‘Render unto sports the things that are sport and to courts the things that are legal.’ [1] Michael Beloff
Nowadays the CAS is the highest tribunal in the hierarchy of arbitration in football-related disputes. Therefore, through its jurisprudence, which has developed during the last few years through several cases, the CAS contributes to the development of the rules governing world football whether through adopting clear and practical views or interpretations in regard to a particular rule or legal principle, or through developing a set of criteria or tests to be used in determining whether the rule at stake is to be applied.
Specifically in regard to employment contracts of football players the CAS has- arguably- played a very big and effective role in developing the rules applicable there to. This has been achieved particularly through cases related to unilateral breach of said contracts.
The CAS has dealt with several cases and rendered several awards in relation to article 17 par. 1 of the FIFA Player Status and Transfer Regulation which is related to the issue of compensation as a consequence of unilateral termination by players in player employment contracts. The said article obliges compensation in the event the aforementioned type of termination occurs, the article, further, stipulates unique method of calculating compensation specifying particular criteria and factors which shall be used when determining compensation.
The CAS dealt with such a matter as it is the appellate judicial body for the FIFA legal committees. The use by FIFA of the CAS as an appellate body has emerged as a normal result of the growth of the CAS and the wide usage thereof by many various sports.
In general, “the use of arbitration to resolve disputes arising out of sport-related matters is well established”. [2]Sport arbitration is by far regarded the most effective and widely used means of resolving sport-related disputes. This is particularly true because like international arbitration and significantly more obvious in sports arbitration, arbitration is known to “provide a neutral, speedy and expert dispute resolution process . . . with internationally-enforceable dispute resolution agreements and decisions”. [3]
Taking into consideration the nature of sports and the disputes which might arise in relation thereto, sport-related disputes require resolving any dispute efficiently and in a timely manner as “sport often requires almost instantaneous decision making to ensure that schedules and fixtures are kept to”[4]. Sportsmen and sporting-entities always resort to arbitration to resolve their disputes because sport arbitration provides the advantages that are lacking and suffers fewer ills that are in fact present when considering whether to litigate sport-related disputes including inter alia particular expertise of decision-making to an extent which led a “UK court to explicitly recognize in Flaherty v. National Greyhound Racing Club Limited [2005] EWCA Civ 1117, the benefits of arbitration in sport and that it is not in the interest of sport for judges to second guess the decisions of expert sporting bodies who have unrivalled and practical knowledge of the particular sport that they are required to regulate”. [5]
“Sport has turned increasingly to arbitration” [6]because sport plays an extremely important role in relation to both the social dimension and particularly the economic dimension in-which sport plays a particularly notable and significant role because “it’s a dynamic and fast-growing sector . . . arbitral tribunals have long recognized that sporting bodies are high-value sophisticated entities that engage in a variety of commercial activities: the panel sitting in AEK and Slavia Prague v. UEFA, Award of 20 August 1999 in CAS 98/200, Yearbook Comm. Arb. Vol. XXV (2000), at p.402 stated that there is no doubt that professional football clubs engage in economic activities and, consequently, are undertakings” [7]
Although, the percentage sports contributes to the economy of countries is neither formal nor specific as sound and comparable data on the economic weight of sport are generally lacking; however, the economic importance of sport is confirmed by studies and analysis[8]. In pursuance to a “study presented by the Austrian presidency in 2006 which has suggested that sport in a broader sense generated value-added of 407 billion euros in 2004, accounting for 3.7% of EU GDP, and employment for 15 million people or 5.4% of the labour force” [9]. Ian Blackshaw has also referred to the economic importance of sport he stated that “over the years it has become a global business accounting for more than 3% of world trade; and, in the European Union, sport now represents more than 2% of the combined GNP of the twenty-seven member states”;[10]
Such importance of sport led the “EU acknowledge the role of sport in contributing to the solidarity and prosperity of the EU community and further led the EU Commission to address, in the White Paper on Sport, sport related matters in a comprehensive manner”[11].
The significant importance of sport particularly in relation to the economic sector dictated- long ago-the issuance of laws, regulations and legal principles to govern sport-related matters in line with regular laws including civil and commercial.
Indeed, “There is no doubt that sport is subject to the rule of law. But at the same time sport is an area which belongs to the civil society and should, therefore, enjoy large autonomy, including essential self-regulation, which consequently results in the creation of numerous autonomous rules (e.g. rules of the game, organizational rules, etc.)” [12]which has eventually led to the emergence and development of the well-known principle of specificity of sports.
Therefore, state courts became no longer sufficient to rule upon sport-related disputes because though judges were, normally, familiar with state’s general laws and regulations and somehow with sport-related laws and regulations, not only national judges are not sufficiently impartial but also they were not sufficiently familiar with either the regulations of the international federations or international sports law and legal principles not to mention that resolving sports disputes through litigation is very slow.
Normally, sports disputes increased between and amongst sporting bodies, players, coaches and sports organizations/federations etc. This increase in disputes and the creation and development of new rules and legal principles that govern certain areas of sport in addition to the concept of specificity of sport as well as the great need of resolving disputes by and through the hands of unbiased experts as fast as possible necessitated the creation of a sector-specific dispute resolution system that is faster and more efficient than litigation as it was always a very slow and inefficient means.
Since “The sports community faced the same problems that any other community faces when dealing with a dispute: how to resolve the matter in a way that is efficient and cost effective, and seen by interested parties to be fair”. [13]The sport arbitration system has gradually developed. It has started with referring disputes to regular arbitral institutions or to arbitral bodies/committees of sport federations themselves, as the case has been and still is in football.
Now, FIFA uses the CAS as an appeal body, however, preserving the role of the FIFA DRC and Player Status and Transfer Committee in ruling upon disputes that relate to specific football matters as first instance tribunals. The same situation exists in the United States as “the Amateur Sports Act mandates arbitration to resolve disputes and requires all NGBs from each sport to agree to submit all disputes within the scope of the Act to binding arbitration with the American Arbitration Association. The Act also entitles Olympic athletes to review grievances with the United States Olympic Committee via the North American Court of Arbitration for Sport (NACAS)”.[14]
The said systems created much doubt in regard to the independence and impartiality of the said bodies and in regard to the efficiency of certain arbitral bodies such as the FIFA DRC in resolving various kinds of international disputes. “Parties to proceedings, especially unrepresented athletes, found themselves facing their federation or organization in the dual role of adversary and adjudicator”. [15]
Some authors argue that “a degree of disorder reigned, as an overlapping yet unrelated array of international, national, governmental and non-governmental institutions attempted to resolve disputes in sport with little regard for the consistency of outcome from one case to another, however similar the circumstances. Athletes’ rights, as well as the principles of natural justice and due process, were often ignored.”[16]
Such disadvantages of the way sport disputes were arbitrated increased the “need to the establishment of 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”[17]. However, it was not until 1980s that the Idea of establishing an internationally recognized and independent court that would solely and efficiently rule upon and govern all sport-related disputes has been suggested.
“In 1981, soon after his election as IOC President, H.E. Juan Antonio Samaranch had the idea of creating a sports-specific jurisdiction. The following year at the IOC Session held in Rome, IOC member H.E. Judge Kéba Mbaye, who was then a judge at the International Court of Justice in The Hague, chaired a working group tasked with preparing the statutes of what would quickly become the “Court of Arbitration for Sport””.[18]
Finally, the originating statute of the CAS was drafted by a group of the IOC members and was later accepted at the New Delhi Session in March 1983, and had its first president his honor Kéba Mbaye of Senegal, who was then a judge in the international court of justice at the legal capital of the world, The Hague.[19] At last, “the idea of creating an arbitral jurisdiction devoted to resolving disputes directly or indirectly related to sport had thus firmly been launched.”[20]
“At first the CAS was not being widely used as an arbitral body but was freely available . . . until 1991 when it published a Guide to Arbitration which contained model arbitration clauses for incorporation into sporting governing bodies’ statutes or regulations, with the identification of CAS as the forum for hearing the federations’ appeals. “The IOC since 1996 has required all potential competitors to sign a waiver form agreeing to litigate all claims in front of the Court of Arbitration for Sport.”[21]
Nevertheless, the CAS was still only used by a few number of sport entities and the players have always preferred not to bring their cases before the CAS as it has been “criticized for not being independent of the IOC; the IOC chose members of the CAS, which was financially and legally an arm of the IOC.” [22]
However, the CAS’s efforts in trying to fulfill the visions of its founders never ceased, it has continued to develop itself and “in response to criticisms by the Swiss Supreme Court in regard to the doubts raised towards the independence of the CAS from the IOC, the IOC founded the International Council of Arbitration for Sport in 1994 to administer the CAS. The ICAS’s role is to protect the arbitration process and financial independence of the CAS by overseeing all administrative and financial aspects of the court.” [23]
The founders of the CAS envisioned it as a supreme court for world sport and, indeed, most scholars and legal practitioners- amongst them Ian Blackshaw and Amaresh Kumar themselves- are of the opinion that “the CAS is establishing itself… as its founders intended it to be, as the ‘Supreme Court for World Sport’”.[24] This means that the CAS has considerable contributions in the development of international sports law. Indeed, it is argued that the “CAS is in the course of developing universal principles that will someday be widely recognized as the lex sportiva.”[25]
Indeed it is arguable that the CAS has now established itself as the “Supreme Court for World Sport” for several reasons including that the CAS has many competent arbitrators some of whom are generally experts in sporting matters, while others are specifically experts in football matters. [26]As a matter of fact, CAS now “provides a forum for the world’s athletes and federations to resolve their disputes through a single independent and accomplished adjudication body.”[27]
Federations reserved the duties of their inner dispute resolution bodies and use the CAS as an appeal body which could be argued that such a system of arbitrating disputes leaves the CAS with so little work to do to contribute to lex sportiva particularly in relation to sports of which federations have established the jurisdiction of the CAS somewhat recently. However, this argument would be refuted easily as the CAS is an appellate body which reviews the merits of each and every case. This has even been confirmed by the CAS itself as in an award the CAS explicitly stated:
“The CAS does not act as an administrative court reviewing an act of an administrative authority where, usually, the scope of review is characterized by minimum standards of scrutiny, mostly procedural, and the administrative court may not substitute its own judgment for that of the administrative authority. In contrast, it is the duty of a CAS panel in an appeals arbitration procedure to make its independent determination of whether the Appellant’s and Respondent’s contentions are correct on the merits, not limiting itself to assessing the correctness of the previous procedure and decision. As a consequence, given the complete power granted by the CAS Code to fully review the facts and the law, any defects of the DRC proceedings and any infringements of the Appellants’ procedural rights committed by FIFA bodies or FIFA staff are irrelevant.”[28]
This, somehow, makes the sport arbitration system a little bit complicated or in a less harsh expression different than the regular international arbitration system. I.e. example FIFA still has an inner dispute resolution system exercised through its judicial bodies including in particular the DRC and the Player Status and Transfer Committee which are respectable judicial bodies having their own developed jurisprudence.
Since football as Amaresh Kumar stated is “claimed to be the world’s most favorite sport and it must be added the world’s most lucrative one … football provides the CAS with a lot of cases, especially disputes on international transfer of players”[29], football is of special importance to an extent that as- previously mentioned- the CAS recognizes specific importance of football, which is very clear as the CAS has included a specific list of arbitrators who have special expertise and would adjudicate in football-related matters.
It has established the jurisdiction of the CAS in 2002 after “the Extraordinary FIFA Congress held in Buenos Aires, Argentina, on 7 July 2001, decided the creation of an arbitration tribunal for football and the FIFA administration initially opted to establish an entirely independent arbitration tribunal with its own infrastructure and administration. However it soon became apparent to FIFA that the finances made available to found the International Chamber for Football Arbitration (CIAF) were far from sufficient to fulfill its objectives of establishing and maintaining an independent arbitration chamber for football. Furthermore, it was acknowledged that the measures required to set up such an independent project have proved to be too time-consuming in view of the time constraints imposed by the necessity of implementing the new juridical system in accordance with the FIFA Statutes.
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[1] Adam Beach the court of arbitration for sport, a supreme court for the world sport? Available at https://sites.google.com/site/349924e64e68f035/issue-4/-the-court-of-arbitration-for-sport-a-supreme-court-for-the-sports-world
[2] Birds and birds, Sophie Lamb – Daniel Astaire
[3] International Arbitration: Law and Practice, Gary B. Born
[4] See Supra note 1
[5] Birds and birds, Sophie Lamb – Daniel Astaire
[6] id
[7] id
[8] White Paper on Sport issued by the EU Commission on 11.7.2007
[9] id
[10] Wild, A., Ed. (2011). CAS and Football: Landmark Cases. Asser International Sports Law Series, Springer.
[11] See supra note 9
[12] Soek, R. C. R. S. J., Ed. (2012). Lex Sportiva: What is Sports Law? ASSER International Sports Law Series
[13] Have the Wheels Already Been Invented? The Court of Arbitration for Sport As A Model of Dispute Resolution, Paul H. Hagen
[14] MORE THAN JUST A GAME: RESOLVING DISPUTES IN MODERN SPORT, Graeme Mew and Mary Jane Richards
[15] id
[16] id
[17] Sports law arbitration by the CAS is it the same as international arbitration
[18] http://www.tas-cas.org/history, last visited 4th of October 2013
[19] Twenty five years of the Court of Arbitration for Sport
[20] http://www.tas-cas.org/history, last visited 4th of October, 2013
[21] The Olympic Binding Arbitration Clause and the Court of Arbitration for Sport: An Analysis of Due Process Concerns
[22] id
[23] id
[24] id
[25] Sports law arbitration; is it the same as international arbitration?
[26] http://www.tas-cas.org/arbitrators-genlist, and http://www.tas-cas.org/arbitrators-footlist, last visited 4th of October, 2013
[27] id
[28] See infra note 66 at paragraph 1
[29] (201Wild, A., Ed. (2011). CAS and Football: Landmark Cases. Asser International Sports Law Series, Springer.