Olympic standards of arbitration

Olympic standards of arbitration

37448720_xlFrom the Euros to the Rio Olympics, the summer of 2016 will see athletes from across the world participate in a number of high profile sporting events.  Paul J Greene, founding partner of Global Sports Advocates LLC, and Dr Ian Blackshaw, international sports lawyers, examine the Court of Arbitration for Sport’s (CAS) responsibilities around international sporting events.

What is the primary function of the CAS?

Dr Ian Blackshaw (IB): The CAS, also known by its French acronym of TAS (Tribunal Arbitral du Sport), was established in 1983 and began operations on 30 June 1984.

Its main role is to settle sports-related disputes through arbitration and mediation. In other words, extra-judicially—that is, outside the ordinary courts’ system. Its founders intended the CAS to become ‘the supreme court of world sport’ and, during its 32 years of existence, it is becoming recognised as such, both within and outside the international sporting world, having built up a discrete and uniform body of ‘sports law’, which can be applied internationally.

The CAS deals not only with purely sporting disputes, such as eligibility issues and doping offences under the World Anti-Doping (WADA) Code, under which the CAS is the final ‘Court of Appeal’, but also deals with sports business disputes, arising under, for example, sports sponsorship, broadcasting and sports agency agreements.

The CAS has its seat in Lausanne, Switzerland, and, as such, is subject to Swiss Law. Its decisions (awards) are subject to appeal, in limited circumstances, to the Swiss Federal Supreme Court (Tribunal Federal Suisse), which is also based in Lausanne. CAS awards are rendered by single arbitrators or by a panel of three arbitrators, who may choose not to hold an oral hearing, but to decide the dispute on a review of documents filed in the case. CAS awards are enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958.

The official languages of the CAS are English and French. The CAS is governed—administratively and financially—by the International Council of Arbitration for Sport (ICAS). CAS arbitration proceeds in accordance with the CAS code of sports-related arbitration, the latest version of which dates from 1 January 2016 and CAS mediation is governed by the CAS mediation rules of 1 September 2013, as amended on 1 January 2016.

The CAS sets up non-permanent bodies (called ad hoc tribunals) to settle disputes arising at major sporting events, such as the Olympic Games, the Commonwealth Games and the Euro Football Championships. The first CAS ad hoc division was set up for the 1996 Atlanta Summer Olympic Games (the Centennial Games) and have operated ever since at the Summer and Winter Games. The CAS ad hoc division will again be in session for the 2016 Rio Summer Olympic Games.

Paul J Greene (PG): The CAS is the Supreme Court for sport, the highest authority to preside over sports-related disputes in the world. The CAS, based in Lausanne, Switzerland has two divisions—an ordinary division and an appeals division. The CAS could preside over any dispute as long as there is a link to sport and an arbitration clause that grants it jurisdiction.

The ordinary division most often presides over disputes involving a contractual disagreement between sporting bodies where the parties have agreed to CAS jurisdiction through a dispute resolution clause.

The most common type of matters to end up in the appeals division are:

  • appeals of FIFA decisions ranging from disciplinary and eligibility matters to monetary and contractual disputes between teams, players, governing bodies, leagues, or others, and
  • appeals under the WADA Code involving anti-doping rules violations by athletes

Appeals of sports governance decisions are also not uncommon since international federations under the International Olympic Committee (IOC) umbrella agree to CAS as the ultimate arbiter of all decisions.

How does the additional ad hoc division created for CAS during the Olympics function and how does this differ from the main responsibilities of CAS?

PG: Since 1996, the CAS ad hoc division has presided over each Olympics to resolve disputes on-site. The CAS Olympic ad hoc panel consists of a group of handpicked sports arbitrators (typically 12 in all) from across the globe. The group of arbitrators presides in three-member panels that must render a decision in 24 hours. There is no filing fee. The CAS ad hoc division is completely free.

In Rio 2016, for the first time, the CAS ad hoc division will have a special doping panel on-site to hear cases involving athletes competing that are charged with an anti-doping rules violation. The IOC has previously handled doping cases on-site at the Olympic Games. A decision of the CAS ad hoc anti-doping panel will be appealable to the CAS appeals division.

IB: The CAS ad hoc division is in session ten days preceding the opening ceremony of the Olympics, especially to deal with eligibility disputes, and during the Summer and Winter Olympic Games, and is required to render decisions concerning disputes relating to the Olympics within 24 hours of any disputes being referred to it.

The proceedings are free of charge, but the parties in dispute, of course, must pay for any lawyers employed to represent them, as well as any translator’s fees. Normally, parties in dispute before the CAS have to pay a non-refundable CAS court office fee of 1,000 Swiss Francs and to share the costs of the CAS arbitrators or mediators.

Special rules of procedure are laid down for each CAS ad hoc division. These include the law to be applied by the CAS ad hoc division arbitrators, which is very wide indeed:

‘The Panel shall rule on the dispute pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate.’

CAS ad hoc division panels tend generally to be more flexible on procedural matters.

What is CAS mediation and how does it work?

IB: CAS mediation was introduced on 18 May 1999.

Article 1, para 1 of the CAS mediation rules, effective as of 1 September 2013 and amended on 1 January 2016, defines mediation in the following terms:

‘CAS Mediation is a non-binding and informal procedure, based on a mediation agreement in which each party undertakes to attempt in good faith to negotiate with the other party, and with the assistance of a CAS mediator, with a view to settling a sports-related dispute’.

The CAS mediation rules, art 2 define a ‘mediation agreement’ as follows:

‘A mediation agreement is one whereby the parties agree to submit to mediation a sports-related dispute which has arisen or which may arise between them.

A mediation agreement may take the form of a mediation clause inserted in a contract or that of a separate agreement.’

In other words, mediation may be invoked under an express or an ‘ad hoc’ mediation reference clause agreed at the time a dispute arises.

Although mediation is expressly excluded (CAS mediation rules, art 1, para 2) for disciplinary and doping cases, mediation is very appropriate for settling the commercial/financial issues and consequences (for example, loss of lucrative sponsorship and endorsement contracts), which often follow from a doping case—particularly where the sports person concerned was wrongly accused of being a drugs cheat. For example, Dianne Modahl would probably have been better advised to try to settle her claims for compensation brought in 2001 against the British Athletic Federation through CAS mediation rather than through the English courts.

If the parties in dispute prefer to settle their differences by mediation—and many do because of the special characteristics and dynamics of sport—the CAS model mediation clause is as follows:

‘Any dispute, any controversy or claim arising under, out of or relating to this contract and any subsequent of or in relation to this contract, including, but not limited to, its formation, validity, binding effect, interpretation, breach or termination, as well as non-contractual claims shall be submitted to mediation in accordance with the CAS Mediation Rules.’

If mediation proves to be unsuccessful, although mediation providers usually claim a success rate of around 85%, the CAS recommends the following additional clause to be inserted in a contract to cover the above contingency:

‘If, and to the extent that, any such dispute has not been settled within 90 days of the commencement of the mediation, or if, before the expiration of the said period, either party fails to participate or continue to participate in the mediation, the dispute shall, upon the filing of a Request for Arbitration by either party, be referred to and finally settled by CAS arbitration pursuant to the Code of Sports-related Arbitration. When the circumstances so require, the mediator may, at his own discretion or at the request of a party, seek an extension of the time limit from the CAS President.’

Thus, the CAS offers disputing parties the possibility of a ‘med-arb’ dispute resolution process—mediation to identify the issues and arbitration to settle them.

Upon filing the mediation request, the administrative fee stipulated in mediation rules, art 14 must be paid and the day on which this request is received by the CAS court office shall be considered as the date on which the mediation proceedings commenced.

Pursuant to the CAS mediation rules, art 6, the CAS president chooses the mediator from the list of CAS mediators drawn up in accordance with the provisions of the CAS mediation rules, art 5. The mediator appointed must be and remain independent of the parties. The parties may be represented or assisted at their meetings with the mediator (the CAS mediation rules, art 7). The representative must have full authority to settle the dispute alone, without consulting the party they are representing.

Under the CAS mediation rules, art 8, the procedure to be followed in the mediation shall either be agreed by the parties themselves or determined by the mediator. This is a slight deviation from the general principle that the mediator is the one who controls the procedural aspects of the mediation. But the parties are required to:

‘…cooperate in good faith with the mediator and…guarantee him the freedom to perform his mandate to advance the mediation as expeditiously as possible.’

The role of the mediator is laid down in the CAS mediation rules, art 9, which recognises the basic concept of mediation—namely, that the mediator acts as a facilitator and may act in any manner ‘he believes to be appropriate’ but may not impose any solution of the dispute on either of the parties.

The mediation rules, art 10 provides for the confidentiality of the mediation process subject to the normal exception of making any disclosure as required by the law. And further provides that:

‘No record of any kind shall be made of the meetings…[and] [a]ll the written documents shall be returned to the party providing these upon termination of the mediation, and no copy therefore shall be retained.’

The CAS mediation rules, art 10 also makes provision for the mediation to be conducted on a ‘without prejudice’ basis, expressed in the following terms:

‘The parties shall not rely on, or introduce as evidence in any arbitral or judicial proceedings:

  • (a) views expressed or suggestions made by a party with respect to a possible settlement of the dispute;
  • (b) admissions made by a party in the course of the mediation proceedings;
  • (c) documents, notes or other information obtained during the mediation proceedings;
  • (c) documents, notes or other information obtained during the mediation proceedings;
  • (e) the fact that a party had or had not indicated willingness to accept a proposal.’

The CAS mediation rules, art 11 deals with the questions of when and how the mediation may be terminated and provides as follows:

‘Either party or the mediator may terminate the mediation at any time.

The mediation shall be terminated:

  • (a) by the signing of a settlement by the parties;
  • (b) by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or
  • (c) by a written declaration of a party or the parties to the effect that the mediation proceedings are terminated.’

The CAS mediation rules, art 12 requires that any settlement of the mediation must be in writing and signed by the mediator and the parties. And further provides that:

‘Each party shall receive a copy thereof. In the event of any breach, a party may rely on such copy before an arbitral or judicial authority.

A copy of the settlement is submitted for inclusion in the records of the CAS Court Office.’

The CAS mediation rules, art 13 deals with the question of failure to settle and includes the following important provision—absolutely fundamental to the process of mediation:

‘In the event of failure to resolve a dispute by mediation, the mediator shall not accept an appointment as an arbitrator in any arbitral proceedings concerning the parties involved in the same dispute.’

The CAS mediation rules, art 14 deals with the equally important subject of the costs of CAS mediations. In addition to the CAS administrative fee of 1,000 Swiss Francs paid by each party, the CAS court office may require the parties to deposit an amount in equal proportions as an advance towards the CAS mediation costs. The parties are required to pay their own mediation costs and, unless otherwise agreed, share equally the other final costs, which include the:

  • CAS fee
  • mediator’s fees calculated on the basis of the CAS fees scale
  • a contribution towards the costs of the CAS, and
  • costs of witnesses, experts and interpreters.

It should be generally noted that, under the CAS ordinary arbitration procedure, the president of the division, before the transfer of the file to the panel, and thereafter the panel may, at any time, seek to resolve a dispute by conciliation (a form of mediation) under article R42 of the CAS code of sports-related arbitration. Any such settlement may be embodied in an arbitral award rendered by consent of the parties.

Can we expect any future developments at the CAS following this summer’s competitions?

PG: The appeals to the CAS by former FIFA President Sepp Blatter and former UEFA President Michel Platini have been the highest profile cases so far in 2016. The CAS reduced Mr Platini’s ban to four years. Mr Blatter’s appeal to the CAS seeking a reduction or annulment of his six-year ban by FIFA for ethics violations is still pending.

In a reflection of the global nature of the CAS, its ‘Essendon Decision’ released in January 2015, which upheld an appeal by the World Anti-Doping Agency and banned 34 Australian rules football players for two years for anti-doping rules violations was a highly-publicised case in Australia.

The recent revelations of doping by Russian athletes are sure to lead to a barrage of appeals to the CAS as the Olympics approach. There are novel legal issues that could be in play if the Russian athletes are banned from the Olympics as a whole. Concurrently, the Euro 2016 tournament in France will almost certainly lead to an increased number of football-related appeals at CAS.

IB: The ICAS is constantly reviewing and, where necessary, in the light of actual cases and situations that have arisen, updating the CAS Code of sports-related arbitration and the CAS mediation rules. There may also be some further changes to the CAS procedural rules as a result of the Pechstein case, but that is a subject in its own right. See the CAS Statement on Pechstein from 27 March 2015. In any event, we shall see what happens.

Where does the CAS have its offices?

PG: The CAS has its main office in the Olympic capital, Lausanne, Switzerland. Lausanne is always the seat of the arbitration, regardless of where the hearing is held. For that reason, Swiss law always governs and all CAS decisions can be appealed to the Swiss Federal Tribunal. There are two decentralized offices in Sydney, Australia and New York, New York.

What else should I know about the CAS?

PG: The two official languages of the CAS are English and French. Cases can be heard in another language if all parties agree.

Provisional relief is available to a party from a CAS panel. A party must show it is likely to succeed on the merits, that it will suffer irreparable harm and whether the interests of the party seeking the provisional measures outweigh the other party’s interests.

CAS follows the European model as opposed to the American model on the issue of costs, meaning the presiding party will be awarded costs in most instances and the losing party will be ordered to pay the prevailing party. A party can appear before CAS on their own, with the assistance of a lawyer or a non-lawyer if they so choose.

If a one-member panel presides, the CAS will appoint the arbitrator. If a three-member panel presides, each party selects an arbitrator and the CAS then selects the chair of the panel. More than 300 CAS arbitrators appear on a list on the website.

For those interested, the CAS will hold a bi-annual conference on 2 and 3 September in Lausanne.

Dr Ian Blackshaw is an international sports lawyers, academic author and member of the Court of Arbitration for Sport. Paul J Greene is a founding partner of Global Sports Advocates LLC.

Interviewed by Ioan Marc Jones. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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