Perez's model applied to the CAS
Applying Perez’s model to the CAS (see Figure 27.3) provides a systematic overview of how the tribunal functions (by level); it identifies its weak points and highlights the role of the International Council of Arbitration for Sport (ICAS). It helps us understand how the CAS complex regime, mixing public and private law, functions.
Figure 27.3 The five levels of governance within the CAS
The analysis of each level will provide us with suggestions (in the next section) on how to improve CAS or further develop its structure and organization.
Perez’s first level (Who manages the organization day-to-day?) is composed of the CAS’s Court Office, which, following a current trend in justice-system management research, can be considered the CAS’s ‘management’ (Lienhard, Kettinger and Emery, 2016). It consists of a permanent secretary general, a deputy secretary general, a financial director, 11 councilors (all legal experts), and secretaries. The councilors can be considered 'managers’ because they are responsible for the day-to-day organization of the numerous procedures submitted to the CAS. They are supervised by the secretary general, who is a sort of chief executive officer (CEO). In addition, the CAS has three divisions to which the different types of dispute it is asked to arbitrate are assigned. As its name suggests, the Appeals Arbitration Division deals with appeals against disciplinary sanctions handed down by sport organizations (once the organization’s internal appeals procedures have been exhausted). The Ordinary Arbitration Division hears all the other cases accepted by the CAS, except doping disputes. An Anti-Doping Division was added in 2019.
Neither division has permanent, salaried arbitrators. Instead, they call upon arbitrators from pre-established lists (see later discussion), as and when required. These arbitrators receive a fee of CHF300 to 500 (in 2020) for each hour they work. There are four types of dispute-resolution procedure: appeal, ordinary, mediation, and ad hoc. (Ad hoc divisions are set up on site during major events, such as the Olympic Games, so any disputes that arise can be resolved quickly. A separate ad hoc division to adjudicate cases of doping was set up for the first time at the 2016 Rio Olympics.) Disputes brought before the CAS are processed according to a set of Procedural Rules. Mediation cases are governed by a separate set of rules. The CAS registered almost 600 procedures in 2016, and has processed more than 5,000 procedures since its foundation (CAS, 2017). Most procedures are appeals (458 appeals procedures in 2016) and are related to cases of doping. This is likely to continue given the IOC’s desire to make the CAS the primary adjudicator in all doping cases (through new Anti-Doping Division which started operations in 2019). The CAS’s non-binding mediation service is rarely used, undoubtedly because it is not obligatory to first go through a mediation process (in contrast to the arbitration procedure introduced by France’s NOC, in which cases must first go to mediation). Ordinary procedures, of which there were 100 in 2016, concern contractual and commercial relationships. The ad hoc divisions at the 2016 Rio Olympics heard 41 cases (CAS, 2017). More recent statistics are not publicly available.
As well as its headquarters in Lausanne, the CAS has decentralized offices in New York and Sydney, and alternative hearing centres in Abu Dhabi, Kuala Lumpur, Cairo, and Shanghai. As noted, temporary offices, including a specific division for processing doping cases (since Rio 2016), are set up for major competitions, most notably the Olympic Games (since Atlanta 1996). The CAS’s website provides a schedule of arbitration costs, which consist of a fixed Court Office fee (currently CHFl,000), an administration fee that varies according to the size of the disputed sum (from CHF100 to CHF25.000), and the arbitrators’ costs and fees. Under certain circumstances, and on request from the parties, the ICAS may provide financial aid to cover part of the parties’ costs.
The second level of Perez’s model (Who manages the managers?) consists of the ICAS Board, whereas the third level (Who manages the managers’ managers?) consists of the full ICAS (International Council of Arbitration for Sport). The ICAS was founded in Paris as a Swiss foundation in 1994, the IOC’s centenary year, by the IOC, the Association of National Olympic Committees (ANOC), and the umbrella associations for the IFs of Summer and Winter Olympic sports (ASOIF and AIOWF). Together, these organizations provide about two-thirds of the ICAS’s
(and, therefore, of the CAS’s) funding. In 2016, the IOC, ANOC, and ASOIF/AIOWF each provided 21% of the ICAS/CAS’s funding (Sternheimer, 2016); however, it should be remembered that the ANOC, ASOIF, and AIOWF are mostly funded by the IOC. The ICAS obtains the remaining third of its budget from the fees paid by the parties whose cases are heard by the CAS.
The ICAS was created in 1994, in response to remarks about the CAS’s independence by Switzerland’s supreme court, the Tribunal Fédéral, in its judgment on a case brought before it by horse rider Elmar Gundel. Gundel had challenged CAS’s decision concerning his appeal against a doping sanction imposed by the International Equestrian Federation (FEI), claiming that the CAS was not independent from sport’s governing bodies. Although the Tribunal Fédéral rejected Gundel’s appeal, ruling that the CAS was independent from the FEI, the judges noted that the IOC’s close links with the CAS might have prevented them reaching a fair decision if the case had involved the IOC directly (Tribunal Fédéral 1993). In fact, at that time the IOC not only financed the CAS, it also provided its premises and appointed its arbitrators. The Tribunal Fédérais remark led the CAS’s founders to create the ICAS, approving its statutes in what became known as the “Paris Agreement”. These statutes, which also cover the CAS, are known as the “Code of Sports-Related Arbitration” and have been updated regularly since they first came into force, in 1994. A set of Procedural Rules, approved by the ICAS, supplements the Code.
The ICAS Board is a subset of the ICAS, consisting of five of its 20 members: ICAS’s president and two vice-presidents, plus the president of the Ordinary Arbitration Division, and the president of the Appeals Arbitration Division. The CAS’s secretary general is also the Board’s secretary, but is not a voting member of the Board. ICAS’s president, who is also the president of the CAS, oversees the application of the Code. The CAS provides the infrastructure needed to resolve, by arbitration, the sporting disputes submitted to it. Hence, the president fulfills the role of chairman (of the board), distinct from the CEO (secretary general), quite rightly from a governance point of view.
All 20 members of the ICAS are appointed for renewable periods of four years as follows: the IOC appoints four members, the Olympic IFs appoint four members (three for the ASOIF and one for the AIOWF), the ANOC appoints tour members; these first 12 members appoint a further four members, as a way of “safeguarding the interests of the athletes" (article S4 of the Code), and the first 16 members appoint the remaining four members from among personalities independent of the IOC, ANOC, ASOIF, and AIOWF.
The ICAS has numerous attributions (article S6 of the Code), but many of these attributions can be (and often are) delegated to the Board. Attributions that cannot be delegated include revising the Code (any revisions to the Code must be approved by at least two-thirds of the ICAS’s members), electing ICAS’s president and vice-presidents, and the presidents of the CAS’s divisions, and approving the CAS’s budget and accounts, which are prepared by the Court Office and submitted to the Board. The ICAS meets at least once a year.
One of the ICAS’s main responsibilities is to appoint general or football-specific arbitrators and mediators. Potential arbitrators are nominated by the Board and are appointed for terms of four years, renewable without limit. The ICAS can also remove arbitrators from the CAS’s lists. In 2020, the CAS’s lists (published on its website) included 393 general arbitrators from more than 95 countries, 104 football arbitrators, and 58 mediators. For each procedure, three arbitrators are chosen from these lists by the parties involved: one party chooses the first arbitrator, the other party chooses a second arbitrator, and the first two arbitrators choose the president of the panel by mutual agreement. If mutual agreement is not reached within a set time limit, the president of the relevant division appoints the president of the panel. The president of the panel can be recused by the ICAS or must recuse himself/herself if legitimate doubts could be raised about his/her independence (article S21 of the Code). The choice of arbirtrators by the parties is crucial. Following their appointment, arbitrators and mediators must sign a declaration of impartiality and independence. As a further measure to avoid accusations of conflicts of interest, a new rule added to the Code excludes any person who is acting as counsel for a party before the CAS from serving as an arbitrator (article SI 8 of the Code). Similarly, members of the ICAS cannot be arbitrators (article S5). On the other hand, some arbitrators are selected much more frequently than others and therefore have much more information than other arbitrators or potential parties. A system of financial aid and pro bono legal advice has been recently introduced. The appeals procedure is free, with the exception of a set fee of CHFl.OOO; however, the parties often incur substantial legal costs. (WADA complained that the appeal by the cyclist Floyd Landis in 2007—2008 cost it more than €840,000.) Sometimes, upon its division president, the CAS appoints a one-member only panel (instead of three).
The 1994 Paris Agreement (Reeb, 2004, p. 680 and subsequent) created the ICAS as a foundation established under Swiss law (articles 80—89a of the Swiss Civil Code). All important foundations registered in Switzerland are monitored by the Federal Supervisory Authority for Foundations, a public body within the Federal Department (ministry) of Home Affairs, which checks that a foundation’s assets are used for their declared purpose and that any modifications to its statutes (here the Code) comply with Swiss law. Hence, the Federal Supervisory Authority, together with the Tribunal Fédéral, constitutes the fourth level in Pérezs model (Where can decisions be appealed?). This legal arrangement is subject to the Federal Act on International Private Law (LDIP), which governs arbitration in Switzerland. More specifically, cases heard by the CAS are subject to “Chapter 12 International Arbitration” (articles 176 to 194) of the LDIP, unless both parties are domiciled in Switzerland (such cases fall within the jurisdiction of Switzerland’s civil courts). The CAS’s awards can be appealed to the Tribunal Fédéral, but only in certain circumstances set down in the LDIP, most notably irregularities in the designation of the arbitration panel, failure to respect procedures, or an award that is “incompatible with Swiss public policy”. The CAS’s decisions are applicable in every country that has ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (over 125 countries in 2017, with the exception of certain African countries) and every sport/ IF which has recognized CAS in its statutes.
Some of the CAS’s awards have been appealed to the Tribunal Fédéral by one of the parties. The Gundel case led to the creation of the ICAS and major reforms to the CAS’s statutes. In 2010, German speed skater Claudia Pechstein filed an appeal with the Tribunal Fédéral in which she contested the CAS’s independence from the concerned IF. The Tribunal Fédéral rejected her appeal, and she took her case to the German courts over abuse of dominant position by the IF, where her arguments were eventually rejected by Germany’s Federal court despite an initial ruling in her favor by a Bavarian court. If Germany’s highest civil court had found in Pechstein’s favor, this decision would have called into question the entire edifice patiently constructed by the CAS and the ICAS. A further appeal by the athlete to the European Court of Human Rights in Strasbourg was dimissed in 2019 but recommends public hearings. In 2019, another appeal to the German Constitutional Court is pending (Reinholz, 2019).
Level 5 of Pérez s model (What legal frameworks?) comprises all Swiss legislation relating to what Pérez calls ‘metagovernance’, including the previously mentioned 1987 Federal Act on Private International Law (LDIP) and some international legislation such as the 1958 New York Convention (ratified by Switzerland). However, the parties in a dispute may, by common accord, choose to have their case heard under a law other than Swiss law, which is the default law for CAS arbitration procedures. Similarly, the parties may agree to the case being heard in a language other than one of the CAS’s two default languages, English and French. Furthermore, if there is no contractual clause obliging the parties to accept arbitration by the CAS, they may submit their dispute to the civil courts in their country of residence or to any other arbitrational authority (including the CAS by later agreement). However, all international sport federations currently oblige their athletes to accept arbitration by CAS when they sign their entry form for a competition.
In 2019, the LDIP has been revised in order to maintain Switzerland as a major, attractive centre for arbitration. Several countries, including Germany, Canada, France, New Zealand, and the United Kingdom, have national courts of arbitration for sport that are not affiliated to the CAS. (The CAS can also accept cases in which both parties are Swiss if they are not resident of the same canton.) The obligation for athletes to submit disputes to the CAS, imposed by many IFs and sports competitions, has been judged to be legally acceptable and not to be an abuse of their dominant position in the market (judgment in the Pechstein case).
All criminal cases are heard in the relevant national courts (as CAS only deals with civil cases). For example, FIFA’s former president Sepp Blatter will face criminal proceedings in Switzerland over allegations of mismanagement and misappropriation of funds (articles 138 and 158 of Switzerland’s criminal code). Revelations of corruption within FIFA had already led to Blatter being banned by FIFA from all footballing activities for eight years, later reduced to six years (sporting sanction). Blatter’s appeal to the CAS was rejected but he decided not to take his case to the Tribunal Fédéral.