Introduction

A remarkable aspect of the run-up to the 2016 Rio Olympic Games was the stream of negative media reports portraying broad-scale public mistrust in sport, with the most prominent topic being the doping scandals in athletics and questions surrounding the participation of Russia.  

A different controversy, but one also directed at the credibility of sports, has exposed a few female Olympians to repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported that Indian track-and-field athlete Dutee Chand had qualified for the Rio Olympic Games by breaking the national record, thus to become the first Indian athlete to run the 100m at the Olympics since 1980. The attention that Dutee Chand’s qualification attracted within international media, however, was not related only to her outstanding results. It came as part of a medical, ethical and legal controversy that has existed for many years relating to ‘policing’ the male versus female divide in sports. Another athlete who has found herself in the midst of this controversy is South African runner Semenya Caster, whose participation in the Olympics has been the object of much conjecture.

The divide between male and female athletes forms the core of most sports’ competition rules, including athletics. The justification for this basic divide has rarely been questioned as such, but has been a matter for debate when it comes to handling atypical situations on both sides of the ‘dividing line’ ­ such as ‘transgender’ or ‘intersex’ athletes. A category of athletes that has, especially, been viewed as a challenge to the divide is composed of female athletes affected by ‘hyperandrogenism’, a health condition that results in naturally elevated androgen levels, including testosterone levels.

On 24 July 2015, a CAS panel rendered a decision involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the ongoing debate about the policies regulating hyperandrogenism in sport. Much has been reported in the media about the case: controversial issues include whether the CAS was the appropriate forum to assess these questions; whether the decision was appropriate, both on the merits and on the procedure; and what the consequences of the CAS award would be, for the parties, for athletics and for the sporting community at large.

Much like the current crisis surrounding doping in sports, the public attention on women with (proven or suspected) hyperandrogenism is driven by a concern that an athlete’s physiology – natural or artificially induced ­ could distort competition, destroying the ‘level playing field’ that supports the Olympic ideal. Both topics are also often brought back to the goal of protecting an athlete’s health. Parallels are further found in the strong reactions both topics evoke, and the steps taken by the regulating authorities to convince the public that everything in their power is being done to preserve a level playing field.

A less obvious but equally important point of comparison can be found in the issues both topics raise concerning the legal validity of decisions made by sports organizations, especially in a science-related context. This blog focuses on those more ‘legal’ aspects, through the prism of the decision of the CAS in the Dutee Chand matter and its legal implications. After touching briefly on the background of the case, we will comment on two aspects of the Chand award with respect to challenges in regulating hyperandrogenism in sport within the confines of the law: First from the viewpoint of a CAS panel called upon to evaluate the validity of a set of regulations, and second from the viewpoint of the sports organizations seeking to both adequately protect fairness in sport and to provide a legally valid (and effective) regulatory solution.[1]

Background of the Case

In 2014, Dutee Chand, an internationally successful, young track-and-field athlete, was provisionally suspended from participation in any athletic events by the Athletics Federation of India (the “AFI”),[2] as a result of a series of medical examinations that suggested her “male hormone” levels were elevated.[3] Dutee Chand filed an appeal against this decision to the CAS, naming both the AFI and the IAAF as respondents. She asked the CAS panel to (i) declare the Hyperandrogenism Regulations invalid, and (ii) overturn the AFI’s decision and clear her to compete. The second request for relief, however, was dropped during the course of the proceeding, thus the award addressed only the issue of the Regulation’s validity.

The IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (“Hyperandrogenism Regulations” or “the Regulations”) govern the eligibility of female athletes with a condition known as ‘hyperandrogenism’ to participate in the female category of athletic events. Schematically, the Regulations provide that in order to be eligible to participate in the female category, a woman must have androgen levels below the “normal male range,” which is defined as testosterone levels falling below a threshold of 10 nmol/L.[4] An athlete with testosterone levels reported above this threshold may still be allowed to compete if she establishes, by a balance of probabilities, that she “derives no competitive advantage from having androgen levels in the normal male range”.[5] Cases of suspected hyperandrogenism may be investigated according to three levels of medical assessment, potentially including tests targeting physical, laboratory, genetic, imaging, and psychological assessments. Should an athlete be eventually diagnosed with hyperandrogenism, the stakes are high: in order to return to competition, athletes need to undergo medical treatment to reduce their testosterone levels below the ‘admissible’ threshold.

Dutee Chand challenged the Regulations’ validity on several grounds, which the CAS panel considered after addressing the parties’ respective burdens and standards of proof in an initial section. The grounds examined were unlawful discrimination, lack of scientific validity, breach of proportionality, and conflict with the World Anti-Doping Code (“WADC”).

Challenges CAS panels face in assessing the validity of sports regulations

The Chand award formidably illustrates the challenges an arbitration panel faces when asked to reach a conclusion on the ‘legal validity’ of a set of sports regulations, especially when such assessment implies delving into complex scientific issues. Each of these challenges can provide valuable ‘lessons learned’ for future CAS panels confronted with comparable issues.

Reconciling the ‘abstract’ and ‘concrete’ facets of the dispute

Ostensibly, the object of the CAS proceedings was for Dutee Chand to be cleared to resume competing as a female athlete, in other words, for the decision rendered against her by the AFI to be set aside[6]. But this ‘concrete’ request for relief was dropped at the hearing, leaving the panel with only the ‘abstract’ question of the Regulation’s validity to consider. It appears that the CAS panel was asked between the lines to render an informal advisory opinion on the legitimacy of the current approach to hyperandrogenism in sport; the formal advisory opinion is an instrument no longer available under the CAS Code.[7]

This left the CAS panel in an uncomfortable position: having to decide on abstract legal questions without the benefit of a concrete set of facts to rely upon. Symptomatically, the background presented in the award regarding the Athlete’s actual situation is tenuous. The award does not even discuss whether Dutee Chand’s testosterone levels actually exceeded the 10nmol/L threshold set in the Hyperandrogenism Regulations[8]. The CAS panel simply conducted its entire assessment under the - unverified - assumption of her being genuinely an athlete with hyperandrogenism within the meaning of the Regulations.

Moreover, real questions of defence strategy relevant to counsel appearing before CAS can be raised here: had Dutee Chand not waived her request for relief directed against the AFI decision, the CAS panel would have been forced to render a final award on her case and could not have left her in the legal limbo in which she is now (see below, on the rendering of an interim rather than a final award).

The CAS has often – explicitly or through the decision of its panels ­shown ambition to act as a harmonising body, an ‘international’ or ‘supreme’ court of sport.[9] From a perspective of sports policy, that may be – depending on the opinion – a desirable objective, or an illegitimate attempt for sports governing bodies to shield their regulations from the judicial review of state courts. From a strictly legal perspective, it is questionable whether CAS panels have at their disposal the means to fulfil this ambition. CAS panels are arbitration tribunals in arbitral proceedings conducted under Swiss arbitration law. As such, they only have the power to rule on a dispute brought before them by two – or more – specific parties, and they can only render decisions on requests for relief that a party has submitted to them, within the framework of the facts put forward by the parties. Approaches such as the one taken in the Chand award should not be encouraged, especially in this odd combination in which a CAS panel would accept to rule on abstract requests for relief that are not directly decisive to the outcome of the dispute.

Allocating the burden of proof to prove or disprove the Regulation’s validity

For reasons that are not readily apparent from the award, the CAS panel separated its assessment of the Regulations’ scientific basis into two limbs: i.) one referred to as an assessment of the ‘scientific validity’ of the Regulations, for which Dutee Chand was said to have accepted the burden of proof, and ii.) one referred to as a justification for the prima facie discrimination and considered part of the proportionality assessment, for which the IAAF was assigned the burden of proof[10]. For both limbs, the CAS panel ended up holding that the party bearing the burden of proof failed to discharge its burden, due to lack of sufficient scientific evidence.

The reasoning of the CAS panels in the award makes it rather obvious that the two limbs are conceptually one and the same: Both assess the question of whether the infringement upon female athletes’ rights entailed by the Regulations could be justified by a sufficiently strong scientific basis. Assigning the burden with respect to the general ‘scientific validity’ to Dutee Chand (i.e. the use of testosterone as a valid marker for purposes of the Regulations) and the burden with respect to another aspect of ‘scientific validity’ (i.e. the threshold set in the Regulations for that marker) to the IAAF (via the proportionality test), as the panel did, created an artificial separation in the legal analysis, by dressing the same issue in two different hats.

From the viewpoint of legal technique, this separation appears questionable and unnecessarily complicated. The assumption, from a viewpoint of judicial policy, is that the separation provided the arbitrators with an argument to both support the general thinking underpinning the Regulations (i.e. the use of testosterone levels as a marker) by considering that it was not without scientific basis, while at the same time finding the Regulations lacked sufficient strength in their modalities (i.e. the extent of the advantage conferred to hyperandrogenic athletes by their testosterone levels) to be upheld.

Differentiating between fact-finding and legal appreciation

Whether sports regulations have a sufficiently strong basis in science does not pertain to the fact-finding process, but to the CAS panel’s appreciation of the legal validity ­ or justification (including proportionality) ­ of those regulations. In this particular set-up, the question of ‘scientific validity’ is thus not strictly speaking one related to the burden of proof, as the Chand award would imply, but reflects which party suffers consequences if a CAS panel is not able to make sense of the scientific state-of-knowledge. The prospect of suffering adverse consequences indirectly provides an incentive for parties to present studies and expert opinions in support of their position, but does not qualify as a burden of proof stricto sensu, which only applies to issues of fact[11].

Nevertheless, the outcome of the CAS panel’s reasoning in the Chand matter appears justified: To the extent that the Hyperandrogenism Regulations represent an infringement on certain athletes’ rights (or, as the award considered it, in cases of discrimination), such infringement or discrimination has to be justified to be considered valid. In the case of the Hyperandrogenism Regulations, the alleged justification was based on the scientific basis behind the mechanics of the regulations. Thus, if no such basis could be shown, the CAS panel was bound to consider the Hyperandrogenism Regulations invalid. The CAS panel, in the particular matter, reached the same outcome by assigning the burden of proof on the issue it ultimately declared decisive to the IAAF, i.e. whether the manner in which testosterone was used as marker in the Regulations (especially the threshold value) could claim a sufficiently solid scientific basis.

Accounting for the role of scientific uncertainty

A truly important message to retain from the CAS award on scientific validity is the crucial role that ‘scientific uncertainty’ bears for the legal rule-making or adjudicative process. ‘Scientific uncertainty’ here refers to situations in which no consensus can be found within the scientific community, in which various expert positions coexist, or in which experts agree that the state-of-knowledge does not allow for a definitive answer. In all cases, the science is ‘unsettled’ in a manner that makes it impossible for the legal actors to extract a clear-cut finding that would suit their purposes. By nature, situations of ‘scientific uncertainty’ are the most likely to lead to legal disputes. CAS panels are frequently confronted with this constellation in doping matters or other science-related disputes brought before them.

The result of the panel’s assessment of the scientific foundations for the Regulations – whether desirable or not, justified or not – was hence utterly predictable. It was pre-determined from the moment the CAS panel decided that the IAAF would have the burden of proof on the very issue that would ultimately prove decisive for the outcome of a dispute. Allocating the burden of proof on a scientific issue amounts to assigning to one party (or one category of party) the risk of scientific uncertainty. Since disputed scientific issues are likely to result in the panel being unable to make up its mind one way or another, thus having to fall back on the burden of proof, the party that carries this risk of scientific uncertainty is almost certain to lose its case.

(Avoiding) reaching a legal conclusion on a highly sensitive issue

At the end of their analysis, the CAS arbitrators reached the conclusion that the IAAF had not discharged its burden of proof and that they were therefore unable to uphold the validity of the Hyperandrogenism Regulations based on the evidence before them[12]. The logical (and legal) consequence would have been for the panel to render a final award in accordance with these conclusions and grant the athlete’s request for relief. However, the panel took a different – and unusual ­ option, of issuing a decision they referred to as “interim award” instead.

One fails to see the rationale for such a decision. The approach may well be pragmatic, since it relieved (at least temporarily) the CAS panel of the need to make a final binding decision on a complex social and political issue, and allowed Dutee Chand to resume competition while at the same time providing a (provisional) framework for international athletic competitions with respect to participation of hyperandrogenic athletes.[13] However, issuing an “interim award” in this matter is not justifiable from the perspective of arbitration law. This is all the more true given that none of the parties appears to have requested the issuing of a preliminary decision in the proceedings, nor even to have contemplated this type of outcome. Its legitimacy under the CAS Code – which is conceived to guarantee an efficient procedural framework on CAS proceedings – is equally questionable. Moreover, the choice of issuing an ‘interim award’ has far-reaching legal and practical consequences for the dispute that further call into doubt the nature of Dutee Chand’s ‘victory’, including the following:

• The CAS proceeding number ‘CAS 2014/A/3759’ is not closed. The CAS panel remains formally constituted for the remainder of the two-year period assigned to the IAAF. If the IAAF does not submit further evidence, the CAS panels will need to make a final award taking note of such failure and drawing the consequences thereof, which could then be appealed before the Swiss Supreme Court;

• The “interim award” can only be appealed to the Swiss Supreme Court on very restrictive grounds under the Swiss Private International Law Act (Article 190, para. 3). Only an appeal for grounds of irregular composition of the tribunal or lack of jurisdiction could be filed, none of which would seem of relevance to the present matter. The other grounds for challenging an arbitral award – in particular the right to be heard or public policy – cannot be raised in an appeal against an interim award. This de facto bars the parties from appealing the award before the elapse of the two-year period; and

• The award does not acquire a res iudicata effect and cannot be enforced, though it binds the panel itself to its own determinations (as opposed to a mere procedural order).[14] Its effect for other athletes potentially concerned by decisions made under national regulations implemented to reflect the Hyperandrogenism Regulations is thus uncertain. In theory, but for the panel’s expectations that the IAAF will act based on the sport hierarchy, a national federation that was not a party to the dispute could still make a decision against an athlete.

While CAS panels may order further evidentiary measures on their own initiative and request a party to adduce further evidence, the CAS Code certainly does not envisage that a party could be given a period of two years to do so. Rendering an interim award in these circumstances could be considered to amount to a denial of justice, i.e. a refusal by the CAS panel to rule on the request for relief properly submitted to it. The time limit granted unilaterally, to one of the parties only, could also be seen as conflicting with equality of the parties.[15] Should the IAAF return with additional evidence during the two-year period, would Dutee Chand also be granted an equivalent time limit to respond to the evidence?

Challenges sports organisations face in navigating the interface between law and science

The debate surrounding the definition of male and female is a complex one, not only in sport but in various domains of society. This means that a sports organisation’s task of making policy decisions that adequately account for these complexities is far from straightforward.

Unlike former policies in sport, the manner in which the IAAF – and other sports federations based on the policy of the IOC – set out to deal with hyperandrogenism as of 2012 does not formally aim at defining an athlete’s sex. Hence, it does not represent a ‘gender or sex testing’ process stricto sensu. Instead, the CAS panel in the Dutee Chand case acknowledged that whether a person is to be considered ‘female’ from the viewpoint of participation in athletics relies on the criterion of whether a person is a female as a matter of law[16]. The Hyperandrogenism Regulations do not – at least not from a legal viewpoint ­ purport to decide whether someone is female or not. Ironically, this shift in approach that was to take away from sports authorities the controversial power to assign a ‘gender’ to an individual for purposes of taking part in its competitions is precisely what has brought those authorities into the dilemma of having to introduce corrective factors in the name of a level playing field.

Indeed, the Regulations seek to police a divide based on an issue of law (whether someone is a female ‘as a matter of law’) through a corrective factor that relies on a biological parameter, which is an issue of fact (the person’s level of testosterone); an approach that is bound to lead to a sense of unfairness in borderline situations. Undoubtedly, one major flaw in the system was that the corrective factor had the effect of excluding athletes from the category into which they fit as a matter of law, without offering them the option to compete in the category in which the corrective factor would place them. The IOC Medical & Scientific Commission statement subsequently issued (see below, in the concluding remarks) encourages a solution whereby legally female athletes who fail to meet the requirements of Hyperandrogenism Regulations would be authorized to compete in the male category. This solution would at least have the merits of removing this blatant inconsistency of the system. However, one can legitimately wonder if, de facto, it would not have the same effect of excluding hyperandrogenic women from elite competition entirely.

To entirely reframe the approach to sex categories in sport – without the mixture of legal and biological corrective factors chosen in the Hyperandrogenism Regulations – would suppose one of the following:

1. redefining the definition of ‘sex’ for purposes of sports categories based only on biological criteria, i.e. the level of testosterone or other biological factors deemed appropriate,
2. abandoning the use of corrective factors, and referring to an individual’s sex exclusively as a matter of law, or
3. abandoning any form of sports category related to sex and/or gender altogether.

It seems predictable that any of these options would imply some sort of compromise and entail new legal challenges. In particular, it is important to note that even if one should simply abandon any regulation on hyperandrogenism (or, more generally, on intersex matters), the question of how to legally define a ‘female’ would remain. In particular, the CAS panel in the Chand matter noted that whether someone is a male or female “is a matter of law”[17]. This immediately raises a follow-up question, namely: “what law?”. And, of equal importance, how does the applicable law approach this question? Options could range from self-identification to reliance on a complex set of scientific criteria, with each solution bringing its own challenges. Relying exclusively, as has been suggested[18], on the manner in which a person was raised and/or perceives him-/herself within society might prove difficult to crystallize into a firm legal criterion.

Even as sports regulations strives towards fairness and removing barriers to ‘pure’ competition, it must be recognized that the best that sports organizations can aim for in this context is to strike a reasonable balance between seeking a level playing field and celebrating natural advantages. On a deeper level, it also supposes a discussion as to how lawyers can and/or may make decisions that will profoundly affect individuals when science appears unable to provide the data needed to make sound legal choices.

Concluding remarks

Perhaps the most striking aspect of the Chand matter ­ as revealed by its aftermath ­ is the limited impact a CAS award addressing abstract legal issues can exert in practice.

The Chand award did not end the hyperandrogenism debate. In November 2015 – over four months after the Chand award was published ­ the IOC Medical & Scientific Commission, after holding a Consensus Meeting on Sex Reassignment and Hyperandrogenism, reaffirmed its position by insisting on the need to have rules in place “for the protection of women in sport and the promotion of the principles of fair competition”. The statement also encourages the IAAF, with support of other sports organizations, “to revert to CAS with arguments and evidence to support the reinstatement of its hyperandrogenism rules”. The IOC’s reaction to the interim award rendered shows that little progress was made in resolving the dispute over the validity of the Hyperandrogenism Regulations. As an only sign of a shift in its position, the statement recommends that “to avoid discrimination, if not eligible for female competition the Athlete should be eligible to compete in male competition”.[19] The new IOC position, which in effect represents a step towards considering the testosterone threshold as the only decisive criterion for determining the boundary between male and female athletes, immediately triggered critical reactions – both as to the modalities of its adoption and as to its contents – on part of circles close to Dutee Chand’s defence and opposed to regulations on hyperandrogenism.

Thus, the CAS award does not seem to have altered either camp’s position. This may be in part a side effect of the panel’s decision to opt for an interim award, but also demonstrates more generally the limitations on the power of law, regulatory bodies and judicial authorities to resolve disputes of such scientific and ethical dimension.

[1] For a more detailed analysis of the Chand award, see M Viret and E Wisnosky, Controlling “Femaleness” in Sports: Regulatory challenges at the intersection of health, performance and identity, in A Duval and A Rigozzi, eds., Yearbook of International Sports Arbitration, to be published.

[2] CAS 2014/A/3759, Dutee Chand v. AFI & IAAF, 24 July 2015.at [27]­[28]. As reported in the award, the text of the Decision Letter read in relevant part: “Based on your medical reports received from Sports Authority of India and a copy of the same has already been handed over to you by SAI in person, you are hereby provisionally stopped from participation in any Competition in athletics with immediate effect.

To be eligible for participation, you are further advised to follow the annexed IAAF guidelines”. [27]. Ms. Chand stated that the letter incorrectly enclosed the IAAF Sex Reassignment Regulations rather than the Hyperandrogenism Regulations [28].

[4] Hyperandrogenism Regulations, art. 6.5(i).

[5] Hyperandrogenism Regulations, art. 6.5(ii).

[6] Dutee Chand initially submitted two requests for relief, namely that a.) “[T]he Hyperandrogenism Regulation[s] be declared invalid and void; and, b.)[T]he Decision Letter [note: rendered by the AFI against Ms. Chand] be set aside and she be declared eligible to compete (Chand award at [104]).

[7] CAS’ consultation proceedings were abrogated in the 2012 review of the CAS Code.

[8] Chand award at [36]

[9] “The ‘Digest of CAS Awards 1986-1998’ recorded the emergence of a lex sportiva through the judicial decisions of the CAS. It is true that one of the interests of this court is to develop a jurisprudence that can be used as a reference by all the actors of world sport, thereby encouraging the harmonisation of the judicial rules and principles applied within the sports world.” (CAS Digest II, Reeb, p. xxix).

[10] A detailed analysis of the CAS panel’s reasoning can be found in Viret and Wisnosky 2016.

[11] For more details, see Viret and Wisnosky 2016, on the lack of clear distinction between issues of fact (which parties can agree upon) and issues of law, such as the burden and standard of proof and scientific validity (which is for a hearing panel to decide) in the Chand award.

[12] Chand award at [536].

[13] J Paulsson, Assessing the Usefulness and Legitimacy of CAS, SchiedsVZ 2015, pp. 263-269, p. 269.

[14] G Kaufmann-Kohler and A Rigozzi, International Arbitration: Law and Practice in Switzerland, Oxford University Press, Oxford 2015, paras 7.105-7.106.

[15] See Chand award at [442]. In particular, the Athlete accepted the burden of proof with respect to the “issue of scientific basis” of the Hyperandrogenism Regulations, a burden that the CAS panel considered had equally not been discharged.

[16] Chand award at [510]

[17] Chand award at [510].

[18] See e.g. M Genel, J L Simpson and A de la Chapelle, The Olympic Games and Athletic Sex Assignment, Journal of the American Medical Association, Published online August 04, 2016.

[19] IOC (2015) IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism November 2015

Introduction[1]

The Court of Arbitration for Sport (CAS) registers approximately 300 cases every year. Recently, the Swiss Federal Supreme Court – which is the sole judicial authority to review arbitral awards rendered in Switzerland – reminded in the Matuzalém Case (Case 4A_558/2011) that CAS awards may be enforced in other States that are parties to the New York Convention on the recognition and enforcement of foreign arbitral awards.

However, in that case, the Federal Court failed to recognize the main intent of FIFA, which is to avoid foreign State courts’ interference – even to the detriment of a plaintiff’s right of having the option to challenge a CAS award in a non-Swiss jurisdiction. Article 67(2-3) FIFA Statutes requires that provision shall be made to CAS arbitration and prohibits FIFA members to have recourse to courts of law unless provided for by FIFA regulations. Member associations must accordingly insert an arbitral agreement in their statutes on the recognition of CAS to resolve disputes under Article 10(4)(c) FIFA Statutes. Regarding labour-related disputes, Article 22 FIFA Regulations on the Status and Transfer of Players in conjunction with Article 5 FIFA Statutes 2003 has carved out an exception to the aforesaid FIFA ‘exclusion’ and ‘allows’ FIFA members to seek redress before civil courts. Nonetheless, FIFA could still use its disciplinary power to enforce decisions (e.g. CAS awards). In addition, Article 64(1) FIFA Disciplinary Code explicitly stipulates that ‘[a]nyone who fails to pay another person […] or FIFA … money…, even though instructed to do so by … a subsequent CAS appeal decision …, or anyone who fails to comply with another [CAS appeal] decision …’, will be disciplinary sanctioned (e.g., fine, ban on any football-related activities, expulsion (member association), relegation (club) and transfer ban (club)). This is a typical case of so-called ‘arbitration with a reduced consensual character’ (Steingruber 2012), which is contrary to the consensual spirit that underlies private arbitration.

It should also be noted that in the Cañas case (Case 4P.172.2006, par. 4.3.2.2) the Swiss Federal Supreme Court recognized and tolerated the athlete’s reduced consent to arbitration (under Article 2 of the Player's Consent and Agreement to ATP Official Rulebook) in order to be able to practice tennis as a professional. It is moreover ‘based on the continuing possibility of an appeal acting as a counterbalance to the “benevolence” with which it is necessary to examine the consensual nature of recourse to arbitration where sporting matters are concerned’ (Case 4P.172.2006, para. 4.3.2.3). In other words, the application of ex post reviews of CAS awards by the Federal Court is a sine qua non to its acceptance of an athlete’s reduced consent to arbitration.

CAS awards could be challenged before courts, however, if they are incompatible with public policy (of Switzerland or EU Member States et cetera). 

CAS awards – Swiss notion of substantive public policy

As far as arbitration is concerned, national courts generally adopt a deferent attitude to arbitration, mainly reviewing the due process components and only entering substantial matters if they are incompatible with substantive public policy. Accordingly, the parties involved can only challenge arbitral awards on substantive grounds if they contravene the national notion of substantive public policy.

The Swiss Federal Supreme Court has only once annulled an international arbitral award rendered in Switzerland for being incompatible with substantive public policy. Interestingly, the case concerns a CAS (appeal) award.

It should be noted that the national notion of public policy may vary per jurisdiction. Accordingly, enforcing arbitral awards that have been annulled at the seat of arbitration – e.g. the Matuzalém case – could still be enforced in e.g. Austria, Croatia, Denmark, France[2], Ireland, Luxembourg, The Netherlands[3], Poland and Spain.[4] However, arbitral awards that have been set aside at the seat of arbitration are likely to be refused enforcement in e.g. Germany, Hungary, Italy and the United Kingdom.[5] 

CAS awards – EU notion of substantive public policy

From an EU law perspective, it must be taken into consideration that enforcing arbitral awards like, e.g., CAS awards by Member States’ courts may affect the internal market. The Court of Justice already dealt with this topic and introduced a broad notion of public policy in the Eco Swiss Case (Case C-126/97) by ruling that Article 101 TFEU may be regarded as a public policy matter in the sense of Article V(2)(b) of the New York convention. In the Manfredi Case (Joined cases C-295/04 to C-298/04), the Court further stated (para. 31): ’Articles … [101-102 TFEU] are a matter of public policy which must be automatically applied by national courts …’. In other words, national courts do have an ex officio duty to exercise control during inter alia enforcement proceedings of arbitral awards. In the Nordsee Case (C-102/81), the Court further stressed the importance of ex post reviews of arbitral awards by national courts.

The latter is especially relevant in reference to their obligation to ensure the uniform application of EU law. The Court stated (para 13) that private arbitral tribunals are not to be considered as ‘any court or tribunal’ under Article 267 TFEU and therefore are not allowed to directly submit an application for a preliminary ruling on EU law. However, in case an arbitral tribunal is, inter alia, established by law, permanent, independent, has a compulsory jurisdiction, its procedure is inter partes and it applies rules of law, the Court of Justice recently (Case C‑555/13) characterised it as ‘any court or tribunal’. Consequently, a mandatory arbitral tribunal established in a Member State may refer questions to the Court of Justice for a preliminary ruling.

As regards to doping-related disputes, the WADA Code is mandatory in substance and must be followed by signatories like, e.g., National Anti-Doping Organizations. Moreover, all Member States have designated a National Anti-Doping Organization (Appendix 1 WADA Code) as the primary authority to adopt and implement inter alia anti-doping measures at the national level. In addition, Article 23.2.2 in conjunction with Article 13.2.1 WADA Code refers inter alia to the exclusive jurisdiction of the CAS Appeal Arbitration, which means that CAS has been recognized by all Member States as a mandatory arbitral tribunal (established in Switzerland) with regard to doping-related disputes. However, as opposed to the regulations of sports governing bodies like FIFA, the WADA Code explicitly mentions the application of ex post reviews of CAS awards by national courts.                                                       

According to the Court, reviewing arbitral awards should be limited in scope and refusing to enforce foreign arbitral awards (i.e. CAS awards) by national courts should only be possible in exceptional circumstances, both in the interest of efficient arbitral proceedings. As previously mentioned, national courts are generally deferent towards arbitral awards. Moreover, they do not review the way the law is applied by the arbitrators. A national court’s review is confined to the nature and impact of the decision and its procedural aspects. Accordingly, the Court accepted the national courts’ limited scope of review in reference to the principle of procedural autonomy to implement and enforce national and EU law. Moreover, in the interest of good administration, fundamental principles of procedure recognized by all Member States must prevail. This procedural autonomy finds its limit in the need to warranty the effet utile of EU competition law as fully as other public policy matters (i.e. principle of equivalence). Moreover, according to the Court, EU competition law is a fundamental provision for the realisation of the internal market and must therefore be regarded as a public policy matter by national courts when enforcing arbitral awards. Thus, the Court ruled that a national court’s limited review of arbitral awards must extend to EU competition law, which should be integrated in the Member State’s national notion of public policy in order to ensure that EU law actually takes effect (principle of effectiveness).

The Court furthermore stated that reviewing an arbitral award for being incompatible with public policy should only occur under exceptional circumstances. Only if the effects of enforcing an arbitral award by a national court contravene the most fundamental principles of law in the respective jurisdiction, it may be denied recognition and enforcement for being incompatible with public policy. In order to qualify as such, a competition law violation must therefore be regarded as very serious, e.g. a complete disregard of an obvious and serious violation such as a cartel. In addition, the Court especially referred to the prohibition laid down in Article 101(1) TFEU, which is primarily a matter of substance. In reference to the national courts’ limited scope of review, one can therefore argue that infringements to EU competition law may be regarded as substantive public policy violations during inter alia enforcement proceedings of arbitral awards.

Finally, competition law is not the internal market’s only fundamental provision. It could be extrapolated that the Court relied on a wide notion of public policy in Eco Swiss. For instance, the fundamental provisions of free movement may be applicable in a CAS award’s enforcement proceedings and could, in principle, qualify as public policy matters in exceptional circumstances. If, e.g., enforcement proceedings of the Matuzalém CAS award were sought before Member States’ courts, a violation of the freedom of workers (he played for Lazio Roma between 2008 and 2013) or service providers (e.g., personal sponsorship or endorsement deals) could be invoked to bar the recognition and enforcement of the award.

Conclusion

CAS awards are potentially fragile at the enforcement stage as they may contradict national States’ understanding of the public policy exception. This is even more so if one characterises EU competition law and EU free movement rights as public policy concerns. However, in practice the enforcement of CAS awards is very rarely used[6]. Sport governing bodies can rely on their contractual disciplinary power to ban athletes from the competition they organize and thus do not rely on national courts to enforce CAS awards. Nevertheless, banned athletes could initiate action for damages against sports governing bodies and force them to ask for the recognition and enforcement of the award in their defence plea. Thus, there is a very indirect (and protracted) way to challenge CAS award on the basis of EU public policy, but it is a windy and rocky legal path.

Epilogue

A personal message to Claudia Pechstein - German Speedskater and Olympic Champion (five gold, two silver and two bronze): Pursuant to Article 25(6) of the ISU Constitution, the ISU is also complicit and the respective CAS awards could accordingly be challenged for being incompatible with substantive public policy if they were to be enforced in a Member State …

[1] Notes are mostly ommitted. A comprehensive article will be published in 2014.

[2] E.g., Cour de cassation, 23 March 1994, Yearbook Commercial Arbitration, Vol XX (1995), p. 663.

[3] E.g., Amsterdam Court of Appeal, Case No. 200.005.269/01, April 28, 2009; Amsterdam Court of Appeal, Case No. 200.100.508/01, September 18, 2012.

[4] ICC Guide to national procedures for the recognition and enforcement of awards under the New York convention, ICC Court of Arbitration Bulletin (Vol 23, Special Supplement) 2012, p. 20.

[5] Ibid.

[6] It should be noted that, as far as we know, only one CAS ordinary award has actually been enforced in a Member State: IMFC Licensing B.V. v. R.C.D. Espanyol de Barcelona, Tribunal Superior de Justicia de Catalunya, 30 May 2012 (IMFC Licensing, B.V. v. R.C.D. Espanyol de Barcelona, S.A.D.) Yearbook XXXVIII (2013) pp. 462-464.