A short story of an athlete: does he question independence and impartiality of the Court of Arbitration for Sport?

Abstract

The topic of this paper is one of the biggest problems in sport arbitration—the independence and impartiality of arbitrators. Namely, despite the recent amendments of the CAS Code aimed to further enhance of the independence and impartiality of CAS arbitrators, one thing remains unclear and unresolved so far—the parties may only choose arbitrators from within the closed CAS list. Two decade ago the problem occurred for the first time in the so-called Gundel case. Thanks to the Swiss Federal Tribunal, the issue at stake was resolved in the athlete’s favor, and this decision led to some major reforms of the CAS. But since that time, despite the presence of several amendments and changes in CAS regulations, the Swiss Federal Tribunal apparently avoids annulling an award for lack of independence and/or impartiality of CAS arbitrators. Given that, the CAS still maintains a closed list of arbitrators, which limits the fundamental freedom of the parties to appoint the arbitrator of their choice. To present the aforementioned problem, this paper will show the initial approach on independence and impartiality issue in sport arbitration, then it will move to 1994 revision of CAS regulations on independence and impartiality of arbitrators, afterwards it will touch further improvement of the CAS Code entered into force in 2012, and finally, it will propose the possible solution of the problem, namely, creating of an open CAS list of arbitrators.