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.