Court Of Arbitration For Sport Research Articles

Обязательные арбитражные оговорки в международных спортивных дисциплинарных спорах: особенности и проблемы

Is international arbitration always consensual and based on the autonomy of will and free expression of the parties? The basic theory would undoubtedly answer this question affirmatively. However, in sports arbitration, things are somewhat more complex. Sports disputes can be broadly divided into two major groups: (1) commercial (transfers, sponsorship, contractual disputes with players, etc.) and (2) disciplinary (doping, violation of rules and statutes, failure to fulfill duties by both athletes and sports federations). In this sense, commercial sports disputes do not differ in any way, and they maintain a consensual element and the autonomy of the parties’ will. Meanwhile, the disciplinary sports disputes operate under a “mandatory arbitration model”, implying that without the consent of the parties, the Court of Arbitration for Sport in Lausanne (CAS) or internal bodies of sports federations, performing mandatory pre-judicial regulation, will be the only possible forums for resolving disputes with athletes. Is it right to permit the use of such a mechanism that clearly encroaches on personal autonomy? If so, should the coerced party be treated differently in any way? Why does CAS have exclusive jurisdiction over the majority of sports disputes, rather than, for example, the International Court of Arbitration of the International Chamber of Commerce (ICC)? This article will address all of the above questions.

The international skating union ruling of the CJEU and the future of CAS arbitration in transnational sports governance

AbstractOne of the least visible and yet potentially most consequential findings in the trio of decisions related to transnational sports governance rendered by the Grand Chamber of the Court of Justice of the European Union (CJEU) on 21 December 2023 concerns the Court of Arbitration for Sport (CAS). It is relatively easy to overlook, as it is tucked away in the much-less scrutinized International Skating Union (ISU) judgment of the Court. Yet, as will be argued at the end of this article, the CJEU’s conclusions regarding the bindingness of CAS arbitration are consequential and will limit the function of the CAS as a kind of safety valve for the Olympic Movement. First, the article traces how the CAS became part of the ISU case in the original decision of the European Commission (EC). Thereafter, I discuss why the General Court (GC), when reviewing the ISU decision, annulled the part dedicated to the CAS, as well as the position of Advocate General (AG) Rantos in his Opinion, which mostly endorsed the GC’s findings. This section is followed by a discussion of the main tenets of the ruling of the Grand Chamber. The final part provides a general assessment of the impact of the decision on the CAS and on the future of transnational sports governance.

Waiver to apply the European Convention for the Protection of Human Rights and Fundamental Freedoms in the resolution of disputes in the Court of Arbitration for Sport (CAS)

The subject. Sports legal relations, as having a private legal nature, and assuming “horizontal” inter-subject relations by default, do not imply the extension to them the guarantees provided by international acts in the field of human rights protection in order to protect the individual in “vertical” interaction with public subjects. However, this doctrinal approach is still questioned by sports actors, who make attempts to refute it through the involvement of certain norms of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (Articles 6 and 8, mostly) as arguments in sports disputes. An additional incentive for this is the location of international and continental sports federations, their jurisdictional bodies and the Court of Arbitration for Sport (CAS) in the national legal orders that recognize the application of the mentioned ECHR.The purpose of the study. The prospects of arguments in the resolution of sports disputes based on the requirements of the literal use of the norms of the ECHR are considered in this article.Methodology. Methods of analysis and comparison based on the CAS practice.The main results of research and the field of their application. The use of only certain meanings of part 1 of Article 6 of the ECHR in sports justice is forced to be taken into account by CAS due to the prospect of appealing decisions to the Swiss Federal Tribunal.Conclusions. The norms of the ECHR generally do not apply in sports justice.

Down with the politics, up with the law! Reinforcing EU law’s supervision of sport autonomy in Europe

AbstractThe rulings of the CJEU in Superleague, Royal Antwerp and ISU endorse some of the characteristics of the European Model of Sport without explicitly referring to it. The Court recognises across the three judgments the specific nature of sport, the cultural importance of sport in Europe, the primacy of sporting merit and equal opportunities in sport competitions, and the relevance of redistribution to maintain amateur and commercial sport intertwined. The CJEU also acknowledges the legitimacy of sport governing bodies as regulators of their sport, but severely limits their autonomy to do so. The judgments are extremely critical of sport governance structures in two main areas: policy-making processes, and accountability mechanisms. The latter is severely criticised with demands for sport federations to produce thorough and convincing evidence that could demonstrate the benefits of their anticompetitive rules and regulations, so they can be granted and exemption under EU law. Furthermore, the Court criticises forced arbitration through the Court of Arbitration for Sport. The judgments assert the primacy of EU law over politics in European sport regulation, whilst also reinforcing the supervised nature of sport autonomy in the European Union. The judgments can also be interpreted as a warning to the Commission, European Parliament, and Council of the EU on the limits of Article 165 TFEU in the development of a European sport policy.

The collision between human rights and arbitration: the game of inconsistencies at the Court of Arbitration for Sport

Abstract This article depicts a clash between arbitration and international human rights law (IHRL) norms. It discusses the IHRL aspects of cases arbitrated by the Court of Arbitration for Sport (CAS). Procedural and substantive IHRL claims are being increasingly raised before CAS. However, CAS panels seem to be inconsistent in dealing with the issue. This article analyses the jurisprudence of CAS to identify inconsistencies, chaos, and contradictions in its approach to human rights claims. It also offers several factors that may contribute to this contradictory treatment of IHRL claims by CAS panels including the flexible nature of arbitral proceedings, inadequate expertise in IHRL among counsel and arbitrators, and the possibility of favouritism towards sport governing bodies. It concludes that the inconsistencies and contradictions in CAS jurisprudence make it difficult to regard it as a truly effective remedy for violations of human rights and that reforms are needed if human rights claims are to be given due consideration and the mechanism can be viewed as an effective remedy.

The Role of Court Interpreters Under the Attitude of Appraisal Theory Case Study on Sun Yang’s Public Hearing

The role of interpreters standing as a controversial topic has aroused unquiet debates in academia of interpreting studies. Traditional interpreting studies emphasize faithfulness during interpreting process and treat interpreters as handy tools for translation. However, at courts, the complication of the contents and various demands of parties bring the viewpoint of “translation machine” into question. On the other hand, the subjectivity of interpreters has received an increasing popularity in academic field. Based on the Attitude of Appraisal Theory promoted by James R. Martin, this paper tries to explore the role of court interpreters in the case of Sun Yang’s public hearing which was held by the Court of Arbitration for Sport (CAS) in November, 2019. With the collection of the transcription of cross-examination of four witnesses, this study mainly identified and marked the attitudinal resources in original and interpreted texts by means of qualitative and quantitative research methods. The comparative analysis of the study reveals that there are some differences in attitudinal resources, accompanying with their realizations between the source and interpreted texts. The results indicate that interpreters can play multiple roles with “conduit” as their primary role and “helper” or “communication facilitator” as the secondary role. Besides the analysis of Sun Yang’s public hearing from appraisal perspective, this study is aiming to enhance court interpreters’ identification and emphasize interpreters’ subjectivity, as well as providing some insights for court interpreter training.

Human Rights in Sports Arbitration: What Should the Court of Arbitration for Sport do for Protecting Human Rights in Sports?

AbstractSports governing bodies establish their sporting rules and regulations. Nevertheless, they confront a complex question concerning whether a female athlete who inherently possesses an advantageous quantity of testosterone may participate in female athletic competitions. In Caster Semenya and Athletics South Africa (ASA) v. IAAF, the Court of Arbitration for Sport (CAS) held that she could not participate in female sports events because “the elevated testosterone levels that such athletes possess can create an insuperable advantage over other female athletes who do not have a 46 XY DSD condition”. Consequently, the CAS ruled that she would no longer be eligible to compete in professional female competitions. In this scenario, the primary focus of this article is to examine how the CAS should address human rights-related issues, even though it is not a human rights court like the European Court of Human Rights (ECtHR) but rather an arbitral tribunal. To achieve this purpose, this article will address the following questions: (1) How can athletes claim a violation of their human rights before the CAS?; and (2) What steps should the CAS take to safeguard human rights in sports? Through this research, it may serve to identify the CAS’s role in human rights protection in sports.

LEX SPORTIVA AND THE COURT OF ARBITRATION FOR SPORT

This comprehensive analysis explores the profound impact of the Court of Arbitration for Sport (CAS) on the realm of global sports law. Against the backdrop of a remarkable increase in case procedures, this study highlights at least three pivotal functions of CAS. Firstly, CAS has introduced the application of general legal principles within sports institutions, leading to the formulation of the distinct “principia sportive,” which has bolstered legal certainty in the field. Secondly, CAS assumes a vital role in interpreting and implementing sports law, influencing the establishment of binding regulations within sports organizations. Thirdly, CAS’s superior status allows it to harmonize the global legal landscape by assuming jurisdiction over disputes involving sports bodies and federations.

Creating equality through differentiation in doping control

Awareness of human rights and related principles, such as equality and non-discrimination, is growing in sports. While debates on doping regulation typically target the contours of the prohibition and the sanctioning regime, much less attention has been given to how anti-doping detection impacts the level playing field, i.e. whether equality is realised in the manner in which the substances and methods are detected in athletes’ samples, or whether athletes are all equal when it comes to the analytical cut-offs that the regulations set. This article seeks to fill this gap and explores the implications of differentiation—or non-differentiation—in anti-doping detection for principles of equality and non-discrimination. After discussing notions related to equality in anti-doping detection, the article presents case studies from current anti-doping analytics, to make differentiation in that context tangible. Based on case law of the European Court of Human Rights, the Swiss Supreme Court and the Court of Arbitration for Sport, we submit that anti-doping authorities should resort to an operational ‘discrimination test’ when drafting technical regulation for anti-doping, in order to incorporate these principles ‘by design’ into the detection system. The article also demonstrates that—apparently—technical rules are not value-neutral, but that scientific data and policy choices are entwined in a way that warrants debate on the political scene, and creates duties of transparency and justification on part of the decision-makers.

Application of Swiss law and influence of Swiss protection of legal personality in international sport: a necessity to ensure equality of treatment among competitors?

Sports law and Swiss law are closely connected. It is at first quite complex to perceive the real implications of Swiss law, in which way it applies as well as its concrete consequences in sport. To understand the relation between Swiss law and international sport, the present article will analyze the concepts, rules and principles of Swiss law which apply in this area (i.e., Swiss association law, contract law and protection of legal personality). Knowledge of Swiss law for athletes, teams and federation is fundamental. It is the first step to develop coherent and powerful strategy before the Court of Arbitration for Sport or internal judicial bodies of international federations. A general overview of the importance of Swiss law appears to be very valuable to understand the context of sports law. Also, the protection of legal personality as the core principle of sports law is of a primordial importance in sports law and it will be developed in this contribution. The specific influence of equality of treatment between athletes will be discussed, too. This principle is fundamental in sport and is one of the purposes of a uniform application of (Swiss) law in sport.

CAS FOR ESPORTS: REALITY OR UTOPIA?

The authors examine the peculiarities of dispute resolution in esports and the current state of reforms. The author analyzes the factors influencing the choice of jurisdiction for consideration of disputes in the field of esports in the absence of clear rules for determining the jurisdiction and category of disputes in the field of esports. Attention is drawn to the possible options for jurisdiction in the field of esports. The author notes the peculiarities of dispute resolution within the framework of litigation, commercial arbitration, sports arbitration court and special arbitration bodies or persons authorized to consider disputes and their legal regulation. The author describes the advantages and disadvantages of the existing arbitration bodies and focuses on the mechanisms that have the potential to improve dispute resolution in the esports industry. Given the practice of dispute resolution, it is summarized that arbitration and which institutions are currently the main places for dispute resolution in the field of esports. It is concluded that due to the increasing inclusion of virtual sports (video games) in the category of sports, they should have the same protection regime, and therefore, the resolution of disputes related to them should fall under the jurisdiction of the Court of Arbitration for Sport. Therefore, the Court of Arbitration for Sport may potentially serve as the final court of appeal for any sports organization, if provided for in its regulations. At the same time, it is currently problematic that the Court of Arbitration for Sport has not yet recognised esports as a legitimate sport and has therefore not yet made any arbitral awards in cybersport disputes. This is the basis for the creation of a specialized court that would be able to consider a wide range of technical disputes related to video games. However, the author substantiates why the creation of a new institution is less effective than reforming the existing Court of Arbitration for Sport.

The Issue of Voluntariness of Consent to Refer Disputes to the Court of Arbitration for Sport based on the Analysis of Its Status and Principles of Functioning

The article is devoted to the study of institutional and procedural problems related to the resolution of conflicts arising in professional and Olympic sports (elite sports). Modern sport seeks to isolate itself from state and international legal regulation, to create its own system of corporate standards, the subjects of which are sports organizations and athletes. In order to impart stability to the introduced system of corporate rules, international non-governmental organizations leading the world sports and Olympic movement also create their own jurisdictional bodies (arbitration courts, the so-called sports tribunals), the purpose of which is to resolve disputes between athletes, sports organizations on corporate rules established by international sports federations and the International Olympic Committee. The central part of this system of sports arbitration courts is the Sports Arbitration Court in Lausanne (Switzerland), whose status is analyzed in detail in this paper.One of the main problems to which the author pays attention, is the non-consensual, in fact forced nature of the spread of the jurisdiction of the sports arbitration courts on athletes, often combined with a prohibition (established in the corporate act — for example, the regulations of sports federations) to appeal to the state courts under a threat of lifelong disqualification. Thus, the structures that govern the world professional and Olympic sports require athletes to refuse to exercise their constitutional right to access to justice. But could an arbitration clause be considered valid if the athlete did not give consent to the consideration of his disputes in the arbitration court (arbitration) and to the choice of arbitration jurisdiction, which in fact was forced? Unfortunately, practice shows that in most cases, when athletes ignore this ban and apply to national courts, appealing against the decisions of the sports arbitration court in Lausanne, the latter make “political” decisions that take the interests of the leading forces in the world sports movement into account.

Smashed vials, fair trials? Sun Yang and procedural fairness at the court of arbitration for sport

Smashed vials, fair trials? Sun Yang and procedural fairness at the court of arbitration for sport

Protecting human rights in sport: is the Court of Arbitration for Sport up to the task? A review of the decision in Semenya v IAAF

Protecting human rights in sport: is the Court of Arbitration for Sport up to the task? A review of the decision in Semenya v IAAF

The resolution of professional tennis disputes

Abstract The regulatory landscape of professional tennis is scattered across several entities, each administering its own tournaments. This article focuses on disputes involving professional tennis players. In this context, it identifies two major areas of disputes, namely regulatory (encompassing disciplinary, doping and corruption offences) and contractual. The latter are chiefly resolved through litigation. Regulatory disputes are administered through distinct judicial and quasi-judicial institutions set up by the various tennis entities. The International Tennis Federation’s (ITF) international adjudication panel and its independent tribunal are the key institutions in this respect, with the independent tribunal possessing all the attributes of arbitral tribunals. The Court of Arbitration for Sport (CAS) has been conferred a limited appellate jurisdiction over decisions of these two entities. Overall, the ITF’s dispute resolution architecture has been effective and has created a significant body of precedent, further supplemented by that of the CAS.

Применение фундаментальных и уголовно-правовых принципов при привлечении к спортивной ответственности: краткий очерк

Sports disputes resolution has a private legal nature and therefore per se should not be based on the principles of a branch of public law such as criminal law. At the same time sport sanctions sometimes have a negative effect comparable with administrative law and even criminal law. However, does this lead to the conclusion that it is necessary to extend to sports liability the guarantees provided by criminal law principles? The use of general principles of law in sports jurisprudence, at first view, should not cause the slightest doubt. At the same time, doubts in the said conclusion may suddenly appear by the reflection of certain principles of criminal law of fundamental values. Is this indeed the case, or does the practice of sports dispute resolution (un)intentionally maintain ambiguity and selective recognition of general principles? One can give the example of the principle nulla poena sine culpa, the desire to extend it to any sporting legal order is quite obvious. The heterogeneity of the institute of sports liability demonstrates several variants of such without taking into account the fault of the subject of sport, and raises reasonable questions about the inconsistency of this example with the piety of the general principles of law. Let us turn to the practice of the Court of Arbitration for Sport (CAS), which in this brief review will allow to reveal features of the current sports jurisprudence on a global level and offer some answers to the questions we have mentioned.

Aims of disciplinary sanctions for the spectators’ behavior: controversial UEFA practice concerning football clubs

The subject. The objectives of strict club liability for spectators’ behavior are not mentioned in the provisions of the UEFA Disciplinary Regulations. Strict liability implies the responsibility of clubs, regardless of the presence of fault for the actions of third parties – their spectators. Therefore, the question of the purpose of sanctions acquires additional actuality: a sanction cannot only have a punitive effect in the absence of the subject’s fault.The purpose of the study. The variety of sporting sanctions and the wide range of their application creates risks of excessive coercion against football clubs. It is necessary to consider the preventive and deterrent purposes of sports sanctions, without which sports liability is deprived of the sign of certainty for the subjects of sport and turns into the arbitrariness of the soccer authorities.Methodology. In an attempt to find references to sanctions targets under strict liability we analyzed the available practice of the UEFA bodies from 2013 to 2021 (a massive of several hundred decisions of the UEFA Control, Disciplinary and Ethics Commission, the UEFA Appeals Commission). Due to the dispute resolution system existing in European football our research could not be carried out without referring to the decisions of the Court of Arbitration for Sport (CAS) for the period 2002-2020.The main results of research and the field of their application. A serious obstacle to the consistent practice of disputes about the responsibility of clubs for the behavior of spectators is the ambiguity of the terminology used and the doctrinal approaches of law enforcement officers. In decisions we can come across a mention of a preventive effect; preventive and deterrent effect; preventive and educational effect of sanctions. The study found that the current sports justice’s practice of applying strict liability to football clubs has two main problems. Firstly, the UEFA bodies have not established an understanding of who is the subject of the focus of the sanctions. In the disputes examined, two target audiences for sanctions under strict liability are named: clubs and spectators. Secondly, different disputes have emphasized different goals of sports sanctions. The combined approach has not yet been formulated. We have tried to fix these problems.Conclusions. The goals of strict liability and applied sports sanctions in the UEFA perimeter should not differ: preventive and deterrent, and only in the last – punitive. The need for an unambiguous choice of the football entity targeted by sports sanctions will be the first step to take into account the set of aims of the sports sanctions applied to clubs: preventive, deterrent and punitive. Despite decades of UEFA practice in the application of strict liability, there is still uncertainty as to how a sanction will have the expected effect on the spectators. Limiting UEFA to private prevention in determining the sanction and its size in club competitions does not fully fulfill the mission of sports justice. Even if the sanctions imposed on clubs under strict liability have not been verified by a UEFA jurisdictional body to take into account a set of objectives, CAS is entitled to carry out such verification. An additional difficulty arises due to the ambiguity of terminology (and ideology) regarding the objectives of sanctions in sports justice’s practice.

Analyzing Pre-Contracts Agreement in Professional Footballer Contracts in Saudi Arabia: Can Players Change Their Minds?

FIFA's (The Fédération Internationale de Football Association) regulation and Saudi professional player's regulation allow footballers and their agents to start negotiating new deals with third parties in the last six months of the contracts. Some players and agents may use this period to initiate bidding wars between rival clubs by entering pre-contracts with an alleged possibility of terminating them at no cost. There is growing evidence of such practices in Saudi Arabia after revoking the salary cap rule in professional football contracts. This article analyses this issue through the lens of the existing legal treatment of pre-contracts by FIFA, CAS (Court of Arbitration for Sport), and applicable national laws (Swiss and English). Based on the findings, a series of propositions are made to introduce into the future regulations governing Saudi football leagues. The goal of such propositions is to avoid misapplication of pre-contracts, maintain contractual stability, encourage negotiations in good faith, and promote competitiveness without reducing contractual flexibility for players in the wake of salary cap cancellation.

Case Analysis on the CAS Ad Hoc Division Decisions for the 2022 Beijing Winter Olympics

Whether it is the Summer Olympics or the Winter Olympics, in order to resolve potential sports disputes, the Court of Arbitration for Sport (CAS) sets up a special ad hoc tribunal in the host city of the Olympic Games. Although CAS ad hoc rules have many similarities with ordinary procedures, they are different in terms of the legal basis, legal remedies, and certain procedural rules. During the Beijing 2022 Winter Olympics (Beijing 2022), the CAS Ad Hoc Division and the CAS Anti-Doping Division heard a total of seven cases. These cases involve issues such as provisional suspension of games, protection of minors, unreasonable delays in test results, cancellation of award ceremonies, and the timing of disputes. the CAS Ad Hoc Division decisions on the above issues can be regarded as the latest developments in the application of international sports arbitration rules.

Court of Arbitration for Sport (CAS), procedural justice, and athletes’ appeals in developing countries

The kinetic energy that goes into sports competition is healthy and dynamic and should promote goodwill between nations. There is a presumption that sports politics impinges on the judgments of the sports adjudicating body, the Court of Arbitration for Sport (CAS), in determining appeals in their rulings on the validity of results in international sports competitions. The CAS system for arbitration has rules that follow the lex loci arbitri and its procedures conform to the Swiss Private International law in appeals to the Swiss Federal Tribunal for athletes. The jurisdiction of CAS has to conform to the principles of natural justice when appeals from athletes who have disputes with international sports federations are brought to its attention. This is of particular concern when the national federations of developing countries are involved in sanctioning or supporting athletes who have encountered discrimination. The research question in this paper is whether the CAS exercised procedural justice when the adjudication process involved athletes who had been banned from competition and if the rulings were in accordance with fairness and impartiality. The recourse to the European Court of Human Rights, Article 6.1, has been in sharp focus and the judgments of the court on public hearings and the role of quasi-tribunals need to be structured in accordance with natural justice. This paper argues that the CAS process should increase the scope of procedural justice by granting a fair hearing and by being seen as bias free.