Resolving disputes in the sports’ world is often seen as an opaque and ‟old boys’ network” affair: are these prejudices justified? If so, does CAS do all it can to adequately address such issues, and ensure that its arbitration processes are fair, inclusive, impartial and independent? What are the hot topics on which CAS needs to review its position, in order to provide arbitral awards in line with the best possible justice granted in the 21st century?
1. When was, and how is, CAS set up?
The Court of Arbitration for Sport (‟CAS”) was set up in 1984 by the International Olympic Committee (‟IOC”), which was itself created in 1894 by Pierre de Coubertin in order to promote olympism as a philosophy of life, exalting and combining in a balanced whole, the qualities of body, will and mind.
CAS, which is seated in Lausanne, Switzerland, went through several reforms, in 1990 and 1994. Notably, further to a decision dated 15 March 1993, handed down by the Swiss supreme court, called Swiss Federal Tribunal (‟SFT”), relating to a CAS arbitral award which had been challenged before the SFT. In its 1993 judgment, the SFT confirmed that CAS was a court of arbitration, but deemed it to have insufficient independence (both organisationally and financially) from the IOC.
Consequently, an International Council for Arbitration for Sports (‟ICAS”) was created, to look after the running and financing of CAS, and two types of arbitration procedures and divisions were put in place at CAS, as follows:
- the Appeals Arbitration Division, which adjudicates disputes raised by, or arising from, a decision taken by sports organisations (such as disciplinary proceedings), and
- the Ordinary Arbitration Division, which adjudicates other sports-related disputes, i.e. any dispute directly or indirectly linked to sports, such as commercial disputes (relating to execution of contracts, be it broadcasting contracts, media rights agreements, hosting contracts, player transfers, employment agreements with coaches, players and clubs, sponsorship agreements and contracts with agents) or disputes relating to civil liability claims and tort (for example, in case of accidents between athletes, during competitions). These are disputes of sole instance (i.e. the CAS arbitral awards are final and may only be challenged before the SFT).
Since 1994, the Code of Sports-related Arbitration (the ‟Code”) has governed the organisation and arbitration procedures of CAS. The 70-article Code is divided in two parts: the Statutes of bodies working for the settlement of sports-related disputes (articles S1 to S26), and the Procedural Rules (articles R27 to R70).
Today, the Code establishes rules for four distinct CAS divisions:
- the Ordinary Arbitration Division, competent in ordinary arbitration proceedings in which the disputes are sports-related, including related financial and contractual matters;
- the Appeals Arbitration Division, competent to hear appeals against decisions issued by a National Federation (‟NF”), an International Federation (‟IF”) or a Sports Association (‟SA”) or any other sports body, provided that such body’s statutes set out that CAS should act as the final arbitral instance with regards to this body’s decisions;
- the ad hoc arbitration division, created in 1996, which operates solely during olympic games, where time is of the essence, and which hands down final arbitral awards relating to disciplinary disputes in 24 hours (and which has its own rules of procedure, entitled ‟Arbitration rules for the olympic games”), and
- the Anti-Doping Division of CAS (‟CAS ADD”) established to hear and decide anti-doping cases, as a first-instance authority or as a sole instance, pursuant to a delegation of powers from the IOC, International Federations of sports on the Olympic programme (‟Olympic IFs”) and any other signatories to the World Anti-Doping Code (‟WADC”).
2. Why was CAS created?
CAS was set up to implement a uniform and streamlined system, internationally, to resolve sports disputes, via a quick and inexpensive adjudication process.
It is the most successful arbitration body for sports, with 8,000 cases submitted to CAS since 1984. Among those cases, 80 percent related to disciplinary disputes, while 15 percent related to commercial disputes (this is because commercial actors usually prefer to have an arbitration clause designating traditional arbitration institutions, such as International Chamber of Commerce (‟ICC”) or the London Court of International Arbitration (‟LCIA”), in their contracts).
CAS does have a few contenders, such as the FIA courts, set up by the ‟Fédération Internationale de l’Automobile” (‟FIA”) to adjudicate international motor sports disputes; the Basketball Arbitral Tribunal (‟BAT”), an independent body officially recognised by the International Basketball Federation (‟FIBA”) and providing services for rapid and simple resolution of disputes between players, agents, coaches and clubs through arbitration; Qatar Sports Arbitration Foundation and Sports Resolutions. However, I understand that their respective caseloads really pale, in comparison to the busy caseload managed by CAS.
CAS disputes are only adjudicated by a panel of arbitrators who specialise in sports, sports law and sports-related disputes. There are around 330 arbitrators at CAS, on a closed-list appointment system (i.e. instead of the established practice of party-appointed arbitrators, the appointments of arbitrators are made entirely by institutions which rely on closed lists when they are appointing arbitrators). Only arbitrators from the closed list of arbitrators published on CAS’ website can arbitrate cases at CAS. These arbitrators have all been appointed by ICAS in compliance with article S14 of the Code: only arbitrators ‟with appropriate legal training and recognised competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language” can be appointed by ICAS. This guarantees that only expert arbitrators adjudicate CAS’ cases. Since its inception, French and English have been CAS’ working languages, but Spanish was added as an official working language on 1 July 2020.
Another reason why CAS was created is that, for international sports disputes, it is easier to enforce an arbitral award, compared to a court judgment, thanks to the New York convention on the recognition and enforcement of foreign arbitral awards, dated 10 June 1958, which has so many contracting states.
Also, arbitration provides a certain degree of confidentiality of the proceedings, which cannot be mirrored by the court process handled by national judges, who often hand down very detailed judgments, made public upon publication, after court hearings which were open to members of the public.
CAS arbitral awards are no exception, with the ordinary arbitration procedure being confidential. In the Ordinary Arbitration Division, the parties, arbitrators and CAS staff are obliged not to disclose any information connected with the dispute, while, in principle, awards are not published by this division. The appeals arbitration procedure does not specify particular rules of confidentiality, but the arbitrators and CAS staff have a similar duty of confidentiality during the proceedings. Generally speaking, unless the parties agree otherwise, the award may be published by CAS Appeals Arbitration Division (sometimes in a redacted format).
3. Which hot topics and cases have recently challenged CAS’ arbitration process and/or tarnished its reputation?
While CAS is recognised as a necessary institution to arbitrate sports disputes, its many failings in ensuring a fair, inclusive, independent, impartial and due process massively undermine its aura and magnitude.
3.1. Lack of diversity in the closed list of CAS arbitrators
While a general trend has developed, in the arbitration community, according to which more gender, geographic and generational diversity is requested in arbitrators’ pools, CAS has been specifically targeted for its lack of diversity and inclusiveness in the closed roster of arbitrators appointed to hear disputes, with a former CAS arbitrator concluding that ‟CAS retains the characteristics of the oldest network in sport – the old boys’ club, and an old Swiss boys’ club at that”.
With respect to gender, only 38 of the 330 CAS unique arbitrators are female (11.5 percent) with female arbitrators receiving only 226 appointments (4.5 percent) compared to 4,827 appointments given to male arbitrators (95.5 percent).
Not only that, but a small number of male arbitrators were appointed by CAS in a disproportionately large number of procedures (more on this topic below).
With respect to ethnicity, data reveals that only 6.2 percent of CAS-controlled appointments were to non-white arbitrators and only 1 percent of CAS-controlled appointments were to black arbitrators.
Moreover, the CAS’ record of appointing female and/or non-white arbitrators as sole arbitrators or panel presidents is particularly poor: CAS only appointed a female and/or non-white arbitrator as sole arbitrator or panel president in 3.2 percent of cases.
Arbitrator diversity, in CAS’ closed list, is therefore a major issue, compounded by the fact that so many cases adjudicated by CAS, in recent years, related to non-white athletes and/or female athletes.
How can these non-white and/or female athletes may feel that CAS arbitrators will empathise with them, and understand where they are coming from, if there is a 96 percent chance that such arbitrator(s) adjudicating their case will be ‟pale, male and stale”?
In response to this criticism, and in order to address several judgments from the SFT which confirmed that, while CAS was sufficiently independent, there were some challenges in operating with a closed list of arbitrators, ICAS appointed a number of new CAS arbitrators, which increased the number of arbitrators on the closed list to almost 400 individuals.
3.2. CAS’ position on gender and equality, as well as uniformity in sports regulations, is untenable
Several arbitration cases have highlighted a growing divide between CAS’ ‟gender politics” and the pragmatic reality, ‟in real life”, which is that more and more athletes are naturally born as, or chose to become, gender fluid human beings.
On 24 July 2015, CAS handed down its appeal award on the dispute Dutee Chand v Athletics Federation of India (‟AFI”) & the International Association of Athletics Federations (‟IAAF”).
Ms Chand was, then, a 19 year-old female track and field athlete of Indian nationality, who won a number of national junior athletics events in India, as well as gold medals in the women’s 200 metres sprint and the women’s 4 x 400 metre sprint relay at the Asian Junior Track and Field Championships in Taipei in May 2014.
A few days before Ms Chand was due to leave India to attend the World Junior Athletics Championships, allegedly in compliance with the IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competition (the ‟Hyperandrogenism Regulations”), she was subjected to various medical examinations by the Sports Authority of India (‟SAI”), an Indian government body. Subsequently, Ms Chand was notified by a SAI doctor that she would not be permitted to compete in the forthcoming World Junior Championships, and would not be eligible for selection for the Commonwealth Games, because her ‟male hormone” (i.e. androgens) levels were too high (i.e. she was diagnosed with hyperandrogenism). SAI issued a press release setting out that ‟SAI had conducted this test following regulations set by international sport organisations, like IAAF and IOC, governing eligibility of females with hyperandrogenism. This test does not determine the athlete’s gender. (…) We are simply trying to find out if the athlete has excess androgen in her body. If the test results say she is ineligible to compete in the women’s competition, that indicates she has excess androgen than what is specified by the medical commission of the IAAF, or by the medical board which helped create the ‟Standard Operative Procedure” to identify circumstances (female hyperandrogenism) in which a particular sportsperson will not be eligible to participate in the female category in India. Yes, we have conducted such a test. (…) The athlete will still be able to compete in the female category in future if she takes proper medical help and lowers her androgen level to the specified range”. Such decision of suspension because of hyperandrogenism was notified by the AFI to Ms Chand on 31 August 2014, by way of letter. She subsequently appealed the suspension to CAS on 26 September 2014.
In her statement of appeal, Ms Chand asked CAS to i) declare the Hyperandrogenism Regulations invalid and void, and ii) set aside the suspension letter and declare her eligible to compete.
While there is some scientific evidence that normal levels of testosterone, in a human male, are between 10 and 35 nanomoles per liter (‟nmol/L”), and, in a human female, 0.5 to 2.4 nmol/L, and that levels of testosterone may be the ‟best discriminating factor between male and female performance in sports”, CAS decided to grant Ms Chand her above-mentioned requests, irrespective of the fact that Ms Chand’s test of her testosterone level revealed that such level was above the threshold of 10 nmol/L due to her hyperandrogenism condition. The arbitration panel suspended the Hyperandrogenism Regulations for a two year’ period, during which the IAAF may submit further evidence to CAS concerning the magnitude of the performance advantage that hyperandrogenic females may enjoy, over other females, as a result of their abnormally high androgen levels. If no such evidence was filed by the IAAF during these two years, the Hyperandrogenism Regulations would be declared void. In the interim, Ms Chand was permitted to compete in both national and international-level athletics events.
To justify its interim arbitral award, CAS arbitrators decided that the Hyperandrogenism Regulations were discriminatory since not only did they required female athletes to undergo testing for levels of endogenous testosterone when male athletes do not, but they also placed restrictions on the eligibility of certain female athletes to compete on the basis of a natural physical characteristic (namely, the amount of testosterone that their bodies produce naturally). Consequently, the IAAF had to establish that the Hyperandrogenism Regulations were necessary, reasonable and proportionate for the purposes of establishing a level playing field for female athletes. While the arbitration panel found that there was a scientific basis in the use of testosterone as a marker, for the purpose of the Hyperandrogenism Regulations, it decided that the IAAF had not discharged its onus of establishing that such Hyperandrogenism Regulations were justified as necessary and proportionate to pursue the legitimate objective of organising competitive female athletics to ensure fairness in athletic competition, in particular because the IAAF did not demonstrate a correlation between a level of testosterone above the threshold of 10 nmol/L in females, and a real competitive advantage that interferes with fair competition within the female category.
The second CAS award, relating to Differences of Sexual Development (‟DSD”) in female track and field athletes, is Caster Semenya & Athletics South Africa (‟ASA”) v IAAF dated 30 April 2019.
The exact same CAS arbitration panel than in the Dutee Chand’s case rejected Ms Semenya‘s request to declare the IAAF’s Eligibility Regulations for the Female Classification (Athletes with Differences of Sex Development), which came into force on 1 November 2018 (the ‟DSD regulations”), unlawful. Leveraging the previous Dutee Chand case law, the co-claimants went for the jugular, contending that the DSD regulations:
- were discriminatory against athletes on the basis of sex and/or gender because they only applied to (i) female athletes and (ii) to female athletes having certain physiological traits;
- lacked a sound scientific basis;
- were unnecessary to ensure fair competition within the female classification;
- were likely to cause grave, unjustified and irreparable harm to affected female athletes;
- were unlawful and should be prevented from being brought into force on the basis that they were unfairly discriminatory, arbitrary and disproportionate, and therefore
- violated the IAAF constitution, the Olympic Charter, the laws of Monaco (where the IAAF is incorporated), the laws of jurisdictions in which international athletics competitions are held, as well as universally recognised fundamental human rights.
However, CAS found that the DSD regulations, which establish new mandatory requirements governing the eligibility of women with DSD and levels of endogenous testosterone above 5 nmol/L, to participate in the female classification in eight events at international athletics competitions (i.e. the 400m, 800m and 1,500m races, in which Ms Semenya regularly competed and already held several medals as a first place winner) were discriminatory but were necessary, reasonable and proportionate means of attaining the legitimate objective of fair competition in the female category of elite competitive athletics. In particular, CAS’s view was that new evidence (not yet available during the adjudication of the Chand’s case, four years prior), provided by the IAAF, clearly supported IAAF’s proposition that androgen-sensitive women with elevated testosterone levels enjoy a significant performance advantage over other female athletes. Also, the arbitration panel found that requiring DSD athletes to take oral contraceptives to lower testosterone in order to compete in the female category in the above-mentioned restricted events was not, of itself, disproportionate.
This 2019 arbitral award triggered an avalanche of criticism, against CAS, and Caster Semenya lodged an appeal with the SFT to set aside such award. She lost her appeal to SFT and lodged an application Semenya v Switzerland on 18 February 2021, with the European Court of Human Rights (‟ECHR”), which is still pending.
The pervert effect of the 2019 CAS award is that female athletes with DSD, and/or transexual athletes who identify as women, must dope, by taking drugs which lower their levels of endogenous testosterone below 5 nmol/L, for extended periods of time prior to the races, in order to participate in the female classification in the eight restricted events at international athletics competitions (i.e. the 400m, 800m and 1,500m races).
3.3. Lack of due process in the Pechstein case
More than 13 years ago, speed ice skater Claudia Pechstein had an abnormal blood sample, which she had to give as part of a doping control. She was subsequently banned on 1 July 2009 by the Lausanne-based International Skating Union (‟ISU”) for anti-doping violation, for two years. CAS confirmed this ban in its arbitral award handed down on 25 November 2009. According to the CAS rules, in force at the time, Ms Pechstein was not entitled to a public hearing and a corresponding request for a public hearing was not granted. Ms Pechstein was also unsuccessful, on appeal, before the SFT on 10 February 2010.
Meanwhile, it was found that the litigious blood sample had only been conspicuous due to a genetically caused blood anomaly.
Ms Pechstein appealed the SFT judgment to the ECHR, before which she partially prevailed in the decision MUTU & Pechstein v Switzerland dated 2 October 2018. In particular, the ECHR found that CAS’ refusal to grant a public hearing to Ms Peschtein was a breach of article 6.1 of the European Convention on Human Rights, with respect to independence and impartiality of courts and tribunals. The ECHR found that the impartiality and independence of CAS was seriously questioned, in this matter, and that Ms Pechstein was able to achieve partial success and receive damages in the amount of 8,000 Euros. The ECHR also found a violation to the principle of publicity by the CAS rules in force at the time of the proceedings, in the form of a lack of entitlement to a public hearing.
After the ECHR judgment, CAS noted that it should have allowed a public hearing as Ms Pechstein had requested one and there was no specific reason to deny it. Also, CAS’ rules were amended to the effect that, in principle, public proceedings may be requested. However, this request may be turned down for various reasons provided for in these rules (such as morals, public order, national security).
If CAS’ arbitration panels were to refuse to grant the right to a public hearing, in the future, they better back themselves up very thoroughly, in their awards, to justify them invoking one of the exceptions to publicity.
3.4. Lack of impartiality of arbitrators on the CAS closed list
As mentioned above in our point on the lack of diversity in the closed list of CAS arbitrators, some white male arbitrators have been appointed in a disproportionately large number of CAS arbitrations (i.e. 14 men have been appointed over 100 times).
This issue, which touches on both a lack of diversity and a lack of impartiality, with respect to CAS arbitrators, has come to the fore in a judgment from the SFT dated 4 March 2022.
The CAS award challenged before the SFT concerned a life ban from participating in football-related activities and a fine of 1,000,000 CHF imposed by the ‟Fédération Internationale de Football Association” (‟FIFA”) on an (anonymous) former football official in connection with the ‟FIFA-gate” scandal (the ‟Appellant”). The Appellant had first challenged both sanctions before CAS, which subsequently reduced the ban to twenty years but upheld the fine. The Appellant then filed a motion to set aside the award based, among other things, on the ground that CAS’ arbitration panel had been ‟irregularly constituted” within the meaning of Article 190(2) of the Swiss Private International Law Act as its president lacked independence and impartiality.
Mark Hovell, the president of CAS’ panel of arbitrators, had initially disclosed the fact that he was simultaneously chairing another case involving FIFA. The Appellant requested further disclosures, which were eventually made on 16 October 2020. These disclosures revealed that the president had been involved in no less than ten additional ongoing arbitrations involving FIFA, in two of which he had been appointed by FIFA itself. They moreover revealed that a colleague of the president’s law firm, Mills & Reeve, had recently advised FIFA on a GDPR-related matter.
The SFT found that while Mr Hovell’s practice of non-disclosing three appointments in three years is inappropriate and contrary to the requirements of the duty of disclosure, there is no indication that such practice was the result of a deliberate attempt by the arbitrator to conceal certain information from the parties. The SFT added that, while the president’s non-disclosure could raise some ‟questions”, ‟sports arbitration instituted by CAS has particularities, such as the closed list of arbitrators”. Since FIFA had participated in more than 400 CAS arbitrations during the relevant period, these ‟questions” did not raise legitimate doubts as to impartiality and independence in the absence of ‟corroborating circumstances”, according to the SFT.
Since this judgment from SFT is highly controversial, recognising that CAS arbitrators have a duty of disclosure but giving a pass to Mr Hovell despite the evident breach of such arbitrator’s duty of disclosure, it remains to be seen if the Appellant will turn to the ECHR to reassess the lack of impartiality and independence of Mr Hovell.
Failing that, and given the frequency of challenges in sports arbitration, it is only a matter of time before we find out how the SFT would examine a new case involving a more compelling breach of the duty of disclosure, from a CAS arbitrator.