the arbitrator
Introduction
This article is written by Espen Auberg, who is an arbitrator at the Court of Arbitration for Sport (CAS). The article is based on my own experiences, the Code of Sports-related Arbitration (the CAS Code), information on the CAS website, and represents my personal views and opinions.
CAS offers resolution of sports-related disputes through arbitration and mediation. CAS was established 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 establish ad-hoc offices at major sports events, such as the Olympic Games, the football World Cup and the European Football Championships. 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 about 600 cases per year. The framework for CAS and CAS arbitrators is regulated in the CAS code. In 1994, in an effort to improve CAS’ independence, the overall responsibility for CAS was transferred from IOC to the International Council of Arbitration for Sport (ICAS).
CAS consists of three permanent divisions. The Ordinary Arbitration Division is responsible for resolving general sports-related disputes arising out of a contract, including sponsorship contracts and media rights. The Anti-doping Division resolves disputes related to anti-doping matters as a first-instance authority or as a sole instance. Finally, the Appeals Arbitration Division deals with cases that previously have been dealt with by other bodies. This can be both disciplinary cases such as sanctions imposed by international federations as a result of violations of sports regulations, and disputes that have been dealt with by legal sports bodies. Further, in addition to a list of CAS arbitrators, CAS also offers mediation in sports related matters, and provides a list of mediators.
The list of arbitrators at the Court of Arbitration for Sport
Only arbitrators from the closed list of arbitrators published on the CAS website can arbitrate cases at the Court of Arbitration for Sport. The arbitrators on the list have all been appointed by the ICAS in accordance of article S14 of the Statutes of ICAS and CAS. The article stipulates that only arbitrators “with appropriate legal training and recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language” can be appointed by ICAS. Since its beginning, French and English have been the CAS working languages, but Spanish was added as an official working language as from 1st July 2020. The requirement of having a good command in a CAS working language should not be underestimated, as it can be quite challenging for lawyers to draft awards in a language that is not one’s mother tongue.
The closed list of arbitrators at the Court of Arbitration for Sport has led to criticism as some parties would like to appoint CAS arbitrators that are not on the list, claiming that the closed list of CAS arbitrators undermines the independence of CAS due to the lack of choice of arbitrators. The question has been considered by CAS and the Swiss Federal Tribunal on several occasions. In case 4A_234/2010 (Lazutina), the Swiss Federal Tribunal confirmed that CAS was sufficiently independent, although the court did recognize the challenges of operating with a closed list of CAS arbitrators. As a response to this criticism, and to awards by the Swiss Federal Tribunal, ICAS has appointed a number of new CAS arbitrators, and at the moment, the list now (2020) consists of almost 400 individuals.
In addition to the requirements that is needed to be appointed to the list of arbitrators by ICAS, the CAS Code R33 stipulates that “every arbitrator shall be and remain impartial and independent” and “shall be available as required to complete the arbitration expeditiously”. The obligation to remain impartial and independent is repeated in the “Guidelines for CAS Arbitrators”[1], which are guidelines that a CAS arbitrator must accept when confirming the acceptance of the nomination. In these guidelines, it is stressed that “CAS arbitrators must be and remain impartial and independent of the parties” and that must disclose any circumstances which may compromise their impartiality or independence from the parties.
The obligation for a CAS arbitrator to be available and complete the arbitration expeditiously is essential to ensure a swift procedure. Clubs, athletes and other parties in a CAS arbitration procedure will often have good reasons to finalise the dispute or the disciplinary case they are involved in as soon as possible, and proceedings are regularly delayed because the CAS arbitrators are unable to find suitable dates for a hearing. CAS arbitrators that cannot devote sufficient time to fulfil his or her tasks, should therefore decline the nomination to be part of the CAS panel.
As a result of the closed list of CAS arbitrators, some arbitrators are repeatedly appointed by the same litigants. Johan Lindholm has studied a large number of cases and points out that some arbitrators are regularly appointed by the same parties, typically by large sports governing bodies such as FIFA, IOC and UEFA, that are regularly parties at CAS[2]. Repeated appointments have the potential of putting into question the independence and impartiality of the CAS arbitrator.
In addition to the ordinary list of CAS arbitrators, CAS has created the so-called football list which consists of CAS arbitrators on the ordinary list of CAS arbitrators, who specialize in football law. Football related cases are a substantial part of the total amount of cases dealt with by the Court of Arbitration for Sport, and with the football list the parties involved in football related cases will have the possibility to choose CAS arbitrators with high competence within football law.
Appointing a CAS arbitrator at the Court of Arbitration for Sport (CAS)
CAS panels can be formed in different ways. A panel can consist of a sole CAS arbitrator or a panel of three CAS arbitrators, including the panel’s president. CAS consists of an Ordinary Arbitration Division, an Anti-doping Division and an Appeals Arbitration Division, and the appointment procedures are slightly different in the three divisions. In an ordinary arbitration procedure the procedure is regulated by CAS-Code R38-R46, the appeal arbitration procedure is regulated in the CAS-code R47-R59, and the procedure in cases for the anti-doping division is regulated in an own set of regulations.
The CAS arbitrator in an ordinary arbitration tribunal, CAS-Code R38-R46
Through the Ordinary Arbitration Division, CAS offers resolution in general sports-related disputes arising out of a contract, such as sponsorship contracts and media rights. In order for CAS to arbitrate these cases, there must be an agreement between the parties that CAS shall have the competence to settle the dispute through arbitration. Such an agreement can be made either in the contract that the dispute arises from, or after the dispute has arisen.
Where CAS serves as an ordinary arbitration tribunal in sports related disputes, the process starts when one of the parties, i.e. the Claimant, requests arbitration. The request for arbitration is sent to the CAS Court Office, and shall contain, inter alia, a brief statement of the facts, legal arguments and the arbitration agreement. In the request for arbitration, the Claimant should also state the number of the CAS arbitrators (one or three).
When filing the request for arbitration, the Claimant shall pay a non-refundable Court Office fee of Swiss francs 1,000. If all the requirements for proceeding with the case are not met, the CAS Court Office may grant a single short deadline to the Claimant to complete the request for arbitration.
When the CAS Court Office has received the request for arbitration, it will communicate the request for arbitration to the respondent and set a deadline for the respondent to file an answer to the request for arbitration and to submit information about the preferred number of CAS arbitrators that shall be appointed. If three arbitrators are to be appointed, and the parties have not agreed on a method of appointment of the arbitrators from the CAS list of arbitrators, the Claimant shall nominate its arbitrator in the request or within the time limit set in by the CAS Court Office. The Respondent shall nominate its arbitrator within the time limit set by the CAS Court Office upon receipt of the request, normally in the answer. In the absence of such appointment, the President of the Division will appoint an arbitrator from the CAS list of arbitrators. The two appointed CAS arbitrators will then select the President of the Panel by mutual agreement.
Proceedings before the panel will consist of written submissions and then normally a hearing at the CAS premises in Lausanne. The panel of CAS arbitrators may, however, after consulting with the parties, decide not to hold a hearing if the panel is sufficiently informed by the written submissions The president of the panel will give directions regarding the parties’ written submissions, and set a hearing date if a hearing shall be conducted. At the hearing the panel hears the parties, witnesses and experts, and the parties’ final arguments. After the hearing, the panel will make an award by the president of the panel alone or a majority decision, which shall be final and binding, although it 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.
The CAS arbitrator’s role in a panel where CAS is an appeals body, CAS Code R47-R59
Before starting the process of choosing the arbitrators of the CAS panel, it must be established that CAS is competent to hear the case. There are two conditions for CAS to act as an appeals body. First of all, the statutes or regulations of the sports organization in question, e.g. IOC, FIFA or UEFA, must acknowledge CAS as the appeals body for the case in question. Further, all other internal legal remedies must be exhausted. If the sports organization for example has established an internal appeals body, the case cannot be appealed directly from the first body to CAS, as it is only when the sports organization's appeals body has made a decision that this decision can be appealed to CAS.
If the requirements for CAS to act as an appeals body are fulfilled, an appeal to CAS will start with a party from the previous legal body, i.e. the Appellant, 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 issued the decision 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.
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, and a CAS arbitrator will normally be nominated. The CAS Court Office will consider whether the conditions for the appeal are met, 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.
Normally three CAS arbitrators will be appointed in a case, whereas each of the parties appoint one CAS arbitrator each, while the CAS president appoints the president of the panel. The parties may also agree that only one CAS arbitrator shall be appointed, typically in cases where it is important to minimise costs. Also, if the parties fail to make an agreement, the President of the Division can decide that a case will be handled with a sole arbitrator. 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 operative part of the award should be communicated to the parties within three months after the Appeal Statement is received, but the time limit may be extended by the President of the Appeals Arbitration Division upon a reasoned request from the President of the Panel.
The CAS arbitrator in anti-doping cases
In cases for the CAS anti-doping division, the parties could agree on a sole CAS arbitrator or a panel of three arbitrators. When the parties agree to have a three-member Panel, the parties shall each nominate an arbitrator from the CAS Anti-Doping Division list, whilst The President of the Panel shall be appointed from the special list of Presidents for CAS Anti-Doping Division list, either by mutual agreement of the parties or, if they fail to reach an agreement, by the President of the CAS Anti-Doping Division.
Choosing a sole arbitrator or a panel of three arbitrators
In all three divisions of CAS, the parties have the possibility to agree on a sole CAS arbitrator, or a panel consisting of three CAS arbitrators. Choosing a sole arbitrator can have its advantages, in particular with regards to securing a quick procedure. According to Johan Lindholm’s studies, about 13 percent of all cases at CAS are conducted by a sole arbitrator, both in the Ordinary Arbitration Division and in the Appeals Arbitration Division[3]. Lindholm’s findings are is supported by surveys regarding international arbitration in general that suggest that there is a certain scepticism regarding sole arbitrators. The 2010 International Arbitration Survey showed that the that parties in general have a strong preference for three arbitrators, as 87 percent of the respondents preferred three arbitrators. The respondents suggested that a sole arbitrator may be more appropriate for cases with low amounts in dispute or of lesser complexity, whilst three arbitrators to a larger extent secure a greater neutrality and more balanced award, less risk of a poor decision, the possibility of appointing one of the arbitrators and of benefiting from diversity of background and experience in the panel.
Conclusion
The CAS Code provides CAS arbitrators the possibility to bring cases to a speedy resolution ensuring fair proceedings and high-quality awards. The arbitrators at CAS are highly influential with regards to the outcome of sports related disputes and with regards to the development of international sports law. The rapid development of CAS since its beginning in the early 1980s, makes it necessary to develop a framework that ensures CAS remains highly competent and independent also in the future.
[1] Mavromati & Reeb, “The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials”, Kluwer Law International 2015, p. 153.
[2] Linholm, Johan: The Court of Arbitration for Sport and its Jurisprudence – An Empirical Inquiry into Lex Sportiva, Asser 2019 p.240.
[3] Linholm, Johan: The Court of Arbitration for Sport and its Jurisprudence – An Empirical Inquiry into Lex Sportiva, Asser 2019 p. 259
