Author: Mansour Vesali Mahmoud*
| Jurisdiction: International |
Topics: Sports Arbitration |
The Court of Arbitration for Sport (“CAS”) has been set up with a view to precluding national courts from intervening in sport disputes. The CAS works by reference to the Code of Sports-related Arbitrations (“CAS Code”) which has been amended several times since its adoption in 1994. Pursuant to Article S8(2) of the CAS Code, modification of this Code requires a majority of two-thirds of the members of the International Council of Arbitration for Sport (“ICAS”) – whose twenty members are appointed in the manner laid down in Article S4 of the Code.[1] Any amendment to the CAS Code should be considered in cognizance of the very purpose of the establishment of the CAS, along with the special characteristics of sports arbitration. The whole system of sports arbitration as it has emerged in the structure and jurisprudence of the CAS has been marked by a number of deviations from the commonly recognized principles of arbitration, which have also to be envisaged in proposing changes to the CAS Code.
This post is an attempt to propose some amendments to the CAS Code with the aim of improving the functioning of the CAS. In so doing, some challenges and difficulties that have confronted sports arbitration in general and the CAS in particular have been contemplated.
The proposals will address three selected issues: time limits for appeals, applicable law to the merits in appeal proceedings, and provisional measures.
1. Time Limits for Appeals
Time limits are an important element of the admissibility of appeals before the CAS. Article R49 of the CAS Code with regard to appellate arbitration procedure reads as follows:[2]
In the absence of a time limit set in the statutes or regulations of the federation, association or sports-related body concerned, or in a previous agreement, the time limit for appeal shall be twenty-one days from the receipt of the decision appealed against. The Division President shall not initiate a procedure if the statement of appeal is, on its face, late and shall so notify the person who filed the document […].
Many sports governing bodies’ statutes provide for the exclusive jurisdiction of CAS with regard to appeals against decisions made by their organs. They might also set the time limit for such appeals. For example, according to UEFA Statutes,[3] any decision taken by UEFA (as the governing body of European Football) organs may be disputed only before the CAS to the exclusion of any type of ordinary court or arbitration courts. Moreover, Article 62 of UEFA Statutes provides that the time limit for appeal to the CAS against a decision taken by a UEFA organ shall be ten days from the receipt of the decision.[4]
However, absence of a time limit in the regulations of the federations might well not be an infrequent situation. For instance, in an appeal against the decision of the International Sambo Federation (“FIAS”), this was the case: “Article 27 of the FIAS Statutes does not set out a time limit within which an appeal may be brought before the CAS against final decisions”.[5]
Various reasons indicate that the time limit specified for appeal from the decisions of national sports governing bodies is insufficient. The most outstanding reason concerns the nature of athletes’ consent to arbitration on various occasions. As Rigozzi and Robert-Tissot observe, by stipulating arbitration clauses in their regulations, sports governing bodies compel athletes either to accept the arbitration or to refrain from participating in the relevant sport.[6] Athletes might well notice the consequences of the arbitration clause only after they have been involved in disciplinary proceedings, etc.
The need for revisiting the time limit for appeals can also be elucidated by the fact that there is a lack of specialized lawyers practicing in the field of sports arbitration. Sports law and more particularly sports arbitration are relatively recent developments in legal scholarship and practice. In most countries it is rarely possible to hire a specialist lawyer to deal with cases brought before the CAS. Additionally, in view of the potential parties’ lack of knowledge and awareness regarding the CAS’s system of legal aid, and given the short time available to decide on the initiation of the CAS proceedings, the CAS has been said to be often criticized for not sufficiently disseminating the relevant information.[7]
Once the athletes are notified of the decision which has been taken with regard to them, they need to refer their case to lawyers sufficiently knowledgeable to ascertain what to do with the case in terms of procedural and substantive matters. The application of the existing time limit in these circumstances could contradict the fundamental requirements of access to justice.
Allowing a longer period of time for appeals as well as formulating certain ancillary measures in order to strike an appropriate balance between, on the one hand, the need for efficiency and finality in sports arbitration and regularity of sports competitions, and on the other, the requirements of access to justice. The said ancillary measures may, to illustrate, be materialized in a prima facie decision regarding the athlete party’s permission to take part in sports events. The consequences of inadmissibility of the appeal on the ground of not meeting such a brief time limit would be quite serious for those who earn their living from professional sport. A wrong decision on banning an athlete from sport competitions which, due to the overly strict procedural requirements, has not been seized by the appeal division of the CAS, may impair the reputation as well as personal and professional life of the sportsperson. Not being able to participate in major sports competitions should also be considered in view of the brief career of most athletes. Arbitration clauses and consequently the remedies that the athletes have been provided with at the price of being deprived of the usual remedies otherwise available in national frameworks, cannot be formulated so as to contradict the object and purpose of the CAS.
The ICAS can consider this as a potential subject of amendment to the Code in the future and allow athletes a longer period of time to avail the arbitration clause in the relevant statutes and regulations.
2. Applicable Law in Appeal Proceedings
The second proposal to amend the CAS Code concerns the applicable law in appeal arbitration proceedings. The law applicable to the merits in appeal has been stipulated in Article R58 of the CAS Code as follows:[8]
The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law that the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision.
The most important rules relevant to the sports disputes – particularly those brought before the appeal division of the CAS – are regulations and statutes of sports governing authorities. The Swiss Federal Tribunal’s pronouncement on this provision creates the impression that regulations and statutes of sport governing organizations as such cannot be considered as the applicable law. The Swiss Federal Tribunal held that, according to Article 116 of the Federal Act on Private International Law, such regulations may not be the subject of a choice of law clause; they may only be considered as incorporated into the contract subject to the mandatory rules of the applicable law. Consequently, such regulations must be interpreted and applied in accordance with the otherwise applicable law.[9]
It is suggested that, for the sake of coherence and clarity, ICAS amend Article R58 to convey that the regulations must be seen in the broader context of the applicable law. This may have implications for the merits of the dispute. For instance, it is very conceivable that some provisions of such regulations might be in conflict with the mandatory rules of the applicable law, which disregard may affect the enforceability of the award. Therefore, incorporation of the above-mentioned holding of the Swiss Federal Tribunal to this article seems practically appropriate.
It is also imaginable that certain regulations of national federations and sports organizations may contain provisions that can make human rights considerations come into play, thus preventing giving effect to those provisions. Nowadays, human rights are considered to form an important part of the mandatory rules of law.[10] Human rights aspects may include issues such as prohibition of forced labor, fair trial, right to privacy, freedom of thought, conscience and religion, freedom of expression, right to freedom of peaceful assembly and association, prohibition of discrimination, etc.
It goes without saying that arbitration panels should take into account the issue of eventual conflict of the relevant regulations with mandatory national laws and public policy considerations at both national and international levels. Disregarding the public policy concerns and mandatory rules of national laws might undermine the reputation of the CAS and render the enforcement of its awards difficult.
3. Provisional Measures
Provisional measures, governed by Article R37 of the CAS Code,[11] are often instrumental in CAS arbitrations, particularly in appeals proceedings where the factual circumstances of a case require immediate (even if temporary) determinations pending a final decision on the merits.[12]
During the 1990s there were challenges before national courts by athletes who had been banned from competitions by their international federation for drug offences. These challenges were based on the allegation that their livelihood was threatened by arbitrary decisions of international federations.[13] Accordingly, part of Article R37 of the Code provides that ‘[i]n agreeing to submit any dispute subject to the ordinary arbitration procedure or to the appeal arbitration procedure to these Procedural Rules, the parties expressly waive their rights to request any such measures from state authorities or tribunals.’
Although the validity of the waivers of state court jurisdiction over provisional measures is a contentious issue,[14], Article R37 plays a crucial role in the proper functioning of the CAS, since the object of the proceedings initiated before the CAS with regard to appeals of decisions taken at national or international levels might otherwise be frustrated. Athletes may, by having recourse to state authorities, circumvent the procedural requirements of the CAS to which they have already consented. In addition, resorting to national authorities to seek provisional measures allowing them to participate in sport events would disrupt the orderly management of the events.
The lack of efficient sanctions for Art. R37 might prompt athletes to go before national courts and abuse the power of the courts, which might have a favorable approach towards the athletes or sport clubs of their nationality or simply disregard the CAS Code. Hypothetically, by doing so, they would evade this provision possibly for obtaining permission to participate in the competition they have been banned from.
Nevertheless, attempts at resorting to national courts to get around –at least temporarily– the decisions taken by international federations and sport authorities might not always be successful. An illustrative example is the case of a Swiss football club (FC Sion), which was expelled from the Europa League by UEFA due to fielding ineligible players against Celtic FC in the qualifying match for the Europa League in 2011.[15] FC Sion requested an interim measure from a Swiss national court against UEFA –for violation of Swiss competition law on the ground that UEFA abused its dominant market position by excluding FC Sion from a tournament– to be reintegrated to the Europa League.[16] UEFA did not abide by the provisional measure rendered on 13 September 2011 by the State Court of the Canton of Vaud that ordered to admit FC Sion to Europa League and take appropriate measures to reintegrate FC Sion in Group I.[17] The Executive Committee of UEFA declared that it had no authority to reinstate FC Sion to the Europa League as it this was the prerogative of the disciplinary instances of UEFA, and it decided to await for the CAS award on the matter.[18] As it was previously mentioned, the UEFA Statutes excludes the jurisdiction of national courts with regard to appeal against the decisions taken by its organs. Eventually, the CAS decided the appeal in favor of UEFA. On the whole, an instance the intervention of national courts is not welcome is when it goes against the autonomy of sports governing bodies.[19] The principle of autonomy of sport is said to have been recognized by national courts.[20]
It is recommended that the future amendments to the CAS Code devise some sort of consequence for those athletes and sport clubs who attempt to participate in a sports event or influence the disciplinary measures at the price of undermining the autonomy and integrity of the sport in many respects.
Such a consequence could, for instance, take the form of an adverse inference with regard to the standard of proof applied by the arbitration panel in appeal proceedings. A sanction of this form might dissuade athletes and sports clubs from making attempts to circumvent arbitral procedure.
Conclusion
Since its adoption, the CAS Code has undergone numerous amendments. Changes have thus constantly been introduced in each version of the Code. This post was an attempt to propose further amendments perceived by the author to offer potential for contributing to the proper functioning of the CAS with respect to time limits, applicable law in appeal proceedings, and provisional measures. These proposals all attempt to bring the CAS Code more in keeping with the practical considerations in sports arbitration proceedings in light of current developments.
* Mansour Vesali Mahmoud is an Adjunct lecturer at the SBU Law Faculty, Tehran (LL.M, Geneva; PhD, SBU, Tehran). He can be reached at mansour.vesali@mids.ch
[1] Court of Arbitration for Sport, Code of Sports-related Arbitration, arts. S4, S8(2) [hereinafter “CAS Code”].
[2] CAS Code, art. R49.
[3] UEFA Statutes (2021), arts. 60-61.
[4] Id., art. 62.
[5] Pan-American Amateur Sambo Federation (PAASF) v. Fédération Internationale Amateur de Sambo (FIAS) & Vasily Shestakov (Sept. 5, 2014), CAS Arbitration, 2013/A/3148, Award, para. 122.
[6] Antonio Rigozzi & Fabrice Robert-Tissot, ‘Consent’ in Sports Arbitration: Its Multiple Aspects in Sports Arbitration: A Coach for Other Players 59, 59 (Elliott Geisinger & Elena Trabaldo-de Mestral eds., 2015).
[7] Antonio Rigozzi & William McAuliffe, Sports Arbitration, 2013 Global Arbitration Review: European and Middle Eastern Arbitration Review 15, 18 (2013).
[8] CAS Code, art. R58.
[9] Bundesgericht [BGer] [Federal Supreme Court] Dec. 20, 2005 Entscheidungen des schweizerischen Bundesgerichts [BGE] 132 III 285 (Switz.).
[10] See, e.g., Adam Lewis & Jonathan Taylor, Sport: Law and Practice Ch. C1 (2nd ed., 2008).
[11] CAS Code, art. R37.
[12] Antonio Rigozzi et al., The 2011, 2012 and 2013 Revisions to the Code of Sports-related Arbitration Jusletter 7 (2013).
[13] Ken Foster, Global Sports Law Revisited, 17 Ent. & Sports L. J. 1, 1 (2019).
[14] See Rigozzi, supra note 6, at 83.
[15] Louise Reilly, An Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in International Sports Disputes, 2012(1) J. Dis. Resol. 63, 79 (2012).
[16] Union des Associations Européennes de Football (UEFA) v. FC Sion/Olympique des Alpes SA, CAS Arbitration, 2011/0/2574 (Jan. 31, 2012), Award, para. 20.
[17] Id. at 21.
[18] UEFA Statement on FC Sion/Olympique des Alpes (Oct. 11, 2011), https://www.uefa.com/insideuefa/about-uefa/news/01f6-0e7a2e64858d-d5acc3d862a0-1000–uefa-statement-on-fc-sion-olympique-des-alpes/ (last accessed Aug. 20, 2022).
[19] Reilly supra note 15, at 77.
[20] Id. at 77-8.