Despina Mavromati presented selected CAS case law in disciplinary matters at the CAS Internal Seminar in Vancouver on 10 February 2016.
Notes
Brussels Court of Appeal Decision in the matter Doyen et al v. FIFA – Legality of the Arbitration Clause in the FIFA Statutes
Did the Brussels Court of Appeal decide on the compatibility of CAS with the ECHR and European Union Law?
The background facts
In 2016, FIFA sanctioned RFC Seraing (the Club) for violating Art. 18ter of the FIFA Regulations on the Status and Transfer of Players (RSTP) that prohibits Third Party Ownership (TPO) agreements. The Club appealed against the FIFA Decisions to the CAS and subsequently filed a motion to set aside the (unfavourable) CAS award1 before the Swiss Federal Tribunal, which dismissed the motion and confirmed the CAS Award, the legality of CAS as an institution and its independence from FIFA (see our note on the SFT judgment 4A_260/2017 here). At the same time, RFC Seraing, Doyen Sports Investments Ltd and other parties filed a claim before the Belgian State Courts against FIFA, UEFA, the Belgian Football Association (URBSFA) and others seeking to authorize Third-Party Ownership (TPO) agreements.
The 2nd Interlocutory Decision of the Brussels Court of Appeal
The 18th Chamber of the Brussels Court of Appeals issued, on August 29, 2018, a (second) interlocutory decision in which it accepted its jurisdictionp2 and considered that it can hear the case to the extent that its effects are limited to the Belgian territory (based on Art. 6 (1) Lugano Convention that provides for the alternative jurisdiction of the seat of one of the defendants in closely connected claims). The Court finally rejected the request for provisional measures filed by Doyen Sports Investments Ltd & RFC Seraing for lack of new elements that would otherwise constitute a change of circumstances likely to question the appreciation of the Court in its judgment of March 10, 2016.
Analysis limited to the compliance of the FIFA arbitration clause with Art. 1681 Code Judiciaire Belge
The Decision did not rule on the compatibility of CAS as an arbitral institution with the ECHR and European Union law, but was limited to the legality, under Belgian law, of an arbitration clause that is not restricted to a specific legal relationship while excluding the jurisdiction of state courts (n. 7, p. 8 of the Decision). This is a general condition for the validity of an arbitration clause enshrined in Art. 1681 of the Code Judiciaire Belge and said condition is linked to Art. 6(1) ECHR and Art. 47 of the EU Charter on Fundamental Rights (right to a fair trial).
The Court further refused to examine extended arguments raised by the Doyen et al. by reference to the Achméa judgment of the European Court of Justice (C-284/16) trying to establish that the prohibition to have recourse to state course violates the rules on public policy (see 3.1.1 of the decision).
The specific criteria of the Court in order to review the validity of the FIFA arbitration clause
The Belgian Court
– Concluded that the arbitration clause enshrined in Art. 59(1) FIFA Statutes is too broad to be valid since its scope is not limited to a specific legal relationship.
– Rejected arguments raised by FIFA that the clauses were meant to cover FIFA’s activities and its relationship with its members through its specialized statutes.
– Dismissed equally the argument that disputes covered by the FIFA clause would implicitly cover “sporting disputes” (since the CAS could only accept those disputes) was equally dismissed, since this is not part of the arbitration clause and the CAS is a third party, free to amend its rules at all times irrespective of the FIFA statutes.
– Found that the principle of “favor arbitrandum” is not a general principle that would go so far as to circumvent the specificity of the scope of the arbitration clause.
Therefore, an arbitration clause, even if it involves only two parties, can only cover a specific legal relationship between them and not all possible disputes that might arise in the future between these two parties (paras. 14-16 of the Decision of the Brussels Court of Appeal).
Distinction between direct members and indirect members of a sports federation
Finally, the decision on the FIFA arbitration clause distinguished between direct members of an association (in which case FIFA / UEFA would have the authority to provide for an arbitration clause for disputes falling within the scope of the statutory provisions) and RFC Seraing, which is not a direct member of the latter associations.
Did the Brussels Court of Appeal reach any conclusions on the “exclusive” jurisdiction of CAS arbitration?
The “exclusive” jurisdiction of CAS included in the FIFA Statutes was merely examined in conjunction with the validity of the arbitration clause that was found to be too broad, and not as a separate matter. Nothing would therefore prevent an association from providing for the exclusive jurisdiction of CAS – or any other arbitral tribunal – to the extent that the other conditions are fulfilled (i.e. scope of the arbitration clause limited to a specific legal relationship).
Did the Court of Appeal conclude on the legality of the Third-Party Ownership (TPO)?
As mentioned above, the interlocutory decision of the Brussels Court of Appeal did not enter into the merits of the case and merely ruled on its jurisdiction. The case is set to continue with a hearing scheduled for October 4, 2018.
What is the potential impact of this decision on CAS and its jurisdiction?
No impact of the Brussels Court of Appeal Decision on CAS as an arbitral institution
The SFT held in its 4A_260/2017 judgment that, based on the principle of national sovereignty, the opinions expressed by the superior courts of an EU member state have no more weight than that of the Swiss supreme judicial authority (4A_260/2017, at 3.4.1).
Most importantly, this finding does not affect the CAS, whose legality as an institution has been confirmed by the aforementioned judgment of the SFT: CAS Panels are called to rule on their jurisdiction based on the Kompetenz-Kompetenz doctrine and on a case-by-case basis.
The findings of this case are also limited to “indirect members” such as RFC Seraing and not to “direct” members of sports federations (which reminds us of the differentiation made before the German Courts in the Wilhelmshaven judgment).
Last, the Swiss courts have not dealt with this specific question related to the arbitration clauses included in the statutes of a sport association.
While the scope of the FIFA arbitration clause has been under scrutiny by many CAS panels to date, there has not been a case where the legality of the clause was questioned as such.
The case is set to continue
In any event, the Belgian Court finding was enough to allow the claim to proceed and dismiss the “exception d’arbitrage” objection filed by FIFA et al based on Belgian law. The Brussels Court of Appeal proceeded to a strict and objective interpretation of the arbitration clause, irrespective of the principle “favor arbitrandum” and the “specificity of sport” that once led the Swiss Federal Tribunal to consider arbitration clauses related to sport (and more specifically doping-related disputes) with a certain “benevolence”.3
Need to review similar arbitration clauses of sports federations?
The finding that the FIFA arbitration clause was too broad theoretically means that other similar arbitration clauses included in the statutes of sports federations could have a similar fate, if their validity is challenged before state courts in Belgium. In any case, this should lead to a reconsideration of similar arbitration clauses of all sports federations in order to defend against potential challenges in the future. It is also a good reminder that sports federations should draft their clauses carefully since CAS jurisdiction is neither self-evident nor automatic and should rely upon a valid and not overly broad arbitration clause.
News
Bosman at 25: Contemporary Issues in EU Sports Law – Webinar organised by the Edge Hill University
25 years since the well-known Bosman ECJ ruling granting players greater freedom of movement within the European Union, Edge Hill University hosted an online event to revisit the case and assess its legacy on the game on 17 December 2020.
The event was chaired by the Chair of EU Sports Law and Policy, Professor Richard Parrish and featured Christopher Vajda QC, the former UK judge at the European Court of Justice, alongside Laura McCallum, Gareth Farelly, Steve Flynn, Dr Despina Mavromati and Benoit Keane.
Despina was invited to discuss the recently published judgment by the EU General Court in the International Skating Union v. EU Commission decision (T-93/18), which confirmed that the rules of the ISU providing for severe penalties for athletes participating in speed skating events not recognised by the ISU are contrary to EU competition law.
Despina Mavromati participated in a Panel on the Autonomy of Sports Associations with University of Geneva Prof. Margareta Baddeley, in Lausanne on February 6, 2017.
Despina Mavromati presented a paper on Autonomy and Good Governance of Sports Organizations at the CAS Seminar held in Kuwait City in June 2014.
Despina Mavromati wrote a chapter for the latest Asser Yearbook on International Sports Arbitration and commented on the well-known Trabzonspor Judgment of the Swiss Federal Tribunal (4A_486/2019, judgment of 17 August 2020). Her paper relates to the legal battle of a Turkish football club, Trabzonspor, to initiate disciplinary proceedings against another Turkish club before the tribunals of national, continental, and international football governing bodies and subsequently to CAS and the SFT. Her paper deals with several interesting legal questions, including the right of a party to the CAS proceedings to request a public hearing, the standing to appeal a decision by a third party indirectly affected by such decision, and the right of the CAS to bifurcate the proceedings without violating the parties’ right to be heard.
News
“Arbitration and the Olympic Games” conference hosted by the French Olympic Committee in Paris
Dr Despina Mavromati spoke at the conference “Arbitration and the Olympic Games” hosted by the French Olympic Committee in Paris on 29 February 2024.
In the session on the CAS ad hoc Divisions chaired by the CAS Director General Matthieu Reeb, she spoke about the procedural particularities of the CAS ad hoc Divisions at the Olympic Games, focusing on the material- and temporal jurisdiction of these Divisions. The full program of the conference can be found here. The speakers’ contributions will be compiled and published in the Paris Journal of International Arbitration (Revue de l’Arbitrage) before the Paris Olympic Games.
Notes
Arbitrability of a contractual dispute between a football player and a club in case of insolvency proceedings
4A_200/2021 judgment of 21 July 2021, A v. B & C, motion to set aside the CAS award CAS 2019/A/6404 & 6405
This is a relatively interesting judgment that discusses the arbitrability of disputes linked to insolvency proceedings. The dispute between a Romanian football club (the Club) that fell into bankruptcy in 2016 and two football players (the Players) led to an appeal to the CAS in 2019 against the decisions rendered by the internal bodies of the Romanian Football Federation (RFF). The insolvency proceedings were terminated and the Club resumed its activities in 2020, i.e., before the issuing of the CAS award, which partially upheld the Players’ appeals and led to a motion to set aside the CAS award before the SFT proceeding filed by the Club.
As a side note, the Players filed their request for extension of the deadline for the filing of their reply to the motion by electronic mail only (i.e., not signed by an electronic signature in accordance with the Swiss Federal Tribunal Act) and as such their request was considered invalid, while their reply was filed after the deadline expired and was therefore disregarded by the SFT, as was the reply filed by the CAS (at 3.1-3.2).
Before the SFT, the Club first invoked the lack of the jurisdiction of the CAS, to the extent that insolvency proceedings are of a mandatory nature and therefore not arbitrable under Romanian law. The SFT recalled that arbitrability is a condition for the validity of the arbitration agreement and, under Swiss law, includes all disputes of pecuniary nature. Despite the fact that Swiss enforcement law is a matter of public policy, the case at hand involved two football players with pecuniary claims against their former club, thus falling within Art. 177 Swiss LDIP. The SFT also considered as decisive the fact that the Club had become solvent again prior to the issuance of the arbitral award, rendering thus any questions regarding the exclusive state jurisdiction irrelevant (at 4.4).
The plea of violation of res judicata for alleged disregard of the decision of the insolvency administrator and the subsequent withdrawal of the players’ challenge against such decision was swiftly dismissed because it was formulated within the context of the panel’s lack of jurisdiction (and not as part of an alleged violation of procedural public policy) but also as clearly unsubstantiated (at 4.4 in fine).
In the same judgment, the SFT reminded that the double level of jurisdiction is not a matter of procedural public policy and that there is a difference between violation of public policy and arbitrariness, which is only a ground for annulment of an arbitral award in domestic arbitration under the Swiss Code of Civil Procedure (at 5.2).
News
Application of the 2015 WADA Code through the example of a recent CAS Award (Sharapova v. ITF)
Published in the CAS Bulletin, Vol. 2/2016
Maria Sharapova, a top-level professional tennis player (the Athlete) had tested positive for a prohibited substance in January 2016. This paper examines the subsequent CAS Award along with some provisions of the 2015 WADA Code and other interesting procedural issues related to the CAS Code that were discussed in this award.
Notes
Applicability of the prohibition of discrimination as part of public policy in relations between individuals – the Blake Leeper case
4A_618/2020, Judgment of 2 June 2021, A v. World Athletics (formerly IAAF), appeal against the CAS Award CAS 2020/A/6807
This SFT judgment of June 2021 relates to an eligibility case involving the US bilateral transtibial amputee sprinter Blake Leeper (the Athlete) and World Athletics. The SFT proceedings were initiated against the first CAS award that was issued in 2020 but the Athlete subsequently filed a second appeal to the CAS, which was also dismissed in June 2021.
Before the CAS, the Athlete challenged the decision rendered by the World Athletics Mechanical Aids Review panel, which did not allow him to use his Running-Specific Prostheses (RSPs) on grounds that the height of the proposed RSPs gave him a competitive advantage over other athletes. The CAS Panel confirmed the Review panel’s decision, concluding that the specific RSPs gave, through extra height, a running-speed advantage, referring among others to the MASH (Maximum Allowable Standing Height) method to assess the maximum “natural” height of double amputee athletes. The Panel dismissed the athlete’s argument that such method was not validated by reference to Black athletes of African descent and concluded that, based on a balance of probabilities, the Athlete’s proposed RSPs gave him a competitive advantage, although a less-intrusive alternative did not exist.
In his subsequent motion to set aside the CAS award, the Athlete invoked among others a violation of the prohibition of discrimination under Art. 14 of the European Convention on Human Rights (ECHR), of pacta sunt servanda and of human dignity.
The SFT reiterated that the provisions of the ECHR are not directly applicable as a ground for setting aside an arbitral award in Switzerland (at 4.1 and 5.2) and recalled the very limited scope of pacta sunt servanda (which was not applicable in the present case). The SFT further dismissed the plea of prohibition of discrimination but aé,gain left unanswered the question of whether the prohibition of discriminatory measures falls within the scope of the restrictive concept of public policy when the discrimination is committed by a private person and occurs in relations between individuals.
The ECHR provisions are not directly applicable as a ground of setting aside an arbitral award in Switzerland
The Athlete also alleged an attack on his human dignity based on the fact that he, as an athlete of African or African-American origin, was forced to be measured according to the MASH rule. However, the SFT held that the CAS Panel had not determined whether the MASH rule was legally permissible or applicable to all athletes but rather concluded—in a manner that bound the SFT—that the sprinter had a competitive advantage as a result of his use of RSPs. In order to do so, the Panel considered that it was necessary to make a comparison between the Athlete’s performance with his prostheses and that which he could have achieved if he had intact biological legs, while stressing that this assessment ultimately and inevitably involved an element of uncertainty.
Published in the Yearbook of International Sports Arbitration, Rigozzi / Duval (eds.), 2018 Asser Press
Both WADA and the CAS are foundations under Swiss private law and have their registered seat is in Lausanne, Switzerland. In addition to WADA and CAS, the majority of international sports federations are equally based in Switzerland. Although the adoption of the WADC in 2003 brought about a harmonization of the different anti-doping regulations and the creation of an international regime for anti-doping rule violations, Swiss law continues to play a major role in the adjudication of doping-related procedures before the CAS.
Notes
FIFA v. A. AG – Appeal against a Swiss Domestic Award – Arbitrariness
4A_338/2018, Judgment of November 28, 2018, FIFA v. Company A. AG
Appeal against the Award of May 2, 2018 (n° 600461-2016) rendered by the Arbitral Tribunal seated in Zurich
1. Background Facts
The case involves a dispute between the world governing football body, FIFA, and a Swiss-based ticket-reselling company (Company A) but not CAS arbitral proceedings or a CAS award. The parties entered into a first agreement for the purchase and resale of tickets for various editions of FIFA World Cup in 2010. After discussions regarding the restructuring of the agreement, Company A and its long-term partner (Company B) concluded an “agency agreement”, based on which the latter became the non-exclusive sales agent of Company B for hospitality packages at the 2014 FIFA World Cup. In August 2016, Company A initiated an arbitration at the Swiss Chambers’ Arbitration Institution against FIFA, requesting damages and the delivery of tickets for the World Cup 2018. The Company A’s requests for relief were essentially admitted by the arbitral tribunal and FIFA was ordered, among other things, to pay damages. It held that FIFA had retrospectively approved relevant assurances/guarantees made on its behalf.
2.The Appeal to the Swiss Federal Tribunal
Swiss Domestic Arbitration and Arbitrariness
In the subsequent appeal to the Swiss Federal Tribunal, FIFA requested the annulment of the award and the issuance of a new award.
This was a Swiss domestic award (since both parties had their seat in Switzerland) subject to the application of the Swiss Code of Civil Procedure, under which it is possible to attack an award for arbitrariness (a ground that is not admissible for international awards under the Swiss Private International Law Act, PILA).
The appeal was subsequently dismissed as inadmissible, with the Federal Tribunal reiterating its own restrictive definition of arbitrariness.
Assessment of the evidence
More specifically, the Federal Tribunal considered that, even within the scope of the arbitrariness plea, a party cannot question the assessment of evidence made by the arbitral tribunal. By the same token, it cannot question the factual findings, to the extent that these are mentioned in the contested award, so far as such party fails to establish that the Arbitral Tribunal has wrongly reproduced the content of these files, oversaw parts of the files, or gave them a meaning other than their real meaning. Since the burden of proof governs the consequences of the lack of evidence, if, as in the present case, a court concludes that a factual statement has been proved or refuted, the allocation of the burden of proof is irrelevant.
Violation of Article 8 Swiss Civil Code (allocation of the burden of proof)
The Federal Tribunal also answered to the plea of violation of Art. 8 Swiss Civil Code (related to the burden of proof) in terms of establishing the compensation (at 4.4.2) and dismissed it as inadmissible: if an arbitral tribunal concludes that a factual statement has been proved or refuted, the allocation of the burden of proof is irrelevant (BGE 141 III 241 at 3.2; BGE 138 III 359 at 6.3; BGE 134 III 235 at 4.3.4).
The allocation of legal costs is a procedural, not a substantive issue.
Finally, an interesting point to retain from this judgment relates the principle of allocation of costs: FIFA supported that the allocation of costs by the Arbitral Tribunal was arbitrary within the meaning of Art. 393 lit. e Swiss Code of Civil Procedure (CPC). The Federal Tribunal highlighted the difference between the status prior to the enactment of the CPC and found that the distribution of the legal costs is a procedural question and not one of substantive law, implying that this could (theoretically) fall within the scope of procedural public policy. As such, it fell outside the scope of the arbitrariness plea and was therefore inadmissible.
Notes
Violation of the right to be heard and influence on the outcome of the case
4A_422/2019 Judgment of April 21, 2020 A v. RUSADA, WADA & FISA
Appeal against the arbitral award of the CAS of June 26, 2019 (2018/O/5754)
The parties to this doping-related dispute included a former Russian rower (the Athlete), his international federation, his national antidoping organization, and WADA. Following a CAS award that imposed a four-year suspension on the Athlete, the latter filed a motion to set aside the CAS award for alleged violation of his right to be heard.
This judgment brings nothing new: the CAS Panel had allegedly failed to consider two elements prone to affect the outcome of the dispute, namely the argument that the Athlete and his expert left the laboratory on the basis of false information given by the representatives of the laboratory, and the numerous arguments aimed at demonstrating that any violation committed by the Athlete could only have been unintentional.
On the first argument, the SFT found that the Athlete could not establish how this allegedly false information given to the Athlete could have influenced the reasoning and decision of the arbitral tribunal, since the arbitral tribunal explicitly acknowledged that the Athlete and the expert left the laboratory with the knowledge that the analytical process would be initiated in their absence and without having objected to it.
The SFT equally dismissed the second element of the plea relating to numerous arguments on the unintentional antidoping rule violation, to the extent that the panel had expressly addressed -and rejected- the argument that the substance in dispute was due to the consumption of contaminated dietary supplements.
A summary of selected CAS & Swiss Federal Tribunal judgments rendered in 2021 & major regulatory reforms
This delayed Olympic year led to a high number of cases that were decided by the Court of Arbitration for Sport (CAS) Ad Hoc Division in Tokyo, but also several ethics- and doping-related proceedings before the CAS, and a few noteworthy Swiss Federal Tribunal judgments. As demonstrated below, several also raised procedural and/or substantive arguments linked to the COVID-19 pandemic.
Starting with the Tokyo Olympics, an interesting qualification case related to the application filed by Georgian tennis players Oksana Kalashinikova & Ekaterine Gorgodze, whose entry had not been properly submitted by their National Olympic Committee (NOC). The panel concluded that, in the absence of an official nomination by the NOC, the International Tennis Federation (ITF) correctly adopted the revised entry list without the players, thus rejecting their application.
The case of the Belarusian sprinter Krystsina Tsimanouskaya became well-known after her urgent application was dismissed by the CAS. Following the decision of the NOC Belarus to not let her participate in the Women’s 200m qualifying event at the Tokyo 2020 Olympic Games, the CAS Ad Hoc Division President dismissed her urgent application for a stay considering that the athlete was not able to satisfy “the likelihood of success requirement” and thus obtain interim relief. The Belarussian sprinter expressed her fears for her safety when she was threatened by her coaches to be taken to the airport in Tokyo against her will. Shortly afterward, the IOC opened disciplinary proceedings against her coaches and removed their accreditation with immediate effect.
A field of play decision involved the French boxer Mourad Aliev who contested the referee’s decision to disqualify him from the Men’s Super Heavy Quarter Final with the British boxer Frazer Clarke. Even though it did not exclude the possibility of a technical error, the Panel confirmed the decision in the absence of a fundamental violation including bad faith, arbitrariness or bias. Colombian boxer Yuberjen Martínez was involved in a similar field of play dispute.
Finally, a case between the Kazak 10km marathon swimmer Vitaliy Khudyakov and FINA was settled amicably: After an additional quota place was granted by the IOC, it was offered by FINA to the Kazakhstan Swimming Federation and the Kazakhstan Olympic Committee nominated Vitaliy Khudyakov for this quota place.
Apart from the delayed 2020 Tokyo Games and the UEFA 2020 Euro taking place in the summer of 2021, this year was also rich in ethics-related proceedings brought in appeal before the CAS.
We can mention, among others, the former African Football Confederation (CAF) President Ahmad Ahmad who appealed a decision of the FIFA Ethics Committee: his appeal was partially upheld and the initially imposed five-year sanction was reduced to two years by the CAS Panel, to the extent that some violations of the FIFA Code of Ethics (FCE)–such as the duty of loyalty or the abuse of power enshrined in Articles 15, 25 and 28 –could not be established. Apart from the Ahmad Ahmad case, several African candidates to the CAF elections brought their appeals to the CAS.
Another interesting ethics-related case is that of the Nigerian football coach Samson Siasia against the FIFA decision that found him guilty of bribery and had initially imposed a lifetime ban. The CAS Panel found the ban disproportionate for a first offence that was committed passively and which had no immediate effect on football stakeholders, also considering that Mr. Siasia had not obtained any gain or pecuniary benefit from his unethical behavior. Inversely, the appeal filed by Brazilian football official Ricardo Terra Teixeira against the FIFA Ethics Committee decision was dismissed by the CAS, which confirmed the lifetime ban for violation of Article 27 FCE (bribery) and the 1-milion CHF fine. The CAS Panel found that his ban was proportionate considering the very high amounts of the bribes, the official’s intentional behaviour, and his responsibility as a role model after holding senior positions in football at national and international levels.
A COVID-19-related case decided in 2021 arose out of the 2020/21 UEFA Nations League: in this case, the CAS Panel confirmed the UEFA Appeals Body decision that had declared the 2020/21 UEFA Nations League match between Switzerland and Ukraine forfeited 3-0 by Ukraine, and held Ukraine responsible for the game not taking place, in line with the UEFA special COVID-19 competitions protocol : even though the entire Ukrainian delegation was placed in quarantine by the health authorities and was thus prevented from playing, the Panel concluded that, in the absence of viable rescheduling options, the rules set out by UEFA were interpreted and applied correctly.
In 2021, the CAS has rendered a relatively interesting decision on the change of football association from Switzerland to Albania regarding the player Nedim Bajrami: overturning the FIFA decision in appeal, the Panel found that the conditions of Article 9 of the Rules Governing the Application of the FIFA Statutes were met since the player never played with the Swiss national team and was already an Albanian national.
Noteworthy doping-related cases in 2021
There have also been several noteworthy doping-related cases this year: first, the Sun Yang case—which started in early 2020—was terminated with a second hearing, and a second CAS award. Following the decision of the SFT to annul the first CAS award for partiality of the Panel President at the end of 2021, a new panel was constituted and reheard the case by video-conference. While finding that the same Anti-doping rule violations (ADRVs) were committed by the athlete as in the first award, it reduced the ineligibility period to four years and three months based on the increased flexibility offered under the 2021 WADA Code related to the consequences of multiple ADRVs.
In April 2021, the CAS issued its decision in the case of the American sprinter Christian Coleman who had challenged his two-year ban for whereabouts failures to the CAS. Even though the CAS Panel confirmed the whereabouts failures under the applicable rules, the Panel reduced his sanction to 18 months considering that his level of fault was somehow reduced by the fact that the Doping Control Officer did not call the athlete, as it would be reasonably expected in line with standard practice.
The case of Shelby Houlihan, who was sanctioned by the CAS with a four year ban for an anti-doping rule violation (ADRV) for allegedly consuming uncastrated boar meat, is set to continue in 2022 as she announced that she challenged the award before the SFT. Furthermore, in September this year, the CAS confirmed the four year ban of Jeffrey Brown and Alberto Salazar: in the consolidated appeals, the panel confirmed the initial sanctions imposed by USADA in 2019 for complicity, trafficking and other ADRVs.
A less common eligibility case involving the US bilateral transtibial amputee sprinter Blake Leeper and World Athletics started with a first CAS award issued in 2020, while his application to set aside the first CAS award before the SFTand his second appeal to the CAS were both dismissed in June 2021. Blake Leeper appealed against the decision rendered by the World Athletics Mechanical Aids Review panel, which did not allow him to use his Running-Specific Prostheses (RSPs) on grounds that the height of the proposed RSPs gave him a competitive advantage over other athletes. The CAS Panel confirmed the Review panel’s decision, concluding that the specific RSPs gave, through extra height, a running-speed advantage, referring among others to the MASH (Maximum Allowable Standing Height) method to assess the maximum “natural” height of double amputee athletes. The Panel dismissed the athlete’s argument that such method was not validated by reference to Black athletes of African descent and concluded that, based on a balance of probabilities, Mr. Leeper’s proposed RSPs gave him a competitive advantage, while a less-intrusive alternative did not exist.
A selection of SFT judgments rendered in 2021
In June 2021, the SFT issued its judgment on the unsuccessful application of Blake Leeper against the first CAS award, invoking among others a violation of the prohibition of discrimination under Art. 14 of the European Convention on Human Rights (ECHR), of pacta sunt servanda and of human dignity. The SFT reiterated that the provisions of the ECHR are not directly applicable as a ground for setting aside an arbitral award in Switzerland and recalled the very limited scope of pacta sunt servanda. In essence, the SFT held that the CAS Panel had not determined whether or not the MASH rule was legally permissible or applicable to all athletes but rather concluded that the sprinter had a competitive advantage as a result of his use of RSPs.
In the judgment 4A_612/2020 of 18 June 2021, a former biathlete’s doping-related case was heard by the Anti-Doping Division of the Court of Arbitration for Sport (CAS ADD) acting as the first-instance tribunal, with the athlete arguing that the CAS ADD had no jurisdiction. Following the notification of the CAS ADD award, and pending the outcome of his appeal to the CAS, the biathlete filed a motion to set aside the CAS ADD award before the SFT instead of expecting the outcome of the appeal proceedings. In its judgment, the SFT refrained from determining whether the CAS ADD was a “true court of arbitration”, simply reminding that the internal tribunals of sports federations are not arbitral tribunals and their decisions are simple acts of management rather than judicial acts. As such, their decisions cannot be brought before the SFT directly but only challenged based on Art. 75 CC (if Swiss law applies). The SFT concluded that the athlete’s motion to the SFT was inadmissible in that that the prior available instances had not been exhausted.
A transfer-related dispute between two football clubs affiliated with the Colombian Football Federation (FCF) was brought to the CAS in appeal after exhaustion of the available national remedies (4A_564/2020 of 7 June 2021). While the CAS accepted its jurisdiction, the SFT annulled the CAS award concluding that the CAS panel had incorrectly interpreted the “pro arbitration” and contra proferentem principles and that the applicable rules did not provide for the appeal to the CAS in the particular case. The lack of review of the national tribunal’s decision by an independent arbitral institution was found to be immaterial for the determination of the CAS’ jurisdiction.
The dispute between a Romanian football club that fell into bankruptcy in 2016 and two football players both ended up before the SFT (4A_200/2021 of 21 July 2021). The latter invoked lack of the CAS’ jurisdiction that rendered the challenged award, to the extent that insolvency proceedings are of a mandatory nature not arbitrable under Romanian law. The SFT recalled that arbitrability is a condition for the validity of the arbitration agreement and, under Swiss law, includes all disputes of pecuniary nature. Despite the fact that Swiss enforcement law is a matter of public policy, the case at hand involved two football players with pecuniary claims against their former club, thus falling within Art. 177 Swiss PILA. What is more, the club had become solvent prior to the issuance of the arbitral award, rendering thus any questions regarding the exclusive state jurisdiction irrelevant. In the same judgment, the SFT reminded that the double level of jurisdiction is not a matter of procedural public policy and that there is a difference between violation of public policy and arbitrariness, which is only a ground for annulment of an arbitral award in domestic arbitration under the Swiss Code of Civil Procedure.
In this football-related dispute (4A_324/2021 of 3 August 2021), the applicant—represented by legal counsel—had sent its statement of appeal to the CAS by e-mail and failed to send it by courier within the granted time limits, invoking force majeure due to the COVID-19 pandemic. The appeal was declared inadmissible by the CAS Division President and this decision was later confirmed by the SFT, which recalled the very limited scope of review in case of non-compliance with the form requirements and the applicable time limits.
Another interesting SFT judgment was rendered in August confirming a CAS award finding that a biathlete had committed ADRVs during the winter Olympics in Sochi (4A_644/2020 of 23 August 2021): in her application to have the CAS award annulled by the SFT, the biathlete invoked, among others, the lack of structural independence of the CAS, referring to the Mutu and Pechstein judgment and reproducing the arguments raised in the dissenting opinion of the two judges in the ECHR judgment. The SFT swiftly dismissed these arguments to the extent that the athlete failed to raise similar concerns at the outset of the arbitration. The questioning of the structural independence of the CAS based on the fact that the president of the panel was appointed by an ICAS member (and more specifically the President of the Appeals Arbitration Division), allegedly influenced by the IOC, was equally dismissed by the SFT.
In the same procedure, the athlete alleged a violation of Article 6 para. 1 ECHR with respect to her right to a public hearing: Due to the COVID-19 pandemic, the CAS had suggested a limited number of persons in the hearing room or, alternatively, the adjournment of the hearing at the athlete’s expense. Similar to the Leeper case, the SFT recalled that the provisions of the ECHR cannot be used as direct grounds for appeal to the SFT and can only be accepted to the extent that they specifically fall within the grounds enumerated in Art. 190 (2) PILA. The SFT eventually dismissed the athlete’s arguments based on the principle of good faith: even though the athlete argued before the SFT that she did not freely consent to the continuation of the hearing on the terms set by the panel, she failed to do so during the hearing and she did not complain that the hearing was not broadcast live on the CAS website. Furthermore, the SFT held that the limitation of persons present in the hearing was in the overriding public interest amidst the COVID-19 outbreak. Finally, the SFT confirmed that the principles of the presumption of innocence and in dubio pro reo do not apply to sports arbitration.
On a slightly different note, the well-known case of South-African athlete Caster Semenya is set to continue before the European Court of Human Rights (ECtHR): following her application in February 2021, the ECtHR will hear her case on a priority basis and decide on the alleged violation of several provisions of the ECHR, including the prohibition of discrimination and the right to respect for private life.
Regulatory amendments and major sporting events in 2022
From a regulatory perspective, the amended FIFA Rules on the Status and Transfer of Players (RSTP) came into force in October 2021, bringing the various FIFA dispute resolution chambers under the umbrella of the “Football Tribunal” including the new “Agents Chamber” that will decide disputes involving agents upon the approval of the FIFA Football Agents Regulations. The new rules also foresee free proceedings in cases involving at least one natural person and the initiation of a FIFA mediation list, in order to encourage recourse to free mediation proceedings for football-related disputes.
2022 will (again) be an Olympic year and this will likely lead to a plethora of CAS judgments rendered both by the CAS in Lausanne and the CAS Ad Hoc Division that will be present in Beijing; furthermore, the FIFA World Cup and the Asian Games will also take place in 2022, probably with a CAS ad hoc division in charge of cases arising from these events.
Note: this compilation was first published in LawInSport.
News
A review of the CAS Panel’s decision in AC Milan v. UEFA – The devil is in the (procedural) details
Published in LawInSport, 21 November 2018
In the midst of turbulence from the Football Leaks indirectly affecting – among other issues – the Club Licensing and Financial Fair Play Regulations (CL&FFP Regulations) in European football, the Court of Arbitration for Sport (CAS) published the full award in the case AC Milan v. UEFA. The case relates to a sanction that was imposed by the UEFA Club Financial Control Body (UEFA CFCB).
Notes
A letter of appointment of a sole arbitrator is not a decision appealable to the Swiss Federal Tribunal
Federal Tribunal Judgment 4A_146/2019 of June 6, 2019, A. v. WADA & B.
Appeal against the letter of the CAS of 25 February 2019 (CAS 2018/A/5990)
The case involves a professional boxer (the Athlete), WADA and the Athlete’s national antidoping agency. WADA filed an appeal to the CAS against the federation’s tribunal decision and requested a three-member panel, reserving however its right to request a sole arbitrator if the Athlete failed to pay its share on the advance of costs. The Athlete did not pay his share of the advance of costs and the CAS decided to appoint a sole arbitrator, notwithstanding the wish of the Athlete to have a three-member panel.
The appointment of an arbitrator by an administrative body (in casu the CAS Court Office) is not a challengeable decision to the Swiss Federal Tribunal
Following the Athlete’s request of the reasons for the appointment of a sole arbitrator, the CAS answered that this decision was based on Art. R50 para. 1 and R54 of the CAS Code, according to which the CAS takes several factors into account, including the fact of whether the respondent has not paid its share of the advance of costs and within the granted time limit.
The letter to appoint a sole arbitrator was brought before the SFT alleging an incorrect constitution of the panel (Art. 190 (2) a PILA). The SFT repeated its jurisprudence on the decisions related to the challenge of an arbitrator, which cannot be appealed directly to the SFT but can only be attacked along with the final award (at 2.2). Even though there was a previous SFT judgment that had considered the issue of the number of arbitrators not as a mere procedural order but as a final decision (to the extent that it definitively settles the issue of composition of the tribunal), the SFT decided to clarify its jurisprudence and held that the appointment of a sole arbitrator by an administrative body does not constitute a challengeable decision to the SFT since it does not emanate from an arbitral tribunal.
News
A comparison of Sports Justice Systems – Webinar organised by the Milan Bar Association
Despina Mavromati discussed selected aspects of the Swiss dispute resolution system related to sports during the webinar organised by the Milan Bar Association that took place on 28 June 2022. In her presentation, she discussed issues related to jurisdiction of state courts and the recognition and enforcement of CAS awards in Switzerland.
News
9th Conference on Sports Arbitration organised by the CAS and the Swiss Bar Association
Despina Mavromati attended the 9th Conference on Sports Arbitration in Lausanne, organised by the Court of Arbitration for Sport and the Swiss Bar Association.
Apart from the great program and expert speakers who discussed a number of interesting issues related to sports arbitration, the conference was a unique opportunity to interact with colleagues from all over the world. You can find more information about the conference here.
