Editor’s note: Rhys Lenarduzzi is a final semester Bachelor of Law (LL.B) and Bachelor of Philosophy (B.Phil.) student, at the University of Notre Dame, Sydney, Australia. As a former professional athlete, then international sports agent and consultant, Rhys is interested in international sports law, policy and ethics. He is currently undertaking an internship at the T.M.C. Asser Institute with a focus on Transnational Sports Law.

As recently as September 2020, questions were raised in the European Parliament on the non-application of training compensation to women’s football. Whilst this blog will predominantly consider potential inconsistencies in reasoning for and against training compensation in men’s and women’s football, the questions before the Commission were largely on the theme of disrespect and discrimination. Somewhat unfortunately, the questions raised were side-stepped, with Ms Gabriel (Commissioner for Innovation, Research, Culture, Education and Youth) simply stating that: “The TFEU does not give the Commission the competence to interfere in the internal organisation of an independent international organisation such as FIFA.” This might be true in theory, though one might feel some degree of uneasiness if privy to the Commission’s role in the 2001 FIFA regulatory overhaul.

It is currently explicit in the regulations and the commentary, that in women’s football, signing clubs are not required to compensate training clubs for developing players, through the training compensation mechanism that exists in men’s football. Though it is a contentious comment and as will be expanded below, this may not have always been the case.

At Article 20 of the FIFA Regulations on the Status and Transfer of Players (RSTP), one will find that the principles of training compensation shall not apply to women’s football. Further, in FIFA’s recently released Women’s Football Administrator Handbook (the handbook), it states that disputes relating to training compensation are limited for the moment to male players only.[1]

Regulations on solidarity contributions on the other hand do apply to women’s football, but given transfer fees are not so common, the use of the mechanism is not either. As an indication of how uncommon the activation of the solidarity contribution mechanism in women’s football might be, FIFA reported in the handbook just four claims with the Players’ Status Department in 2016 (three claims involving the same player), and zero since.[2] That is in comparison to hundreds of claims made per season in men’s football, where signing and owing clubs had not fulfilled their obligation to pay the solidarity contribution.

Given the aforementioned, this blog will largely focus on training compensation and how it came to be the case that this mechanism, often presented as critical in the context of men’s football, does not apply in women’s football. To do so, I will first discuss the reasoning advanced in an unpublished CAS award, which one may reasonably suspect played a fundamental role in shaping the current exemption. I will then turn to FIFA’s timely response to the award and the adoption of its Circular No. 1603. Finally, I will point out the disconnect in FIFA’s decision to adopt two radically different approaches to the issue of training compensation in male and female professional football.

1. CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona

This little-known, David vs. Goliath, Court of Arbitration for Sport (CAS) award on appeal of a FIFA Dispute Resolution Chamber (DRC) decision, might be what prompted FIFA to make the relevant changes excluding women’s football from the scope of Article 20 RSTP in 2017. Though not a public case, one might reasonably suspect the decision was the nudge that led FIFA to change the regulations and explicitly state that training compensation does not apply to women’s football, given the timing and the fact that this was ultimately a decision that went counter to the internal decision at the DRC.

A significant consideration for the CAS and one which needed to be made clear by the panel, was the distinction between whether training compensation should apply versus does apply. The CAS deemed its task was not to consider the former, regarding the latter it found the Serbian women’s club reasonably interpreted the then applicable RSTP as covering women’s football, given in other places within the same regulations there is a concerted effort to make no discriminatory distinction between the genders, and, the regulations at this stage did not explicitly state that the mechanism did not apply to women’s football.

Consequently, the award provided that FC Barcelona was to pay 2.5 years at the category 1 rate of EUR 90,000, amounting to EUR 225,000 (plus 5% interest and costs) to WFC Spartak Subotica despite numerous attempts from FC Barcelona’s legal team to aver training compensation does not apply to women’s football.

Some of the ill-received arguments were attempts to raise the question of whether training compensation should exist, largely pointing at the commercial differences and size of the game in women’s and men’s football. The panel would not deal with these questions and instead insisted on considering whether it does exist, per the regulations as they were. FC Barcelona attempted a comparative argument with Futsal where the training compensation mechanism does not apply. This was also dismissed and deemed an improper comparison. Not due to the comparison per se however, but rather the panel concluded the point may well go against the respondent, given:

“the fact that FIFA included an express exception of futsal but no equivalent exception of women’s football is at least some indication that it did not intend to exclude women's football.”[3]

The applicant relied heavily on that which was stated at the “General Provisions’ section of the RSTP (2012), namely “Terms referring to natural persons are applicable to both genders.” The tribunal saw the provision as favourable for the applicant and that the burden was with FC Barcelona to show that the RSTP ought to be interpreted another way, by either providing some additional context, history, intention or similar. The respondent was unable to do so and instead relied heavily on the previous DRC decision in its submissions and did not submit much by way of evidence at all. The panel paid particular attention to the lack of evidence given by the respondent and that this case may have looked differently had FIFA accepted an invitation to join, as FIFA may have been able to shed light on how the regulations ought to be interpreted, had they been able to provide the context and intention that FC Barcelona could not.[4]

Ultimately when it came to FC Barcelona’s submissions and the prior decision of the DRC, the CAS was uncomfortable with “a distinct undercurrent of a policy decision that the RSTP should not apply to women's football”[5] when a rigorous interpretation of the RSTP (2012) as it stood then was what was required. Furthermore, the panel landed at “an overall conclusion that the DRC reasons are flawed at various points and did not sufficiently grapple with the arguments for the Appellant.”[6]

2. 2017 amendments and FIFA Circular No. 1603

Though FIFA declined an invite to join the above CAS case,[7] it is in a sense as though the submissions made by FC Barcelona’s legal team were simultaneously on behalf of FIFA, given a heavy reliance on the prior DRC decision and what followed. In what may have appeared a clarificatory exercise at the time, it appears the 2017 amendments announced via FIFA Circular No. 1603 were at least in part a response to the above CAS case.

Within that circular, FIFA announced that the regulations “now explicitly specifies that the principles of training compensation do not apply to women's football.” It made a point that the express amendments pertaining to training compensation now reflect existing DRC jurisprudence and “clarify the always intended meaning”. Whilst that clarity is direct, it may also contain an undertone of frustration in relation to the above CAS case. FIFA were undoubtedly addressing what it perceived as a problem, though it is the following from Circular No. 1603 that might raise more questions than offer solutions: “It should be noted that the existing training compensation formula would act as a deterrent to the movement of female players and consequently stall the development of the women's game.” Sound familiar? This will be expanded upon below.

Finally on training compensation and women’s football and before addressing other issues therein, Circular No. 1603 states that “FIFA administration is working on a specific concept to be applied to the women's game in consultation with the stakeholders, bearing in mind the overall objective to promote and enhance the development of women's (professional) football.” Whilst this is for another blog and for another day, one can reasonably wonder what has been done. Or might it be the case that refraining from more regulation has resulted in more growth in the women’s game?

Noteworthy in hindsight, given the CAS case is and was not public, is that FIFA did not have the pressure it may have otherwise had to explain its regulatory amendments regarding training compensation in women’s football, that were contrary to the CAS decision. Whilst the CAS left the door open for sound arguments to be made against training compensation in women’s football, they found serious flaws in the arguments made by FC Barcelona, as well the reasons given by the DRC in the initial decision. Most notable on this front might be an out-and-out rejection of a comparison with futsal, as well rejecting a general distinction between the men’s and women’s game as being useful.  Despite this, it appears FIFA proceeded to explicitly enshrine in the RSTP that training compensation does not apply, without dealing with the fundamental questions raised but not necessarily answered in the CAS case. It is just interesting to note, that the CAS award that was challenging FIFA’s rationale was coincidentally kept confidential. This might speak for greater (and systematic) transparency with regard to the CAS’ appeal awards.

3. The Incoherence of a Double Standard Between Men’s and Women’s Football

It is certainly true, in a very general sense, that women’s and men’s football are in a different place commercially inter alia. However, as mentioned in my introductory blog, men’s football has since the late 1800s in the form of the ‘retain and transfer’ system, and now with the current mechanisms, had systems that were claimed to be imperative to incentivise training by compensating clubs for developing players (not to mention the growth and survival of the game). So why is the same rationale not applied to women’s football? Might it be reasonable to conclude that women’s football in its current stage of economic development is at an equivalent stage to where men’s football was at some point between then and now, where a system for compensating training clubs and incentivising clubs to develop youth did exist?

In any case, the rationale appears flawed, as comparing men and women’s football in the general sense is not a useful exercise. Just a brief analysis of the gap between the richest and poorest clubs in men’s football exposes it so. Other than the fact both entities are football clubs, what is the same about Real Madrid of Spain and Rèal Comboni of the Central African Republic? What are we to make of a comparison of Olympique Lyonnais Féminin (the most successful women’s football team in history and a commercially successful club and story), and Liberty Professionals F.C. men’s team of the Ghana Premier League (who do not always fill their 2,000 seat stadium)?

At paragraph II. 19 of the prior DRC decision to the above CAS case “the DRC deemed necessary to stress that the award of training compensation for the transfer of female players could possibly even hinder the further development of women’s football and render the previous efforts to have been made in vain”. A near identical claim to that made in the aforementioned FIFA Circular. This may be the case, but isn’t this just an extension of the “hindrance effect” I referred to in my previous blog regarding African players? Though not the exact same flavour of hindrance, as in the case of the African player I was largely referring to the mechanism hindering an individual from being able to transfer freely. In this instance the hindrance might be more macro in that, a growing women’s club may be set back if forced to pay compensation to the training clubs of the players they sign and in turn the women’s game suffers. In any case, the notion that training compensation might act as a deterrent or hindrance being exclusive to women’s football is absurd in theory, and even more so in my experience in practice.

The commercial differences are widely stated and perhaps overstated as reasons why signing clubs ought not or could not pay training compensation in women’s football. Whilst such a claim may at least contain a grain of truth, the commonly used argument overlooks the fact that the cost of developing and training players at grassroots level, that which is the subject of compensation, is often similar within nations and certainly across the genders. In the above CAS case, the only witness and the president of both Spartak Subotica men’s and women’s clubs, Mr Zoran Arcic, stated that the costs were almost identical for men and women and that they were paid approximately the same amounts of monthly salaries or scholarships.[8]

It has been argued that Futsal is comparable in its development with women’s football commercially, and that is why the principles of training compensation apply to neither. At paragraph II.16 of the DRC case prior to the appeal at CAS, it was averred that "the grade of professionalism reached in futsal also lies far behind the one of eleven-a-side men’s football insofar, according to the DRC, the situation may be considered as comparable to the one of the women’s game.” However it has been reported that some futsal players are signing contracts in excess of EUR1 million. How then could one conclude that training compensation regulations should apply to a small men’s club in South America or Africa, or any confederation for that matter, with entire budgets much smaller than individual players’ salaries in futsal or women’s football, when the evidence suggests the commerciality of futsal and the women’s game in size and opportunity trumps many men’s football entities.

In 2019, FIFA initiated a Club Solidarity Fund for the Women’s World Cup, which compensates or rewards clubs that trained and developed players from the age of 12 who participated in the World Cup.[9]  What is one to draw from this positive though peculiar commitment? Are only training clubs that had the fortune of one of their players going on to a world cup, worthy of being compensated? This appears inconsistent with far reaching societal effects training compensation was said to have and why it was deemed justified in the relevant cases, commentary and media. Might it be the clubs that are not able to produce players of a high enough quality to go to a World Cups that need the funding? Further, this fund will not trigger the same alleged incentives to train players that the training compensation mechanism apparently has.

An array of arguments and justifications made for a system that hinders free movement to a considerable degree, though incentivises training, was embraced in the Bernard[10] ruling of the Court of Justice of the EU. So how come women’s football should fall outside of this widely acknowledge necessity to encourage training according to FIFA? Nowhere in Bernard can one find a specific reference to men only when the importance of encouraging training is explored at length. Elsewhere in EU policy documents one finds instead the explicit recognition that “investment in and promotion of training of young talented sportsmen and sportswomen in proper conditions is crucial for a sustainable development of sport at all levels”.[11] Until the CAS award discussed above, FIFA had appeared to argue that such investment only eventuates if a training compensation system is introduced. Hence, this strange double standard between men and women’s football might deserve a much more elaborate explanation than the one put forward by FIFA.[12]

4. Conclusions

If it is the case that training women is the same or similar in cost as training men, and it is that actual cost that the training compensation mechanism is geared towards incentivising clubs to spend on youth and then be compensated for, then one might have difficulty in concluding the principles of training compensation should apply to one and not the other. If it is the case that there is vulnerability of women’s clubs and in turn of the women’s game if they had to pay training compensation, and there exists a myriad of men’s clubs in the same economic predicament, might that say something about the appropriateness of the mechanism more broadly?  Ought a player’s free movement be prioritised simultaneously with the financial viability of mid to low wealth clubs, which raises questions about the suitability of the mechanism across the genders, yet is significantly amplified by its apparent inappropriateness for women's football. 

The identification of the various flaws in the justifications for the regulations is to say nothing of whether the systems ought to exist. Rather, it is to highlight that two sets of contradictory rules are operating within the FIFA regulations and the arguments for the current state of affairs are philosophically and economically flawed.

It appears that the women’s football community has bought into this notion around transfer fees, etc. What is culturally happening then is that clubs are more likely to let a woman follow her dreams and not stand in the way in the form of demanding transfer fees (and cannot in the form of training compensation), as the concept of fees is a relatively foreign one in comparison to the men’s game. This can at first glance appear unfortunate that women’s clubs are not being compensated, but it could just as plausibly be uncovering that the important principles of free movement ought to trump a flawed redistributive system, and that in fact a system of redistribution in football could (and maybe should) be entirely divorced from the transfer system and the movement of players.

[1] FIFA Women’s Football Administrator Handbook 2020, 125.

[2] Ibid, 118.

[3] CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona at 54.

[4] Ibid at 49.

[5] Ibid at 55.

[6] Ibid at 55.

[7] Ibid at 104.

[8] CAS 2016/A/4598 WFC Spartak Subotica v FC Barcelona at 73.

[9] Women’s Football Administrator Handbook 2020, 151.

[10] Case C-325/08 Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, ECLI: EU: C:2010:143

[11] Commission’s White Paper on Sport of 11 July 2007,6.

[12] Consider also at Annex IV to the Conclusions of the French Presidency from the European Council meeting in Nice, where it was said the “training policies for young sportsmen and women are the life blood of sport, national teams and top-level involvement in sport and must be encouraged”

Editor’s note: Professor Mitten is the Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin. He currently teaches courses in Amateur Sports Law, Professional Sports Law, Sports Sponsorship Legal and Business Issues Workshop, and Torts. Professor Mitten is a member of the Court of Arbitration for Sport (CAS), and has served on the ad hoc Division for the XXI Winter Olympic Games in Sochi, Russia.

This Book Review is published at 26 Marquette Sports Law Review 247 (2015).

This comprehensive treatise of more than 700 pages on the Code of the Court of Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful to a wide audience, including attorneys representing parties before the CAS, CAS arbitrators, and sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars.  It also should be of interest to national court judges and their law clerks because it facilitates their understanding of the CAS arbitration process for resolving Olympic and international sports disputes and demonstrates that the Code provides procedural fairness and substantive justice to the parties, thereby justifying judicial recognition and enforcement of its awards.[1]  Because the Code has been in existence for more than twenty years—since November 22, 1994—and has been revised four times, this book provides an important and much needed historical perspective and overview that identifies and explains well-established principles of CAS case law and consistent practices of CAS arbitrators and the CAS Court Office.  Both authors formerly served as Counsel to the CAS and now serve as Head of Research and Mediation at CAS and CAS Secretary General, respectively, giving them the collective expertise and experience that makes them eminently well-qualified to research and write this book.

The extensive commentary and materials in this prodigious work are useful in understanding the history and operation of the CAS, as well as the process by which CAS arbitration resolves disputes and establishes an evolving, rich body of lex sportiva. The book’s many useful features include the following: a thorough and detailed index; a table of acronyms; integrated discussion of the Code’s provisions and their application by CAS panels, their relationship to and consistency with the Swiss Private International Law Act (PILA) requirements along with relevant comparisons to the Swiss Code on Civil Procedure (Swiss CCP), and judicial interpretation through review of CAS awards by the Swiss Federal Tribunal (SFT); thousands of footnotes and citations, reflecting the product of exhaustive research; comparisons to analogous International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), and United Nations Commission on International Trade Law (UNCITRAL) rules; an extensive bibliography; numerous charts and graphical illustrations; several sample provisions and documents; and comprehensive lists of all referenced CAS awards and SFT cases reviewing CAS awards.

Based on my perspective as a sports law professor and a CAS arbitrator who also arbitrates domestic sports, commercial, and consumer disputes in the United States, I found the authors’ discussion of many of the Code’s provisions to be particularly helpful and/or interesting.

Article R27 provides that the Code’s procedural rules apply when the “parties have agreed to refer a sports-related dispute to CAS.”[2]  A variety of important issues are carefully addressed, including the authority of a CAS panel to determine its jurisdiction (“Kompetenz- Kompetenz”), which also is discussed in connection with Article R39 (in which this authority is explicitly conferred), as well as the form and material conditions Article 178 of the PILA requires for a valid arbitration clause and for CAS jurisdiction to exist.  In addition, there is a thorough discussion of the relationship and differences among CAS jurisdiction, the arbitrability of particular disputes, the legal standing of the parties whose substantive rights are affected under Swiss law, and the relevance of foreign laws in resolving these issues.  Several examples of clauses permitting CAS jurisdiction to resolve sports-related disputes are provided in the accompanying Annexes.

Article R28 provides that the seat of any CAS arbitration is Lausanne, Switzerland, regardless of the geographical location of the arbitration proceeding.  The authors explain the importance and implications of this rule, which effectively provides that Swiss law governs the procedural aspects of all CAS arbitration proceedings throughout the world.  The creation of a uniform procedural regime establishes a stable legal foundation for CAS arbitrations that ensures coherence in determining the law governing the merits of the dispute pursuant to Articles R45 and R58, in the developing body of Olympic and international sports law established by CAS awards (with limited judicial review by the SFT under the PILA), and in equal treatment of the parties. 

Article R33 inter alia requires the independence and impartiality of CAS arbitrators and panels in connection with the cases to which they are appointed. Article R34 establishes the process pursuant to which the International Council of Arbitration for Sport (ICAS) considers and resolves challenges to an arbitrator’s independence or impartiality.  There is an elaborate discussion of this important topic that explains the distinction between “independence” and “impartiality,” provides guidance regarding an arbitrator’s disclosure obligations (with references to the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration), and gives illustrative examples of circumstances giving rise to objectively justifiable doubts regarding an arbitrator’s independence (and those that do not) from the perspective of the ICAS or the SFT.  The authors’ commentary provides a historical perspective regarding the application and evolution of these Code rules and identifies their underlying roots in Articles 179 and 180 of the PILA.

Article R37 is based on Article 374 of the CCP and enables the appeals or ordinary arbitration president or a CAS panel to grant provisional (i.e., interim) measures to either safeguard a party’s right that is at risk or to exercise its right during the pendency of a CAS arbitration proceeding.  For example, an athlete may request the stay of an appealed decision of a sport body imposing a doping or disciplinary suspension that prevents him from participating in an upcoming athletic event.  The text explains the prerequisites for granting provisional relief, including: exhaustion of potential legal remedies within the sports organization or tribunal rendering the appealed decision, plausible CAS jurisdiction, irreparable harm, reasonable likelihood of success on the merits, and balance of interests.  There is a detailed discussion of the irreparable harm requirement, which provides several illustrative examples.  The authors note that a party’s request for provisional relief constitutes a waiver of any right to request such relief from a court and that a CAS order granting or denying provisional relief cannot be challenged before the SFT because it is not a final CAS award. 

Article R44 governs the CAS ordinary arbitration procedure (e.g., written submissions, hearing, evidentiary proceedings, expedited procedure, and default awards). The authors provide a detailed overview of each of these procedures, while pointing out that all evidence (e.g., exhibits and\ summaries of the testimony of witnesses and experts) must be filed at the same time as written submissions—which are mandatory—and that a hearing is optional.  They note the responsibilities of the CAS panel president in connection with these procedures and offer guidance regarding the steps to be taken to ensure appropriate discharge of the procedures. There is a particularly useful explanation regarding a CAS panel’s discretion in determining the admissibility of evidence, as well as its authority to order the production of evidence (e.g., documents, examination of witnesses) from a party and appointment of independent experts and the procedure for doing so.  The Annexes include a helpful checklist regarding the eight stages of a CAS hearing (i.e., opening of hearing, preliminary remarks by parties, hearing of witnesses, hearing of experts, examination of parties, closing of evidentiary proceedings, closing oral arguments, and the deliberation by the panel) that supplements the discussion in the text. 

Articles R47, R48, R49, R51, R55, and R56 collectively constitute the key Code provisions governing the CAS appeals arbitration procedure for appeals against a final decision of a sports federation or association, the largest group of cases before the CAS.[3]  Similar to their discussion regarding the CAS ordinary arbitration procedure, the authors provide detailed commentary regarding the appeals arbitration procedure, which is more complex and governed by more rules.  Among the important topics covered are the following: prerequisites for CAS jurisdiction, including the need for a final decision by a sports body and exhaustion of its internal legal remedies, along with a valid arbitration agreement; the importance and method of determining applicable deadlines for each stage of the appeals arbitration procedure, as well as the consequences of late submissions; and the required components of an appellant’s statement of appeal and appeal brief as well as a respondent’s answer.  The accompanying Annexes for these rules provide checklists and illustrative charts that significantly facilitate an understanding of the appeals arbitration procedure.

Articles R45 and R58 determine the substantive law applicable to the merits of cases arising under the CAS ordinary and appeals procedures, respectively.  The authors explain that parties’ agreement to submit their dispute to CAS arbitration for resolution, which constitutes their agreement to have the Code and Swiss law provide the applicable procedural rules, does not necessarily mean that Swiss law is the substantive law to be applied regarding the merits of a dispute.  They note that: (1) both Articles permit parties to choose the applicable rules of law, which may be a system of rules other than national law (e.g., the Olympic Charter, International Federation statutes, or the World Anti-doping Code in an appeals arbitration proceeding) if the laws “satisfy the need of rationality, security and foreseeability”[4] and are relevant to the disputed issues; (2) each Article identifies the governing national law in ordinary Swiss law or appeals arbitration (“law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled”[5]) if the parties do not do so; and (3) a CAS panel should apply laws considered to be “mandatory” according to Article 19 of the PILA (e.g., European Communities law).  The authors identify and discuss the narrow limits on parties’ freedom to choose the law to be applied to the merits of their dispute (i.e., the chosen law cannot manifestly violate international or transnational public laws).  They point out the important distinction between the provision of Article R45, which empowers a CAS panel to rule ex aequo et bono (i.e., as a matter of equity rather than according to specific legal rules) if the parties authorize the panel to do so, and the differing provision of Article R58, which authorizes a panel to apply the “rules of law [it] deems appropriate”[6] and to give reasons for its decision, while providing detailed explanations of both provisions and the CAS practices pursuant thereto. They observe that a CAS panel should apply the parties’ validly chosen rules of law to avoid a judicial challenge to a CAS award on the ground it violates the right to be heard, while noting that its mere failure to do so or to apply the wrong law is not a per se violation of a party’s right to be heard.  A CAS award will be vacated by the SFT pursuant to Article 190 paragraph 2(e) of the PILA on the ground that public policy is violated only if application of the chosen or appropriate law would change an award’s outcome. 

Article R57 governs a CAS appeals arbitration procedure hearing. The authors note that,

this provision is the milestone of the CAS appeals procedure, since it not only specifies the scope of the Panel’s review of the case . . . but also provides essential information on the conduct of the hearing and the power of the Panel to proceed with the hearing in case one of the parties is duly summoned but fails to appear.[7] 

Because Article R57 provides a panel with “full power to review the facts and the law”[8] (i.e., de novo review), the scope of CAS arbitral review is broader than the more limited arbitrary or capricious standard of judicial generally exercised by sport governing body decisions in Swiss and other national courts.[9]  The authors point out that this broader scope of review has significant legal consequences:

The Panel is thus not limited in merely reviewing the legality of the decision challenged, but can issue a new decision on the basis of the applicable rules . . . [admit] new prayers for relief and new evidence and [hear] new legal arguments . . . [and correct] procedural flaws, which occurred during the proceedings of the previous instance.”[10] 

Limits on the CAS’s de novo power of review, which preclude the panel from adjudicating issues other than those raised by the parties, changing or rewriting sports federation rules, and reviewing field of play decisions, are also identified and discussed.  They note that a CAS panel should be cautious about exercising its discretion under Article R57 “to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered”[11] in order “to guarantee the parties’ access to justice and a full review by an independent arbitral tribunal.”[12] The authors also describe the eight main stages of an appeals arbitration hearing (which are the same as those for an ordinary arbitration appeal) in both the text and an accompanying checklist in the Annex, as well as provide an overview of how a hearing generally is conducted and issues that may arise in connection therewith.

Articles R46 and R59 apply to the award in ordinary and appeals arbitrations, respectively.  The authors note that awards in both proceedings are by majority decision; must state brief reasons for each resolved issue and be written, dated, and signed; set forth the basis of CAS jurisdiction; determine which party bears the arbitration costs;[13] are final and binding on the parties with res judicata effect; and are enforceable on the date the parties are notified of the operative part of the award.  The CAS Secretary General reviews all awards for form (e.g., errors in grammar, spelling, or calculation of numbers are corrected) and fundamental issues of principle.  Although CAS arbitration awards do not constitute binding precedent or have a stare decisis effect in subsequent similar cases, CAS panels frequently cite to and rely on prior awards. This effectively “accord[s] to previous CAS awards a substantial precedential value and it is up to the party advocating a jurisprudential change to submit persuasive arguments and evidence to that effect.”[14]  Thus, the CAS Secretary General’s review of an award regarding fundamental issues of principle includes pointing out any departure from well-established CAS jurisprudence without adequate reasons and suggesting revisions in an effort to “ensure that there is no unjustified change in the CAS established case law under the same or similar conditions.”[15] However, the authors note that “the CAS Secretary General may only suggest some changes and cannot impose them to the Panel, which remains solely responsible for the award and is free to accept the suggestions or not.”[16]  They observe that CAS ordinary arbitration awards, which typically resolve commercial disputes between the parties, generally are confidential and not published; whereas CAS appeals arbitration awards, which resolve appeals from final decisions of sports federations, are usually published to facilitate the development of a uniform body of Olympic and international sports law (including interpretation and application of the World Anti-doping Code).  The commentary regarding Article R59 includes a comprehensive discussion of the grounds on which the SFT may vacate a CAS ordinary or appeals arbitration award pursuant to Article 190 paragraph 2 of the PILA: (1) irregular composition of the CAS panel (e.g., lack of independence or impartiality); (2) lack of CAS jurisdiction over the parties or claims; (3) failure to decide a validly raised claim, or deciding a claim or issue not raised by a party; (4) violation of the parties’ right to be heard or equal treatment; and (5) violation of procedural or substantive Swiss and international public policy (i.e., the essential and widely recognized values prevalent in every legal system).  The authors provide a detailed qualitative analysis of each of these defenses, as well as provide aggregate statistics regarding their respective success, and identify the SFT cases in which a particular defense is successful. 

This excellent book is a must-read for attorneys representing parties before the CAS and CAS arbitrators.  It is a valuable resource for sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars concerning the CAS arbitration process for resolving Olympic and international sports disputes.  This book is an important addition to my library of sports law materials, which I anticipate consulting and referencing frequently.

[1] See James A. R. Nafziger, International Sports Law, Handbook on Int’l Sports Law 27–28 (James A. R. Nafziger & Stephen F. Ross eds., 2011) (the CAS has established the “gold standard in resolving sports-related disputes” by “ensuring fairness in terms of even-handedness, impartiality, acting in good faith, and coherence.”); Matthew J. Mitten, The Court of Arbitration for Sport’s Jurisprudence: International Legal Pluralism in a World Without Boundaries, 30 Ohio St. J. on Disp. Resol. 1, 42 (2014) (“The CAS arbitration system ‘demonstrates how civil and common law legal systems can function effectively together within an international tribunal to resolve a wide variety of complex, time-sensitive disputes between parties of different nationalities,’ which produces ‘globally respected adjudications” of Olympic and international sports disputes’).

[2] Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport – Commentary, Cases, and Materials 19 (2015).

[3] The authors also provide helpful commentary regarding Articles R50, R53, and R54 that addresses the number, nomination, appointment, and confirmation of arbitrators as well as Article R52, which addresses initiation of the appeals arbitration proceeding by the CAS, as well as expedited and consolidated proceedings.

[4] CAS 2006/A/1123& 1124, Al-Gharafa SC v P. Wanchope Watson & P. Wanchope Watson v. Al-Gharafa SC, award of 18 December 2006, §67.

[5] Mavromati & Reeb, supra note 3, at 535.

[6] Id.

[7] Id. at 505.

[8] Id. at 503.

[9] “The full review by the CAS is the principal reason for excluding a full review by the state courts (i.e., in case of a subsequent appeal against a CAS award to the SFT, the later will not fully review the case but will act as a cassatory court based on the exhaustively enumerated grounds of Article 190 paragraph 2 PILA).”  Id at 520.

[10] Id. at 507–08.

[11] Id. at 519.

[12] Id. at 520.

[13] Article R64 applies to CAS ordinary and appeals arbitration costs, but Article R65 pertains only to CAS appeals arbitration costs in proceedings involving appeals against decisions issued by international federations in disciplinary matters; both of which the authors comprehensively discuss in their commentary and Annexes regarding these rules.  

[14] CAS 2008/A/1545, Anderson et al v IOC, award of 16 July 2010, §116.

[15] Mavromati & Reeb, supra note 5, at 367.

[16] Id. at 366–67.