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 Kristoffersen ruling: the EFTA Court targets athlete endorsement deals - By Sven Demeulemeester and Niels Verborgh

Editor’s note: Sven Demeulemeester and Niels Verborgh are sports lawyers at the Belgium law firm, Altius.

 

Introduction

In its 16 November 2018 judgment, the Court of Justice of the European Free Trade Association States (the EFTA Court) delivered its eagerly awaited ruling in the case involving Henrik Kristoffersen and the Norwegian Ski Federation (NSF). 

On 17 October 2016, Kristoffersen had taken the NSF to the Oslo District Court over the latter’s refusal to let the renowned alpine skier enter into a sponsorship with Red Bull. At stake were the commercial markings on his helmet and headgear in races organised under the NSF’s umbrella. The NSF refused this sponsorship because it had already granted the advertising on helmet and headgear to its own main sponsor, Telenor. Kristoffersen claimed before the Oslo District Court, that the NSF should be ordered to permit him to enter into an individual marketing contract with Red Bull. In the alternative, Kristoffersen claimed damages up to a maximum of NOK 15 million. By a letter of 25 September 2017, the Oslo District Court referred several legal questions to the EFTA Court in view of shedding light on the compatibility of the rules that the NSF had invoked with EEA law.

If rules do not relate to the conduct of the sport itself, but concern sponsorship rights and hence an economic activity, these rules are subject to EEA law. The EFTA Court ruling is important in that it sets out the framework for dealing with - ever more frequent - cases in which an individual athlete’s endorsement deals conflict with the interest of the national or international sports governing bodies (SGBs) that he or she represents in international competitions.More...


Season 2 of football leaks: A review of the first episodes

Season 2 of #FootballLeaks is now underway since more than a week and already a significant number of episodes (all the articles published can be found on the European Investigative Collaborations’ website) covering various aspect of the (lack of) transnational regulation of football have been released (a short German documentary sums up pretty much the state of play). For me, as a legal scholar, this new series of revelations is an exciting opportunity to discuss in much more detail than usual various questions related to the operation of the transnational private regulations of football imposed by FIFA and UEFA (as we already did during the initial football leaks with our series of blogs on TPO in 2015/2016). Much of what has been unveiled was known or suspected by many, but the scope and precision of the documents published makes a difference. At last, the general public, as well as academics, can have certainty about the nature of various shady practices in the world of football. One key characteristic that explains the lack of information usually available is that football, like many international sports, is actually governed by private administrations (formally Swiss associations), which are not subject to the similar obligations in terms of transparency than public ones (e.g. access to document rules, systematic publication of decisions, etc.). In other words, it’s a total black box! The football leaks are offering a rare sneak peak into that box.

Based on what I have read so far (this blog was written on Friday 9 November), there are three main aspects I find worthy of discussion:

  • The (lack of) enforcement of UEFA’s Financial Fair Play (FFP) Regulations
  • The European Super League project and EU competition law
  • The (lack of) separation of powers inside FIFA and UEFA More...

Supporters of the ISLJ Annual International Sports Law Conference 2018: Altius

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to finish this series of interviews with Sven Demeulemeester from Altius, a Belgian law firm based in Brussels with a very fine (and academically-minded!) sports law team. 


1. Can you explain to our readers the work of Altius in international sports law? 

Across different sports’ sectors, Altius’ sports law practice advises and assists some of the world’s most high-profile sports governing bodies, clubs and athletes, at both the national and the international level. The team has 6 fully-dedicated sports lawyers and adopts a multi-disciplinary approach, which guarantees a broad range of legal expertise for handling specific cases or wider issues related to the sports industry. We are proud to be independent but, in cross-border matters, are able to tap into a worldwide network.

2. How is it to be an international sports lawyer? What are the advantages and challenges of the job? 

Sports law goes beyond one specific field of law. The multiplicity of legal angles keeps the work interesting, even after years of practising, and ensures that a sports lawyer rarely has a dull moment. The main downside is that the sports industry is fairly conservative and sometimes ‘political’. While the law is one thing, what happens in practice is often another. Bringing about change is not always easy. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference? 

 The much-anticipated overhaul of the football transfer system is eagerly anticipated and is worth a thorough debate, also in terms of possible, viable alternatives. The impact of EU law - both internal market rules, competition law and fundamental rights – can hardly be underestimated. Also, dispute resolution mechanisms within the realm of sports - and an accessible, transparent, independent and impartial sports arbitration in particular - will remain a ‘hot’ topic in the sector for years to come. Furthermore, ethics and integrity issues should remain top of the agenda, as is being demonstrated by the current money-laundering and match-fixing allegations in Belgium. Finally, in a sector in which the use of data is rife, the newly-adopted GDPR’s impact remains somewhat ‘under the radar’.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference? 

The ISLJ Annual International Sports Law Conference is refreshing, both in terms of its topics and participants. The academic and content-driven approach is a welcome addition to other sports law conferences in which the networking aspect often predominates.

Supporters of the ISLJ Annual International Sports Law Conference 2018: LawInSport

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very happy to continue this series of interviews with LawInSport, a knowledge hub and educational platform for the community of people working in or with an interest in sport and the law  (many thanks to LawInSport's CEO Sean Cottrell for kindly responding to our questions).


1. Can you explain to our readers what LawInSport is about?

LawInSport is a knowledge hub, educational platform and global community of people working in or with an interest in sport and the law.

Our objective is to help people ‘understand the rules of the game™’. What does this mean? It means people in sport having access to information that enables them to have a better understanding the rules and regulations that govern the relationships, behaviours and processes within sports. This in turn creates a foundation based on the principles of the rule of law, protecting the rights of everyone working and participating in sport.  

2. What are the challenges and perks of being an international sports law 'reporter’ ?

I do not consider myself a reporter, but as the head of an organisation that has a responsibility to provide the highest quality information on legal issues in sport,  focusing on what is important and not just what is popular, whilst trying to stay free from conflicts of interests. These two issues, popularism and conflict of interest, are the two of the biggest challenges.

Popularism and the drive to win attention is, in my opinion, causing a lack of discipline when it comes to factual and legal accuracy in coverage of sports law issues, which on their own may seem harmless, but can cause harm to organisations and individuals (athletes, employees, etc).

Conflict of interest will obviously arise in such a small sector, however, there is not a commonly agreed standard in internationally, let alone in sports law. Therefore, one needs to be diligent when consuming information to understand why someone may or may not hold a point of view, if they have paid to get it published or has someone paid them to write it. For this reason it can be hard to get a full picture of what is happening in the sector.

In terms of perks, I get to do something that is both challenging and rewarding on a daily basis, and as  a business owner I have the additional benefit of work with colleagues I enjoy working with. I have the privilege of meeting world leaders in their respective fields (law, sport, business, science, education, etc) and gain insights from them about their work and life experiences which is incredibly enriching.  Getting access to speak to the people who are on the front line, either athletes, coaches, lawyers, scientists, rather than from a third party is great as it gives you an unfiltered insight into what is going on.

On the other side of things, we get the opportunity to help people through either having a better understand of the legal and regulatory issues in sports or to understand how to progress themselves towards their goals academically and professionally is probably the most rewarding part of my work. 

3. What are the burning issues in international sports law that you would like to see discussed at the conference?

  • The long-term implications of human rights law in sport;
  • The importance of meaningful of stakeholder consultation in the creation and drafting of regulations in sport;
  • Effective international safeguarding in sport.

4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

We support ISLJ Annual International Sports Law Conference as it is a non-profit conference that’s purpose is to create a space to explore a wide range of legal issues in sport. The conference is an academic conference that does a great job in bringing a diverse range of speakers and delegates. The discussions and debates that take place will benefit the wider sports law community.  Therefore, as LawInSport’s objective is focused on education it was a straight forward decision to support the conferences as it is aligned with our objectives. 

Supporters of the ISLJ Annual International Sports Law Conference 2018: Women in Sports Law

Editor's note: In the coming days we will introduce the supporters of our upcoming ISLJ Annual International Sports Law Conference 2018 (also known as #ISLJConf18). To do so, we have sent them a tailored questionnaire aimed at reflecting both their activities and their expectations for the conference. It is a good opportunity for us to thank them for their enthusiastic support and commitment to international sports law research. We are very proud to start this series of interviews with Women in Sports Law, an association launched in 2016 and which has already done so much to promote and advance the role of women in international sports law (many thanks to Despina Mavromati for kindly responding to our questions on behalf of WISLaw).


1. Can you explain to our readers what WISLaw is about?

Women In Sports Law (WISLaw, www.wislaw.co) is an international association based in Lausanne that unites more than 300 women from 50 countries specializing in sports law. It is a professional network that aims at increasing the visibility of women working in the sector, through a detailed members’ directory and various small-scale talks and events held in different countries around the world. These small-scale events give the opportunity to include everyone in the discussion and enhance the members’ network. Men from the sector and numerous arbitral institutions, conference organizers and universities have come to actively support our initiative.


2. What are the challenges and opportunities for women getting involved in international sports law?

Women used to be invisible in this sector. All-male panels were typical at conferences and nobody seemed to notice this flagrant lack of diversity. WISLaw created this much-needed platform to increase visibility through the members’ directory and through a series of small-scale events where all members, independent of their status or seniority, can attend and be speakers.

Another difficulty is that European football (soccer) is traditionally considered to be a “male-dominated” sport, despite the fact that there are so many great female football teams around the world. The same misperception applies to sports lawyers!

Last, there is a huge number of women lawyers working as in-house counsel and as sports administrators. There is a glass ceiling for many of those women, and the WISLaw annual evaluation of the participation of women in those positions attempts to target their issues and shed more light into this specific problem.


3. What are the burning issues in international sports law that you would like to see discussed at the conference?

The ISLJ Annual Conference has already set up a great lineup of topics combining academic and more practical discussions in the most recent issues in international sports law. 


4. Why did you decide to support the ISLJ Annual International Sports Law Conference?

The Asser International Sports Law Centre has promoted and supported WISLaw since the very beginning. The ISLJ Annual International Sports Law Conference was the first big conference to officially include a WISLaw lunch talk in its program, allowing thus the conference attendees to be part of a wider informal discussion on a specific topical issue and raise their questions with respect to WISLaw. Another important reason why WISLaw supports this conference is because the conference organizers are making sincere efforts to have increased diversity in the panels : this year’s ISLJ Annual International Sports Law Conference is probably the first sports law conference to come close to a full gender balance in its panels, with 40% of the speakers being women !

The proportionality test under Art. 101 (1) TFEU and the legitimacy of UEFA Financial fair-play regulations: From the Meca Medina and Majcen ruling of the European Court of Justice to the Galatasaray and AC Milan awards of the Court of Arbitration for Sport – By Stefano Bastianon

Editor’s note: Stefano Bastianon is Associate Professor in EU Law and EU sports law at the University of Bergamo and lawyer admitted to the Busto Arsizio bar. He is also member of the IVth Division of the High Court of Sport Justice (Collegio di Garanzia dello sport) at the National Olympic Committee.

 

1. On the 20th July 2018, the Court of Arbitration for Sport (hereinafter referred to as “CAS”) issued its decision in the arbitration procedure between AC Milan and UEFA. The subject matter of this arbitration procedure was the appeal filed by AC Milan against the decision of the Adjudicatory Chamber of the UEFA Financial Control Body dated 19th June 2018 (hereinafter referred to as “the contested decision”). As many likely know, the CAS has acknowledged that, although AC Milan was in breach of the break-even requirement, the related exclusion of the club from the UEFA Europe League was not proportionate. To date, it is the first time the CAS clearly ruled that the sanction of exclusion from UEFA club competitions for a breach of the break-even requirement was not proportionate. For this reason the CAS award represents a good opportunity to reflect on the proportionality test under Art. 101 TFEU and the relationship between the landmark ruling of the European Court of Justice (hereinafter referred to as “ECJ”) in the Meca Medina and Majcen affair and the very recent case-law of the CAS. More...

The “Victory” of the Court of Arbitration for Sport at the European Court of Human Rights: The End of the Beginning for the CAS

My favourite speed skater (Full disclosure: I have a thing for speed skaters bothering the ISU), Claudia Pechstein, is back in the news! And not from the place I expected. While all my attention was absorbed by the Bundesverfassungsgericht in Karlsruhe (BVerfG or German Constitutional Court), I should have looked to the European Court of Human Rights in Strasbourg (ECtHR). The Pechstein and Mutu joint cases were pending for a long time (since 2010) and I did not anticipate that the ECtHR would render its decision before the BVerfG. The decision released last week (only available in French at this stage) looked at first like a renewed vindication of the CAS (similar to the Bundesgerichtshof (BGH) ruling in the Pechstein case), and is being presented like that by the CAS, but after careful reading of the judgment I believe this is rather a pyrrhic victory for the status quo at the CAS. As I will show, this ruling puts to rest an important debate surrounding CAS arbitration since 20 years: CAS arbitration is (at least in its much-used appeal format in disciplinary cases) forced arbitration. Furthermore, stemming from this important acknowledgment is the recognition that CAS proceedings must comply with Article 6 § 1 of the European Convention of Human Rights (ECHR), in particular hearings must in principle be held in public and decisions freely available to all. Finally, I will criticise the Court’s finding that CAS complies with the requirements of independence and impartiality imposed by Article 6 § 1 ECHR. I will not rehash the  well-known facts of both cases, in order to focus on the core findings of the decision. More...

ISLJ International Sports Law Conference 2018 - Asser Institute - 25-26 October - Register Now!

Dear all,

Last year we decided to launch the 'ISLJ Annual International Sports Law Conference' in order to give a public platform to the academic discussions on international sports law featured in the ISLJ. The first edition of the conference was a great success (don't take my word for it, just check out #ISLJConf17 on twitter), featuring outstanding speakers and lively discussions with the room. We were very happy to see people from some many different parts of the world congregating at the Institute to discuss the burning issues of their field of practice and research.

This year, on 25 and 26 October, we are hosting the second edition and we are again welcoming well-known academics and practitioners in the field. The discussions will turn around the notion of lex sportiva, the role of Swiss law in international sports law, the latest ISU decision of the European Commission, the Mutu/Pechstein ruling of the European Court of Human Rights, or the reform proposal of the FIFA Regulations on the Transfer and Status of Players. It should be, it will be, an exciting two days!

You will find below the final programme of the conference, please feel free to circulate it within your networks. We have still some seats left, so don't hesitate to register (here) and to join us.

Looking forward to seeing you and meeting you there!

Antoine

Football Intermediaries: Would a European centralized licensing system be a sustainable solution? - By Panagiotis Roumeliotis

Editor's note: Panagiotis Roumeliotis holds an LL.B. degree from National and Kapodistrian University of Athens, Greece and an LL.M. degree in European and International Tax Law from University of Luxembourg. He is qualified lawyer in Greece and is presently working as tax advisor with KPMG Luxembourg while pursuing, concomitantly, an LL.M. in International Sports Law at Sheffield Hallam University, England. His interest lies in the realm of tax and sports law. He may be contacted by e-mail at ‘p.roumeliotis@hotmail.com’.


Introduction

The landmark Bosman Ruling triggered the Europeanization of the labour market for football players by banning nationality quotas. In turn, in conjunction with the boom in TV revenues, this led to a flourishing transfer market in which players’ agents or intermediaries play a pivotal role, despite having a controversial reputation.

As a preliminary remark, it is important to touch upon the fiduciary duty of sports agents towards their clients. The principal-agent relationship implies that the former employs the agent so as to secure the best employment and/or commercial opportunities. Conversely, the latter is expected to act in the interest of the player as their relationship should be predicated on trust and confidence, as much was made clear in the English Court of Appeal case of Imageview Management Ltd v. Kelvin Jack. Notably, agents are bound to exercise the utmost degree of good faith, honesty and loyalty towards the players.[1]

At the core of this blog lies a comparative case study of the implementation of the FIFA Regulations on working with intermediaries (hereinafter “FIFA RWI”) in eight European FAs covering most of the transfers during the mercato. I will then critically analyze the issues raised by the implementation of the RWI and, as a conclusion, offer some recommendations. More...



Seraing vs. FIFA: Why the rumours of CAS’s death have been greatly exaggerated

Rumours are swirling around the decision (available in French here) of the Court of Appeal of Brussels in the case opposing RFC Seraing United to FIFA (as well as UEFA and the Belgian Football Federation, URSBFA) over the latter’s ban on third-party ownership. The headlines in various media are quite dramatic (see here and here), references are made to a new Bosman, or to a shaken sport’s legal system. Yet, after swiftly reading the decision for the first time on 29th August, I did not have, unlike with the Pechstein ruling of the Oberlandesgericht München, the immediate impression that this would be a major game-changer for the Court of Arbitration for Sport (CAS) and the role of arbitration in sports in general. After careful re-reading, I understand how certain parts of the ruling can be misunderstood or over-interpreted. I believe that much of the press coverage failed to accurately reflect the reasoning of the court and to capture the real impact of the decision. In order to explain why, I decided to write a short Q&A (including the (not water-proof) English translations of some of the key paragraphs of the decision).

 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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