03 November 2004
Key Points:
The Court of Arbitration for Sport's increasing popularity is testament not only to its effectiveness but also the efficacy of international arbitration as a final and binding method of dispute resolution.
With the increased professionalism in sport over the last two decades, sport is now considered big business. Along with a greater emphasis on commercialism in sport has come an increase in the number of commercial disputes - involving, for example, television rights, sponsorship and merchandising deals, licensing revenues and termination of contracts. As success has become more important, so disputes have arisen out of the relationship between athletes and their club or their sport's governing organisation involving questions of selection, discipline and, sadly, drugs.
Just like other areas of commercial activity, arbitration generally, and international arbitration in particular, has come to play a central role in the resolution of sports disputes. Tribunals now play a significant role in many sports - whether in commercial areas (eg. Formula 1 motor racing where the FIA arbitration panel resolves contract disputes between drivers); disciplinary areas (eg. the AFL and NRL disciplinary "judiciary" which deals with playing infractions); or rules-based disputes (eg. the America's Cup arbitration panel which resolves match-racing rules violations).
Perhaps the most well-known development of sports arbitration is the body known as the Court of Arbitration for Sport (CAS). The CAS was set up in 1984 under the auspices of the International Olympic Committee primarily to deal with disputes over Olympic selection and participation at the Olympic Games. In 1994, the CAS was restructured and the International Council of Arbitration for Sport was created to look after the administration and financing of the CAS. The aim was to create an international arbitral institution for the resolution of sporting disputes comparable to the International Chamber of Commerce. The Oceania Registry for the CAS (the only other registry outside its home base of Geneva) is located in Sydney.
The CAS is now dealing with more disputes than ever before. Between 1986 and the 1994 reforms, only 76 requests for arbitration were filed. Between 1996 and 2003, 419 requests were filed, and in 2003 alone, which was not an Olympic year, 107 requests were filed. This increasing popularity is testament not only to the effectiveness of the revamped CAS but also the efficacy of international arbitration as a final and binding method of dispute resolution.
Jurisdiction and workings of the Court of Arbitration for Sport
Although the initial work of the CAS was connected with the Olympic Games, it is now regarded as the primary sporting dispute resolution body and can hear any dispute that arises within the field of sport.
In order for the jurisdiction of the CAS to be mobilised, there must be a valid arbitration agreement. The CAS has jurisdiction not only to hear and determine disputes in the ordinary way, but also has jurisdiction to hear appeals from the decisions of sporting organisations in circumstances where the organisation adopts a rule specifying that disputes are to be heard by the CAS. The panel may also provide a non-binding advisory opinion.
CAS arbitrators are nominated by the International Council of Arbitration for Sport (ICAS). The CAS list of arbitrators includes arbitrators from all over the world who not only have significant legal experience, but also have a strong understanding of the business of sport, physiology or pharmacology. In particular, one-fifth of the arbitrators are specifically chosen with a view to safeguarding the interests of athletes. Disputes are decided by arbitral panels which are composed of either one or three arbitrators.
The arbitral process set out in the procedural rules is very similar to that of other institutions. A notable difference is that the seat of the CAS - and any arbitration which takes place under the auspices of the CAS - is fixed (in Lausanne, Switzerland). This means that the law of the arbitration will always be Swiss law notwithstanding where a CAS arbitration hearing is held (for example, at the site of the Olympic Games). This approach was confirmed - under Australian law at least - in a decision of New South Wales Court of Appeal in Raguz v Sullivan [2000] NSWCA 240 which held that review of a CAS arbitration which had been conducted in Sydney would be pursuant to Swiss law (and that any CAS arbitration taking place in Australia would be an international arbitration with a foreign seat).
Consistent with the choice of Lausanne as the home of the CAS, the law applicable to the merits, in the absence of agreement, is to be Swiss law. The parties may also authorise the Panel to decide ex aequo et bono (ie. on the basis of equity not law). However, in cases where the decision of a sporting organisation is being appealed, the applicable law shall be that of the country in which the organisation is domiciled, or the law that is deemed otherwise appropriate.
The CAS working languages are English and French, and in the absence of agreement one of these languages is to be selected as the language of the arbitration.
An innovation used at the 1996 Atlanta Olympics and at subsequent Olympics was an ad hoc CAS panel to resolve disputes arising during the Olympic period. The challenge for the ad hoc panel is to resolve a dispute arising during the period of the Olympics within 24 hours. The procedure is designed to be simple and flexible. In Atlanta, six cases were submitted, and in Sydney 15 cases were submitted to the ad hoc Division. The ad hoc Division was again established for the recent Athens Olympics. An example of a dispute heard in Athens was an appeal filed by the National Olympic Committees of France, Great Britain and the United States in relation to the Eventing competition. The appeal related to a decision of the FEI Appeal Committee to overturn the decision made by the FEI Ground Jury which imposed a time penalty on the German competitor Bettina Hoy. Illustrating the flexibility and efficiency of the procedure (and of arbitration generally), the panel heard the case within two and a half hours and upheld the decision of the FEI Ground Jury.
The Role of the CAS in international sports law
International sports law is complex. Each sport may be governed by its national governing body, an international federation, international and national Olympic Committees, the International Council of Arbitration for Sport and the Court of Arbitration for Sport, various other national and international arbitral tribunals, and of course, national courts. Decisions made by one body, often involving substantial time and money, may be ignored by another organisation, or involve a complicated appeal process.
The case of the German sprinter, Katrin Krabbe, is illustrative of some of the complexities which can arise. In 1992, Krabbe was suspended from competition for the alleged manipulation of drug samples but was subsequently acquitted by the German Track and Field Association. Further analysis revealed that the samples contained an allegedly prohibited substance commonly found in asthma medication. Krabbe was again suspended and the German Federation applied a ban of four years.
The German Federation soon realised that the substance found in the samples was not actually on the IAAF list of prohibited substances. The German Federation revoked the ban and instead suspended Krabbe on the basis of sporting misconduct. The IAAF, without organising a hearing for Krabbe, extended this suspension indefinitely. Krabbe appealed to the District Court of Munich, where her arguments were largely upheld. This decision was subsequently affirmed by the High Regional Court in 1996.
The Krabbe saga stretched over five years, and demonstrates the need for a final and binding independent arbitral body capable of quickly resolving disputes. The CAS has proved to be capable of performing this role, as is demonstrated by the recent resolution in July 2004 of the appeal of Australian cyclist Sean Eadie, who was suspended by the Australian Olympic Committee following allegations of drug trafficking. The CAS quickly exonerated Eadie, and he was allowed to compete at the Olympics.
The CAS should not be viewed as a panacea. It must be remembered that the jurisdiction of the CAS is enlivened by agreement, and depends on the number of organisations that consider it appropriate to refer disputes or appeals to it. Furthermore, while it may be too early to discern clear jurisprudential trends, some commentators suggest that CAS decisions reveal an emerging lex specialis. What is clear is that the CAS provides a foundation for improving and streamlining dispute resolution, with the hope that sporting competitions will be determined on the playing field, rather than by lawyers in the courts.
