Introduction
Like other communities, sports also faces the problem of dealing with a dispute in a matter that is efficient and cost effective and seen by the parties concerned as fair. However, unlike most other disputes, sports disputes have a strong element of “public airing”. The cries of anguish that issue from the crowds at every sporting event, convinced that an injustice is perpetrated by each referee’s call (and many non-calls), are only the most audible indication of the difficulty of sports adjudication.
In addition, there is often a need for a very rapid response. If the eligibility of an athlete is challenged on the eve of a competition, this question has to be decided very quickly or the reputation of the competition could be seriously jeopardized. Even when no immediate decision is needed, athlete careers are frequently so short that justice delayed is justice denied. In addition, the disputes are often about matters that are poorly understood by persons outside the sports community and take place against the background of legal norms that are relatively undeveloped.
Adding to the above are the very substantial amounts of money involved and access to competitions that may define an athlete’s sense of self-worth, which makes the potential intensity of the conflict greater.
The nature of many disputes in sports, moreover, precludes the easiest and happiest forms of dispute resolution. In general, they must be decided. They cannot merely be settled. There are few win/win situations in sports, more often they are lose/lose ones.
When these disputes take place against the background international competition, each of the difficulties noted above is made more intense by the overlay of differing cultural and legal expectations, and increased levels of suspicion of the motives and good faith of others. Few competitors, and few of their supporters, are prepared to believe that anyone else’s domestic adjudicatory process, whether in the courts or in some non-judicial forum, will produce fair or consistent results. The handling of athletic disputes in domestic courts has not been among the greatest of judicial success stories. The individuals who run international sports have been vocal and open in their contempt for the interference of domestic tribunals in the running of what they regard as their internal affairs.
The Court of Arbitration for Sport
It is against this background that the International Olympic Committee (IOC) in 1983 attempted to address these problems by creating the Court of Arbitration for Sport (CAS). CAS was designed to be an international arbitral body capable of resolving disputes in the field of sports. It consists of two “divisions”: the Ordinary Arbitration Division, which handles matters of first instance, and the Appeals Arbitration Division, which deals with appeals from the decisions of federations, associations and other sports bodies. Sixty “well-known jurists who also have a good knowledge of sports related issues” were appointed to serve as potential arbitrators. Both CAS and the arbitrators were, according to the pronouncements of the IOC, “completely independent from the IOC, in the exercise of their duties”. Unfortunately not everyone was impressed with these pronouncements of independence.
The Gundel Decision
In 1993, the question of CAS’s complete independence was challenged in the Swiss judicial system. In February 1992, a horse rider named Elmar Gundel lodged an appeal for arbitration with the CAS on the basis of the arbitration clause in the International Equestrian Federation statutes, challenging a decision pronounced by the federation. This decision, which followed a horse doping case, disqualified the rider, and imposed a suspension and fine upon him. The award rendered by the CAS on 15 October 1992 found partly in favour of the rider (the suspension was reduced from three months to one month. Unhappy with the CAS decision, Elmar Gundel filed a public law appeal with the Swiss Federal Tribunal. The appellant primarily disputed the validity of the award, which he claimed was rendered by a court which did not meet the conditions of impartiality and independence needed to be considered as a proper arbitration court.
The Swiss Federal Tribunal held that CAS did, in spite of the entanglements, offer “the guarantees of independence upon which Swiss law makes conditional the valid exclusion of ordinary judicial recourse”, but noted that the close ties between the IOC and CAS left open the question of whether it was sufficiently independent to serve as a valid arbitral body in a case involving the IOC.
Restructuring of CAS
This opinion spurred a restructuring designed to make CAS more independent of the IOC. The critical reforms were the creation of the International Council of Arbitration for Sport (ICAS), to supervise and regulate CAS, the insulation of CAS from direct IOC supervision, and the change in the method of selection and an increase in the number of potential arbitrators. Under the reformed system, there are 150, 30 chosen from among those proposed by the IOC, 30 from among those proposed by the International Sports Federations (IFs), 30 from among those proposed by the National Olympic Committees (NOCs), 30 chosen after appropriate consultations with a view to safeguarding the interests of athletes, and 30 chosen from among persons independent of the bodies responsible for proposing arbitrators.
In 1996, CAS added two additional courts, one at the National Dispute Resolution Center in Sydney, Australia and the other in Denver, Colorado, substantially increasing its potential attractiveness to non-European athletes. The reformed CAS appears to address many of the most pressing problems surrounding the resolution of athletic disputes, and it has aroused considerable interest that it may provide a workable forum for adjudicating these disputes.
CAS as an Alternative Resolution Forum
Would the CAS be a good alternative forum to resolve domestic disputes concerning athletes?
The first issue to be faced is whether domestic laws allow for resort to CAS. The answer is not certain. In some countries, there could be domestic legislation that would prohibit this. An example will be the Amateur Sports Act of USA that can be said to require domestic arbitration for sports disputes. In other countries, domestic laws may allow the parties to enter into a voluntary agreement to have such disputes arbitrated by CAS. The domestic tribunals will not interfere in such agreements.
Assuming that CAS accepts the case will the Swiss courts (in whose jurisdiction the CAS is located) treat CAS as a valid arbitral body? This is important for the purposes of ensuring that the decision is enforceable by the domestic tribunals. In light of the reforms, the answer is almost certainly “Yes”. The Gundel decision went a long way toward recognising CAS as a valid arbitral body even under the old structure. It is difficult to believe that the reforms will not have removed any remaining doubts.
Assuming that the Swiss courts treat CAS as a valid arbitral body, will the domestic courts enforce the arbitral decisions without subjecting them to judicial review? If the country is a signatory to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) (the New York Convention), the answer is almost certainly “Yes”.
Thus we have in CAS a body able to render enforceable arbitral decisions. Will this body deliver on the promise of speedy, cost effective justice, that is both fair to the parties and seen by the parties to be fair? No one seems to have done any study on this. The statistics available at the CAS website does not reveal any answers. So this is left to be seen.
Speedy And Fair?
Does the structure of the CAS allow for speedy and fair decisions? The answer is somewhat mixed. There are some hopeful signs, and some reasons for concern. The usual claims for arbitration are that it will be quick and relatively inexpensive. The CAS rules do, in fact, encourage quick resolution. They provide for relatively short time periods for the formation of the panels and for the rendering of opinions. There are a number of procedural devices that make it possible to deal with matters expeditiously. CAS has created special ad hoc bodies, such as the one at the Atlanta Olympics, where the need to timely adjudication was particularly acute. Nothing guarantees that there will not be delays, but the structure does favors quick resolution.
Similarly, the costs of proceeding through CAS seem reasonable for most situations. There will, however, be ones that raise serious concerns. CAS does not provide counsel for those unable to provide counsel for themselves, although at Atlanta it did encourage volunteers to provide free services. It also permits on a discretionary basis the apportioning of costs among the parties in accordance with their ability to pay. Whether this is enough to insure fairness is open to question, but then it should be born in mind that many of these same criticisms could be leveled at the courts as well.
Much of the attractiveness of CAS turns on the fact that the arbitrators are all persons ostensibly with expertise in sport. The value of expertise is immediately and intuitively obvious. Anyone who has ever litigated or arbitrated a case can tell horror stories of attempting to convey complex information to judges or arbitrators who are uninformed, even if competent. Expert panels can much more quickly focus on the issues genuinely in dispute, thus reducing costs and delay. They do not need to be brought up to speed. Many matters that would need to be explained to non-experts either will not need to be explained at all, or will be able to be explained much more efficiently.
Expertise is, however, a problematic concept. What constitutes expertise is left to the nominating bodies and ICAS. Nowhere is it defined. Nor is expertise, however defined, in one aspect of sport necessarily easily transferable to another. An expert in the organisation of the International Olympic Committee may have no greater ability to deal with the science underlying a claimed challenge to a doping violation than any random member of the judiciary. Some may have less.
Experts are also easily confused with persons who merely have a vested interest. The point is: 1) that expertise is not so easily established when we are dealing with an organization with as broad a mandate as CAS , that is for any relevant decisional group it may not be all that expert and 2) that expertise does not necessarily promote fairness.
These complaints notwithstanding, it seems likely that CAS arbitrators will have sufficient familiarity with sport related issues. Was the handling of a particular urine sample compromised? – where the only question is one about establishing whether the taking of the sample conformed to standard procedures. Was the taking of a substance not specifically banned and about which there was lack of data about the performance enhancing effect grounds for stripping an athlete of an Olympic medal? Here the importance of familiarity with the usual ways of doing things, of the conventional understandings of athletes is enormously important. To date, the reported decisions from CAS are reasonably comforting in their balance.
On the other hand, to date CAS has not ruled on hard questions that might affect the interests of IFs, National Governing Bodies (NGBs), NOCs or the IOC. One example of the experience to date may be illustrative. In 1997, CAS reversed the decision of FINA to suspend for two years a water polo athlete who took a prescription drug to control asthma. Under FINA’s rules, the athlete was entitled to take the drug, but was required to declare that he had done so. Operating under a misapprehension, caused in part by the failure of the IF to keep its various NGBs informed of changes in the rules, the athlete failed to report that he had used an inhaler to control asthma and was suspended from competition for two years from July 26, 1995 to July 26, 1997. The IF represented to CAS that it did not regard the athlete as a cheat. Rather, it believed that he had made a good faith mistake, but that it had no flexibility under its regulations to impose a lighter sanction or no sanction at all. CAS upheld the finding of a doping violation, but noted that it had greater authority with regard to the imposition of penalties and “cancelled” the sanctions – or presumably only the three and a half months that were remaining of them. It is comforting that an athlete who took a substance that he was entitled to take, and whose only violation was the good faith failure to report the taking of it, and whose position was supported by both his national federation and the IF, could have the equity of his position vindicated. It was not a hard case. Whether the only partial independence of CAS will permit it the independence to take on the hard case and to protect athletes in accordance with the “fundamental principles of law” that govern CAS proceedings remains an open question.
When we are talking about matters in international sports, the need for confidence in the consistency and uniformity of decisions are pressing. What does CAS promise here? By centralising decisions in a single body, and removing those decisions from both domestic and sport based tribunals, it may be possible to achieve greater uniformity. It should be noted, however, that not all International Federations are currently prepared to accept the jurisdiction of CAS either on matters of first instance or on appeal. Thus, even if CAS were to achieve consistency among those matters submitted to it, it could not deal with matters excluded by federations from its purview.
With the large number of potential arbitrators, drawn from around the world, and coming out of distinctly different legal traditions, who could be called on to decide any given case, it strains credulity to believe that they are likely to decide cases similarly. Moreover, like most arbitral bodies, CAS is not bound by precedent. Even if it were, it would be difficult for subsequent panels follow the lead of earlier panels, because of the incompleteness of the reported cases. This is admittedly a more pressing concern for persons trained in the Common Law. Civil Lawyers have learned to live with sparse case reports. But if it is a more obvious concern for those trained in the Common Law, it is a more general problem as well. There is a pressing need in international sports for what some called a lex sportive, a stable body of law that is transparent and consistent. Both the transparency and the consistency will certainly lead to greater confidence in and acceptance of decisions – especially those rendered by a body that is foreign to the participants, applying principles of law unfamiliar to them, and imposed on them by the very bodies that they are now in conflict with.
The reformed CAS constitutes an important innovation in the search for a reliable, efficient forum for the resolution of sports related disputes. It has many of the positive features of sport specific arbitral bodies and has gone further than previous organizations to create the kind of externalization and independence that will be necessary to achieve credible results. It remains, however, closely tied to the IOC, the NOCs and the federations. These ties will inevitably raise questions about the independence of CAS, particularly among those forced to resort to it.
The procedures established by CAS, like those of most arbitral bodies, have all of the advantages that come with greater informality and all of the disadvantages of them as well. There are questions about whether CAS has the authority to reach the full range of remedies available through the courts.
Only time will tell.