Sunday, January 30, 2011

Arbitration in Lex Sportiva: Guest post by Bedavyasa Mohanty and Jay Sayta

The following is a guest post by Bedavyasa Mohanty and Jay Sayta, both undergraduate students at National University of Juridical Sciences, Kolkata. Jay Sayta maintains a website on gambling laws in India.

This post discusses the history, development and future of the Court of Arbitration of Sport as a mechanism of arbitrating on any issue relating to sports. The CAS arbitrates disputes of various sports ranging from physical sports like football and hockey to mind games like chess; and card games like poker. (Though it has been argued that poker is a game of considerable skill, akin to chess).

The Tribunal Arbitral du Sport or the Court of Arbitration of Sport (CAS), with its headquarters at Lausanne, Switzerland, was established in the year 1984 by the International Olympic Committee with the intent of serving as the ultimate authority to adjudicate on disputes relating to rights of athletes, governing bodies and various sports federations.

The CAS remained under the administrative control of the IOC (the governing body of all Olympic sports) for 10 years until, in the landmark case of Grundel v. The International Equestrian Federation (1994) that had been decided by the CAS was appealed in front of the Federal Supreme Court of Switzerland challenging impartiality of CAS. The impartiality was challenged on the following grounds: (1) the CAS was financed almost exclusively by the IOC, (2) the IOC was competent to modify the CAS Statute and that (3) considerable power had been given to the IOC and its President to appoint the members of the CAS. This resulted in the complete revision of the CAS Statute and Regulations and led to the formation of the 'International Council of Arbitration for Sport' (ICAS), that would from here on out look after the finance and administration of the CAS, a task that was formerly executed by the IOC. It also led to the formation of two distinct Arbitration Divisions of the CAS, the 'Ordinary Division' and the 'Appellate Division.' The Ordinary Division of the CAS deals with matters where both parties have agreed, from the very outset, to turn to the CAS for dispute resolution as opposed to filing an appeal against the decision taken by some other body involved with resolving sports related disputes. In cases under the Ordinary Division the parties are made to pay an estimated cost, which is proportionally divided after the case has been resolved. Cases under the Appeals Division of the court mostly pertain to appeals from the decision of various sports federations and sports dispute resolution bodies. The award and penalties of the CAS, on account of it being the highest sports dispute resolution body in the world, are binding on the parties. While the Ordinary Division of the CAS mainly addresses matters relating to contractual or tortuous disputes, the Appeals Division tries matters pertaining to positive drug test of athletes, challenges to technical decisions made by the authorities during competitions and eligibility of athletes to participate in the Olympic Games. Apart from these the CAS Code also provides for a consultation procedure which allows for only certain sports entities to seek advisory opinions from the CAS

Although, one of the primary objectives of setting up the Court for Arbitration of Sports was speedy resolution of cases, arbitrations involving parties from all around the world typically take months to resolve. Therefore, with a view of attaining that purpose the ICAS, in 1996, set up an ad-hoc Division of the CAS in for dealing with any and all disputes that would arise in the Olympic Games at Atlanta. This ad hoc division which consisted of two co-presidents and 12 arbitrators developed a simple free of charge procedure for resolving the disputes that arose during the Olympic Games. The success of the first such division led the ICAS to set up many similar divisions at the Olympic Winter Games at Nagano and the Commonwealth Games at Kuala Lumpur in 1998, at the European Football Championship in Belgium and the Olympic Games in Sydney in 2000 and more recently at the Vancouver 2010 Olympic Winter Games.

One of the resolutions that were taken during the establishment of the CAS was that the jurisdiction of the court would be imposed on neither the athletes nor the federations but would remain freely available to the parties. Today, however, the CAS is competent to rule on all types of disputes related to sport that come under the ambit of private law. This however, does not exempt states from the ambit of private laws when their dealing with an individual is under dispute. The CAS has passed rulings on cases ranging from breach of athletes' rights, breach of employment contracts and broadcasting rights of sports events. The only exception to this is the dispute arising out of Olympic Movement, which remains under the exclusive jurisdiction of the International Olympic Committee.

Despite having a fairly speedy and efficient system in place for settling disputes, the CAS falls short of expectations on some grounds. The first requirement is the consent of both parties for arbitration; which raises practical difficulties in dispute resolution. Parties often do not have clauses referring their disputes to the CAS and in the absence of any such clause either party is reluctant to refer the matter to CAS.  Another problem is the lack of any enforcement mechanism of the CAS to see its ruling through. To a lesser extent, even the duration of arbitrations that last months at a high cost to the parties also discourages many parties to choose the CAS as the ideal forum for resolving their disputes. 

As the exclusive arbitral body for Olympic disputes, the CAS has been seen to be developing a lex sportiva or a set of guiding principles and rules in international sports law. While it has earned accolades for having set up a flexible and user friendly forum for active resolution of sports disputes, the CAS has also faced a rough spot in the first two decades of its existence on account of the unprecedented commercialisation of global sports. However, it can only be hoped that in the future with a stricter implementation mechanism and faster disposal of cases that come before it, the CAS will function as the ultimate sports dispute resolution body that it was meant to.

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