The CAS

The CAS was founded in 1984.[1] [2] [3] [4] [5] It is based in Lausanne in Switzerland. In formal terms the CAS is a ‘court’ only in name. It is an arbitration tribunal that draws its authority from the agreements entered into by the parties which choose to submit to its jurisdiction. It offers the advantages offered by arbitration in general. The CAS is the sports-specific reflection of the general preference which underpins arbitration for a desirable method for streamlining access to justice through tailored procedures that are quicker and cheaper than those of the ordinary courts and possessed of more specific expertise. It is, in its own right, an intriguing example of the trend towards creating a single global adjudicative body with expertise.12

The CAS’s profile is high and rising as the centrality of its role in the development of the lex sportiva is beyond dispute. The publication in 2016 of the first ever Yearbook of International Sports Arbitration, which is mainly though not exclusively concerned with CAS practice and decisions, emphasizes its prominence.13 The CAS is emerging as the source of case law and of principles of an increasingly dense lex sportiva. The CAS does not operate according to a formal system rooted in precedent in the way that a common lawyer might recognize and expect, for it decides disputes on their facts. Writing over ten years ago, Erbsen cautioned against a complacently homogenous account of the CAS’s elaboration of a lex sportiva!4 In particular he pressed the need to understand where, when, and how the CAS will identify principled methods of interpretation and adjudication in circumstances where a sporting rule or code fails to provide a textually clear answer to a dispute. Foster, writing at the same time, emphasized that when faced with disciplinary cases that expose the profound asymmetry of power that prevails in the relationship between governing body and athlete, the CAS should be attentively interventionist to a degree that would not be apt in other areas where it exercises jurisdiction.15 The caution against uncritical embrace of the label lex sportiva is well made. But this is not to deny that the CAS’s accumulated decisions reveal themes and principles. Moreover, more recent accounts observe that it tends increasingly to cite its own previous rulings, thereby building a sense of continuity and enhancing predictability.[6] In particular, fairness is emerging as a guiding principle, especially well developed in its procedural (rather than its substantive) dimension.![7] It has been argued that CAS practice reveals a strain of willingness to defer to the autonomy of sporting bodies but on condition that their practice meets standards of good governance, including compliance with published rules, transparency, and ensuring a fair hearing^[8] h is propelled in this direction by the critical gaze of some national courts—this is considered later, in section 2.2.4—but the CAS’s approach deserves to be understood as something more than merely instrumental. The CAS aspires to shape a procedurally respectable scheme of review of an insulated and developing lex sportiva, at the apex of which it sits, but beneath which is flourishing a rather dense form of governance which is largely invisible to the ordinary courts. The practice of the World Anti-Doping Agency (WADA) provides a particularly rich case study into the development of a remarkably detailed self-contained regime, which occasionally also provokes appeal decisions before the CASd[9]

It would be a mistake to exaggerate the consistency of the CAS’s practice. Its job is to resolve disputes, not to craft an intellectually pure stream of principles. Chapter 9 will explore a wild inconsistency in its approach to the calculation of compensation payable to clubs whose players have terminated their contracts without just cause. But overall there is more convergence than divergence in its accumulated decisional practice. The CAS’s decisions are significant in their own right and they also set the tone for the future. Accordingly the CAS may not be a court in a formal sense, yet it is in functional terms a ‘court’. It presides over a system of private ordering—but it is ordering.

The CAS has its own procedural rules, found in the Code of Sports-Related Arbitration.[10] They state that in ordinary arbitration: ‘The Panel shall decide the dispute according to the rules of law chosen by the parties or, in the absence of such a choice, according to Swiss law.’21 And so in some cases the CAS will apply the law of the contract as stipulated by the parties. In arbitration before the CAS on appeal—which will be the norm where the matter has originated in a decision by FIFA or another sports governing body—it is provided that:

... the Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate.22

So, for example, in Adrian Mutu v Chelsea Football Club the relevant employment contract was governed by English law and therefore English law fell to be applied to determine the damages due to the club as a consequence of the breach of the contract by the player, whose drug use had led to a ban and his unavailability for selection.23 A sum of compensation in excess of €17 million had been ordered through FIFA’s dispute resolution procedure and this was duly approved by the CAS and an appeal to the Swiss Federal Tribunal by the player failed.24

There is a degree of inconsistency in the attitude of CAS Panels to the application of relevant provisions of EU law.25 A strong statement in favour of adhesion to EU law in CAS decision-making is found in AEK Athens and Slavia Prague, where the parties agreed that the Panel should apply EC (as it then was) and Swiss competition law, but the Panel found that ‘even if the parties had not validly agreed on its applicability to this case, it should be taken into account anywayT6 It added that Article 19 of the Swiss Federal Statute on Private International Law directs that an arbitration tribunal sitting in Switzerland must take into consideration foreign mandatory rules, even of a law different from the one determined through the choice-of-law process, provided that three conditions are met. These hold that, first, such rules must belong to that special category of norms which need to be applied irrespective of the law applicable to the merits of the case; second, there must be a close connection between the subject matter of the dispute and the territory where the mandatory rules are in force; and, third, the mandatory rules must aim to protect legitimate interests and crucial values and their application must allow an [11] [12] [13] [14] [15] [16]

appropriate decision. The three conditions were in the Panel’s view met and so, pursuant to Article 19 of the Swiss Federal Statute, EU competition law has to be taken into account by the CAS.

A similar approach was taken to EU free movement law in the CAS ruling in Celtic v UEFA, which concerned the transfer of a player.27 The Panel concluded that the conditions of Article 19 of the Swiss statute were satisfied and it therefore applied what is now Article 45 of the Treaty on the Functioning of the European Union (TFEU) to test the compatibility of a demand for compensation with EU law. Following the Court of Justice’s reasoning in Bosman,2S it decided that EU law precluded any such demand.

In Galatasaray v UEFA the CAS Panel expressly adopted a desire to converge with the reasoning of the Panel in AEKAthens and Slavia Prague and, citing Article 19 of the Swiss statute, agreed that it would take account of the Treaty rules on both free movement and on competition as mandatory provisions of EU law.29 It then, however, resisted the claim that UEFA’s Financial Fair Play regulations offended against the requirements of EU law. This point of substance is addressed in context in Chapter 10.9.

The test drawn from Article 19 of the Swiss statute and applied in the ruling is not sports-specific. It would in principle apply to any matter falling for determination by an arbitration tribunal sitting in Switzerland. However, the sporting context is relevant to the ease with which the test is met: the second in particular is readily met precisely because of the location of major football clubs. Under this reasoning the CAS is always required to take into account both EU competition law and EU free movement law in any case with a connection to the EU. Practice admittedly varies:30 but a powerful pragmatic reason pushing the CAS to take EU law seriously lies in the likelihood that, in the absence of such respect, the finality of its rulings will in turn be disrespected by courts within the EU determined to prevent subversion of the provisions of EU internal market law which count as an expression of public policy. This is considered further later in this section.

  • [1] It has a useful website——which includes a summaryof its development over time— accessed 29 November 2016. On its first 20 years, see I Blackshaw, R Siekmann, and J Soek(eds), The Court of Arbitration for Sport 1984—2004 (TMC Asser 2006).
  • [2] On its structure and operation, see R McLaren, ‘The Court of Arbitration for Sport’ in J Nafzigerand S Ross (eds), Handbook on International Sports Law (Elgar 2011) ch 2; M Beloff, S Netzle, andU Haas, ‘The Court of Arbitration for Sport’ in A Lewis and J Taylor (eds), Sport: Law and Practice(3rd edn, Bloomsbury 2014) ch E3.
  • [3] A Duval and A Rigozzi (eds), Yearbook of International Sports Arbitration 2015 (TMC Asser 2016).
  • [4] A Erbsen, ‘The Substance and Illusion of Lex Sportiva’ in I Blackshaw, R Siekmann, and J Soek(eds), The Court of Arbitration for Sport 1984—2004 (TMC Asser 2006).
  • [5] K Foster, Hex Sportiva and Lex Ludica: The Court of Arbitration for Sport’s Jurisprudence’ inI Blackshaw, R Siekmann, and J Soek (eds), The Court of Arbitration for Sport 1984—2004 (TMCAsser 2006).
  • [6] R van Kleef, ‘Reviewing Disciplinary Sanctions in Sports’ (2015) 4 CJICL 3; G Ioannidis, ‘TheInfluence of Common Law Traditions on the Practice and Procedure before the CAS’ in A Duval andA Rigozzi (eds), Yearbook of International Sports Arbitration 2015 (TMC Asser 2016) ch 2.
  • [7] eg J Nafziger, ‘The Principle of Fairness in the Lex Sportiva of CAS Awards and Beyond’ (2010)10(3—4) Intl Sports LJ 3; J Nafziger, ‘International Sports Law’ in J Nafziger and S Ross (eds), Handbookon International Sports Law (Edward Elgar 2011) 17—31; McLaren (n 12) 54—62; J Letnar Cernic, ‘FairTrial Guarantees before the Court of Arbitration for Sport’ (2012) 6 Human Rights and InternationalLegal Discourse 259.
  • [8] D Mavromati, ‘Autonomy and Good Governance in Sports Associations in light of the Case LawRendered by the Court of Arbitration for Sport’ [2014] Intl Sports L Rev 71.
  • [9] 19 Erbsen (n 14) uses this as his main source of illustrations of CAS practice. See also R W Poundand K Clarke, ‘Doping in Sport’ in J Nafziger and S Ross (eds), Handbook on International SportsLaw (Edward Elgar 2011) ch 6; V Moeller and P Dimeo, ‘Anti-doping: The End of Sport’ (2014)6 International Journal of Sport Policy and Politics 259; A Duval, ‘La Lex Sportiva Face au Droitde l’Union Europeenne: Guerre et Paix dans l’Espace Juridique Transnational’ (DPhil thesis, EUIFlorence, 2015) 317—72, available via accessed 29November 2016. On anti-doping generally and the World Anti-Doping Agency (WADA) and itsCode in particular, see U Haas and D Healey (eds), Doping in Sport and the Law (Hart 2016); J Gleavesand TM Hunt (eds), A Global History of Doping in Sport: Drugs, Policy and Politics (Routledge 2015).
  • [10] . The current version has been in force since January2016. See D Mavromati and M Reeb, The Code of the Court of Arbitration for Sport (Kluwer 2015).
  • [11] The Code, R45. See CL Haemmerle, ‘Choice of Law in the Court of Arbitration forSport: Overview, Critical Analysis and Potential Improvements’ (2013) 13 Intl Sports LJ 299: theproposed improvement is to improve certainty by replacing default to Swiss law with a ‘closestconnection’ test.
  • [12] The Code, R58. See U Haas, ‘Applicable Law in Football-related Disputes—the Relationshipbetween the CAS Code, the FIFA Statutes and the Agreement of the Parties on the Application ofNational Law’ [2015] Intl Sports L Rev 9.
  • [13] CAS 2008/A/1644.
  • [14] 24 The payment seems never to have been made. In CAS 2013/A/3365 Juventus v Chelsea the CASrefused to hold the club that the player joined subsequent to his ban jointly liable, citing the deterrenteffect on the player pursuing his livelihood that would follow from such an award.
  • [15] See A Duval, ‘The Court of Arbitration for Sport and EU Law: Chronicle of an Encounter’(2015) 22(2) MJ 224, 235—45; and more fully Duval (n 19) Partie II Titre 2.
  • [16] 26 CAS 98/200, para 10.
 
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