An Analysis Of The Jurisdiction Of The Court Of Arbitration For Sports

By Blessing Olawale Ikuomola

The lack of an independent  body specializing in adjudication of sports disputes in the early part of the 1980’s resulted in an attempt to establish a legal framework for the resolutions of sports disputes. At  an IOC session in 1982, International Olympic Committee (IOC)  member H.E Judge Keba Mbaye who was a Judge at the International Court of Justice  chaired a working group with the task of preparing the statutes of what would be known as the Court of Arbitration for Sports(CAS)[1] .  The ratification of the CAS statutes was done  in 1983 and became operational in 1984 and was placed  under the administrative and financial authority of the International Council of Arbitration for Sports (ICAS). Since it’s establishment, the court has gained the trust and the recognition of the international sports community and has become the apex court in a wide range of sports related disputes including those related to Olympic  and non Olympic sports ,doping  infractions and international commercial contracts[2]. The independence of CAS was tested in the famous case involving a German horse rider and the  International Equestrian Federation [3] where the Swiss Federal Tribunal (Swiss Supreme Court )  gave it a legal seal of approval while highlighting the links that exist between the International Olympic Committee and the Court of Arbitration for Sports. As a result of this, CAS had to reorganize and create a  governing body in 1994[4]  embedded with administrative functions and with the responsibility of amending the procedural rules [5]. CAS’ independence from the IOC was confirmed by the Swiss Supreme Court  in 2003 when, dismissing a challenge to a CAS award by two Russian cross-country skiers against the IOC and the International Ski Federation, the Supreme Court  referred to CAS as the “true Supreme Court of world sport” and stated that CAS offered all the guarantees of independence and impartiality to be regarded as a real court of arbitration, whose awards are comparable to the judgments of a state court[6].

Where is CAS Located ?

The CAS court office is in Lausanne while it maintains two permanent decentralized offices in New York and Sydney. Saddled with the responsibility of settling within 24hours disputes emanating during  the Olympic Games in Atlanta, the  International Council of Arbitration for Sports ( ICAS) in 1996 created a CAS ad hoc division. Since then, ad hoc divisions  have been set up for all Olympics. Ad hoc divisions were also setup for the Commonwealth games since 1998, for the European Championship since 2000 and for the FIFA world cup in 2006[7].

The Jurisdiction of CAS

The competence and jurisdiction of the court to determine and resolve sports related conflicts could be grouped into two : original jurisdiction and appellate jurisdiction.

• The Original Jurisdiction of CAS

CAS is competent to hear general sports related disputes arising out of a contract[8] . The required condition being that the parties must have agreed to submit themselves to the CAS in an agreement either before or after the dispute. As with all arbitration, the parties’ consent to CAS arbitration is paramount[9] .

Article 61(2)  of the Olympic charter  provides that :

“Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport, in accordance with the Code of Sports Related Arbitration “

The implication of this is that, all disputes in connection with the Olympic Games can only be submitted to the CAS

• The Appellate jurisdiction of CAS

CAS may act as an appellate body  where cases that have been decided by other sport bodies are referred to it . For CAS to be competent to hear such case ,two conditions must be fulfilled , which are :

1. The statutes or the regulations of the body so provide for it .
2. The appellant has exhausted the legal remedies available to him prior to the appeal .

In addition, it is often a condition of entry to sports events for athletes to sign an entry form which contains an arbitration to CAS[10] .

CAS has an extensive jurisdiction Which covers The World Anti Doping Agency, International Sports Federation, International Olympic Committee etc. The power of CAS to hear and determine football related matters is provided in Article 57(1)  of the FIFA statutes  which provides that :

‘’FIFA recognizes the independent Court of Arbitration for Sport (CAS) with Headquarters in Lausanne (Switzerland) to resolve disputes between FIFA, Member associations, confederations, leagues, clubs, players, officials, Intermediaries and licensed match agents.’’

The appellate jurisdiction of the court  to hear and determine appeals from FIFA’s legal bodies is also statutory. Article 58(1) of the FIFA statutes  provides that :

‘’ appeals against final decisions passed by FIFA’s legal bodies and against decisions passed by confederations, member associations or leagues shall be lodged with CAS within 21 days of notification of the decision in question.’’

However, certain decisions made by FIFA’s legal bodies are not appealable to CAS. This is provided in  Article 58(3) of the FIFA statutes amongst which are :

1. Matters involving the violations of the laws of the game
2. Suspensions of up to four matches or up to three months (with the Exception of doping decisions);
3. Decisions against which an appeal to an independent and duly constituted Arbitration tribunal recognized under the rules of an association or Confederation may be made.

Is the CAS a final court ?

CAS awards are final and binding on parties the moment they are communicated to the relevant parties . They may be enforced In accordance with the New York’s Convention on the recognition and enforcement of arbitral awards Which have been ratified by  more than 125 countries[11]

The CAS is generally regarded as the apex court in sports. However, the truism of this assertion may be questioned considering the fact that the Swiss Supreme Court has jurisdiction to entertain appeals from CAS in limited instances. Appeals from the CAS may lie to the Swiss apex court  where :

• The decision is incompatible with public policy
• There is Lack of Jurisdiction
• There is violation of elementary procedural rules such as the right to fair hearing

In  Decision  4A_490/2009[12] , the Swiss Supreme Court set aside a CAS decision for the violation of the principle of public policy .

In Decision 4A_100/2023,  the Swiss Supreme Court set aside a decision of the CAS for admitting a time barred request for disqualification of an arbitrator. A decision which highlights the need for timeous objection when objecting to an arbitrator.

In Decision (4A _358/2009) , the Swiss Supreme Court set aside a CAS award for lack of valid arbitration agreement between the parties.

Conclusion

Established with the intention of taking sports disputes away from national and civil courts,  which are usually slow and filled with technicalities,  and to be the true Supreme court of the world of sports.

‘’ Be comfortable with the CAS….CAS awards are easily enforceable and extremely difficult to challenge ‘’

CAS model of ‘’judicialization’’ as envisioned by it’s founding fathers in a bid to be the Supreme court for sports is good for sports. The court sets and follows precedence while also establishing rules and principles governing sports[13]

The jurisdiction of CAS is wide and the court has contributed massively towards the development of Sports jurisprudence despite  it’s imperfections.

“ A true Supreme court for world sports “

[1] https://www.tas-cas.org/en/general-information/history-of-the-cas.html . Accessed on 8/12/2023

[2]  Louise Reilly, Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in

International Sports Disputes, An Symposium, 2012 J. Disp. Resol. (2012)

Available at: https://scholarship.law.missouri.edu/jdr/vol2012/iss1/5.

[3]  Tribunal f~ddral [TF] [Swiss Federal Tribunal] Mar. 15, 1993, Arrdts du Tribunal Fdd6ral Suisse

[ATF] 119 271 (Switz.), translated into English in MATTHIEU REEB, DIGEST OF CAS AWARDS I, 1986-

1998 545 (2001)

[4]  The International Council of Arbitration for Sport (ICAS) is a Board of Trustees of 20 members,

which meets twice a year and looks after the administration and financing of the CAS The IOC, Inter-

national Federations (IFs), National Olympic Committees (NOCs) and athletes each appoint four

representatives to ICAS; the final four are appointed from outside the sports world (former senior

magistrates, judges, ambassadors and ministers of sport), the most famous of whom was probably the

former President of the United States, Gerald Ford, who was an ICAS member for two years.

[5]  Louise Reilly, Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in

International Sports Disputes, An Symposium, 2012 J. Disp. Resol. (2012)

Available at: https://scholarship.law.missouri.edu/jdr/vol2012/iss1/5 .

[6]  Tribunal f6ddral [TF] [Swiss Federal Tribunal] May. 27, 2003, III Arrets du Tribunal Fdddral

Suisse [ATF] 129 445 (Switz.), translated into English in MATTHIEU REEB, DIGEST OF CAS AWARDS

Ill, 2001-2003 688 545 (2004).

[7]  https://www.tas-cas.org/en/general-information/history-of-the-cas.html . Accessed on  8/12/2023.

[8]  https://www.easportslaw.com/news/sports-arbitration-the-court-of-arbitration-for-sport-cas . Accessed on 8/12/2023

[9]  The CAS Code provides:

These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute

to the CAS. Such disputes may arise out of an arbitration clause inserted in a contract or regula-

tions or of a later arbitration agreement (ordinary arbitration proceedings) or involve an appeal

against a decision rendered by a federation, association or sports-related body where the statutes

or regulations of such bodies, or a specific agreement provides for an appeal to the CAS (appeal

arbitration proceedings). Such disputes may involve matters of principle relating to sport or mat-

ters of pecuniary or other interests brought into play in the practice or the development of sport

and, generally speaking, any activity related or connected to sport.

[10]  Louise Reilly, Introduction to the Court of Arbitration for Sport (CAS) & the Role of National Courts in

International Sports Disputes, An Symposium, 2012 J. Disp. Resol. (2012)

Available at: https://scholarship.law.missouri.edu/jdr/vol2012/iss1/5 .

[11] https://www.tas-cas.org/en/general-information/frequently-asked-questions.html#:~:text=An%20award%20pronounced%20by%20the%20CAS%20is%20final%20and%20binding,than%20125%20countries%20have%20signed. Accessed on 9/12/ 2023.

[12]  Published on July 2, 2010

[13]  https://link.springer.com/article/10.1007/s40318-021-00184-0 .