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April 2006 # 4 |
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The New P.E. & Sports Dimension The column that opens your day by opening your mind |
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GOVERNING SPORTS INTERNATIONALLY: INTRODUCTION TO THE COURT OF ARBITRATION FOR SPORT |
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The articles of our authors are indexed in |
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To start with the discussion and how to: Click here |
The purpose of this article is to share information about the Court of Arbitration for Sport and promote discussion on international sport law and rights. |
| 2. Introduction |
Since the inception of the modern Olympics in 1896 there has been a focus on winning and specifically record breaking in international competition. Female and male athletics have tried to do their best to live up to the Olympic motto, “ Citius, Altius, Fortius ”(swifter, higher, and stronger). 1 The fairly recent inclusion of professional athletes in the Olympics and the greater opportunities for medal winning athletes to leverage their success athletically into lucrative commercial sponsorships and endorsements has increased the motivation for athletes to improve their performance, and has sometimes been accompanied by a win-at-all-cost mentality. In response to these contemporary trends in international sport, the International Olympic Committee created the Court of Arbitration for Sport 2 (hereinafter “CAS”) as the ultimate authority to adjudicate on issues relating to the rights of athletes, governing bodies, and federations. The Athens Summer Olympics in 2004 was the third summer games that the CAS governed disputes. 3 The CAS heard ten cases in Athens on various topics, such as doping, corruption, and sports administration by international federations. 4 This article provides a brief history, a background, and purpose of the CAS. It concludes with a discussion of some main issues relating to the CAS case processes and legal conflicts that exist because of its procedures and make-up. 1 Available at http://www2.lhric.org/pocantico/olympics/olympics.htm. 2 Available at http://www.tas-cas.org/en/histoire/frmhist.htm. 3 Richard McLaren, Faculty of Law, University of Western Ontario, London, Ontario, Canada, Presentation at The Evolving Nature of High School, College and Olympic Sports in the 21 st Century: CAS Cases from the Athens Olympics, (Oct. 21, 2004). 4 Id . |
| 3. Background |
In the early 1980s, an international consensus emerged that there was a need to develop an independent adjudicating organization that would be “an ultimate, authoritative and neutral solution to judicial disputes among athletes, international and national sports federations, national Olympic committees and Olympic and other games organizers.” 5 Furthermore, there “was the need to create a specialized authority capable of settling international disputes and offer[] a flexible, quick, and inexpensive procedure.” Thus, the main purpose of the CAS is to “provide[] a forum for the world's athletes and sports federations to resolve their disputes through a single independent and accomplished sports adjudication body.” 6 The CAS is located in Lausanne, Switzerland, but there are regional offices in the United States and Australia. It is governed by the International Council for Sports Arbitration (hereinafter “ICAS”). Any dispute arising under the CAS jurisdiction is “presided over by a panel of three arbitrators from a pool of CAS arbitrators. . . .” 7 Legal jurisdiction comes from the charter of the Olympics and the charters of various international sport governing bodies and federations. This jurisdiction is binding to the parties as the final answer to their dispute. 5 McLaren, Richard, Introducing the Court of Arbitration for Sport: The Ad Hoc Division at the Olympic Games , 12 Marq. Sports L. Rev . 515, 516 (2001). 6 Id . 7 Id . at 521. |
| 4. The function of the CAS |
The CAS maintains its growth and development as sport continues to gain increased exposure and financial benefit. Among the concerns that exist with growth in sport are corruption and political pressure that can be placed on athletes and federations. However, the CAS, being an independent body, is outside the political pressure and corruption that faces many international federations, committees, and governing bodies. For a CAS arbitration to occur, a contractual agreement must exist between two entities ( e.g. International Association of Athletics Federation (IAAF) and CAS). 8 “Any natural or artificial person with the capacity to effect a legal transaction may have recourse to the CAS.” 9 The CAS uses the Code of Sports Related Arbitration to settle sports-related disputes. There are two parts to the Code: Statutes and Bodies Working for the Settlement of Sports-Related Disputes and the Procedural Rules. In addition, there are two areas of proceedings operated under the CAS: 1) ordinary arbitration proceedings; and, 2) appeal arbitration proceedings. 10 First, under the ordinary arbitration proceedings, the CAS processes disputes that are contractual in nature or wrongful acts. Secondly, appeal arbitration proceedings primarily handle disputes resulting from decisions of sport federations or associations. The CAS can also provide advisory opinions on any activity related to sport and sport activity. Finally, the CAS operates an additional proceeding at or during the Olympic Games, the ad hoc division. The responsibility of the ad hoc division is to rule on disputes that occur during the Games themselves.
8 Id . at 517. 9 Id . ( e.g. “This includes, international sports federations and sports associations, sports organizing committees, radio sponsors, television broadcasters and any other corporation involved in a sports- related dispute.”) 10 Id . |
| 5. Disputes arising during the games and international competition |
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Seven main disputes arise during the Olympic Games and/or international competition that the CAS governs. Although this catalog is not an all-inclusive depiction of the CAS cases, it does provide the most basic overview for the purpose of this article. First, the jurisdiction of the CAS is in question at almost every Olympic Games. The CAS does have jurisdiction under the Olympic Charter, so these cases are normally easily resolved. Second, the CAS rules on cases involving affected third parties and national eligibility rules. Third, it judges on cases disputing the validity of athlete suspensions by the International Olympic Committee and International Federations. Fourth, it adjudicates any argument over the principle of non-interference with sports officials' decision-making. Fifth, the CAS decides on any case arguing over doping violations and/or the methods of testing for doping. Sixth, it determines disputes concerning the resolution of commercial advertising issues. Finally, it rules on cases involving the manipulation of sporting rules for strategic advantage. 11 Other types of cases do exist as aforementioned; however, these are the most prominent issues the CAS sees before it. 11 McLaren, id . at 523. |
| 6. CAS case process |
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A decision to go to the CAS can come from an appeal of a federation's decision or from a pre-determined agreement before a dispute has arisen. If an entity receives a decision from a federation or governing body with which it takes issue, then it can submit that issue to the CAS. In both instances, an entity representing itself in front of the CAS Panel follows a two-step procedure. First, “[a] written procedure with an exchange of documents is . . . [generally] followed by a hearing where the Panel will examine witnesses and discuss the evidence with the parties.” 12 Furthermore, the Panel can request production of evidence that it deems necessary to provide a fair and impartial decision. “[T]he Panels may consider ‘all evidence, oral and written, produced before it . . . . In short, the hearing before the Panel constitute[s] a hearing de novo , . . . [a hearing on] the merits of the case.'” 13 The CAS decision is final and binding to the parties as aforementioned. 12 Oschütz, Frank, Harmonization of Anti-Doping Code Through Arbitration: The Case Law of the Court of Arbitration for Sport , 12 Marq. Sports L. Rev . 675, 679. (2002). 13 Id . |
| 7. Conflicts with the Law |
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Currently, Swiss Law governs the arbitration process of the CAS. 14 Additionally, “[t]he applicable substantive law will be the law chosen by the parties or the law of the country where the federation, which issued the challenged decision, has its seat.” 15 Frank Oschütz in his article 16, argues that this rule provides a stable legal framework for the federations and is predicable to all parties. If the substantive law is the federation's home, then is it not possible to have two cases decided in two different ways, even though they may have the same fact pattern? Oschütz would argue that it provides a stable framework; however, this author would argue that it provides a legal spider-web of varying paths and outcomes. These varying outcomes may affect the career of one international athlete, but save another from punishment while both may have committed the same crime. A second point of contention is the burden of proof. In regards to the CAS, “the burden of proof lies with the party claiming a fact in his favor.” 17 For instance, an athlete who is believed to have consumed an illegal substance would need to argue against his presumed guilt and most importantly have to prove his innocence. For many United States athletes, this becomes a point of great concern. In the United States jurisprudence system, a defendant is presumed innocent until proven guilty. An athlete in the United States would not have to prove he did not take an illegal substance. The judging party would have to show that the athlete did take the illegal substance. The burden of proof is a fundamental issue with respect to United States citizens rights, but it is not the only right different under the CAS. Third, in the United States the accepted standard of care is based on what a reasonable person would do. 18 For instance, if an athlete bought a product at the grocery store that had a label verifying all ingredients, and no ingredient is a banned substance, then that athlete can argue in a United States court that a reasonable person would have consumed the product trusting the ingredient label. However, with the CAS, the accepted standard of care “is above the ordinary man on the street or even the ordinary person practicing sport as a hobby.” 19 Thus, it could be argued that an athlete is in a no win situation and no excuse will be accepted to justify a violation of any regulation, law, or principle.
14 Loi Federale Sur Le Droit International Prive , ch. 12, art. 176; Champ d'Application; Siege du Tribunal, available at http://www.admin.ch/ch/f/rs/291/a176.html. 15 Oschütz, id . at 679. (2002). 16 Id . 17 Id . at 691. 18 Diamond, John, Levine, Lawrence, & Madden, M., Understanding Torts , §§ 3.03, 3.04 Lexis Publishing (2000). 19 Oschütz, id . at 692. (2002). |
| 8. Conclusion |
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Although the founder of the modern Olympic Games, Baron Pierre de Coubertin, asserted “the most important thing in the Olympic Games is not to win but to take part…,” 20 in their quest to achieve athletic glory some athletes and administrators have become tempted to circumvent rules or cheat. Protection of the noble ideals of international athletic competition is enhanced because of the CAS. The CAS is an arbitrating body that promotes the protection of rights of all those affiliated with the Olympic Games and international competition. Yet, questions remain about the organization and the procedures that the CAS follows. Only through increased discussion can those that support and cherish the benefits that international sport offers, fine-tune the process of resolving disputes and conflicts and thereby improve the system for those that follow. 20 Id . at http://www2.lhric.org/pocantico/olympics/olympics.htm. |
| Start the discussion: |
Answer the following questions to help settle a debate the authors were having on these topics: 1. Should there be an international body to govern legal conflicts regarding sport? 2. If an international body does have the power to rule on legal conflicts, then whose laws should apply? Should there be an independent body to determine the rights given? 3. What recourse does a country, such as the United States, have when its citizens have greater or lesser rights in respect to the international body? 4. Is the right of appeal a natural right? How should an appeal process work with respect to international sport? 5. If the purpose of the CAS were to promote and maintain the level playing field, then could that rationale exist if there were no rules with respect to illegal substances, doping, etc.? |
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