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Arbitration insights: Arbitration in the sporting realm

BY JACOB MUTEVEDZI

Sports arbitration is a mechanism for settling sport-related disputes by way of final and binding arbitral awards. In contemporary times, arbitration has become the predominant method for resolving sports disputes. This success is attributable to the uniform practice and the abundance of court precedents of the Court of Arbitration for Sport (the CAS).The wisdom of settling sports related disputes “within the family of sport” has gained universal acceptance.

The CAS was set up in 1984 in Lausanne, Switzerland by the International Olympic Committee (the IOC) with the notion of providing extra-judicial dispute resolution of sports disputes. The court was formed in 1984 by Juan Antonio Samaranch, a Spanish sports administrator and the then president of the IOC and Keba Mbaye, an IOC member and Senegalese lawyer.

CAS was found for the chief purpose of removing global sports disputes from municipal courts and to provide a highly specialized platform where those disputes could be heard and determined speedily and at low cost, in terms of a versatile procedure. Since its formation, CAS has earned the acceptance and confidence of the global sporting fraternity. It is presently the forum of last instance for the determination of appeals brought by parties involved in a wide spectrum of sporting disputes.

CAS is administered by the International Council of Arbitration for Sport (ICAS) which was formed in 1994 and is also based in Switzerland. ICAS’ purpose is to facilitate the settlement of sports related disputes through arbitration or mediation and to protect the independence of CAS and the rights of the parties. In addition to its administrative role, ICAS is responsible for financing CAS. In its bid to facilitate the settlement of international sports disputes in a specialized and efficient manner, ICAS has drawn up procedural rules and regulations enshrined in a document called the Code of Sports-Related Arbitration (the Code). This procedure is regularly reviewed and revised and encapsulates core and fundamental legal principles, for instance, the concept of procedural fairness.

CAS is broadly split into two sections being the CAS Ordinary Division and the CAS Appeal Arbitration Division. The Ordinary Division hears and determines matters brought to it in terms of an arbitral agreement within a contract, a regulatory body’s rules, or an agreement to arbitrate after a dispute has already materialised. It is a requirement that the dispute must be directly or indirectly linked to sport. This includes, for example, commercial agreements whose subject matter is sport, sponsorship agreements, media rights, transfer regulations and agency relationships.

The Appeal Arbitration Division acts as a final appellate forum for decisions made by competent sports authorities. The rules governing the relevant association, federation, or other sports-related organ must encapsulate a clause for the referral of any appeal to CAS. For instance, the World Anti-Doping Agency (WADA) rules provide that athletes may appeal to CAS.

The procedural rules under the Code are divided into three parts; the General Provisions, the Special Provisions Applicable to the Ordinary Arbitration Procedure and the Special Provisions Applicable to the Appeal Arbitration Procedure.

The General Provisions are similar to most standard institutional arbitration procedures. They relate to the seat, language, independence and removal of arbitrators, and administrative matters such as language and time limits. They also spell out the procedure for securing interim relief or conservatory measures.

The Ordinary Procedure is similar to commonly used procedures in international commercial arbitration. The major difference with ordinary arbitration is that Rule 45 of the Code prescribes that if the parties fail to elect a substantive law to govern the merits of the dispute, Swiss law will be applicable. This is not too different from the common practice under other institutional rules, which generally tend to allow arbitrators to choose the most appropriate law to determine the substance of the dispute if the parties fail to express their choice of law. Lawyers must be mindful of this when drafting agreements with a CAS dispute resolution clause.

The appeals procedure is governed by both the General Provisions and the Special Provisions Applicable to the Appeals Arbitration Proceedings. An appeal is initiated by filing a “Statement of Appeal” to CAS. The Statement of Appeal must contain a copy of the decision appealed, a request for relief, the name of an arbitrator selected from the CAS arbitrators list or a request from the appellant for the appointment of a single arbitrator. The Statement of Appeal can also be accompanied by an application for a stay of execution of the decision appealed, if any. It must also include a copy of the statutory provisions, regulations, or the contract from which the dispute arises.

Thereafter the CAS will invite the respondent to file its response. After the exchange of written statements, the parties are not allowed to present exhibits and evidence except by mutual agreement or with the arbitrators’ permission under exceptional circumstances. Appeals are heard by a Panel of one or three arbitrators. The Panel is entitled to conduct a de novo review of the facts of the dispute and the law. Therefore, it may issue a new award to replace the impugned decision or annul the decision and remit the matter to the relevant sports body or federation.

The seat of arbitration is located in Lausanne, Switzerland. Consequently, proceedings to set aside CAS arbitral awards may only be instituted before the Swiss Supreme Court in terms of the principle of lex loci arbitri (law of the place of arbitration) and must be done within 30 days of the parties’ notification of the decision.

Over the years, CAS has matured into the predominant dispute resolution institution in sport. Its chief attractions are confidentiality, specialist arbitrators, procedural flexibility and simplicity, speed, low costs and international effectiveness of the arbitral award. So effective is CAS that the CAS Ad Hoc Division is able to constitute a panel of arbitrators and deliver a final decision within 24 hours. Now there is justice on steroids!

  • Jacob Mutevedzi is a commercial lawyer and partner at Clairwood Chambers Attorneys and writes in his personal capacity. He can be contacted at +263775987784 or at jmutevedzi@gmail.com

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