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