Court of Arbitration of Sports
Established in 1983 and starting its operation in 1984, the Court of Arbitration for Sport (“CAS”) is considered essentially an international “Supreme Court” for sport. Headquartered in Lausanne, Switzerland, the basic function of the court is to resolve legal disputes in the field of sport through arbitration. It does this issuing arbitral awards; these have the same enforceability as judgments of an ordinary court. Throughout the years, certain instances have questioned CAS’s jurisdiction and impartiality.
The Court’s short, but relatively rich history includes many benchmarks and milestones that have shaped the court to what it is today. Currently, the Court is governed by the International Council of Arbitration for Sport (“ICAS”) which was created in 1994. As the governing body of CAS, it overlooks all of the CAS operations, its funding, and arbitrator selection, among other duties. The ICAS and CAS are governed by the “Code”, a charter-like document created in 1994 as a result of the Paris Agreement on 1994. The Court rules on issues of sport instances that are “off-the-field.
These may come in the form of a commercial or disciplinary nature. Generally speaking, the cases involve issues of contractual nature among teams, governing bodies or corporations, and doping, eligibility, or jurisdictional issues. The Court will seldom rule on an “on-the-field” issue; when it does, the claim must be of a nature that a concern has been raised regarding the validity, legitimacy, or fairness of a rule of play. The CAS is organized in four divisions: the Ordinary Arbitration Division, the Appeals Arbitration Division, the Ad Hoc Division, and the Mediation Division. (tas-cas. om)
Each division handles cases of the same nature. The divisions are differentiated in how the cases reach the Court and the type of decision the case will produce either binding or non-binding. The ICAS is composed of 20 high-level jurists with significant experience in the field of sport. The CAS is composed of at least 150 arbitrators who possess competence with regard to sports and sports law. The Court included a roster of 275 arbitrators. The Board of Directors of the organization includes 5 members: The President of ICAS and two vice presidents selected from the remaining 19 jurists of the ICAS.
The remaining two are the presidents of the Ordinary Arbitration Division of the Court and the Appeals Arbitration Division. The President of the ICAS and the Board is also the President of the CAS as a whole. The mission of the ICAS and CAS is threefold. It is operational in nature referring to the different methods the Court uses to see a case. The first section of the mission statement is to “resolve the disputes that are referred to them through ordinary arbitration. ” The second is to “resolve through the appeals arbitration procedure disputes concerning the decisions of IF’s or other sports-related bodies.
Finally, the third addresses its mediation procedure stating that its purpose is to “provide non-binding advisory opinions at the request of the IOC, the IF’s, the NOC’s, the World Anti-Doping Agency (WADA), the associations recognized by the IOC and the Olympic Games Organizing Committees (“OCOG’s”). ” (tas-cas. com) The following sections will show how the Court has evolved, how it is currently organized, and how it operates in order to directly address their mission. History The history of the CAS can be classified into two stages regarding its governing body at the time: IOC rule (1984-1994) and ICAS rule (1994-present).
Various events, conflicts and intervention from the Swiss government led to this transition of the governing body after 1994. After the reform in 1994, the Court has continued to operate under ICAS rule and from time to time, its authority, independence, and jurisdiction is reiterated and enforced by external governing bodies. As a result of the increasing number of international sporting disputes in the early 1980’s, the IOC president at the time, Juan Samaranch, saw a need to establish an independent sports jurisdiction which would provide binding decisions regarding sporting disputes. In 1983, the CAS was proposed by
Samaranch and the IOC to serve two main needs. First, the CAS would resolve all international sporting disputes by providing binding decisions to be followed by the parties in a case exactly as dictated by the court. Secondly, the CAS would provide a quick, efficient, and affordable process to reach their decisions. On June 1984 the CAS began to operate. Under its initial beginnings, the CAS was to be governed by the IOC. At this stage, power and control of the CAS was laid upon the IOC. The IOC selected the members and arbitrators, directly referred cases, completely funded, and oversaw the court.
Also, the only authority that could amend the CAS rules was the IOC at the request of the IOC President. At this point, the CAS was composed of 60 arbitrators. Right from the outset, it was established that under no circumstances was the jurisdiction of the CAS to be imposed on sporting governing bodies; it existed to serve as a “go to” source that was available freely to the parties. The CAS continued operations in this fashion until 1991. In that year, the Court saw a tremendous increase in the number of cases on its docket. This increase called for a procedural change regarding the jurisdiction of the Court.
In 1991, the IOC amended the initial by-laws of the Court. The most significant change was that from now on “any dispute that cannot be settled amicably by parties must resort to CAS and accept the CAS ruling. ” (tas-cas. com) Essentially, this imposed the jurisdiction of the CAS on international sports organization shifting away from the initial approach of the Court only being freely available to the parties. In 1994, in what many consider the most important event in the history of the Court, an equestrian athlete by the name of Elmar Gundel challenged the legitimacy and independence of the CAS.
Mr. Gundel’s horse tested positive in a doping test forcing the Equestrian IF to ban Mr. Gundel and his horse from international competition. Mr. Gundel, having the Court at his disposal, properly appealed the case to CAS. The Court affirmed the IF’s decision barring him from international competition. In a rant, Mr. Gundel took the case to the Swiss Federal Tribunal (SFT). Here, he argued that the CAS was a biased entity controlled and influenced by the IOC.
Because of this he argued that the CAS rulings were not to be considered or enforced ince the Court is not grounded on the principles of justice and impartiality. In this unprecedented judicial challenge, the Swiss Federal Tribunal reached three main conclusions. First, the Swiss Federal Tribunal ruled that the CAS was a true and impartial court of arbitration. However, secondly, it pointed out the numerous links to the IOC and pointed them out as troublesome. Finally, as a suggestion the Court recommended that the IOC and the Court work to loosen these ties and make the CAS an even more independent entity free of IOC rule. This decision by the SFT led the Court to the Paris Agreement of 1994.
In 1994, the Code of Sports Related Arbitration (a. k. a. “The Code”) was created. This charter-like document, laid out all of the rules and by-laws that the Court would follow to operate from that point forward. This new Code had several main innovations. First, the agreement created the International Council of Arbitration for Sport (“ICAS”). ICAS was a 20 jurist council which was to serve as the new governing organ for the CAS. With the purpose of becoming more financially and organizationally independent from the IOC, ICAS was born to take the administrative role the IOC had.
Now ICAS would manage the CAS finances, approve arbitrators, amend the Code when it was necessary, and safeguard the Courts impartiality and independence. Also, the Code laid out new structural arrangements for the CAS in terms of divisions and arbitrators. The code explicitly laid out the four divisions in which the CAS would operate: the Ordinary Arbitrations Division, the Appeals Arbitration Division, the Ad-Hoc Division, and the Mediation Division . Composition wise, the CAS was now to be composed of at least 150 arbitrators.
To this day, the Code has been the foundation of the Court’s operation. It has been changed on occasions by the ICAS following the established procedure. There have been instances in which the SFT has reexamined the independence of the ICAS and the CAS under this new Code. The subsequent opinions that the SFT has issued have affirmatively maintain support of the CAS and have backed up the Court so strongly that those decisions have even deterred further challenges of the Court’s legitimacy in proceeding with a claim against CAS in an outside higher court.
For example, the CAS ruled to revoke British skier Alain Baxter’s bronze medal won in Salt Lake City in 2002; the skier toyed with the idea of challenging the Court’s legitimacy in the European Court of Human Rights; he argued that because many of the arbitrators on the CAS were members of higher international sports organizations, their decisions were swayed against him. However, he did not proceed to file the claim possibly because by that time the CAS’s jurisdiction had been clearly established by external organizations. White) Roles and Functions The roles and functions of these organizations can be best described as the roles and functions of ICAS and the roles and functions of CAS. In relation to each other, ICAS serves as the governing wing of the organization and the CAS serves as the operational wing. The ICAS main function is to safeguards the independence and impartiality of the Court. It is the only body that can amend the Code by 2/3-majority vote of the Council. In case of a tie in a vote, the President’s vote is the tie-breaker.
Also, it takes care of all of the financing and budgeting of the court. Moreover, it approves the Court’s arbitrators who are proposed by various governing bodies. It is also important to note that the Code includes a clause that states that the ICAS may do anything in its power, within reason, to safeguard the Court’s best interest. This broad rather vague clause established the ICAS authority and its ability to operate freely in order to maintain the Court’s status as a legitimate and independent body. The ICAS meets at least once a year.
If a meeting is necessary it will be called upon. The CAS is the operational wing of the organization. Its role is to observe the submitted cases in one of its four divisions: the Ordinary Arbitrations Division, the Appeals Arbitration Division, the Ad-Hoc Division, and the Mediation Division. The Ordinary Arbitration Division sees cases that are directly submitted to the Court. For example, if two parties from the sports world are in disagreement and submit their case to CAS, it will fall under the Ordinary Arbitration Division.
Also, the World Anti-Doping Agency refers cases regarding positive drug test to the CAS for the Court to evaluate and decide on the conflict. This will also fall under the Ordinary Arbitration Division. The second division, the Appeals Arbitration Division, admits cases that are appeals of a decision already made by another governing body. For example, the case of horseback rider Gundel falls under the Appeals Arbitration Division since the IF had already issued a decision, and Gundel had appealed it.
The Ad-Hoc Division takes care of individual international sporting events. For every Olympic Games, World Games, and many other international competitions, the Court sets up a Ad-Hoc office on-site to address all issues that come up during the competition. These cases usually have a turn-around of 24 hours. Finally, the Mediation Division issues decisions that are non-binding. This is more of an advisory service for parties that are seeking guidance on a particular issue.