Get creative: Mastering metrics
First published in the 1LoD Global Benchmarking Survey & Annual Report 2019
Big international meetings throw the mainstream spotlight not only onto sportsmen and women, but also onto the governing bodies that regulate the competition between them and onto the processes designed to ensure fair play.
Following a controversial Winter Olympics in Pyeongchang, and with the FIFA World Cup set to take place in Russia this summer, 2018 is set to be an important year for the Court of Arbitration for Sport (CAS). During such large international competitions, dealing with disputes as to doping or other forms of cheating rapidly (making decisions whether an athlete or team can compete before it is too late) is essential. These disputes are often front page news, such as the referral to CAS of the International Olympic Committee’s (IOC) decision to ban athletes from the Russian Federation. The Russian athletes’ appeal against the IOC decision not to invite them as neutral competitors was lodged at 8.30am on 6 February 2018 and resolved by CAS (in the athletes’ favour) following two days of written and oral submissions, on 9 February 2018.
Whilst for such competitions CAS establishes expedited arbitral tribunals with an emphasis on being able to render decisions quickly, outside of competition time a number of CAS cases are similar to any other commercial arbitration. As the business of sport booms, this article provides an introduction to CAS and how it operates to successfully resolve sporting disputes.
CAS is based Lausanne, in Switzerland. In accordance with the Code of Sports-related Arbitration (the Code), the law of the seat of all CAS Arbitration Panels will be Lausanne. This means that any challenge or enforcement of a CAS award will fall to be determined in accordance with Swiss Law. Swiss law is ‘pro-arbitration’, and the grounds for setting aside are subsequently narrow. Additionally, sports arbitration awards are enforceable pursuant to the New York Convention.
CAS is broadly separated into two divisions: the CAS Ordinary Division and the CAS Appeal Arbitration Division. The International Council for Arbitration for Sport (ICAS) performs a similar role to that of any other arbitral institution. ICAS is responsible for the oversight of the Code, appointment of arbitrators from the CAS list of approved arbitrators, and deals with the challenge and removal of arbitrators. Each division has their own President to oversee the administrative function of that division.
The Ordinary Division works in the same way as any commercial arbitration institution. They hear cases that are brought pursuant to an arbitration agreement in a contract, a governing body’s rules, or an agreement to arbitrate after a dispute has arisen. The dispute must be directly or indirectly linked to sport. This includes commercial contracts that have sport as their subject matter, including sponsorship agreements, media rights, transfer regulations and employment issues.
In the Appeal Arbitration Division, CAS acts as a court of final appeal for decisions taken by competent sports authorities, either at a national, international or sport-specific level. The rules of the federation, association or other sports-related body must contain provision for the referral of any appeal to CAS. One example of this can be found in the Union Cycliste Internationale (UCI) Regulations. Any disciplinary decision from Disciplinary Commission can be referred to CAS within 8 days of the decision. Similarly, the World Anti-Doping Agency (WADA) rules allow for athletes to appeal any decision regarding doping violations to the CAS.
In addition, an appeal may be made of a decision of the Ordinary Division, but only if an appeal is expressly permitted under the rules of the federation or sports-body concerned.
The procedural rules of the Code are split into 3 constituent parts: the General Provisions, the Special Provisions Applicable to the Ordinary Arbitration Procedure (the Ordinary Procedure) and the Special Provisions Applicable to the Appeal Arbitration Procedure (the Appeal Procedure).
The General Provisions are common principles throughout arbitration. They relate to the seat, language, independence and removal of arbitrators, and administrative matters such as language and time limits. The General Provisions set out the procedure for seeking provisional or conservatory measures. The applicant seeking preliminary relief must show “irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the Applicant outweigh those of the Respondents (R37 The Code). Arbitration practitioners will recognise this as the international benchmark for interim measures that is commonplace throughout commercial arbitration.
Similarly, the Ordinary Procedure resembles generally accepted practice in the international commercial arbitration procedure. One significant divergence with ordinary arbitration practice, is that where the parties have not chosen a substantive law to govern the merits of the dispute, then Swiss law will apply (R45, The Code). This compares to what is more commonplace under other institutional rules, which tend to allow the arbitral tribunal to select the most appropriate law to apply to the substance of the dispute in the absence of an express choice of law by the parties (see Art 21 ICC Rules and Article 22.3 LCIA). Parties should be aware of this at the outset when drafting contracts with a CAS dispute resolution clause.
The Appeal Procedure is somewhat less familiar to those accustomed to regular commercial arbitration. In the absence of anything to the contrary in the rules of the sports-body or federation, a Statement of Appeal must be made within 21 days. The responding party will then have 20 days to issue any statement of defence, along with any evidence. In a similar vein to commercial arbitration, the default position is that the panel will be made up of three arbitrators. However, unlike in commercial arbitration, the President of the Appeal Division may invite multiple parties to refer their cases to the same panel where they involve the same issues.
The scope of the review that the panel may undertake in the Appeal Procedure is broad. It may review all the facts and law presented at first instance again, and hold hearings to facilitate its decisions. The panel can issue a new decision to replace that made at first instance, it may annul a decision, or remit the case back to the sports-body or federation.
The law applicable to the merits in the Appeal Procedure is determined in accordance with the regulations applicable, and where silent, the choice of the parties. Where the parties have not reached an agreement as to choice then the law of the domicile of the federation or sports-body in question is domiciled, or in accordance with the law the panel deems appropriate.
Unless the parties agree otherwise, the Appeal Procedure provides that the award and a summary of the award will be made public by CAS. This has led to a body of jurisprudence developing around a number of important issues, which despite having no strict precedential value, is nevertheless highly influential on arbitrators hearing subsequent cases.
While there are peculiarities of CAS arbitration, and the flexibility that it must and is able to exert around major competitions, CAS arbitration is fundamentally not hugely dissimilar to other forms of institutional commercial arbitration. As the commercialisation of sport and the potential for business disputes to be referred to the CAS grows, it will have to continue to evolve just as other arbitral institutions have done in recent years. As an alternative to litigation of sporting disputes, it is well-placed to do so, representing an efficient and focussed forum for the settlement of a broad range of sport-related disputes.
We should be happy to advise on what should be considered when including reference to CAS in commercial agreements relating to the sports industry, or in any other sporting disputes where reference to the CAS or other forms of arbitration might be appropriate.
First published in the 1LoD Global Benchmarking Survey & Annual Report 2019
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