ADR and Sports
By Joni Devole
Introduction
Alternative dispute resolution (ADR) has developed a lot in the last thirty years due to the traditional methods of settling disputes being too expensive or inflexible. Nowadays, sport is a big business with vast sums of money involved. Sport is now worth more than 3% of the world trade and 3.7% of the combined gross national product of the 28 EU member states. As a result of the colossal budget involved, conflict is a daily reality of sports organizations. Because of the particular dynamics and characteristics of the sport, ADR lends itself to the settlement of these sport-related issues. Mediation, as a form of ADR, is specifically useful in settling sports disputes because it gets the parties in dispute to talk and negotiate with one another. This allows for the restoration and maintenance of business and personal relationships. Med-Arb combines mediation and arbitration. Mediation to identify the issues and if it is not successful, arbitration has proved to be an effective method of DR in the sports world. As of now, the most crucial body offering ADR in sport is the Court of Arbitration for Sport (CAS), located in Lausanne, Switzerland.
Brief History
In the 1980s, many international sports disputes, combined with the absence of any independent body to efficiently deal with them, prompted several international sports federations to check what can be done. In 1981 the late Juan Antonio Samaranch, after assuming the International Olympic Committee's Presidency, had the idea to create a sports court that would be ‘the supreme court of the world of sport.’ One year later, at an IOC meeting in Rome, the late Judge Keba Mbaye, an IOC member and a judge at the International Court of Justice in the Hague at that time, was asked to chair a working party to prepare the statues of a sports dispute resolution body which would become known as the Court of Arbitration for Sport’. In 1983, the IOC ratified the statutes of CAS, and they came into force on June 30, 1984. On the same date, the CAS became operational with the late Judge Mbaye as its President, which he held until his death in 2007.
Structure of CAS
According to the Code of Sports-related Arbitration (the Code), the law of the seat of CAS Arbitration Panels is Lausanne. This means that any enforcement or challenge of a CAS award will be determined under Swiss Law. Swiss law is pro-arbitration, and the sports arbitration awards are enforced under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, and in accordance with the rules of International Private Law. Furthermore, the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations also recognizes the CAS. Therefore, CAS decisions are legally effective and enforceable internationally.
CAS consist of two divisions: the CAS Ordinary Division and the CAS Appeal Arbitration Division. The International Council for Arbitration of Sports acts as any other arbitral institution. It is responsible for the appointment of arbitrators, oversighting the Code, challenging or removing arbitrators. Every division has its own President to oversee the administrative functions.
The Ordinary Division works just like any other commercial arbitration institution. They hear cases brought there under an arbitration agreement in a governing body’s rules, in a contract, etc. The dispute must be directly or indirectly related to sport. Sporting issues can be about eligibility matters and selection, also on disciplinary issues such as doping. It also includes commercial contracts with the sport as their subject matter, like sponsorship agreements, media rights, employment issues, and transfer regulations.
The Appeal Arbitration Division acts as a court of final appeal for competent sports authorities' decisions. The federation or any other sport-related body rules must contain provisions that permit the referral of any appeal to CAS. An example can be a provision in the Union Cycliste Internationale Regulations, which states that any disciplinary decision from the Disciplinary Commission can be referred to CAS within 8 days.
It has been established in the previous decisions that CAS will not review the so-called on-field of play sporting decisions made on the playing field by the referees, umpires, judges, or other officials responsible for applying the rules of a particular game. For example, in Mendy v. International Amateur Boxing Ass’n, the Ad Hoc Division sitting at the Atlanta Summer Games in 1996 dismissed the French boxer's appeal against disqualification for punching the opponent below the belt for violation of the rules. The AHD held that the referee's decision was a technical one pertaining to the rules, which are the responsibility of the federation concerned. Furthermore, it was added that the boxer did not provide any evidence that the competent sports authorities had committed an error of law when evaluating the technical rule specific to the sport concerned. CAS will only intervene in the interest of justice in cases where the rules have been applied in bad faith.
The CAS awards can be challenged in the Swiss Federal Court, which is also based in Lausanne, in minimal circumstances by a dissatisfied party under Article 190(2) of the Swiss Federal Code on Private International Law of December 18, 1987. The Article states that the award can be attacked only:
If a sole arbitrator was designated irregularly or the arbitral tribunal was founded irregularly;
If the arbitral tribunal erroneously held that it had or did not have jurisdiction;
If the arbitral tribunal failed to rule on one of the claims or it ruled on matters beyond the claims which were made;
If the right to be heard or the equality of the parties in an adversarial proceeding was not respected;
If the award is not compatible with the Swiss public policy.
In practice, ground (d) is the most important one, and CAS bends over backward in each case to ensure that the rights mentioned there are respected.
Conclusion
Even with its flexibility and tricks, CAS arbitration is fundamentally not much different from other forms of institutional, commercial arbitration. As the commercialization of spots grows, and together with it, the number of business-related cases referred to CAS, it will have to evolve just as any other arbitral tribunal has done in recent years. As an alternative to litigation of sport-related disputes, it represents a focused and efficient forum for the settlement of disagreements.