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

The Diarra Ruling of the Tribunal of Charleroi: The New Pechstein, Bosman or Mutu?

Yesterday the sports law world was buzzing due to the Diarra decision of the Tribunal de Commerce du Hainaut (the Tribunal) based in Charleroi, Belgium. Newspapers were lining up (here, here and here) to spread the carefully crafted announcement of the new triumph of Jean-Louis Dupont over his favourite nemesis: the transfer system. Furthermore, I was lucky enough to receive on this same night a copy of the French text of the judgment. My first reaction while reading quickly through the ruling, was ‘OMG he did it again’! “He” meaning Belgian lawyer Jean-Louis Dupont, who after a string of defeats in his long shot challenge against FIFA’s TPO ban or UEFA’s FFP (see here and here), had [at least I believed after rushing carelessly through the judgment] manufactured a new “it”: a Bosman. Yet, after carefully re-reading the judgment, it became quickly clear to me that this was rather a new Mutu (in the sense of the latest CAS award in the ‘Mutu saga’, which I have extensively analysed on this blog and in a recent commentary for the new Yearbook of International Sports Arbitration) coupled with some reflections reminding a bit (but not really as will be explicated below) the Pechstein case.

In this blog, I will retrace briefly the story behind the case and then analyse the decision of the Belgium court. In doing so, I will focus on its reasoning regarding its jurisdiction and the compatibility of article 17(2) RSTP with EU law.More...

The Russian Doping Scandal at the Court of Arbitration for Sport: The IPC’s Rio Ineligibility of Russian Paralympic Athletes

Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.

Unlike the International Association of Athletics Federations (IAAF), the International Paralympic Committee (IPC) was very much unaffected by the Russian doping scandal until the publication of the first McLaren report in July 2016. The report highlighted that Russia’s doping scheme was way more comprehensive than what was previously thought. It extended beyond athletics to other disciplines, including Paralympic sports. Furthermore, unlike the International Olympic Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio Paralympic Games were due to start “only” in September.

After the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled and deeply saddened at the extent of the state sponsored doping programme implemented in Russia”. He immediately announced the IPC’s intention to review the report’s findings and to act strongly upon them. Shortly thereafter, on 22 July, the IPC decided to open suspension proceedings against the National Paralympic Committee of Russia (NPC Russia) in light of its apparent inability to fulfil its IPC membership responsibilities and obligations. In particular, due to “the prevailing doping culture endemic within Russian sport, at the very highest levels, NPC Russia appears unable or unwilling to ensure compliance with and the enforcement of the IPC’s Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7 August, the IPC Governing Board decided to suspend the Russian Paralympic Committee with immediate effect “due to its inability to fulfil its IPC membership responsibilities and obligations, in particular its obligation to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which it is also a signatory)”. Indeed, these “obligations are a fundamental constitutional requirement for all National Paralympic Committees (NPCs), and are vital to the IPC’s ability to ensure fair competition and to provide a level playing field for all Para athletes around the world”. Consequently, the Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically, it was not entitled to enter athletes in competitions sanctioned by the IPC, and/or to participate in IPC activities. Thus, “the Russian Paralympic Committee will not be able to enter its athletes in the Rio 2016 Paralympic Games”. More...


The Russian Doping Scandal at the Court of Arbitration for Sport: The IAAF’s Rio Ineligibility of Russian Athletes

Since the release of the earth-shattering ARD documentary two years ago, the athletics world has been in a permanent turmoil. The International Athletics Association Federation (IAAF) is faced with both a never-ending corruption scandal (playing out in front of the French police authorities) and the related systematic doping of Russian athletes. The situation escalated in different phases led by the revelations of Russian insiders. First, in December 2014 with the ARD documentary, which demonstrated how widespread (and organized) the recourse to doping was in Russian athletics. It triggered the Pound investigation financed by the World Anti-Doping Agency (WADA), which led to two damaging reports (available here and here) for the Russian anti-doping system and the IAAF itself. Thereafter, in November 2015, the IAAF had no other choice but to provisionally suspend the Russian athletics federation (ARAF then RusAF) and its members from IAAF competitions. Yet, this was only the beginning as shortly after the former head of Moscow’s anti-doping laboratory provided a detailed sketch to the New York Times of the operation of a general state-led doping scheme in Russia. The system was designed to avert any positive doping tests for top-level Russian sportspeople and was going way beyond athletics. These allegations were later largely confirmed and reinforced by the McLaren investigation initiated by WADA in May 2016, and which published its first report in July 2016 shortly before the Rio Olympics. In June 2016, the IAAF anticipated the conclusions of the report (it had received most of McLaren’s evidence beforehand) and decided to maintain the ineligibility of Russian athletes for IAAF competitions, and for the Rio Olympics. It did, however, foresee a narrow exception for Russian athletes able to show that they were properly tested outside of Russia. Nonetheless, the athletes using this exception were to compete under a neutral flag at the Olympics. Unsurprisingly, Russian athletes led by pole superstar (and now IOC member), Yelena Isinbayeva, and the Russian Olympic Committee decided to challenge this decision in front of the Court of Arbitration for Sport (CAS). Interestingly, while the decision was rendered on 21 July 2016, the full text of the award was publically released only on 10 October 2016. In September, I analysed the Rio CAS Ad Hoc Decisions involving Russian athletes aiming to participate to the Olympics. I will now turn to the IAAF decision, which is of great importance to the future of the anti-doping system. Indeed, it lays out the fundamental legal boundaries of the capacity of international federations to impose sanctions on their members (and their members) in order to support the world anti-doping fight. More...

International and European Sports Law – Monthly Report – November and December 2016. By Saverio Spera.

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked. 


The Headlines

The Russian State Doping Scandal and the crisis of the World Anti-Doping System

Russian doping and the state of the Anti-Doping System has been the dominant international sports law story in November and December. This is mainly due to the release of the second report of the McLaren’s investigation on 9 December 2016. The outcome of McLaren’s work showed a “well-oiled systemic cheating scheme” that reached to the highest level of Russian sports and government, involving the striking figure of 30 sports and more than 1000 athletes in doping practices over four years and two Olympic Games. The report detailed tampering with samples to swap out athletes’ dirty urine with clean urine.More...


FIFA’s provision on the protection of minors - Part 3: The compatibility of Article 19 with EU law. By Kester Mekenkamp.

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre. This blog is, to a great extent, an excerpt of his forthcoming thesis, which he shall submit in order to complete his master’s degree.

This final blog aims to provide some broader perspective, by sketching first the grander scheme in which Article 19 RSTP – FIFA's provision on the protection of minors – operates. Thereafter, the focus will shift towards testing Article 19 RSTP, thereby keeping in mind the previous blogs (Part 1: The Early Years and Part 2: The 2009 reform and its aftermath), against EU free movement law.  


Putting Article 19 RSTP into perspective: The bigger picture

After having investigated the nuts and bolts of FIFA’s provision on the protection of minors in the first two parts of this blog, it might be useful to address its bigger picture.

Article 19 RSTP and its accompanying provisions regulate only a small share of the targeted activity. There is, unfortunately, also an illegal world. Circumvention of the prohibition is allegedly commonplace.[1] Visas and passports can be falsified.[2] Work permits can be obtained on the basis of jobs arranged by clubs.[3] More...


FIFA’s provision on the protection of minors - Part 2: The 2009 reform and its aftermath. By Kester Mekenkamp.

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre. This blog is, to a great extent, an excerpt of his forthcoming thesis, which he shall submit in order to complete his master’s degree.


This is the second part of a three-piece blog on FIFA’s provision on the protection of minors, Article 19 of the Regulations on the Status and Transfer of Players. The contribution in its entirety aims to provide an encompassing overview of the rule’s lifespan since its inception in 2001. The previous (first) part has shed light on the “birth” and “first years” of the provision, and as such illustrated the relevant developments from 2001 till 2009. This second part covers the rule’s “adolescent years”, which span from 2009 to the present. The major changes put forward in the 2009, 2015 and 2016 versions of the RSTP will be addressed. Thereafter the important CAS decisions concerning Article 19, Muhic, Vada I and II, FC Barcelona, RFEF, and the FIFA decisions relating to Real Madrid and Atlético Madrid, will be scrutinized. The third, and final, part will constitute a substantive assessment of the provision under EU Internal Market law.

Given that the version adopted in 2008 left Article 19 untouched, the 2009 RSTP represented the next significant step in the regulation of the protection of minors. It had become clear that the system as used up to that point was inadequate to achieve its goal,[1] most notably because several national associations still neglected to strictly apply the rules.[2] More...


FIFA’s provision on the protection of minors - Part 1: The Early Years. By Kester Mekenkamp.

Editor’s note: Kester Mekenkamp is an LL.M. student in European Law at Leiden University and an intern at the ASSER International Sports Law Centre. This blog is, to a great extent, an excerpt of his forthcoming master thesis. 


On 24 November 2016, a claim was lodged before a Zurich commercial court against FIFA’s transfer regulations by a 17-year-old African football player.[1] The culprit, according to the allegation: The provision on the protection of minors, Article 19 of the Regulations for the Status and Transfer of Players.[2] The claimant and his parents dispute the validity of this measure, based on the view that it discriminates between football players from the European Union and those from third countries. Besides to Swiss cartel law, the claim is substantiated on EU citizenship rights, free movement and competition law. Evidently, it is difficult to assess the claim’s chance of success based on the sparse information provided in the press.[3] Be that as it may, it does provide for an ideal (and unexpected) opportunity to delve into the fascinating subject of my master thesis on FIFA’s regulatory system aimed at enhancing the protection of young football players and its compatibility with EU law. This three-part blog shall therefore try to provide an encompassing overview of the rule’s lifespan since its inception in 2001. More...


The entitlement to Training Compensation of “previous” clubs under EU Competition Law. By Josep F. Vandellos Alamilla

Editor’s note: Josep F. Vandellos is an international sports lawyer associated to RH&C (Spain). He is also a member of the Editorial Board of the publication Football Legal and a guest lecturer in the ISDE-FC Barcelona Masters’ Degree in Sports Management and Legal Skills.


Article 6 of Annexe IV (Training compensation) of the FIFA-RSTP (Ed. 2016) contains the so-called “Special Provisions for the EU/EEA” applicable to players moving from one association to another inside the territory of the European Union (EU) or the European Economic Area (EEA).
The provisions regarding training compensation result from the understanding reached between FIFA and UEFA with the European Union in March 2001[1], and subsequent modifications introduced in the FIFA-RSTP revised version of 2005 to ensure the compatibility of the transfer system with EU law.[2]
This blog will focus on the exception contained in article 6(3) Annexe IV of the FIFA-RSTP. According to this article, when “the former club” fails to offer a contract to the player, it loses its right to claim training compensation from the players’ new club, unless it can justify that it is entitled to such compensation. Instead, the right of “previous clubs” to training compensation is fully preserved irrespective of their behaviour with the player.[3] From a legal standpoint, such discrimination between the “former club” and the “previous clubs” raises some questions that I will try to address in this paper. More...



The EU State aid and sport saga: The Real Madrid Decision (part 2)

This is the second and final part of the ‘Real Madrid Saga’. Where the first part outlined the background of the case and the role played by the Spanish national courts, the second part focuses on the EU Commission’s recovery decision of 4 July 2016 and dissects the arguments advanced by the Commission to reach it. As will be shown, the most important question the Commission had to answer was whether the settlement agreement of 29 July 2011 between the Council of Madrid and Real Madrid constituted a selective economic advantage for Real Madrid in the sense of Article 107(1) TFEU.[1] Before delving into that analysis, the blog will commence with the other pending question, namely whether the Commission also scrutinized the legality of the operation Bernabeú-Opañel under EU State aid law. By way of reminder, this operation consisted of Real Madrid receiving from the municipality the land adjacent to the Bernabéu stadium, while transferring in return €6.6 million, as well as plots of land in other areas of the city. More...

Resolution of Disputes Arising From Football Contracts in Turkey. By N. Emre Bilginoglu

Editor’s note: N. Emre Bilginoglu[1] is a lawyer based in Istanbul. His book entitled “Arbitration on Football Contracts” was published in 2015.


Introduction

With a total market value of approximately 911 million EUR, the Turkish Super League ranks as one of the prominent football leagues in Europe. Five of the eighteen teams that make up half of the total market value are based in Istanbul, a busy megalopolis that hosts a population of fifteen million inhabitants.[2] As might be expected, the elevated market value brings forth a myriad of disputes, mainly between the clubs and the players. However, other crucial actors such as coaches and agents are also involved in some of the disputes. These actors of the football industry are of all countries, coming from various countries with different legal systems.

One corollary of rapid globalisation is the development of transnational law, which is quite visible in the lex sportiva.[3] Like foreign investors, foreign actors of the sports industry look for some legal security before signing a contract. FIFA does protect these foreign actors in some way, providing players and coaches legal remedies for employment-related disputes of an international dimension. But what if the legal system of the FIFA member association does not provide a reasonable legal remedy for its national actors?[4] More...


Asser International Sports Law Blog | The Court of Arbitration for Sport after Pechstein: Reform or Revolution?

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

The Court of Arbitration for Sport after Pechstein: Reform or Revolution?

The Pechstein ruling of the Oberlandesgericht (OLG) München rocked the sports arbitration world earlier this year (see our initial commentary of the decision here and a longer version here). The decision has been appealed to the German Bundesgerichtshof (BGH), the highest German civil court, and the final word on the matter is not expected before 2016. In any event, the case has the merit of putting a long-overdue reform of the Court of Arbitration for Sport (CAS) back on the agenda. The last notable reform of the structure and functioning of the CAS dates back to 1994, and was already triggered by a court ruling, namely the famous Gundel case of the Swiss Federal Tribunal (SFT). Since then, the role of the CAS has shifted and its practical significance has radically changed (the growth of CAS’s caseload has been exponential). It has become the most visible arbitration court in Switzerland in terms of the number of awards appealed to the SFT, but more importantly it deals with all the high-profile disputes that arise in global sport: think, for instance, of Pistorius, the recent Dutee Chand decision or the upcoming FIFA elections.

In response to the Pechstein ruling, the CAS issued a press release claiming “that the findings of the Munich Appeals Court [the OLG] are based on the CAS rules and organization in force in 2009, when Claudia Pechstein appealed before CAS, and do not take into account the changes leading to the current organization, with amended procedural rules regarding the nomination of arbitrators, development of the legal aid program and the appointment of new ICAS Members not active in or connected to sports-bodies”. The CAS administration implied that the decision would have been different if the OLG had taken into account the current rules. This is a slightly misleading statement. The OLG’s reasoning as to the CAS’s lack of independence was based on various features of CAS procedure that are still in place today, most notably the composition of the CAS governing body: the International Council of Arbitration for Sport (ICAS). In the same press release, the CAS emphasizes that “[i]t is always prepared to listen and analyze the requests and suggestions of its potential users i.e. the athletes, sports federations and other sports entities, in order to continue its development with appropriate reforms”. If it is to avoid a true revolution targeting (and potentially destroying) CAS arbitration, it should better put its money where its mouth is and urgently initiate an inclusive and participative reform procedure. Such a reform process ought to bring to the table not only the Sports Governing Bodies (SGBs), as was the case after the Gundel ruling, but also representatives of athletes and public authorities.

This long blog post aims at providing a blueprint to start thinking about how to reform the CAS. It will highlight the key issues that need to be discussed and make 10 preliminary (and necessarily incomplete) proposals. Three pillars for a reform of CAS are identified: independence, transparency and access to justice.

 

I.               Independence

The Pechstein ruling of the OLG focuses mainly on the question of the independence of the CAS (and chiefly the ICAS). This is not a new matter of concern. Over the years, there has been mounting academic scholarship putting this independence into doubt[1]. However, the SFT sided with the CAS and shielded it from challenges, until the OLG München begged to differ. In fact, ensuring independence ought to be the fundamental objective of any future reform of the CAS. In my view, this is not so much about securing the institution’s financial independence from the SGBs, nor should the CAS’s financial reliance on the SGBs be seen as a big threat to its independence, as long as its management is truly independent. Indeed, it is the SGBs’ duty, in the interest of sports, to finance the CAS via a form of tax on their revenues.  The true issues to be tackled in relation to independence arise from the composition of the ICAS, the identity and role of the President of the CAS Appeals Division and the closed list of arbitrators.


a.    Independence of ICAS

The ICAS is the body in charge of taking the most significant institutional decisions in the life of the CAS. It decides, in particular, who gets to be a CAS arbitrator[2], who gets to be the president of the CAS appeal division[3], and who gets to be the secretary general of the CAS[4]. It also rules on challenges to the independence of arbitrators[5]. In short, the ICAS decides all the main institutional matters which have a decisive influence on the broader legal orientations of the CAS and its jurisprudence. This powerful body, sitting quietly at the top of the CAS, is all but independent. Three fifths of its current members are selected by the SGBs, and that group, in turn, selects the remaining two fifths of the members[6]. It is natural that the SGBs would pick individuals who share their views on the application of their rules and more broadly their mindset in relation to the management of sports. Thus, many ICAS members have had (or still have) a career inside national and international SGBs, and several among them have acted as legal advisors to the SGBs[7]. The President of the ICAS himself, John Coates, is the Vice-president of the IOC. Can you imagine, for example, the Vice-president of the United States presiding at the same time over the Supreme Court? How can such a homogenous group of people be deemed independent from the collective interest and views of the members of the Olympic movement? Simply put, it can’t and it isn’t. This is the crux of the OLG’s decision in Pechstein and it is extremely difficult not to be convinced by it. 

However, and this is a legitimate question, how should we then select ICAS members? There are in my view two solutions that ideally should be combined. On the one hand, a slight change should be made to the CAS statutes, imposing that only 4 of the ICAS members shall be selected by the SGBs, while the next 4 shall be selected by representatives of the athletes (at a specific conference or assembly including, for example, FIFPro, UNI World Athletes, EU Athletes, and the IOC Athletes' Commission), and the final 12 members shall be picked by the first 8. By empowering athlete representatives to appoint half of the first 8 members of ICAS, the CAS would automatically ensure the independence and impartiality of the additional 12 (neutral) ICAS members, who would still have the upper hand on the two partisan fractions inside ICAS. On the other hand, it is necessary to impose stringent individual requirements of independence for all ICAS members. They should both fulfill qualitative requirements (i.e. show some legal credentials) and be subjected to strict conflicts of interests restrictions (i.e. ICAS members must sever all personal, contractual and financial ties with SGBs and athlete representatives). In short, no IOC or FIFPro member should be able to have a seat at the ICAS’s table. This is a preliminary proposal and other analogical solutions can be devised. It aims at tackling the two core challenges for the independence of ICAS: its selection procedure and the individual independence of its members.

Recommendation 1: Change the selection procedure for ICAS members, with SGBs to select 4 members, athletes’ representatives to select 4 other members, and those 8 members together jointly selecting the remaining 12 members.

Recommendation 2: Impose a strict regime governing conflicts of interest for ICAS members. ICAS members should forego all their mandates within the SGBs and sever all contractual and other ties susceptible of giving rise to a conflict of interest.

 

b.    Independence of the President of the Appeals Division

The Appeals Division of the CAS is for our purposes (as well as in quantitative terms) the only one that truly matters. Indeed, it deals with all the disputes related to doping and transfer cases, but also those arising from disciplinary sanctions imposed by the SGBs and their political decisions. In short, the appeals procedure transforms the CAS in the ‘Supreme Court of World Sport’ as the saying goes. In Pechstein, the OLG was particularly troubled with the way in which the president of each appeal panel is selected. Basically, as provided by article R54 of the CAS Code[8], the president of the Appeals Division decides who is to be the president of a specific appeal panel. He or she will consult the arbitrators nominated by the parties, but their suggestions are not binding. In fact, especially when they disagree, the Division President is the one that decides who is to chair the panel, and, thus, who is most likely to tilt the balance in one direction or another. Consequently, the President of the Appeals Division occupies probably the most important and powerful position at the CAS. You wouldn’t guess who was occupying this position until 2013…Thomas Bach, the current IOC President. The current holder is Ms. Corinne Schmidhauser, herself a President of Antidoping Switzerland and a member of the Legal Committee of FIS (Fédération Internationale de Ski). Athletes challenging an anti-doping decision cannot be expected to believe in the independence of a panel which has been composed, to a significant (decisive) extent, by someone so directly involved in the anti-doping fight and thus necessarily and inevitably partisan of the work done by anti-doping authorities.

The position of head of the CAS Appeals Division is so crucial, that it cannot be occupied by anybody who is closely connected to any one side of the sporting world. The designation process must ensure that the person selected is universally perceived as independent and impartial. Only by ensuring that he or she has no direct and personal, contractual or financial links with the SGBs can the CAS preserve its independence and legitimacy.

Recommendation 3: Impose a regime of incompatibilities to the President of the Appeals Division. He or she must accept to forego all his or her mandates within the SGBs and sever all contractual ties susceptible of giving rise to a conflict of interest.


c.     Independence of individual arbitrators

The final, most often discussed, yet in my view less important, point concerns the independence of individual CAS arbitrators. The OLG München pointed out that it is not against a closed list of CAS arbitrators. However, the fact that under the current procedures the arbitrators are selected by a structurally biased ICAS was seen as highly problematic. Even more so due to the lack of transparency as to who had proposed the nomination to the CAS under the pre-2010 rules. Closed lists of arbitrators are a relatively rare occurrence in international arbitration, nonetheless it does make sense to introduce a qualitative limit to who is deemed sufficiently qualified to become an arbitrator in a specific sector, where disputes can raise rather complex “technical” or scientific issues, such as sport (think of some anti-doping cases). This is especially so because CAS arbitration, contrary to commercial arbitration, is mandatory in essence and aims more at providing legal certainty in the global sports sector than at solving individual disputes. This calls for enhanced stability in the judicial personnel. In this regard, some have suggested providing tenure and a fixed wage to CAS arbitrators[9]. This might be difficult to put in place logistically, at least for now, though it is not necessarily a bad idea in the long run. 

Be that as it may, implementing such measures would still not exonerate the CAS from having to deal with some of the acute problems that arise regarding the independence of CAS arbitrators included on the list. In particular, the phenomenon of so-called repeat arbitrators, ie arbitrators who are nominated several times by the same party, poses a real danger. In such cases, the party that is frequently involved in disputes before the CAS has an edge over the other party because it knows which arbitrator is more susceptible to favor its cause. One way to avoid this bias would be to clearly limit the number of times an arbitrator can be selected by a specific party. Moreover, to put the parties on an equal stand, the CAS would need to publish detailed information on arbitrators’ past nominations (in this regard, see also point II.a. below). Finally, the ICAS should exercise a more stringent standard of control over the independence of individual arbitrators in case of challenge. Nevertheless, if the list is drawn by an independent ICAS and the parties have the possibility to know better the record of each arbitrator and have a true ability to challenge them in case of doubt, the existence of a closed list does not seem to be as such a structural limitation to the independence of the CAS.

Recommendation 4: Limit the number of times an arbitrator can be nominated by a specific party (e.g. 5 times during his or her four-year mandate).

Recommendation 5: CAS to provide detailed information on each arbitrator’s past nominations.

Recommendation 6: ICAS to exercise a more stringent control over the independence and impartiality of CAS arbitrators in case of challenge.

 

II.             Transparency

The OLG in Pechstein did not tackle the question of the lack of transparency of the CAS. Yet, some authors have insisted that as the jurisdiction of CAS is mandatory for athletes wanting to participate in international competitions (as the Olympic Games or, as in Pechstein’s case, the world championships) its processes should abide by the standards of the European Convention of Human Rights[10]. In this regard, the independence of the arbitrators is important, but also the transparency of the judicial process.


a.    Information on arbitrators

First, as discussed above, there is a lack of transparency as far as the arbitrators are concerned. The list of CAS arbitrators on the CAS website gives too little substantial information for parties to be comprehensively informed on the arbitrators’ personal jurisprudential record. Here again, due to the phenomena of repeat-players, information asymmetries are indirectly promoted. The parties, mainly SGBs, which have been involved in many CAS arbitration proceedings will typically dispose of an internal database tracking the different positions of CAS arbitrators as they have access to the raw data. The majority of athletes, who are not supported by a strong legal team, will be unable to rely on the same knowledge and will necessarily be in an unfavorable position compared to the SGBs. This calls for full transparency regarding the profile and record of each CAS arbitrator. Similarly, the CAS lacks mandatory disclosure rules regarding the arbitrators’ biographical details[11]. Each arbitrator should have to disclose, in the information included on the CAS website, their past (for example over the last 5 years) and/or present contractual relationships, or other significant personal or financial ties with SGBs and any other relevant stakeholder in sport.

Recommendation 7: CAS to impose more stringent ex ante disclosure rules imposing that each CAS arbitrator discloses on the CAS website all present and past (previous 5 years) contractual links with SGBs and other sport stakeholders.

 

b.    Publication of CAS awards

What is even more important, also because it would enable the parties and external observers to better check the independence and evaluate the track record of arbitrators, is the systematic publication of CAS awards. Nowadays, the CAS publishes only a limited sample of all the awards rendered by the Appeals Division. Indeed, article R59 CAS Code provides that “[t]he award, a summary and/or a press release setting forth the results of the proceedings shall be made public by CAS, unless both parties agree that they should remain confidential”. It is true that compared to commercial arbitration the CAS is relatively transparent. Yet, commercial arbitration is the wrong benchmark, as the CAS’s function is more akin to that of a court of law. The secrecy might be acceptable, though it remains hotly debated, when two multinationals decide to settle their dispute via arbitration. This state of affairs is, however, totally unsatisfactory in the context of a forced arbitration process. CAS draws its legitimacy from the necessity to provide a global level playing field to settle disputes arising out of international sport. This might be a valid justification to impose the global jurisdiction of the CAS, but in return it must also entail that CAS has the duty to publish all the decisions it renders. This, in fact, could be very easily achieved by amending article R59 CAS Code and by simply deleting its final sentence indicating that the award is published “unless both parties agree that they should remain confidential”.

The full publication of CAS awards is a necessity to secure the equality of arms of the parties to CAS arbitration. Indeed, in the current situation, some actors, often SGBs, have access to much greater pools of CAS awards, which they can refer to, thus improving their chances of prevailing. In contrast the general public and the athletes are unable to critically assess and use the many awards that remain unpublished and therefore inaccessible. A transparent access to all appeal awards is a vital question of procedural justice, and a crucial development in order to subject the CAS and its judicial work to the critical scrutiny of the global public sphere.

Recommendation 8: CAS to systematically publish on its website all the CAS awards rendered following the appeal procedure.

 

c.     Publication of administrative documents

The CAS is extremely reluctant to publish internal administrative material. In other words, nobody knows precisely the financial records of the CAS or the precise content of the discussions happening inside the ICAS. This is not compatible with the very public function played by the CAS in global sports. With great power, comes great responsibility. Transparency, as a tool serving enhanced public scrutiny, is a key element of CAS’s accountability. Thus, it is important that the CAS adopts transparent administrative practices. It should, for example, publish the minutes of the ICAS meetings and its annual reports.

Recommendation 9: CAS to systematically publish on its website all the key administrative documents (such as the minutes of ICAS meetings and its annual reports)

 

III.           Access to Justice

Finally, and this is largely overlooked by many, the CAS has a problem with access to justice[12]. CAS proceedings are too expensive for many athletes who are not part of the 1% elite of superstars. Article R64.1 CAS Code provides that « [u]pon filing of the request/statement of appeal, the Claimant/Appellant shall pay a non-refundable Court Office fee of Swiss francs 1,000 »[13]. Moreover, the parties must pay an advance on the costs of arbitration and bear the costs of their own witnesses, experts and interpreters[14]. Unless the dispute involves a decision by an international federation in disciplinary matters[15], an appellant will have to bear the costs of the arbitration process, usually several thousands Swiss Francs. Athletes end up in a double bind: they are often constrained to go to the CAS by a mandatory arbitration clause, but cannot afford to do so properly. In recent years, the CAS has started to tackle the issue by introducing two mechanisms: a pro-bono list of CAS lawyers and a procedure granting legal aid to athletes in financial hardship. These steps certainly go in the right direction, but as some with hands-on experience have pointed out[16], they are still too small and uncertain. Athletes, especially in doping cases, are faced with disputes which require costly scientific investigations, experts must be recruited etc. Thus, they can be forced to waive their access to the national courts (and state legal aid), only if the CAS provides sufficient financial means for them to dispose of a fair chance to present their case, ie to “have their day in the CAS”. It is again a question of equality of arms; SGBs are way richer and enjoy substantial economies of scale thanks to their repeat player status. This potential inequality before sporting justice runs counter to the very essence of a fair process, and should be remedied. This will be possible only if the SGBs which provide for CAS arbitration in their regulations accept to take on a larger share of the costs of CAS proceedings, for instance by paying a levy corresponding to a specific share of their revenues.

Recommendation 10: CAS to fund, through a levy on the SGBs, a more comprehensive and accessible legal aid scheme for appellants to the CAS that lack sufficient financial resources.

 

Conclusion

Global sport is at a turning point, this time is different, it is truly about “reform or revolution”. As FIFA and IAAF sink more and more into chaos, it becomes clear that one of the sporting challenges of the 21st century will be to democratize and check the massive transnational organizations fuelled by TV and sponsoring money that govern global sport. To this end, the CAS has a key role to play. For example, it will most probably be reviewing the ban imposed by the FIFA Ethics Committee on Michel Platini. More generally, the CAS could become a sort of global constitutional court for sport, reviewing the legislative and administrative decisions of the SGBs. However, this metamorphosis will be realistic only if CAS itself is reformed to match the level of independence, transparency and accessibility needed to ensure its legitimating function. This is exactly the spirit of good governance endorsed by the IOC’s Olympic Agenda 2020 that should guide the whole Olympic movement in the coming years.

Now is not the time for the CAS to put its head in the sand and pray for the BGH to overrule the OLG in the Pechstein case. Sure, that might happen. Yet, the BGH cannot magically erase the fundamental questions that have been raised by the lower courts as the case made its way into its docket. It will only be a matter of time for those same questions to pop up again in another judicial forum (be it the ECHR or the CJEU). The independence of ICAS, and therefore of the CAS, is simply too fragile and urgently needs to be buttressed. Let’s not just wait, comme si de rien n’était, for the revolution to come. Now is the time for all interested parties (CAS, SGBs, athletes, public authorities) to come together and shape a comprehensive reform of the CAS that must be guided by the will to ensure a stronger independence, greater transparency and broader access to justice.


[1] See ten years ago A. Rigozzi, L’arbitrage international en matière de sport, Helbing & Lichtenhahn, Basel, 2005; pp. 289-300 and D. Yi, ‘Turning Medals into Metal : Evaluating the Court of Arbitration of sport as an international tribunal’, 6 Asper Rev. Int’l Bus. & Trade L. 289, 2006. More recently, A. Vaitiekunas, The Court of Arbitration for Sport : Law-Making and the Question of Independence, Stämpfli Verlag, Berne, 2014 and P. Zen-Ruffinen, ‘La nécessaire réforme du Tribunal Arbitral du Sport’ in A. Rigozzi and al (eds), Citius, altius, fortius : mélanges en l'honneur de Denis Oswald, Helbing & Lichtenhahn, Basel, 2012, pp. 555-567.

[2] Article S6 para 3 CAS Code (Statutes of ICAS and CAS).

[3] Article S6 para 2 CAS Code.

[4] Article S6 para 6 CAS Code.

[5] Article S6 para 4 CAS Code.

[6] See Article S4 CAS Code :
ICAS is composed of twenty members, experienced jurists appointed in the following manner :

1.     four members are appointed by the International Federations (IFs), viz. three by the Association of Summer Olympic IFs (ASOIF) and one by the Association of the Winter Olympic IFs (AIOWF), chosen from within or outside their membership;

2.     four members are appointed by the Association of the National Olympic Committees (ANOC), chosen from within or outside its membership;

3.     four members are appointed by the International Olympic Committee (IOC), chosen from within or outside its membership;

4.     four members are appointed by the twelve members of ICAS listed above, after appropriate consultation with a view to safeguarding the interests of the athletes;

5.     four members are appointed by the sixteen members of ICAS listed above, chosen from among personalities independent of the bodies designating the other members of the ICAS.

[7] In the current ICAS, 13 (out of 20) members have (or had) direct ties to SGBs if you trust their official bios: Abdullah Al Hayyan, Tjasa Andrée-Prosenc, Patrick Baumann, Scott Blackmun, Alexandra Brilliantova, John D. Coates, Moya Dodd, Ivo Eusebio, Michael B. Lenard, Göran Petersson, Richard W. Pound, Corinne Schmidhauser, Tricia C.M. Smith. None of the 20 has any ties with athletes’ representative organisations.

[8] Article R54 CAS Code stipulates:

“If three arbitrators are to be appointed, the President of the Division shall appoint the President of the Panel following nomination of the arbitrator by the Respondent and after having consulted the arbitrators.”

[9] A. Vaitiekunas, The Court of Arbitration for Sport: Law-Making and the Question of Independence, Stämpfli Verlag, Berne, 2014, p. 199.

[10] R. Muresan and N. Korff, ‘Sportschiedsgerichtsbarkeit: Wie weiter nach dem « Pechstein-Urteil » des Landgerichts München?’, Causa Sport 3/2014, pp. 199-211.

[11] Article R33 CAS Code only stipulates that «Every arbitrator shall be and remain impartial and independent of the parties and shall immediately disclose any circumstances which may affect his independence with respect to any of the parties».

[12] But not by all see A. Rigozzi & F. Robert-Tissot, ‘"Consent" in Sports Arbitration: Its Multiple Aspects’, E. Geisinger & E. Trabaldo de Mestral (eds), Sports Arbitration: A Coach for other players?, ASA Special Series No. 41, pp. 59-95, at 73-81.

[13] This is true also in case of an appeal against decisions issued by international federations in disciplinary matters, see article R65.2 CAS Code.

[14] See article R64.2 and R64.3 CAS Code.

[15] See article R65 CAS Code.

[16] A. Rigozzi & F. Robert-Tissot, ‘"Consent" in Sports Arbitration: Its Multiple Aspects’, E. Geisinger & E. Trabaldo de Mestral (eds), Sports Arbitration: A Coach for other players?, ASA Special Series No. 41, pp. 59-95, at 73-81.

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