International Tribunal Spotlight
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The Court of Arbitration for Sport (Lausanne, Switzerland)
By: James G. Apple,
Editor-in-Chief, International Judicial Monitor and President, International
Judicial Academy
The cover of the September 3, 2012 issue of Newsweek magazine (USA) depicted Lance Armstrong, seven-time winner of the Tour de France, in full cycling regalia. The story inside, written by Buzz Bissinger, an Armstrong admirer, was a defense of Armstrong in his fight with the U.S. Anti Doping Agency (USADA) about doping during his athletic career. Before the Newsweek article appeared, Armstrong had publicly announced that he was abandoning his fight with the USADA (an action which will probably cause him the loss of his seven Tour de France titles and his Olympic bronze medal).
The Lance Armstrong saga was clearly a dispute relating to sport. What is surprising is that he apparently never availed himself of and sought relief in, an international dispute resolution tribunal established specifically to resolve such disputes, the Court of Arbitration for Sport, better known simply as CAS, with headquarters in Lausanne, Switzerland.
The origins of the CAS spring from the ideas of two men, one an international sports figure, and the other an international judge. The international sports figure was Juan Antonio Samaranch of Spain. In 1981, he was the incoming president of the International Olympic Committee (IOC). The international judge was Keba Mbaye of Senegal, at that time a member of the International Court of Justice in The Hague and also of the IOC. Samaranch wanted a “sports court” primarily for the resolution of disputes arising during the Summer and Winter Olympic Games. Judge Mbaye headed a working group charged with the responsibility of drafting a statute for the Court of Arbitration for Sport, which was to be an arbitral body designed to hear all kinds of sports disputes brought to it by the disputing parties. There would be only one procedure available: arbitration. There was also included in the statute a consultative procedure open to “any interested sports body or individual.” This activity would resemble an advisory opinion issued by a court in that it would be non-binding.
In 1983 the IOC adopted the statute that created the CAS. It came into force on June 30, 1984. Judge Mbaye was selected as its first president and Gilbert Schwaar served as Secretary-General. In 1990 the Statute was revised and provided for a membership of 60 members appointed by the IOC and various international and national sports organizations.
The CAS was tied very closely to the IOC until 1992, when a decision of the Swiss Federal Tribunal (Supreme Court of Switzerland), involving a true sports dispute about horse doping between a horse rider and the International Equestrian Federation. The rider lost his case before the IEF. The case then went before the CAS and the rider lost, again. His appeal to the Swiss Federal Tribunal asserted that the CAS award was invalid because it was “rendered by a tribunal that did not meet the conditions of impartiality and independence needed to be considered as a proper arbitration court.” Although the rider lost yet again before the SFT, the court noted, inter alia, the close ties between the IOC and the CAS and suggested that if the IOC had been a party to the proceedings, the independence of the CAS would have been seriously challenged. This Swiss opinion led to further reform of the CAS in 1993, in the form of a completely revised CAS Statute and regulations which made it “definitively independent of the IOC.”
At an International Conference of Law and Sport in September, 1993 in Lausanne, the reforms were officially presented to the international sports world, and were later confirmed in Paris in June, 1994.
The Current Structure and Functions of the ICAS and the CAS
One major reform was the creation of an “International Council of Arbitration for Sport (ICAS). The new Statute also created two arbitration divisions, the “Ordinary Division” that would hear first instance disputes and the “Appeals Division,” that would hear disputes where a sports body or organization had rendered a decision.
The reforms have had a significant effect on the operations of the CAS. One commentator stated:
Since the “Paris Agreement” was signed, the majority of the International Federations and the National Olympic Committees have included in their Statutes an arbitration clause referring disputes to the CAS. The Anti-Doping Code of the Olympic Movement, intended to be applied by all Olympic International Federations, designates the CAS as the last instance tribunal for all doping related disputes.
The supreme body of the Court of Arbitration for Sport is the International Council of Arbitration for Sport, which is a foundation under Swiss law. It is a supervisory body made up of 20 “high level lawyers” or “jurists” who are well-schooled in both arbitration and sports law. They are charged with preserving the independence of the CAS, the integrity of the arbitration process, and provide for the administration and finances of the arbitral body. All ICAS members are required to sign a “declaration undertaking to exercise their functions in a personal capacity, with total objectivity and independence.” There are now two decentralized offices of the ICAS, one in New York and one in Sydney. These were established to make access to the CAS easier for organizations and individuals in different parts of the world.
The CAS, which operates under the ICAS, first enrolled approximately 150 arbitrators. As of 2007 it had 275 arbitrators on its roster, appointed for terms of four years. Sports individuals and sports organizations can submit two types of disputes to the CAS: commercial disputes and disciplinary disputes. No case has ever been declined by the CAS on the grounds that it did not involve a “sports dispute.”
The CAS, under its reformed statute, regulations and procedural rules, offers four types of procedure:
- The ordinary arbitration procedure for first instance hearings of disputes involving individuals and organizations.
- The appeals arbitration procedure, involving review of decisions already made by a national or international sports body.
- A consultative procedure similar to a court advisory opinion, but available only to certain sports bodies.
- A mediation procedure, which was added in 1999.
There are two types of arbitration procedures, one in which there are written submissions only, and a second type which is designed for oral hearings, usually held in Lausanne. CAS clauses are binding on the parties. However the CAS may not prohibit parties from seeking review in domestic courts. Such reviews would usually not be on the merits of the case, but on ancillary matters such as jurisdictional issues or the adequacy of the hearing (such as occurred in the horse rider case supra). An appeal from a CAS award is to the Swiss Federal Tribunal, but such appeals are permitted only under certain limited circumstances.
Arbitration awards rendered by the CAS have the same status as all other international arbitration awards; they are final, binding on the parties and fully enforceable under private international law and the New York Convention on the Recognition of Enforcement of Foreign Arbitral Awards (1958).
In 1996 the CAS began the practice of setting up “ad hoc” divisions for specific international sports events. The first ad hoc division was established for the 1996 Atlanta Olympic Games. In later years ad hoc divisions have been set up for all subsequent Summer and Winter Olympic Games, all British Commonwealth of Nations Games, the World Cup Competition, and the European Football Championships.
CAS procedures and all CAS ad hoc divisions are designed for speedy and prompt hearings and resolutions of the disputes submitted to it.
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