Court of Arbitration for Sport (CAS)
When dealing with sports law in international arena, one of the main issues to consider is the method of settlement of the disputes in this field. In a country where sports and precisely football is very dear to the hearts of the majority of the population, we need to better understand the mechanism and regulations of the dispute settlement body called Court of Arbitration for Sport (CAS) which is an independent institution facilitating the resolution of disputes involving sporting organizations and their individual members through mediation and binding arbitration.
Generally speaking, a dispute may be submitted to CAS only if there is an arbitration agreement between the parties which specifies recourse to the CAS. Such agreement may or appear in the parties’ contract or the statutes or regulations of a sports organization. Parties may agree in advance to submit any future dispute to arbitration by the CAS, or they can agree to have recourse to the CAS after a dispute has arisen.
To give an example where recourse to CAS has been embodied in a sports organization regulation, we will have a look at FIFA Statutes and also Articles of Association of Iran Football Federation. Based on the FIFA Statues (2019 edition), member associations have the obligation to comply fully with the statutes, regulations, directives and decisions of FIFA bodies at any time as well as the decisions of the CAS (Article 14). Furthermore, in its Article 57, FIFA recognizes the independency of CAS to resolve disputes between FIFA, member associations, confederations, leagues, clubs, players, officials, intermediaries and licensed match agents.
FIFA regulations further detail the jurisdiction of CAS and obligations of the confederations, member associations and leagues in complying with its decisions and prohibiting the recourse to ordinary courts of law while stating that any violation will be punished in compliance with the FIFA Disciplinary Code (Articles 58 to 60).
Noting the above, Iran Football Federation in its Articles of Associations has specified the necessity of its members to submit letter of commitments comprising of their obligation to exclusively refer their disputes to the judicial body of the federation and CAS and to avoid recourse to the public courts (Article 11). Furthermore, based on Article 67of the same, any appeal from the final decisions of FIFA or Confederations shall be raised before CAS located at Lausanne (Switzerland), decisions of which is binding on the federation, members, players, coaches and agencies.
Below, we will have a general look at the function and operation of CAS.
As previously mentioned, CAS is an independent body which pronounces arbitral awards that have the same enforceability as judgements of ordinary courts.
CAS has its main seat in Lausanne, Switzerland but also has operational offices in Sydney, Australia and New York, United States.
The day-to-day function of CAS is supervised by the International Council of Arbitration for Sport (ICAS), which is responsible for its administrative and financial management, and for safeguarding its independence.
Disputes heard by CAS range widely in their subject matter but are principally either of commercial nature (e.g. a sponsorship contracts) or disciplinary one (e.g. a doping case) including the relatively low-value contractual and tortious disputes between private individuals, to selection- and doping-related disputes between national federations and participants, to disputes between international associations and their members regarding the interpretation and enforcement of regulations.
CAS mainly operates in the following ways:
- Ordinary procedure (usually lasting between 6 and 12 months) which is the arbitration and or mediation procedure for determining contractual disputes or alleged tortious offences. This can be accessed by any parties involved in sport that agree in writing to submit their dispute to CAS. The ordinary arbitration procedure is confidential unless all the parties agree to their publication, or the president of the CAS orders publication which is very uncommon and shall be justified by clear reasons such as a genuine public interest in the subject matter of the decision.
- Appeal procedure is the procedure for disputes arising out of decisions issued by sports governing bodies where the rules of such bodies designate CAS as the appellate body such as appealing from FIFA final decisions. In such stage, an award must be pronounced within three months after the transfer of the file to the panel based on the applicable rules of CAS.
The rules on confidentiality in relation to appeal proceedings before CAS are less restrictive whereas the appeals arbitration procedure does not specify particular rules of confidentiality. Furthermore, since these appeals are often cases of a disciplinary nature that have a significant public interest element, they are often already in the public domain by the time an appeal is lodged. However, the arbitrators and CAS staff have a similar duty of confidentiality during the ongoing proceedings based on CAS rules.
- Furthermore, CAS has become renowned for the ad hoc dispute resolution services it offers at certain major international sporting events such as the Olympic and Commonwealth Games, and 2019 has seen the establishment of its permanent Anti-Doping Division, which deals with violations of anti-doping rules as a first-instance body. The Ad Hoc Division performs this function, operating out of a temporary on-site office staffed by CAS Court Office employees at the relevant competition. The success of these ad hoc divisions has played a large part in making CAS known among athletes, sports organizations and the media all over the world.
Ordinary and appeal proceedings before CAS are governed by Code de l’arbitrage en matière de sport or the Code of Sports-Related Arbitration (the Code) which is regularly updated and the current version came into force on 1 January 2019.
Mediation procedures before CAS are governed by the CAS Mediation Rules, which were last amended on 1 January 2016. These rules set out the procedure and basis of mediation proceedings.
As for the choice of law applicable to the merits of a dispute determined in a CAS case, we should consider the ordinary and appeal procedure separately.
- The merits of a dispute brought under the ordinary arbitration procedure are determined according to the governing law agreed by the parties, or according to Swiss law in case of silence in the agreement.
- In the context of the appeals procedure, the arbitrators rule on the basis of the regulations of the body concerned by the appeal i.e. the applicable regulations pursuant to which the decision under appeal was made and, subsidiarily, the law of the country in which the body is domiciled. For instance, FIFA Statutes provides that CAS shall primarily apply the various regulations of FIFA and, additionally, Swiss law.
As for the motion of a case, generally speaking CAS proceedings take place by way of written submissions and, where the panel considers it necessary, an oral hearing.
Parties will usually only be given one opportunity each to set out their case, but the panel has the power to order a second round of written submissions (normally limited to responses to points already raised) if it considers that issues raised in the first round of submissions need to be addressed further to afford each party the opportunity to fully set out its case. This is particularly common in cases where there is no oral hearing. Either party is entitled to request a second round of submissions.
Where a party intends to rely on any witnesses or experts in the proceedings, it is required to name each of them in the written submissions and provide a brief summary of their evidence or attach the witness statement to be relied on.
Same as any other dispute settlement body, the enforceability of the decisions issued by CAS are an important issue to be considered. Awards of the Ordinary Division and Appeals Division of CAS are internationally recognized arbitration awards (final and binding) that can consequently be enforced through the national courts of any of the member states that are signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).
As mentioned before the decisions issued by CAS are final and binding whereas judicial recourse to the Swiss Federal Tribunal called SFT (since CAS has its legal seat in Switzerland, its final awards can only be appealed to the Swiss Federal Tribunal) is permitted on a very limited number of procedural grounds , such as lack of jurisdiction, violation of elementary procedural rules (e.g. violation of the right to a fair hearing) or incompatibility with public policy.
There are certainly further details to discuss regarding the procedure of the CAS which have not been covered (and were not intended to be) in this brief report, however one thing for sure is that if we wish to have a solid presence in the international sports arena, we need to understand the function of the sport-related bodies such as CAS and to actively introduce specialists in such organizations such as Ahmadreza Barati who was appointed as an arbitrator in both CAS and ICAS. As correctly put, to play the game better than others, first one needs to learn the rules of the game.
Submitted by Mahnaz Mehrinfar and Sahar Sotoodehnia