Although the benefits of the Court of Arbitration for Sport (CAS) are widely acknowledged, it faces a time of uncertainty. When the German Supreme Court (BGH) pronounces its decision in the Pechstein Case, the CAS's maintenance may come into question.
The legal and sports community eagerly awaits the decision regarding the review of Claudia Pechstein's case by the German Supreme Court. On March 8th 2016 the BGH announced that it was postponing its decision to June 7th 2016. The decision of the BGH endangers the maintenance of the CAS in its present configuration. The appealed decision of the Higher Reginal Court in Munich questioned the CAS's independency and therefor a fundamental prerequisite in alternative dispute resolution. Independently of the BGH decision, the matter Pechstein raises independence questions regarding the CAS. Furthermore, on March 24th 2016, the European Court of Human Rights rendered its decision in Tabbane v Switzerland. The decision examines the legitimacy of a party's right to waive the right to recourse in arbitration. The article provides a discussion of the two named decisions and an organisational and psychological analysis of the CAS system's independence.
After its foundation in 1983, the CAS has become the most important dispute resolution institution in sports. The decision of the Higher Reginal Court in Munich, which the International Skating Union has appealed in front of the BGH, already from an intuitive point of view, revealed that the elections of ICAS members and CAS list arbitrators result in an imbalance between athletes and top sports bodies. This imbalance is in favor of the top sports bodies. To understand the importance of this imbalance, there is a need for further considerations regarding the structural organisation of the ICAS. The ICAS can be described as the management of the CAS. The depiction shows a brief outline of ICAS's appointment mechanism.
The ICAS has a membership of twenty skilled jurists. As depicted above, the appointment mechanism consists of three steps. First, the Association of the Winter Olympic International Federations (AIOWF) chooses one and the Association of Summer Olympic International Federations (ASOIF) chooses three members, either from within their own membership base or alternatively from outside of the organisations. Furthermore, the National Olympic Committee (ANOC) as well as the Olympic Committee (IOC) choose four members, also either within their members or outside of them (Step I, the following refers to all 4 organizations with "top sports bodies"). Second, the twelve chosen members choose another four, considering athletes' interests (Step II). As the third step, the 16 chosen members choose the last four members, who shall be independent of any preceding body (Step III). The ICAS among other things has the following attributions:
The ICAS elects a president and two vice presidents out of its members. It also elects two of its members as the president of the Ordinary Arbitration Division and as the president of the Appeals Arbitration Division. Another characteristic feature of the CAS is the list of arbitrators. When the CAS has jurisdiction, the disputing parties can choose a tribunal consisting of one or three arbitrators named on the CAS list. The ICAS appoints arbitrators of the CAS list for periods of 4 years without limitation on the number of terms and removes them if necessary. The list shall contain more than 150 arbitrators, who are suitable because of their legal training and knowledge of sports. Moreover, the ICAS appoints the CAS Secretary General. The ICAS amends and adopts the CAS Code.
The article asserts that ICAS members and CAS arbitrators are biased from an organisational and psychological perspective. A possible critic is that the ICAS lacks a fundamental structural separation from its appointing bodies. Moreover, as a consequence of ICAS-members' appointment, the listed arbitrators and the secretary general are biased. Only 4 out of 20 members of the ICAS are less biased to the top sports bodies. In other words, 80% of the ICAS members are dependent on the appointing bodies. From a practical point of view, an absolutely independent organisation of the CAS is most likely impossible. However, the following lists of structural and procedural changes for the CAS system would enhance the CAS system's independence.
- A necessary adaption is the application of a new composition of the ICAS. On a parity basis, the associations and club representatives (Verbands- und Klubvertreter) and independent athletes associations (Spielervereinigungen) should equally appoint the ICAS members.
- To limit the influence of the top sport bodies, CAS Secretary General should merely correct a decision's linguistic mistakes and should not examine the decision's material reasoning.
- Considering the chair of a CAS tribunal, the appointment mechanism should be adjusted. Even though from a practical point of view, in CAS appeal arbitration there is a need for a speedy procedure, a tribunal's chair should be appointed at least in accordance with the principle of contingency. Hence, the President of the CAS Appeals Arbitration Division should choose an arbitrator from the modified list by using a random mechanism.
- If the list system would not be abolished, another possibility is the invention of a special list for the panel's chair in appeals proceedings. To ensure the independence in appeal proceedings, it is recommendable to invent a new list of eligible chair arbitrators. The ICAS and athletes representatives equally appoint eligible chair arbitrators. However, if the list system would not be abolished, CAS chairs should not be from the list of arbitrators. Furthermore, members of the list of chairs should not be available as arbitrators.
- Besides the structural changes, following amendments to the procedure are necessary to ensure independent decision making and to guarantee the procedural fairness.
- Prospectively, it should be possible to file a counter appeal against an appeals arbitration decision. Today, if a party even wants to accept the decision of an association, it has to make a precautionary appeal and pay CHF 1'000 to obtain its rights in case that the counterparty should appeal against the first decision. As a consequence, should the counterparty not appeal against the decision, the other party has to withdraw its primary appeal.
- Another procedural change concerns disciplinary matters. It seems worth considering the scrapping of de novo procedures regarding disciplinary matters and appeals proceedings. An accused person should know what evidence is taken into consideration and the first instance decision should be appealed on the basis of the same facts, unless in the evidentiary proceedings fundamental principles were violated.
- Arbitrators should disclose any fact which might be a conflict of interest. In accordance with the IBA-Guidelines on Conflict of Interest in International Arbitration (IBA Guidelines), CAS arbitrators should disclose every relationship to one of the disputing parties or parties' counsel as well as a possible interest in dispute's result. Whereas in the 2004 editions of the IBA Guidelines, only maritime arbitration and commodity arbitration were excluded, the revised 2014 edition additionally excludes sports arbitration. This seems rather surprising in light of the FSC jurisdiction regarding the independence of arbitrators or judges. Therefore if a judge is seemingly biased, he or she should not decide in such case. The FSC acknowledged the practicability of the IBA-Guidelines in a decision and further recognised them as a supportive instrument to secure and harmonize the arbitral system. It is therefore questionable why the ICAS administration insisted that the new edition of the IBA Guidelines exclude sports arbitration. Instead, the ICAS should oblige arbitrators to fully disclose any fact of bias, even in absence of parties' requests. As an utmost goal, the ICAS has to avoid any appearance of bias.
- The CAS should provide a publicly accessible database revealing each arbitrator's former involvement in CAS related disputes. As a minimum standard, subsequent to the party's nomination of arbitrators, the CAS should be obliged to provide a list of arbitrator's former involvement in CAS related disputes to the appointing party.
- The CAS should publicise every decision in an anonymised way to ensure the transparency of the system. Publicly available decisions moreover can support and satisfy the public interest in sports competitions, enhance the credibility of the CAS, and safeguard fair proceedings.
- As a principle, every disciplinary dispute e.g. doping dispute proceedings should be publicly accessible. If one party asks for private proceedings it has to allege its legitimate interests in privacy.
- Considering future disputes, the CAS should apply states' mandatory law and European law.
- The CAS should recognise all languages from the top sports bodies regarding Appeal Proceedings. At least, it should be possible for the parties to make petitions in the language of the disputed top sports bodies' decision.
Given the recent developments, particularly the aftermath of the Higher Regional Court's Pechstein Decision, there are reasonable doubts on the suitability of the CAS list system. Therefore:
- the close list system should be changed into an open list system. The main adaption is to change the application procedure. Consequently if arbitrators can prove their suitability, the ICAS has to acknowledge them; or
- abolishment of the CAS list system.
These non-prescriptive and non-exhaustive lists are offered for comment and discussion.
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