Expertise of the Tribunal is one of the main advantages searched for with commercial arbitration and the same goes for sports arbitration. Due to the variety of relationships that exist between sport practitioners, clubs, national associations and international federations, sports-related issues require experienced counsels and arbitrators well-versed into these topics in order to ensure quick, efficient and reliable resolution of the disputes.
Due to the many important organizations seated in Switzerland and its general tradition as an arbitration venue, Switzerland is one of the prime locations when it comes to resolution of sports-related disputes. As of 1983, the Court of Arbitration for Sport (“CAS”) has had its headquarters in Lausanne (Switzerland). Pursuant to Art. R28 of the Code of Sports-related Arbitration (“CAS Code”), when CAS has jurisdiction over a dispute, the seat of arbitration is Lausanne. This means that the proceedings are to be conducted in accordance with Chapter 12 of the Swiss Federal Act of 18 January 1987 on Private International Law (CC 291) (“Swiss PILA”) and that annulment proceedings can be initiated before the Swiss Federal Court only under the grounds set forth in Art. 190 para. 2 Swiss PILA. Moreover, with regard to the merits, Swiss substantive law applies unless the parties have chosen another law (Art. R45 CAS Code) or if the test pursuant to Art. R58 CAS Code leads to another law. Due to the fact that the aforementioned organizations are usually Swiss associations in the meaning of Art. 60 et seq. of the Swiss Civil Code of 10 December 1907 (CC 210), either the parties choose Swiss law or the test leads to Swiss law being the governing law.
As already outlined, the relationships between the different stakeholders are diverse and for a complete understanding of how these are handled, they will be presented through the procedural prism. Indeed, the parties and their counsels should carefully distinguish (a) ordinary proceedingsfrom (b) appeal proceedings initiated before CAS. From this distinction, the parties’ procedural rights and the Tribunal’s power may differ, some of which do exist only in specific cases.
Ordinary Arbitration Procedure (Art. S20 para. a & Art. R38 et seq. CAS Code)
Ordinary proceedings are conducted in cases in which CAS hears a dispute as a single instance and where its jurisdiction arises out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement between the parties (Art. R27 para. 1 ab initio CAS Code).
This may occur for instance in a contractual dispute arising between a player and his/her former cluband in general tort compensation disputes. The parties are called “Claimant” and “Respondent” like in usual commercial arbitration. Each Party has the opportunity to nominate an arbitrator from the CAS list of arbitrators (see below section c) and these two arbitrators so nominated will then have to nominate the President of the Panel (Art. R40.2 CAS Code). During the whole proceedings, the parties, the Panel and CAS are bound by an obligation of confidentiality (Art. R43 ab initio CAS Code). Awards rendered by the Panels may be made public only if all parties agree or if the President of the CAS Ordinary Division decides so (Art. R43 in fine CAS Code).
Appeal Arbitration Procedure (Art. S20 para. c & Art. R47 et seq. CAS Code)
A party called “Appellant” may file an appeal against decisions rendered by a federation, association or sports-related body, thereby called “Respondent”, when the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS (Art. R27 para. 1 in fine CAS Code).
In these proceedings, the first time limit is of utmost importance as it ascertains the right, on Appellant’s side, to rightfully file its appeal against the disputed decision. Indeed, Appellant has in principle 21 days to file a Statement of Appeal before CAS (Art. R49 CAS Code). Failing to do so, the appeal will be dismissed and the disputed decision will enter into force. This submission only sets forth the principle of the appeal, the parties and the dispute (Art. R48 CAS Code). Even though it seems to be only a formal document, the parties and their counsels shall make sure to submit it in a timely manner in order to be able to further file their Appeal Brief. With regard to confidentiality, according to Art. R59 para. 7 CAS Code, the results of the proceedings will be made public by CAS if the parties do not agree otherwise. Moreover, each party has the possibility to nominate an arbitrator from the CAS list of arbitrators (see below section c), but contrary to ordinary proceedings, the President of the Panel in appeal proceedings will be chosen by the President of the Appeals Arbitration Division (Art. R54 para. 3 CAS Code).
When a party lodges an appeal before CAS against a decision issued by an international federation in disciplinary matters, the proceedings shall in principle be free if the sanctions imposed are not related to a dispute of an economic nature (Art. R65.1 & R65.2 CAS Code). In appeal proceedings, the Panel has full power to review the facts and the law surrounding the disputed decision and may issue a new decision which replaces the disputed decision or annul the disputed decision and refer the case back to the previous instance (Art. R57 para. 1 CAS Code). Finally, similarly to other arbitration institutional rules, the CAS Code provides the Panel with a time limit of 3 months to issue the operative part of the award (Art. R59 para. 5 CAS Code).
Common rules between these proceedings
Since 1 July 2020, French, English and Spanish are CAS’ working languages (Art. R29 CAS Code). The scope of CAS’ jurisdiction, with regard to the types of disputes it can hear, may be framed by the parties in their agreement or in the statutes or regulations of sports-related bodies. However, if the arbitration clause does not precise it, CAS’ jurisdiction is governed by Art. R27 para. 2 CAS Code. According to this provision, CAS has jurisdiction over disputes of principle relating to sports and matters of pecuniary or other interests relating to the practice or the development of sport. As a general rule, it may include any activity or matter related or connected to sport. The broad wording used in this provision reflects the need to gather as many disputes as possible in CAS’ hands, in order to ensure coherence in the resolution of sports-related disputes.
The International Council of Arbitration for Sport (“ICAS”) is the body responsible for the administration and financing of CAS (Art. S1 & S2 CAS Code). Pursuant to Art. S6 CAS Code, ICAS appoints the personalities that will constitute the CAS list of arbitrators (Art. S6 para. 4 CAS Code) and the parties – or the Division President designated in the CAS Code – will have to nominate the arbitrators therefrom (Art. 33 para. 2 CAS Code). Indeed, due to the specificities that may arise from sports-related disputes, the CAS Code makes it mandatory to constitute the Panel from the CAS list, since these personalities are included therein because of their appropriate legal training (Art. S13 & S14 CAS Code).
Even though CAS may be seen as any other arbitration institution, the specific issues that arise in sports-related disputes require that counsels know the proceedings and the different interests at stakefor a sport practitioner, a club or a federation in order to be able to foresee the appropriateness of initiating proceedings before CAS and the chances of a positive outcome. Indeed, contrary to business relationships, sports relationships often continue even after the award is issued and shall therefore be regarded cautiously in order to ensure a fair and ethical environment for sport on a worldwide scale.