After the judgment in the case of the UEFA vs. Manchester City, European clubs threatening to go the Court of Arbitration for Sports (‘CAS’), the CAS is fully in the spotlights. Almost every sports lover has heard of this institute CAS. Before entering into the merits of the ManCity-decision in later blogs, I will use this blog to explain what the CAS is.
The CAS is an institute where sporters and sport federations can settle their disputes. Mainly through arbitration, but mediation is also possible. Former president of the International Olympic Committee (‘IOC’), Juan Antonio Samaranch, came with the first idea of a sports-specific jurisdiction and so the CAS was born. The idea behind the foundation of the CAS was to create a specialized authority capable of settling international disputes and offering a flexible, quick and inexpensive procedure.
Disputes at the CAS
The CAS handles various types of disputes. Not only should you think of disciplinary and doping disputes, but also of commercial disputes relating to employment- or sponsor-contracts. Common denominator of CAS-cases is Sport since it only handles cases relating to sport. The “CAS-rules” describe this as follows:
The vast majority of cases at the CAS regard cases which had been previously dealt ” internally” at a sports federation. The step to the CAS can then be considered as an appeal to an internal decision. Next to these appeals, the CAS also deals with ordinary arbitrations regarding sport or doping matters in the first instance.
Therefore the CAS is divided in three divisions:
- Ordinary Instance Division. In this division, the CAS handles arbitration procedures which are not appeals against decisions of (organs of) sport federations.
- Appeals Arbitration Division. In this division, the CAS handles appeal cases, predominantly from decisions made by sports federations, such as from the FIFA and UEFA.
- Anti-doping Division. This division handles doping cases in the first instance which have been outsourced by sports federations to the CAS. This division exists since January 2019 and replaces certain sport federations, such as the International Triathlon Union and the International Ski Federation the internal doping procedures. Sometimes appeal is open with the Appeal Arbitration Division.
Characteristics of Arbitration
In the introduction of this blog, I have mentioned arbitration. But what is arbitration? An arbitration procedure before the CAS basically looks like governments’ regular court proceedings. Arbitration, however, is a form of “private” dispute settlement, based on parties’ consent, whereby the parties often waive the right to settle their disputes before state courts.
Arbitration’s main characteristic is that it is based on consensus of the parties having a dispute. This consensus is mostly laid down in agreement before the arising of a dispute. However not every sporter is usually aware of its consent and waiver. Often an arbitration clause is incorporated in the statutes of a sport federation.
Criticism on the CAS
Independence from financiers – GunDel case
One of the long-lasting criticisms of the CAS is its dependence on sport federations, more specifically on the IOC. The CAS was financed by the IOC. As a result, people questioned if the CAS was not mainly serving the interests of the federations.
That question of independence was part of the Gundel case, which was handled by the Swiss Federal Courts. Although Gunnel’s claim was denied, the Swiss court (in an obiter dictum) criticized the dependence of the CAS on its biggest funder the IOC. This decision lead to a restructuring of the CAS with the constitution of a new organization, the International Council of Arbitration for Sports (ICAS). This organization has 20 members and handles the financial administration fo the CAS and the appointment of arbitrations. Currently, the CAS structure looks as follows
Forced Arbitration – Mutu & Pechstein-case
Another point of criticism is in fact not completely caused by the CAS itself. This criticism is that certain athletes may not have voluntarily chosen for arbitration. On that matter, the European Court for Human Rights (ECHR) rendered a decision on 2 October 2018 in the case of speed skater Claudia Pechtstein and football player Adrian Mutu.
The case of Mutu was not successful. He was considered to have been free in his choice of whether or not to accept a CAS-arbitration clause. But in Pechstein’s case, this was different. In that case, the ECHR ruled that Pechstein was forced to accept the arbitration clause, considering by non-acceptance Pechstein was not allowed to compete in professional speed skating races.
In the event of such a forced arbitration clause, the CAS should honor the safeguards set out in article 6 of the European Convention for Human Rights, such as the right to a public hearing. The latter had not happened in the Pechstein-case.
In the Mute/Pechstein-case the court does however confirm the independence of the CAS is not touched by its way of funding. The current structure is sufficient to safeguard independence.