Court of Arbitration for Sport

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Court of Arbitration for Sport
(in French) Tribunal arbitral du sport
Court of Arbitration for Sport - Lausanne 2.jpg
Headquarters, in Lausanne (Switzerland).
Established1984[1]
CountrySwitzerland
LocationLausanne
Authorized byInternational Olympic Committee (Olympic Charter)
Decisions are appealed toFederal Supreme Court of Switzerland
Websitewww.tas-cas.org
President
CurrentlyJohn Coates
Since2011
The entrance of the headquarters of the Court of Arbitration for Sport, in Lausanne, Switzerland.
Court of Arbitration for Sport, door, 2012 (cropped).jpg

The Court of Arbitration for Sport (CAS; French: Tribunal arbitral du sport, TAS) is an international quasi-judicial body established to settle disputes related to sport through arbitration. Its headquarters are in Lausanne (Switzerland) and its courts are located in New York City, Sydney and Lausanne. Temporary courts are established in current Olympic host cities.

Jurisdiction and appeals[edit]

Generally speaking, a dispute may be submitted to the CAS only if there is an arbitration agreement between the parties which specifies recourse to the CAS. However, according to rule 61 of the Olympic Charter, all disputes in connection with the Olympic Games can only be submitted to CAS,[2] and all Olympic International Federations (IF) have recognised the jurisdiction of CAS for at least some disputes.[3]

Through compliance with the 2009 World Anti-Doping Code, all signatories, including all Olympic International Federations and National Olympic Committees, have recognised the jurisdiction of CAS for anti-doping rule violations.[2][4][5] Starting in 2016, an anti-doping division of CAS judges doping cases at the Olympic Games, replacing the IOC disciplinary commission.[6] These decisions can be appealed to CAS's ad hoc court in the Olympic host city or, if the ad hoc court is no longer available, to the permanent CAS.[7] The inaugural anti-doping division handled eight cases, of which seven were doping cases within its jurisdiction.[8]

As a Swiss arbitration organization, decisions of the CAS can be appealed to the Federal Supreme Court of Switzerland.[9] Appeals of arbitration decisions are generally not successful,[10] and no evaluation of the merits is taking place and the evaluation is mainly based on whether procedural requirements have been met, and whether the award is incompatible with public policy. As of March 2012 there have been seven successful appeals. Six of the upheld appeals were procedural in nature, and only once has the Federal Supreme Court overruled a CAS decision on the merits of the case. This was in the case of Matuzalém, a Brazilian football player.[11]

The Federal Court of Justice of Germany ruled against the German speed-skater Claudia Pechstein, recognising a lack of jurisdiction to revisit her case. The Federal Court ruled that CAS met the requirements of a court of arbitration according to German law, and that CAS's independence from the parties was secured by the method of selecting arbitrators and the possibility to appeal to the Swiss Federal Tribunal.[12][13]

History[edit]

With the intermixing of sports and politics, the body was originally conceived by International Olympic Committee (IOC) president Juan Antonio Samaranch to deal with disputes arising during the Olympics. It was established as part of the IOC in 1984.[1]

In 1992, the case of Gundel v. La Fédération Equestre Internationale was decided by the CAS, and then appealed to the Federal Supreme Court of Switzerland, challenging CAS impartiality. The Swiss court ruled that the CAS was a true court of arbitration but drew attention to the numerous links between the CAS and the IOC.[14]

In response, the CAS underwent reforms to make itself more independent of the IOC, both organizationally and financially. The biggest change resulting from this reform was the creation of an "International Council of Arbitration for Sport" (ICAS) to look after the running and financing of the CAS, thereby taking the place of the IOC. As of 2004, most recent cases that were considered by the CAS dealt with transfer disputes within professional association football or with doping.

The Court of Arbitration for Sport is planning to move its headquarters from the Château de Béthusy to the south part of the Palais de Beaulieu (both in Lausanne).[15]

CAS Board[edit]

Designation Name Country
CAS President John D. Coates  Australia
CAS Vice-Presidents Michael Lenard  United States
Ms. Tjasa Andrée-Prosenc  Slovenia
President of CAS Ordinary Division Ms. Carole Malinvaud  France
President of Appeals Arbitration Division Ms. Corinne Schmidhauser   Switzerland
CAS Secretary General Matthieu Reeb   Switzerland

CAS Members[edit]

S. No. Name Country
1. Dr. Abdullah Al Hayyan  Kuwait
2. Ms. Tjasa Andrée-Prosenc  Slovenia
3. Patrick Baumann   Switzerland
4. Scott Blackmun  United States
5. Ms. Alexandra Brilliantova  Russia
6. Miguel Cardenal Carro  Spain
7. John D. Coates  Australia
8. Ms. Moya Dodd  Australia
9. H. E. Judge Nabil Elaraby  Egypt
10. Ivo Eusebio   Switzerland
11. Michael Lenard  United States
12. Ms. Carole Malinvaud  France
13. Justice Yvonne Mokgoro  South Africa
14. Judge Ellen Gracie Northfleet  Brazil
15. Göran Petersson  Sweden
16. Richard William Duncan Pound  Canada
17. Ms. Corinne Schmidhauser   Switzerland
18. Ms. Tricia C.M. Smith  Canada
19. Ms. Wilhelmina Thomassen  Netherlands
20. Judge Hanqin Xue  Netherlands
21. Matthieu Reeb   Switzerland

Jurisprudence examples of note[edit]

Doping[edit]

  • In March 2011, the CAS decided its first case on athlete biological passports (ABP) when it suspended two Italian cyclists, Franco Pellizotti and Pietro Caucchioli, for two years based on evidence from their blood profiles.[16]
    Prior to that, the case of skater Claudia Pechstein had been decided (2009/A/1912 & 1913) on similar grounds.[17] Writing in the 2011/2 CAS Bulletin regarding the institution of the ABP program, CAS Counsel Despina Mavromati differentiated between the two types of cases and wrote:

It is noteworthy that CAS had already issued an award suspending an athlete based on the longitudinal profiling of the biological markers before the adoption of the ABP by the IFs [international federations]: in CAS 2009/A/1912 & 1913 [Pechstein], the Panel suspended an Olympic athlete after the biological data showed irregular blood values. According to CAS, those abnormal values were not caused by an error occurred in a laboratory, as the athlete asserted, but due to the banned manipulation of the athlete’s blood. The essential difference between ABP judgments and the CAS 2009/A/1912 & 1913 consists in that in the latter case the athlete’s blood data was drawn from a sample the athlete gave at the federations championships and therefore not from data gathered by an official systematic program run by the athlete’s union.[17]

  • In 2001, the court decided the case of Andreea Răducan versus International Olympic Committee. This was a controversial anti-doping case, where it was fairly clear the athlete received cold and flu tablets from her doctor. This resulted in a positive urine test, with the court concluding: "The Panel is aware of the impact its decision will have on a fine, young, elite athlete. It finds, in balancing the interests of Miss Raducan with the commitment of the Olympic Movement to drugfree sport, the Anti-Doping Code must be enforced without compromise.”[18]
  • The court is reluctant to overturn field of play decisions, though it may do so in cases where there is clear evidence that the officials acted in bad faith or with arbitrariness.[19] In CAS 2010/A/2090, the CAS Panel explained that the reason for this is not a matter of jurisdiction, but of arbitral self-restraint.[20]
  • In October 2011, in a case affecting the 2012 Summer Olympics, the court declared that a part of the Olympic Charter violated the World Anti-doping Code.[21] The "Osaka rule" therein had prevented athletes suspended for at least six months for anti-doping rule violations from competing at the Olympic Games following the suspension's expiration. The court later re-affirmed this decision, when it struck down a long-standing by-law of the British Olympic Association (BOA) preventing the selection of athletes sanctioned for doping.[22][23] Both the IOC and BOA have responded by campaigning for adding a similar rule at the next update of the Code, which will be in effect by the 2016 Summer Olympics.[by whom?]
  • In July 2016 the CAS confirmed that the Russian Olympic Committee (ROC) could not enter track and field athletes for the 2016 Summer Olympics, with the exception of those cleared by the IAAF under the new competition rules regarding "neutral athletes". As the IOC was not a party to the case, the panel found it lacked jurisdiction to decide on whether the IOC could allow such cleared athletes to represent Russia, allow them to compete independently, or refuse their participation entirely.[24] The claimants disputed the validity and enforceability of IAAF Competition rule 22.1(a), regarding the suspension of the national federation (RusAF, formerly ARAF), and rule 22.1A, regarding the eligibility of athletes from suspended federations. The panel found that neither rule could be construed as sanctions, and for this and other reasons they were consistent with the World Anti-Doping Code. The panels commented on the futility of the challenge to the new rule 22.1A, noting that as the rule provided athletes from Russia a new route to participation a successful challenge would lead to the exclusion of athletes eligible under the rule, not the inclusion of other athletes. The panel decided against evaluating whether the principle of estoppel applies to sporting disputes, as it found the claims in this case would have failed.[25] At the same time, in a separate decision, the panel rejected the appeals of 67 Russian athletes against the decisions of the IAAF denying their applications to appear as "neutral athletes" at the 2016 Summer Olympics.[24] Darya Klishina was the only Russian athlete cleared by both the IAAF and the IOC, but the IAAF declared her ineligible on 12 August based on new information. On 15 August the CAS ad hoc court upheld Klishina's appeal.[26][27]
  • The International Paralympic Committee (IPC) decided to ban Russia from the 2016 Summer Paralympics due to the findings of the McLaren report. The appeal of the Russian Paralympic Committee (RPC) against the ban was dismissed by the CAS on 23 August. The court found that the suspension had a basis in the IPC rules, and stated that it "was proportionate in the circumstances". The panel noted that it had made no decision regarding the rights of individual athletes.[28][29] In its reasoned decision the panel elaborated on this point, stating that adverse consequences for the athletes represented by the RPC was not a reason to absolve the organisation from its legal responsibilities. The panel dismissed the claim that the IOC decision should have influenced the IPC decision, noting that the organisations have separate charters and rules. As the IPC also acts as an IF the court referred to the case between the RWF and the IWF where the CAS upheld a similar suspension.[30]
  • In late 2017 the IOC disqualified a large number of Russian athletes' results from the 2014 Winter Olympics. The athletes were also given life-time bans from future editions of the games. CAS registered 42 appeals, of which 39 were decided before the 2018 Winter Olympics. For 28 athletes the panel found that the evidence presented by the IOC was not sufficient to establish rule violations. In the 11 remaining cases the disqualifications were upheld, but the ban was limited to the 2018 Games. The panel made clear that its mandate was limited to the individual cases. The case does not affect the status of Russian athletes participating in PyongChang.[31][32] The IOC expressed its regret with the decision regarding the 28 athletes whose appeals were fully upheld, stating that the level of proof required was inconsistent with earlier CAS decisions. The IOC also stated that the sanctions being lifted was not a sufficient reason for inviting the 28 athletes to compete at the 2018 Games. The IOC said it would consider its options after receiving the reasoned decision.[33] In response to the ruling by the CAS, Jim Walden, the attorney representing Dr. Grigory Rodchenkov, stated that the ruling made a "mockery"of the sanctions against Russia.[34]
  • In 2018, the World Anti-Doping Agency appealed to the CAS after FIFA reduced a suspension of Peruvian national team captain Paolo Guerrero. Guerrero had tested positive for cocaine after a World Cup qualifier against Argentina after ingesting a tea containing the substance. Guerrero was initially suspended for a total of 12 months, but this was later halved by FIFA's appeal committee. WADA in turn appealed to the CAS and they imposed the 14 month ban in May 2018 which will cause Guerrero to miss the 2018 FIFA World Cup. The CAS confirmed the existence of an anti-doping rule violation (ADRV), but also accepted that Guerrero was not trying to enhance his performance by ingesting the substance. The panel had considered that the player did bear some fault or negligence, even if it was not significant, and that he could have taken some measures to prevent him from committing the ADRV.[35]

2016 Summer Olympics ad hoc court[edit]

The ad hoc court for the 2016 Olympics had registered 18 cases by 3 August, surpassing the record two days before the Opening Ceremony. 11 of the cases were related to the various bans on Russian athletes related to the allegations of state-sponsored doping documented in the McLaren report.[36] By the end of the Games the total number of cases was 28, 16 of which were related to the eligibility of Russian athletes.[8]

  • On 3 August the ad hoc court dismissed the appeal of the Russian Weightlifting Federation against its complete suspension under article 12.4 of the International Weightlifting Federation (IWF) anti-doping rules.[36] The panel stated that the findings of the McLaren report constituted "conduct connected with or associated with doping", and found that the IWF had acted within its discretion when it decided that the RWF had brought the sport of weightlifting into disrepute. The panel noted that the re-analysis of doping tests from the 2008 and 2012 Olympics had found nine cases of Russian athletes testing positive for Turinabol and stated that this indicated a centralized doping programme. Furthermore, the panel commented that the positive tests for Turinabol were consistent with the evidence provided by Dr Grigory Rodchenkov for the report.[37]
  • A separate panel of the ad hoc court found that the International Rowing Federation (FISA) had correctly applied the eligibility criteria outlined in the IOC decision of 24 July when it denied the entry of 17 athletes.[36] One of the criteria in the IOC decision was that the ROC could not enter athletes that had previously served a doping ban. The CAS panel deciding the case involving the rowers Anastasia Karabelshikova and Ivan Podshivalov found this criterion unenforceable, and ordered FISA to evaluate the athletes according to the remaining criteria.[38] The panel referred to previous decisions on the "Osaka rule" and the BOA by-law. The panel compared the IOC decision with the IAAF decision on Russian athletes, and noted that the IOC, unlike the IAAF, had left athletes with a previous doping conviction without any path to participation, contravening principles of natural justice.[39] The same conclusion was shortly thereafter reached in the case of swimmer Yulia Efimova,[40] who subsequently competed and medalled at the Games.[41]
  • In the cases of canoeists Natalia Podolskaya and Alexander Dyachenko and rower Ivan Balandin the panels dismissed the applications, upholding the part of the IOC decision of 24 July that removed the presumption of innocence from Russian athletes. Balandin challenged the legality of the IOC decision, while Podolskaya and Dyachenko only challenged its application. The panel in Balandin's case found no reason to annul the second paragraph of the IOC decision which, among other criteria, established that nobody implicated in the McLaren report was eligible for participation at the Games. The panel noted that while the decision establishes a presumption of guilt, this presumption is rebuttable by individual athletes. All three athletes were found to have benefitted from the "Disappearing Positive Methodology" described in the McLaren report and thus failed to meet the eligibility criteria of the IOC decision. The panels differed as to which standard of proof they required for the athletes' rebuttal of this presumption.[42][43]

Other cases[edit]

  • In July 2015, in a case involving the issue of sex verification in sports, the CAS issued an interim arbitral award suspending the regulations used by the IAAF to determine whether athletes with hyperandrogenism were eligible to compete in professional women's athletics. The regulations stated that athletes with testosterone levels above 10 nmol/L were not allowed to compete in the female category. The regulations were challenged by Indian sprinter Dutee Chand. The panel ordered the IAAF to file scientific evidence regarding the connection between athletic performance and elevated testosterone levels within two years of the issuance of the interim award.[44][45][46] This deadline was extended by two months by the CAS after an agreement between the parties.[47] In January 2018 the CAS suspended the case for six months, asking the IAAF to clarify whether it intended to replace the disputed regulations with new rules which would not affect Chand's events. If the IAAF were to modify its rules the case would terminate. The original regulations remain suspended.[48][49]
  • The court ruled in 2006 that Gibraltar had valid grounds for its application to join UEFA, forcing the organisation to hand it provisional membership. At the next UEFA Congress, however, Gibraltar was overwhelmingly rejected in a vote, due to lobbying from Spain, in defiance of the CAS ruling.[50] Gibraltar subsequently became a member of UEFA in 2013. In May 2016 CAS partially upheld Gibraltar's appeal against a decision by FIFA denying membership. The court did not grant FIFA membership, but ruled that FIFA should grant a full membership as soon as possible.[51] Gibraltar was granted membership at the FIFA congress held later the same month.[52]
  • In 2010, the Irish Football Association (IFA) (the association of Northern Ireland) took its case to CAS after FIFA failed to prevent the Football Association of Ireland (FAI) (the association of the Republic of Ireland) from selecting Northern Irish-born players who had no blood link to the Republic.[53] The CAS ruled in favour of the FAI and FIFA by confirming that they were correctly applying the regulations.[54]

Notes and references[edit]

  1. ^ a b History of the Court of Arbitration for Sport, official website of the Court of Arbitration for Sport (page visited on 5 May 2016).
  2. ^ a b International Olympic Committee: Olympic Charter
  3. ^ Richard H. McLaren, Twenty-Five Years of the Court of Arbitration for Sport: A Look in the Rear-View Mirror, 20 Marq. Sports L. Rev. 305 (2010)
  4. ^ World Anti-Doping Agency: 2009 World Anti-Doping Code Archived 24 August 2012 at the Wayback Machine.
  5. ^ Hilary Findlay and Marcus F. Mazzucco: The Supervisory Role of the Court of Arbitration for Sport in Regulating the International Sport System
  6. ^ Karolos Grohman: CAS to take over doping cases at Olympics Accessed 18 June 2016.
  7. ^ Court of Arbitration for Sport: Arbitration Rules Applicable to the CAS Anti-doping division Accessed 18 June 2016.
  8. ^ a b Court of Arbitration for Sport: Report on the activities of the CAS Divisions at the 2016 Rio Olympic Games Accessed 31 August 2016
  9. ^ Court of Arbitration for Sport: Media release 23 July 2012
  10. ^ CAS Bulletin 2011/2 Appeals against Arbitral Awards by the CAS by Stephan Netzle
  11. ^ Roy Levy: Swiss Federal Tribunal overrules CAS award in a landmark decision: FIFA vs Matuzalem Archived 25 March 2014 at the Wayback Machine.
  12. ^ Christian Keidel: German Federal Tribunal rejects Claudia Pechstein’s claim for damages against International Skating Union (ISU) Accessed 17 June 2016.
  13. ^ CAS hosted: English translation of German Federal Tribunal decision
  14. ^ BGE 119 II 271 (Gundel v La Fédération Equestre Internationale)
  15. ^ Aïna Skjellaug, "Privé de sa tour Taoua, Beaulieu présente son plan B", Le Temps, Wednesday 18 May 2016 (page visited on 18 May 2016).
  16. ^ Court Upholds Cyclist's Ban Based on Biological Passport New York Times. Retrieved 24 March 2013
  17. ^ a b CAS Bulletin 2011/2 The Athlete Biological Passport Program by Despina Mavromati
  18. ^ Essentials of Sport Law, by Glenn M. Wong, Fourth Edition, Note 5.3.9
  19. ^ Court of Arbitration for Sport:CAS 2012/A/2731 BOC & BTC & Márcio W. Ferreira v/ WTF & COM & FMT & Damian A.Villa Valadez See §104 in particular.
  20. ^ Aino-Kaisa Saarinen; Finnish Ski Association (FSA) vs Fédération Internationale de Ski (FIS) CAS/2010/A/2090
  21. ^ USOC vs IOC CAS/2011/O/2422
  22. ^ "London 2012: Dwain Chambers eligible after court ruling". BBC Sport. 30 April 2012. Retrieved 5 August 2012.
  23. ^ BOA vs WADA CAS/2011/A/2658
  24. ^ a b Court of Arbitration for Sport: CAS rejects the claims/appeal of the Russian Olympic Committee and 68 Russian athletes Accessed 25 July 2016.
  25. ^ Court of Arbitration for Sports: ROC et al. v. IAAF Accessed 4 November 2016.
  26. ^ Court of Arbitration for Sport: Athletics: The application filed by Darya Klishina (Russia) is upheld by the CAS Accessed 15 August 2016.
  27. ^ "Russia's sole athlete Darya Klishina cleared to compete after appeal". The Guardian. Retrieved 15 August 2016.
  28. ^ Court of Arbitration for Sport: CAS dismisses the appeal filed by the Russian Paralympic Committee Accessed 23 August 2016
  29. ^ "Rio Paralympics 2016: Russia banned after losing appeal". BBC Sport. Retrieved 23 August 2016.
  30. ^ Court of Arbitration for Sport: RPC v. IPC (The sections referred to are from paragraph 79 onwards). Accessed 31 August 2016.
  31. ^ Court of Arbitration for Sports (1 February 2018). "The Court of Arbitration for Sports (CAS) issues its decision in the matter of 39 Russian athletes v/ the IOC" (PDF). Retrieved 1 February 2018.
  32. ^ "Winter Olympics 2018: Court overturns life bans given to Russian athletes". BBC. 1 February 2018. Retrieved 1 February 2018.
  33. ^ International Olympic Committee (1 February 2018). "IOC Statement on CAS decision". Retrieved 1 February 2018.
  34. ^ Walden, Jim (2018-02-05). "Opinion | In the latest chapter of the doping scandal, Russia gets a pass". Washington Post. ISSN 0190-8286. Retrieved 2018-02-07.
  35. ^ https://www.bbc.co.uk/sport/football/44115062
  36. ^ a b c Court of Arbitration for Sport: Media Release: 18 cases registered – Status as of 3 August 2016 Accessed 3 August 2016
  37. ^ Court of Arbitration for Sport: CAS OG 16/09 Accessed 5 August 2016
  38. ^ Court of Arbitration for Sport: Rowing: The Appeal of Anastasia Karabelshikova and Ivan Podshivalov is partially upheld by CAS Accessed 4 August 2016
  39. ^ Court of Arbitration for Sport: CAS OG 16/13 Accessed 4 August 2016
  40. ^ Court of Arbitration for Sport: CAS OG 16/04 Accessed 9 August 2016
  41. ^ "Rio Olympics 2016: Russia's Yulia Efimova beaten to gold by Lilly King of USA". BBC Sport. Retrieved 17 June 2016.
  42. ^ Court of Arbitration for Sport: CAS OG 16/12 Accessed 9 August 2016
  43. ^ Court of Arbitration for Sport: CAS OG 16/19 Accessed 9 August 2016
  44. ^ Court of Arbitration for Sport. "CAS suspends IAAF Hyperandrogenism Regulations" (PDF). Retrieved 15 August 2016.
  45. ^ Court of Arbitration for Sport. "Chand v. IAAF - Interim award" (PDF). Retrieved 15 August 2016.
  46. ^ "Dutee Chand, Female Sprinter With High Testosterone Level, Wins Right to Compete". The New York Times. Retrieved 15 August 2016.
  47. ^ "Dutee Chand to run in World Championships, gets favourable order from CAS". The Times of India. Retrieved 29 July 2017.
  48. ^ Court of Arbitration for Sport. "The application of the IAAF hyperandrogenism regulations remain suspended" (PDF). Retrieved 20 January 2018.
  49. ^ Singh, Navneet. "Advantage Dutee Chand as CAS suspends world athletics body's gender policy". Hindustan Times. Retrieved 20 January 2018.
  50. ^ "Gibraltar have failed in their attempt to become a member of Uefa". BBC Sport. Retrieved 25 June 2012.
  51. ^ "CAS tells Fifa to reconsider Gibraltar's membership 'without delay'". The Guardian. Retrieved 17 June 2016.
  52. ^ "Fifa: Kosovo and Gibraltar become members of world governing body". BBC Sport. Retrieved 17 June 2016.
  53. ^ IFA take case to CAS
  54. ^ CAS/2010/A/2071. "Irish Football Association v/ Football Association of Ireland, Daniel Kearns and FIFA" (PDF).

External links[edit]