How Independent is the Court of Arbitration for Sport?
By Suela Dervishi
What is the Court of Arbitration for Sport?
The Court of Arbitration for Sport (CAS) was established in 1984 to provide dispute resolution services in order to facilitate the settlement of sports-related disputes.[1] For over 35 years, it has settled disputes involving athletes, coaches, federations, sponsors from almost every country in the world through arbitration and mediation procedures.[2]
The Court exercises a considerable amount of influence, not only to the outcome of individual disputes but also on the development of international sports law.[3] Because it wields this influence, it is important to scrutinize who the arbitrators of such disputes are. A Court is perceived as legitimate, credible, and authoritative when it ensures independence and impartiality of the arbitrators.
How are the CAS arbitrators appointed?
The International Council of Arbitration for Sport (ICAS) looks after the running and financing of the Court and is responsible for appointing CAS arbitrators for one or several renewable period(s) of four years.[4] In doing so, ICAS appoints arbitrators, whose names and qualifications are brought to the attention of ICAS, by the International Olympics Committee (IOC), the International Federations (IFs), the National Olympics Committees (NOC) and by the athletes’ commissions of the IOC, IFs and NOCs.[5]
The connection of how ICAS members and CAS members are appointed is of particular importance. ICAS members are appointed by different sports organizations. Four members are appointed by the IFs - three by the Association of Summer Olympics IFs and one by the Association of the Winter Olympic IFs.[6] Other four members are each appointed by the Association of the NOC[7], and IOC.[8] Four members are appointed by the twelve members of ICAS mentioned above[9], and four others are appointed by the final sixteen members of ICAS.[10]
Interestingly, the majority of members of the ICAS and of the CAS are representatives of sports organizations. It follows from this that the sports organizations have a certain influence on the composition of the ICAS, and consequently, the composition of CAS. Such links could be sufficient to call into question the independence of the CAS in the event of the above-mentioned sports organization being a party to proceedings before it. Such was the case of Claudia Pechstein, who argued that CAS was not an independent and impartial tribunal on account of the method of appointing arbitrators, the “hard-line” taken against doping by its President and its refusal to allow her hearing to be held in public.[11]
The Pechstein case
Ms. Claudia Pechstein is a professional speed skater. In February 2009, she underwent an anti-doping test. After the analysis of the applicant’s blood profile, the International Skating Union’s disciplinary board imposed a two-year suspension on her. In July 2009, Ms. Pechstein appealed to CAS against that decision, but CAS upheld it. After, Ms. Pechstein applied to the Federal Supreme Court to set aside the CAS decision. In February 2010 the Federal Court dismissed her application. Ms. Pechstein decided to bring the case to ECHR. In its October 2018 Chamber judgment, the ECHR dismissed allegations that the CAS arbitrators are not independent and impartial, on the grounds that the complaints made against the president of the arbitration court were too vague and hypothetical.[12]
Joint partly dissenting, partly concurring opinion of judges Keller and Serghides
Judges Keller and Serghides disagreed with the majority’s reasoning. They were of the view that the structure and composition of the CAS do not meet the requirements of independence and impartiality prescribed in Article 6(1) of the Convention.[13] The influence of the ICAS on the procedure for selecting arbitrators could have had an impact on the independence and/or impartiality of the arbitrators on the list from which the panels are composed.[14] The judges expressed that first, the organizations which appoint the arbitrators (IFs, IOC and NOC) all represent one party in the arbitration – the sports bodies and not the athletes.[15]
Under the ECHR’s settled case-law, it is not sufficient for the arbitrators to be impartial on an individual basis if the organization’s general structure has no appearance of independence and impartiality.[16] Judge Keller and Serghides stated that in determining the ‘independence’ of a tribunal, the Court ‘has… regard to the manner of the appointment of its members and the duration of their term of office … the existence of guarantees against outside pressures … and the question of whether the body presents an appearance of independence…’.[17]
Future perspectives
The lack of independence expressed by Judges Keller and Serghides was clearly reflected in Article S4(5) of the Code of Arbitration, which states that only 1/5th of the arbitrators are to be chosen from among persons independent of the bodies designating the other members of the ICAS. The very structure of the institution could be a challenge for the maintenance of independence and impartiality of the arbitrators. CAS claims to be an institution independent of any sports organization,[18] but on what exact grounds?
Despite previous institutional reforms, and criticism from various scholars, athletes, and lastly some ECHR judges, the Court has found relief that the national courts have reassured its independence and impartiality. If domestic courts question CAS’ authority and declare that the forum is not independent and impartial, it would encourage other athletes to follow suit and lead to the destruction of international sports law.[19] In that case, the Court must undertake a complete reformation of its arbitration selection methods, in order to facilitate more balanced and independent arbitral decisions. A tri-panel system influenced by Sports Resolutions[20] will ensure a balance between governing bodies and individual athletes.[21] By implementing these changes, the Court will continue to maintain its position as the exclusive forum for international sports disputes, securing the further development of lex sportiva.
[1] Court of Arbitration for Sport (CAS), “Frequently Asked Questions” < https://www.tas-cas.org/en/general-information/frequently-asked-questions.html> accessed 20 May 2020
[2] Court of Arbitration for Sport (CAS), “Media Release: The European Court of Human Rights rejects the request of Claudia Pechstein to refer her case to the Grand Chamber of the ECHR” (2019) <https://www.tas-cas.org/fileadmin/user_upload/Media_Release_Pechstein_ECHR_GC.pdf> accessed 20 May 2020
[3] Johan Lindholm, The Court of Arbitration for Sport and its Jurisprudence (Springer 2019) 261
[4] Code: Statutes of ICAS and CAS, S13
[5] Ibid, S14
[6] Ibid, S4(1)
[7] Ibid, S4(2)
[8] Ibid, S4(3)
[9] Ibid, S4(4)
[10] Ibid, S4(5)
[11] Mutu and Pechstein v Switzerland Apps nos. 40575/10 and 67474/10 (ECHR, 2 October 2018), para 22
[12] Ibid, para 150
[13] Navigator, “EHRM, 02-10-2018, nr. 40575/10, nr. 67474/10” (2018) <https://www.navigator.nl/document/iddd94106ae9af4e3ea73992b0047474ef/ehrm-02-10-2018-nr-40575-10-nr-67474-10> accessed 20 May 2020, page 35.
[14] Ibid, page 36
[15] Ibid
[16] Ibid, page 37
[17] Campbell and Fell v the United Kingdom App no. 7819/77 (ECHR, 28 June 1984), para 78
[18] Court of Arbitration for Sport (CAS), “Frequently Asked Questions” (n 1)
[19] Jennifer R. Bondulich, ‘Rescuing The “Supreme Court” of Sports: Reforming The Court of Arbitration for Sport Arbitration Member Selection Procedures’ [2016] 42(1) Brooklyn J of Int’l Law 280.
[20] Sports Resolutions is an independent, non-for-profit, dispute resolution service for sport based in the United Kingdom.
[21] For more information on Sport Resolutions’ Panel, check: https://www.sportresolutions.co.uk/about-us/panels/our-panels