Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Zoom-In Webinar - The Aftermath of the Diarra Judgement: Towards a New FIFA Transfer System? - 20 November - 16:00-18:00 CET

On 4 October, the Court of Justice of the European Union shook the world of football with its Diarra ruling. The decision questions the compatibility of a key provision of the FIFA Regulations on the Status and Transfer of Players (RSTP) with European Union internal market law. The RSTP, and in particular its article 17, are the bedrock of football’s transfer ‘market’ and regulate the conditions for the transnational movement of players between clubs. In 2023, based on FIFA’s numbers, 21 801 players were transferred internationally (of which 3279 with a fee) for transfer fees amounting to USD 9.63 bn. In short, this is a market that affects a considerable number of players and is linked with the movement of large sums of money between clubs and other actors (such as intermediaries).

Register HERE

Join us on 20 November from 16:00 to 18:00 CET to take stock of the ruling's impact and discuss the steps ahead in a free Zoom-In webinar in which there will be time for a Q&A session with the speakers. The ruling has already been much commented on (see hereherehere, and here), and this zoom-in webinar will be an opportunity for participants to engage with two experts on the economic and legal intricacies of the regulation of labour relations in football. We will mostly focus on the aftermath of the judgment and the question, 'what comes next?'

Moderator: Marjolaine Viret (Université de Lausanne)

Speakers: 


Register HERE

Free Webinar - The impact of the Diarra case on the football transfer system - 18 October 2024 - 15:00 CET

The Court of Justice of the European Union has recently handed down its judgement in the Lassana Diarra case (C-650/22 FIFA v. BZ).

Given the importance of this case to the sports industry, LawInSport, the Asser Instituut and the Association for the Study of Sport and the EU (Sport & EU) are hosting a joint webinar to bring together experts to unpack and provide clarity on the complex legal, regulatory & commercial issues stemming from this case. This free webinar will be hosted from 14:00 UK time (15:00 CET) on 18 October 2024.


Register HERE 


Speakers

Our expert speakers come from academia, law and sport. Our confirmed speakers are:


Register HERE 

Conference - ISLJ Annual Conference 2024 - 24-25 October - Asser Institute - The Hague

On 24 and 25 October 2024, the Asser Institute in The Hague will host the 2024 edition of the  International Sports Law Journal (ISLJ)  Conference. The ISLJ is the leading academic journal in transnational sports law and governance and is proud to provide a platform for transnational debates on the state of the field. The conference will address a number of issues of interest to the ISLJ and its readers. 

Register HERE

Drivers and effects of reform in transnational sports governance 

Transnational sports governance seems to be in a permanently unstable state of crisis and reform. At regular interval, international sports governing bodies face scandals triggered by corruption investigations or human rights violations, as well as adverse judidicial decisions. These are often followed by waves of institutional reforms, such as the creation of new bodies (E.g. the Athletics Integrity Unit), the adoption of new codes and regulation (such as Codes of Ethics) or human rights commitments (e.g. FIFA and the IOC’s Human Rights Policy/Strategy). This dynamic of crisis and reform will be at the heart of this year’s ISLJ conference, as a number of panels will critically investigate the triggers, transformative effects and limited impacts of reforms in transnational sports governance.  

Football in the midst of international law and relations 
As the war in Gaza and Russia’s invasion of Ukraine continue to rage, it has become even clearer that the football world can hardly be entirely abstracted from international relations. Yet, FIFA and UEFA continue to insist on their neutrality and to deny that their governance is (or should be) affected by the world’s political affairs. During the conference, we will engage with case studies in which football is entangled with international politics and law. In particular, the speakers will delve into the role of FIFA and UEFA in such situations and on the legal standards and processes that should be applied throughout their decision-making.  

Olympic challenges of today and tomorrow 
While the Paris 2024 Olympics have come to a close, the legal questions they have raised are far from exhausted. Instead, the Olympics have highlighted new issues (such as the question of the legality of the hijab ban imposed by the French Federation on its athletes) or old ones (such as the question whether Olympians should be remunerated by the IOC or the international federations), which will be discussed by our speakers. Finally, with the help of our keynote speaker, Prof. Jules Boykoff, a longstanding critique of the current Olympic regime, we will explore the IOC’s capacity to adapt to challenges while resisting radical change to the current model of olympism.   

Download the full programme 

Online participation available 
Following the success of our webinar option in the past years, we are once again allowing online participation to the conference at an affordable price. Thus, we hope to internationalise and diversify our audience and to reach people who are not in a position to travel to The Hague.  

We look forward to welcoming you in person in The Hague or digitally to this new iteration of the ISLJ conference. 

Register HERE

Speakers 


Register HERE


Conference - Empowering athletes’ human rights: Global research conference on athletes’ rights - Asser Institute - 23 October

The newly launched ‘Global Sport and Human Rights Research Network’, an initiative jointly hosted by the T.M.C. Asser Instituut and the Centre for Sport and Human Rights, together with the European Union-funded project ‘Human Rights Empowered Through Athletes Rights (H.E.R.O.)' is organising an in-person conference on October 23 at the Asser Institute in The Hague, to map the field of athletes' rights and engage in critical discussions on protection of these rights and how to prevent rights violations.

The one-day conference will kick off with a presentation by the H.E.R.O. team on their research results, followed by a short panel discussion. The rest of the day will be filled with four panels on different aspects related to the topic of athletes’ human rights, with speakers from academic institutions around the world.

Check out the full programme HERE and register for free HERE

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Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

 

Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

 

 

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see herehere and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...

Women’s Football and the Fundamental Right to Occupational Health and Safety: FIFA’s Responsibility to Regulate Female Specific Health Issues - By Ella Limbach

Editor's noteElla Limbach is currently completing her master’s degree in International Sport Development and Politics at the German Sport University Cologne. Her interests include human rights of athletes, labour rights in sport, the intersection of gender, human rights and sport and the working conditions in women’s football. Previously, she graduated from Utrecht University with a LL.M in Public International Law with a specialization in International Human Rights Law. This blog was written during Ella's internship at the Asser Institute where she conducted research for the H.E.R.O. project. The topic of this blog is also the subject of her master's thesis.

Women’s football has experienced exponential growth over the past decade, though the professionalization of the women’s game continues to face barriers that can be tied to the historical exclusion of women from football and insufficient investment on many levels. While attendance records have been broken and media coverage has increased, the rise in attention also highlighted the need for special accommodations for female footballers regarding health and safety at the workplace. Female footballers face gender specific circumstances which can have an impact on their health such as menstruation, anterior cruciate ligament (ACL) injuries and the impact of maternity. As the recent ILO Brief on ‘Professional athletes and the fundamental principles and rights at work' states “gender issues related to [occupational health and safety] risks are often neglected (p. 23).” While it could be argued that from a human rights point of view article 13(c) of the Convention on the Elimination of Discrimination of Women stipulates “the right to participate in […] sports [on an equal basis to men],” reality shows that so far practices of men’s football were simply applied to women’s football without taking into consideration the physiological differences between male and female players and the implications that can have for female players’ health. The ILO Declaration on Fundamental Principles and Rights at Work(ILO Declaration, amended in 2022) includes “a safe and healthy working environment” as one of the fundamental rights at work (Art. 2e). This begs the question whether the scope of the right to occupational health and safety at the workplace includes the consideration of female specific health issues in women’s football. More...

The International Cricket Council and its human rights responsibilities to the Afghanistan women's cricket team - By Rishi Gulati

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. More...

[Call for Papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024 - Reminder!

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review. 

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[New Event] Feminist theory and sport governance: exploring sports as sites of cultural transformation - 9 July -15:00-17:00 - Asser Institute


This seminar is part of the Asser International Sports Law Centre's event series on the intersection between transnational sports law and governance and gender. Dr Pavlidis will present her take on feminist theories and sport governance by exploring sports and in particular Australian rules football and roller derby as sites of cultural transformation.

Register HERE

Australian rules football is Australia's most popular spectator sport and for most of its history it has been a men's-only sport, including in its governance and leadership. This is slowly changing. Roller derby on the other hand has been reinvented with an explicitly DIY (Do It Yourself) governance structure that resists formal incorporation by 'outsiders'. This paper provides an overview of sport governance in the Australian context before focusing in on these two seemingly disparate sport contexts to explore the challenges of gender inclusive governance in sport.

Dr Adele Pavlidis is an Associate Professor in Sociology with the School of Humanities, Languages and Social Science at Griffith University in Australia. She has published widely on a range of sociocultural issues in sport and leisure, with a focus on gender and power relations. Theoretically her work traverses contemporary scholarship on affect, power and organisations, and she is deeply interested in social, cultural and personal transformation and the entanglements between people, organisations, and wellbeing.

We look forward to hearing Dr Pavlidis present on this topic, followed by reflections and comments by Dr Åsa Ekvall from the Erasmus Center for Sport Integrity & Transition, and Dr Antoine Duval from the T.M.C. Asser Institute. There will also be a Q&A with the audience.

Download the latest programme here 

Register HERE


[Call for papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review. 

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


Asser International Sports Law Blog | Sports Politics before the CAS: Early signs of a ‘constitutional’ role for CAS? By Thalia Diathesopoulou

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Sports Politics before the CAS: Early signs of a ‘constitutional’ role for CAS? By Thalia Diathesopoulou

It took almost six months, a record of 26 witnesses and a 68 pages final award for the CAS to put an end to a long-delayed, continuously acrimonious and highly controversial presidential election for the Football Association of Thailand (FAT). Worawi Makudi can sit easy and safe on the throne of the FAT for his fourth consecutive term, since the CAS has dismissed the appeal filed by the other contender, Virach Chanpanich.[1]

Interestingly enough, it is one of the rare times that the CAS Appeal Division has been called to adjudicate on the fairness and regularity of the electoral process of a sports governing body. Having been established as the supreme judge of sports disputes, by reviewing the electoral process of international and national sports federations the CAS adds to its functions a role akin to the one played by a constitutional court in national legal systems. It seems that members of international and national federations increasingly see the CAS as an ultimate guardian of fairness and validity of internal electoral proceedings. Are these features - without prejudice to the CAS role as an arbitral body- the early sign of the emergence of a Constitutional Court for Sport?


The CAS as reviewer of electoral proceedings in sports governing bodies

The CAS Appeal Division jurisprudence reviewing electoral processes in sports governing bodies, albeit still at a nascent stage, has provoked vivid reactions due to its potential impact. One of the particularly significant values of retracing this case-law is found not in the outcomes of the decisions, but in the way the panels have scrutinized the electoral processes.[2]

On 27 September 2010, the CAS shaked the chess world by rendering its decision on the validity of Kirsan Illymzhinov’s candidature for the presidency of the Fédération Internationale des Echecs (FIDE).[3] Namely, the CAS proceedings were initiated by Karpov 2010 Inc. and five national federations (of France, Germany, Switzerland, Ukraine and the US) against FIDE. The claimant alleged the invalidity of the presidential ticket of Illymzhinov, who had been nominated by the Russian Chess Federation as their candidate for the FIDE presidential election. The majority of the CAS panel considered that it had jurisdiction to decide on the National Federations’ claims and proceeded with the merits. Taking into consideration the FIDE’s practice on membership requirements for candidates on a presidential ticket and its compliance with the text of FIDE Electoral Regulations, the CAS confirmed the validity of Illymzhinov’s ticket and dismissed the appeal. Had the CAS accepted the arguments of the claimant, Anatoly Karpov would have been declared new FIDE President. FIDE welcomed the award, since it sets straightforward and transparent standards for the electoral proceedings, putting, therefore, an end to what was perceived as frivolous claim against FIDE.

Three years later, the CAS was asked again to review electoral proceedings, this time involving the Union Cycliste Internationale (UCI). In fact, five national federations asked the UCI Executive Board to submit to the CAS a request for interpretation of Article 51.1 of the UCI Constitution concerning the nomination of prospective candidates for office of President of UCI. The federations claimed that the language of Article 51.1, which required that any Presidential candidate be nominated by the ‘federation of the candidate’, was ambiguous: it was unclear whether the provision was allowing an individual to be nominated by any federation of which the candidate is a member or whether only a nomination from the home federation of the candidate was allowed. The UCI rejected the request to bring the case before the CAS and declared that the UCI Congress was the only competent authority to decide on issues linked to the elections. Nevertheless, it is remarkable that the parties regarded the CAS as the ultimate guardian of fair and democratic elections, which could, “provide a much-needed degree of certainty for UCI delegates in knowing that the current and future candidates standing for election are in fact eligible to do so”.

Furthermore, in September 2014, the Nigeria Football Federation’s (NFF) President, Chris Giwa, appealed FIFA’s order to vacate his post to the CAS in his last-ditch effort to hold onto the presidency and despite FIFA’s threat to suspend the NFF in the event he would stay president. The CAS dismissed his request for provisional measures on the ground that the request was without object, as FIFA decided that “two cumulative conditions mentioned in the Emergency Committee’s decision dated 3 September 2014 had been complied with and that therefore the NFF would not be finally suspended”. Indeed, at the last minute, Giwa abandoned his post and therefore the order was not valid anymore. It is noticeable again that CAS was called to be the final arbiter of a contested election.

However, it is in the Thai case that the CAS for the first time was given broad authority to review several irregularities in the electoral process. Namely, the appellant, Chanpanich, challenged the validity of the presidential election for the FAT before the CAS, alleging the existence of a plethora of procedural irregularities- starting from the adoption of the 2013 Statues of the Electoral Code - so severe as to flaw the election entirely. In addition, the appellant requested from the CAS panel to issue guidelines as to the manner in which such elections were to be held. On the basis of a specific arbitration agreement, the CAS admitted jurisdiction on the dispute and proceeded with the merits. The CAS was asked to address the following set of irregularities and breaches: the alleged interference of the FAT Secretary General (‘M.’) and of the Secretary of the Electoral Committee (‘U.’) with the electoral process; the unlawful amendment in the composition of the Electoral Appeal Committee; the violation of basic standards of procedural fairness (no proper hearing, no present parties, limited documentation) in the proceedings before the Electoral Appeal Committee; and the participation in the voting process of ineligible delegates, i.e. non-members and members of the FAT Executive Committee. In scrutinizing the electoral process, the CAS relied first on the text itself of the FAT 2013 Statutes and Electoral Code, which were adopted on the basis of FIFA’s fundamental principles of separation of powers, accountability and transparency, and under the FIFA supervision, and then on the factual evidence. On the ground of the lack of sufficient evidence in conjunction with the rules of the Electoral Code, the CAS rejected the alleged irregularities.

With regard to the CAS’s reasoning, two remarks can to be made. Firstly, although the FAT Congress acted in breach of Article 4 of the Electoral Code by allowing the members of the electoral bodies to be appointed by the candidates themselves on the basis of a mandate granted to them by the Congress and along a repartition agreed by the candidates, the CAS chose to qualify this breach as a “deviation” which should be tolerated due to ‘political reasons’.[4] Namely, the CAS panel embraced the “good intentions”[5] of the FAT Congress to pave the way to an electoral process based on consent, healing, therefore, the violation of the Electoral Code. As a result of this “deviation”, according to the CAS, the parties should accept the consequences it produced. This assessment leads to the second remark. With regard to the alleged violation of procedural fairness, the CAS recognized that the Appeal Electoral Committee had limited time to render its decision, because of the delayed previous decision of the Electoral Committee. However, since the Electoral Committee was composed by Chanpanich - pursuant to the above mentioned deal between the candidates and the Congress -, the appellant had to accept the consequences of this situation. These assessments seem at least questionable: the CAS qualifies a clear breach of the Electoral Code as “deviation”[6] and then declares that the parties are responsible for the problems provoked by this “deviation”!

It is remarkable that although the CAS has been given broad reviewing authority, it chose to stick to an ‘ostrich like behaviour. It refused to proceed with a true control of the conformity of the electoral process with the relevant electoral code and left the door open for more ‘behind the curtains’ irregularities, which would be based on the consent of the Congress and the candidates. Thus, it seems that the CAS is adopting a very cautious, hands-off, approach when reviewing electoral proceedings.


The emerging constitutional role of the CAS: A shift towards a sui generis function for arbitration?

From the above brief overview of the CAS jurisprudence, two major trends can be identified: the diminishing autonomy of national and international federations in deciding on their internal electoral proceedings (1) and the growing readiness of the members of sports federations to have recourse to the CAS to control the fairness of the electoral proceedings in sports governing bodies. So far, the CAS Appeal Division has ruled over the eligibility of the potential candidates for the presidential elections of sports federations as well as over the regularity, validity and procedural fairness of the electoral process itself. At this point, it has to be noticed that, apart from the sports federations’ electoral processes, the CAS has also been asked to rule on the validity of the pre-electoral practices of the candidates for the election to the IOC Athlete’s Commission.[7] By controlling as well the electoral process of the IOC Commissions the CAS adds more credentials to its function as guarantor of fair and democratic electoral proceedings in international sports.

Since its emergence in the mid-1980s, the CAS’s role as the arbitral body competent to resolve international sporting disputes arising from appeals of decisions of sports governing bodies has evolved significantly. The CAS Appeal Division has mainly played a role in disciplinary matters, in doping cases for example, or contractual disputes, as in cases concerning transfers in football. Nonetheless, it seems as if it is also about to become an important institutional player in ‘constitutional’ disputes involving the political structure of sports governing bodies. By deciding on the eligibility of the candidates, on the composition of the electoral body, or on the conformity of the electoral proceedings with the applicable electoral code and minimum standards of fairness, the CAS acts not unlike a constitutional court of the international sports world. This functional evolution appears to be the reflexive answer of the CAS to the disputes submitted to it by sports governing bodies.


The unsettled interplay between Sports Politics and the CAS: an emerging political role for the CAS?

The review of electoral proceedings can also imply a political role – from a sporting point of view - of the CAS, bringing to the surface the thorny issue of the political role of arbitrators in general. In the Thai case, the CAS in a remarkable obitur dictum declared its duty to settle “a legal dispute according to the law”, denying, thereby, any intention to enter the field of sports politics. It recognized, though, the political implications “at least from a sporting point of view” of its award on the governance of FAT.[8] The panel was clear: it did not want to address sports politics, “let alone politics tout court”[9]. The CAS insisted on its legal role “rendering unto sports the things that are sport and to courts the things that are legal”[10]. This assessment is not surprising. There is a widespread view that judges and arbitrators only apply the law, irrespective of their policy beliefs and backgrounds. This de-politicization of the arbitral process, however, masks the fact that arbitral tribunals are composed of human beings, who are consciously or not driven by non-legal factors, such as the political and sociological factors. The CAS panels do not constitute an exception. A brief look at the CAS jurisprudence demonstrates in the view of the author of this blogpost that CAS panels are more likely to adopt a pro-international sports governing bodies approach, acting very cautiously when it is called to interpret their regulations and their decisions. Similarly, the CAS is aware of the significant impact of its rulings on the governance of sports and their de facto precedential value at the international and even national levels of sports.[11] Consequently, its awards have become increasingly self-referent, leaving a small room for divergent interpretations.

However, it is the author’s opinion that the CAS, even when acting as a “neutral” arbitral tribunal reviewing the electoral processes, will inevitably grapple with the political dimensions of those decisions. Despite the declaration of the Thai panel that it would abstain from any involvement in sports politics, the Panel, as noted above, justified a breach of the Electoral Code as mandated by political reasons and particularly by the overriding goal to guarantee electoral process based on the consent of FTA’s members. This decision was not neutral: in practice the panel decided who was to be president of the FTA. This is a highly political decision and it is a duty of CAS to be aware and reflexive of its impact when opting for one legal interpretation over the other.

In overall, a modicum of sports politics does not seem totally incompatible with the CAS role. 


Conclusion

The former President of the IOC and founder of the CAS, Juan Antonio Samaranch, had a dream: he envisaged the CAS as a “kind of Hague court for the sports world”[12]. In fact, 30 years after, and despite its permanent roots in arbitration, it seems that the CAS is becoming the Supreme Court of world sport. The CAS is a legal chameleon, being one day a quasi-criminal Court and the next a constitutional one. However, its increasing tendency to scrutinize the political processes at play in sports governing bodies is probably one of its least developed, but also most intriguing functions.

It remains to be seen whether the CAS will continue to be prudent and deferent when reviewing electoral processes, or whether it has the potential to morph into a more audacious, and maybe more “political”, constitutional role.


[1] CAS 2013/A/3389, Virach Chanpanich v The Football Association of Thailand

[2] A Erbsen, ‘The Substance and Illusion of Lex Sportiva’ in I Blackshaw and others (eds) The Court of Arbitration for Sport 1984-2004 (The Hague, TMC Asser Press 2006), 441.

[3] 2010/0/2166, National Chess Federation of France et al. v.FIDE

[4] CAS 2013/A/3389 (n 1) paras 122-123

[5] Ibid, para 123.

[6] Ibid

[7] CAS 2012/A/2913 Mu-yen Chu & Chinese Taipei Olympic Committee v.

International Olympic Committee (IOC) & CAS 2012/A/2912 Koji Murofushi & Japanese Olympic Committee v. International

Olympic Committee

[8] CAS 2013/A/3389 (n1), para 115

[9] Ibid

[10] M Beloff QC, ‘Is there such a thing as Sports Law’ (2011) 33 The Circuiteer 13

[11] G Kaufmann Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse?’ (2007) 23 Arbitration International (3) 357

[12] ‘ Speech Delivered by Mr Juan Antonio Samaranch’ (1982) 176 Olympic Review 314, 317

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