CAS and the Roles of National Courts in International Sports Disputes
Introduction
The founding purpose of creating the Court of Arbitration for Sport (CAS) was to take from the national courts the international sports disputes to provide a specialized forum where these disputes could be heard quickly, efficiently, according to a flexible schedule.[1] However, this does not mean that national courts have been left out of the picture. This article has the aim to inform the reader how the national courts contribute to international sports disputes.
Main Body
The Swiss Federal Tribunal (Swiss Supreme Court) plays a valuable role in the enforcement and the review of the CAS awards. CAS arbitrations are governed by Chapter 12 of the Swiss Act on Private International Law (PILA),[2] if when the arbitration agreement is concluded, at least one of the parties had neither its habitual nor its domicile residence in Switzerland.[3] PILA help CAS’ cases by ensuring procedural predictability and consistency.[4] Articles 184 & 185 of PILA state that the court at the seat of the arbitral tribunal can assist in taking evidence and shall have jurisdiction if judicial assistance is required.[5] Even though these two articles are rarely used in CAS procedures, they are useful tools that the Swiss courts provide in aid of arbitration.[6]
A feature of a new problem such as match-fixing and spot-fixing is that it can give rise to athletes being the subject of criminal proceedings, as well as disciplinary hearings before the respective sport’s governing body.[7] These criminal proceedings can be beneficial for the disciplinary procedures before the sport’s governing body because national courts usually have greater power to investigate and procure evidence than the power of the sport’s bodies. The evidence provided in criminal proceedings can be used in disciplinary proceedings.[8] This happened in the case of the Pakistani cricketers,[9] where at the parties’ request, the proceedings before CAS were halted pending the outcome of the criminal proceedings for the same case in the United Kingdom, for the reason that evidence provided in the criminal proceedings might acquit the cricketers on appeal.[10] However, the criminal investigation found them guilty of conspiracy to cheat at gambling and accept corrupt payments. The ICC banned all three players, but they were allowed to appeal with the CAS. At appeal, CAS decided that it had no jurisdiction to rule on the matter.
Numerous international sports disputes have been brought before the national courts. For example, in July 2008, Dwain Chambers, a British Sprinter, brought an action before the High Court in London to challenge the lawfulness of the British Olympic Association’s (BOA) statutes on the grounds of unreasonable restraint of trade.[11] He served a two-year ban, but even after the ban, the BOA excluded him from the Beijing 2008 Olympics in accordance with its Byelaw, according to which athletes convicted of doping are banned from life from the Olympic Games. The High Court ruled against Chambers, but when he was considering whether to grant an injunction to allow him to compete, Mr. Justice Mackay stated that he has to consider whether it is proportionate for BOA to enact a law that says that an athlete who was proved to have cheated over drugs, is not appropriate or is the appropriate person to represent his country.[12]
An area where the intervention of national courts is less welcome is when it is seen to infringe on the autonomy of the governing bodies of sports.[13] These bodies are successful because of the generally accepted principle of autonomy and the specificity of sport. The President of the International Olympic Committee has commented on this principle. He has stated that this principle does not mean that sport’s bodies are above the law, but that sports administration should be free from government or political interference. He added that the governments should not interfere with the fair elections of the National Olympic Committees or seek to force the election of athletes or coaches.[14]
The autonomy and specificity of sport should not be respected only by states but also by entities like European Union. In terms of EU case-law, the situation is more complicated. The ECJ has never defined the notion of specificity of sport. However, it has indirectly dealt with it in terms of a general rule. EU law applies only to economic activities within the meaning of article 2 of TFEU.[15] In Walrave,[16] ECJ held that EU law did not apply to rules that governed the composition of national sports teams. It was not for the ECJ to assess if such rules were disproportionate. It also stated that the prohibition of any discrimination based on nationality does not affect the composition of sports teams, particularly national teams, the formation of which is purely of sporting interest and therefore has nothing to do with economic activity.[17] This judgment shows that from the beginning, the common idea has been that sporting rules that relate to purely sporting issues are not subject to EU law. In the Meca Medina case,[18] the situation changed. The General Court, in the first round, stated that purely sporting rules may have nothing to do with economic activity, such that they do not fall within the scope of the free movement of people. Thus, they have nothing to do with the economic relationships of competition and do not fall within the scope of arts. 101 & 102 TFEU, since the prohibition of doping, is based on sporting considerations. However, the ECJ stated the General Court made a mistake in law. It explained that the mere fact that a rule is purely of sporting nature does not have the effect of removing the person engaging in the activity governed by that rule or the body that laid it down from the Treaty's scope. Account must be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and its objectives. Next, it has to be considered if the consequential effects restrictive of competition are inherent in pursuing those objectives and are proportionate.
Conclusion
As It can be seen, national courts still deal with sport-related issues, even though there is only a small number of cases as a result of the creation of sport governing bodies and CAS. The national courts can aid sport governing bodies or, on the contrary, may infringe their autonomy, which should not happen. The extent to which national courts can infringe on the autonomy of sport will be directly related to sports associations’ ability to properly govern themselves and respect the legal norms. However, national courts and governmental bodies must respect the nature of the sport and its autonomy in order for the world of sport to flourish.
[1] Louise Reilly, ‘Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in International Sport Disputes, an Symposium’ (2012) Volume 2012 Issue 1, Journal of Dispute Resolution, page 63 < https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1124&context=jdr > accessed on 2 February 2021.
[2] PRIVATE INTERNATIONAL LAW ACT, art. 176(1) (1987), available at < https://www.swissarbitration.org/files/34/Swiss%20International%20Arbitration%20Law/IPRG_english.pdf > accessed on 02.02.2021.
[3] Ibid. page 68.
[4] Ibid.
[5] Act. (n. 2) art. 184 & art. 185.
[6] Reilly (n. 1) page 77.
[7] Ibid. page 77.
[8] Ibid.
[9] CAS 2006/A/1190, WADA v. Pakistan Cricket Board & Akhtar & Asif & Butt.
[10] Reilly (n. 1) page 77.
[11] Reilly (n. 1) page 78.
[12] Reilly (n.1) page 78.
[13] Ibid. page 77.
[14] Ibid.
[15] European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December 2007, 2008/C 115/01, art. 2.
[16] Case 36-37 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974-01405.
[17] Antoine Duval, ‘The Specificity of Sport- Comparing the Case-Law of the European Court of Justice and the Court of Arbitration for Sport-Part 1’ (13 October 2020, The Asser International Sports Law Centre) < https://www.asser.nl/SportsLaw/Blog/post/the-specificity-of-sport-comparing-the-case-law-of-the-european-court-of-justice-and-of-the-court-of-arbitration-for-sport-part-1-by-stefano-bastianon > accessed on 3 February 2021.
[18] Case C-519/04 David Meca-Medina and Igor Majcen [2006] ECR I-06991.