Sports Arbitration Essentials: The Practitioner's Kit Bag - Paul Hayes

PAUL J. HAYES BARRISTER-AT-LAW

Paul J Hayes FCIArb

Barrister & Arbitrator

Kuala Lumpur International Arbitration Week 2015

Kuala Lumpur

8 May 2015

Sports Arbitration Essentials:

The Practitioner’s Kit Bag


Overview

I. Sports Arbitration, the Sporting Contract and

Sporting Disputes

II. Domestic Tribunal or Arbitration?

III. The Court of Arbitration for Sport (‘CAS’)

IV. CAS: Procedural Considerations

V. ‘Sports Law’ & Resources

VI. Challenging and Enforcing Sports Arbitral Awards

Sports Arbitration Essentials


Sports Arbitration Essentials Glossary of Common Abbreviations• ADRV Anti-Doping Rule Violation

• AHD Ad-Hoc Division of the Court of Arbitration for Sport (Olympic Games)

• ANOC / NOC Association of National Olympic Committees / National Olympic Committee

• ATP Association of Tennis Professionals

• CAS Court of Arbitration for Sport

• CAS Code Court of Arbitration for Sport Code of Sports-related Arbitration

• FCPIL Federal Code on Private International Law 1987 (Switzerland)

• FIFA Federation Internationale de Football Associations

• GAIF General Association of International Federations

• ICADS International Convention Against Doping in Sport 2005

• ICAS International Council of Arbitration for Sport

• ICC International Cricket Council

• ICSS International Centre for Sport Security

• IF International Sports Federation

• IOC International Olympic Committee

• KLRCA Kuala Lumpur Regional Centre for Arbitration

• NF National Sports Federation

• NADO National Anti-Doping Organisation

• NGs National Governments

• NSC National Sports Council of Malaysia

• NZSDT New Zealand Sports Dispute Tribunal

• OC / OGs Olympic Charter / Olympic Games

• OCM Olympic Committee of Malaysia

• RF Regional Sports Federation

• SDRCC Sports Dispute Resolution Centre of Canada

• SDRP Sports Dispute Resolution Panel (United Kingdom)

• SFT Swiss Federal Tribunal

• WADA / WADC World Anti-Doping Agency / World Anti-Doping Code


I. Sports Arbitration and Sporting Disputes

For good or bad, few passions are as widely and as profoundly shared around the

globe as the passion for sport. Its symbolism is often awesome. It brings out the

noblest human qualities (good sportsmanship, the quest for excellence, a sense of

community), and the basest (chicanery and mob violence). It is also big

international business. Its capacity to motivate vast populations is nothing less

than fabulous, and so naturally exercises a powerful attraction on those who would

use its magic for their own ends.

The appetite for political influence and for money moves the heart inside the

business suit with a force as primal as that of the dreams of glory that swell the

distance runner’s tunic. In a word, the realm of sport is that of a precious

commodity. Therefore it is coveted. It is also an internationally significant resource

which can be squandered or debased. Therefore the way it is controlled is not

indifferent. And at the heart of the issue of control is that of ultimate authority to

establish norms and settle disputes.

- Jan Paulsson (Court of Arbitration for Sport, Panel Arbitrator, 2006).



I. Sports Arbitration?

• What is sports arbitration?

Sports arbitration is the private adjudication of ‘sporting

disputes’.

• Sports arbitration has been principally conducted by the Court of

Arbitration for Sport (‘CAS’) since its foundation in 1984, after the idea

of an international sports tribunal was first conceived in 1981 by then

IOC President, Juan Antonio Samaranch, in response to the growth in

the number of sports-related disputes at a time when sport (especially

Olympic sport) was becoming more international and professional.

• The CAS is an international arbitration tribunal which determines

sporting disputes by producing arbitral awards which are legally binding

upon parties to a ‘sporting contract’ (ie. Athletes and Clubs/NFs/NOCs

and by association IFs and the IOC) in accordance with the New York

Convention 1958. It is permanently seated in Lausanne, Switzerland.



I. International Sport: The ‘Sporting Contract’• Sports contests - private events. Participation in international sport (ie.

the OG) is governed by the law of contract: a series of umbrella

agreements, which incorporate by reference, the OC, the WADC and the

rules/regulations of each Olympic IF, which in turn through dispute

resolution clauses, establish the jurisdiction of the CAS (Riverwood

International Australia Pty Ltd v McCormick (2000) 177 ALR 193 (Lindgren, North and

Mansfield JJ; Smythe v Thomas (2008) 71 NSWLR 537 (Rein AJ)). OGs participants

are bound to the IOC (and OC) by NOC Team Agreements (which

regulate on & off field conduct, doping, social media use, sponsor

obligations, etc and contain CAS arbitration clauses).

• Sports rules must be clear and predictable, properly made and be

capable of understanding by athletes (Quigley v UIT, CAS 1994 at [34]), ‘so

that the entire sport community are informed of the normative system in

which they live, work and compete and the circumstances in which these

rules apply’. (USOC v IOC & IAAF, CAS 2004 at [73]. Cf. Anderson & Ors v IOC, CAS

2010 and USOC v IOC, CAS 2011 at [8.9]-[8.19]).




Local Sports Clubs

& Organisations

NOCs

I. Legal Structure of International [Olympic] Sport

IOC

(Olympic Games)

National

Governments (NGs)

National

Governments (NGs)

Athlete

IFs(World C’ships)

IFs(World C’ships)

NFs

(National C’ships)

NFs

(National C’ships)

LEGEND:

Contract (Private)

Legislation (Public)

Standard arbitration

(CAS) , anti-doping

(WADC) and other key

‘Olympic’ clauses are

included in agreements

between the IOC and

NOCs/IFs and are then

passed on in sub-

agreements with

NOCs/NFs and

ultimately the Athlete

(through a membership

or competition

agreement), via the

‘umbrella’ contractual

structure of most sports

agreements (ie.

incorporation of such

terms by reference, by

which each sub-ordinate

party agrees to be

bound).

National legislation (enacted as a

consequence of NGs signing international

conventions) addressing issues such as

anti-doping (ie. ICADS 2005), sports

integrity and sports administration also

regulate an individual’s or group’s means

of sports participation.



I. What are sporting disputes?

• Sport? A highly organised social activity comprised of persons

voluntarily playing ‘games’ in accordance with an agreed set of rules

to produce an outcome which results in a ‘winner’ of the game.

• Sporting Disputes? A distinct body of regulatory and case law

unique to ‘sport’ (ie. Eligibility; Selection; Game Rule; Doping; On

and Off-Field Conduct; Integrity). A jus ludorem (law of games) or

lex sportiva. Genesis in the early 1980s. Cf. lex mercatoria?

• What are not ‘sporting disputes’: Legal actions primarily founded in

contract, tort, or public law which involve sport, which are curially

determined, save those disputes arising under the ‘sporting contract’

itself.

• ‘Sports law’ spans private and public, domestic and international

law. Is primarily international in character, given the dominant roles

of the IOC, WADA, IFs & NFs (regulation) and the CAS (case law).



I. The Sports Arbitration Agreement

• The 2012 AOC Team Agreement:18. Dispute Resolution

18.1 I agree that any dispute relating to this Agreement, whether arising during the term of this Agreement or

after its termination, will be solely and exclusively resolved by the Appeals Arbitration Division of the Court of

Arbitration for Sport according to the Code of Sports-Related Arbitration.

18.2 The Court of Arbitration for Sport will rule on its jurisdiction and has exclusive power to order provisional

and conservatory measures. The decisions of the Court of Arbitration for Sport will be final and binding on the

parties.

18.3 In the interests of speedy and expert resolution of any such disputes, I hereby surrender any right I may

have to institute or maintain proceedings in any court or other judicial authority in relation to any such dispute

or any right to file any appeal, review or recourse to any court or other judicial authority from any arbitral

award, decision or ruling issued by the Court of Arbitration for Sport. In particular, and without restricting the

generality of the foregoing and for further and better assurance notwithstanding that such provisions have no

applicability, I agree that neither party will have the right of appeal under sections 34 and 34A of the

Commercial Arbitration Act, 2010 (NSW) or equivalent in any of the Australian states or territories or to apply

for the determination of a question of law under section 27I of such Act or equivalent in any of the Australian

states or territories.

18.4 The sole grounds for disputing a decision or other act or omission by the AOC or the Chef de Mission or

their authorised delegate(s) are that it:

(1) was affected by actual bias; or

(2) was obviously or self evidently so unreasonable or perverse that it can be said to be irrational.

18.5 The parties consent to the Grounds of Appeal to CAS, the names of the arbitrators, the date for hearing,

the award and the reasons being made public.



II. Domestic Tribunal or Arbitration?

• What were the parties intentions objectively ascertained? (Toll (FCGT) PtyLtd v Alphapharm Pty Ltd [2004] HCA 52, [40]; Codelfa Constructions Pty Ltd v State

Rail Authority of New South Wales (1982) 149 CLR 337, 352 (Mason J; Stephen &

Wilson JJ concurring).

• Did the parties agree (ie. dispute resolution clause) for their dispute

under the sporting agreement (incorporating by reference all ‘stated’

policies) to be dealt with by way of a domestic tribunal procedure, or by

arbitration? (Cf. Sports Development Act 1997 (Malaysia), ss 23, 24).

• Raguz v Sullivan (2000) 50 NSWLR 236, [91]-[93], [102]-[109]:

- The seat of arbitration can be different to the place of arbitration.

- CAS = international (not domestic) arbitration.

• ASADA v 34 Players and One Support Person [2014] VSC 635, [15]-

[18]; [56]:

- The ingredients of ‘arbitration’.

- Sporting disputes: ‘employment’ rather than ‘commercial’ disputes?



III. The Court of Arbitration for Sport: History

• 1984: IOC establish the CAS to address the rise in the number of

sporting disputes (� commercialisation & internationalisation in sport).

• 1994: Paris Agreement and the establishment of ICAS (20 members)

post Gundel (Swiss Federal Tribunal ‘SFT’). Primary function of ICAS

is to oversee the operation of the CAS and to safeguard its

independence (IOC, ANOC, GAIF, Athlete and Independent

representatives – rolling appointment system). ICAS Statutes & CAS

Code of Sports-related Arbitration (‘CAS Code’).

• 1996: First Olympic Ad-Hoc Division (‘AHD’) of the CAS.

• 2012: Establishment of the CAS regional office at the KLRCA.

• The CAS is the pre-eminent specialist international jurisdiction for the

determination of sporting disputes. Final court of ‘merit’ appeals. Over

300 CAS arbitrators world-wide hear approximately 300 cases per

annum (ranging from doping to football transfer cases).



III. CAS: Jurisdiction

• The CAS derives its ultimate jurisdiction from dispute resolution

clauses in the ‘sporting contract’ and also under OC, Arts 15(4), 59

and WADC Art 22.3, which in turn often import the CAS Code.

• CAS permanently seated in Lausanne, SUI (lex arbitri), although

arbitrations can be conducted world-wide (Cf. lex loci). Awards

enforceable under the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, New York, 1958.

• CAS independence upheld by the SFT in Lazutina and Danilova v

IOC, FIS and CAS in 2003. Limited grounds of review. Cf. Hondo v

WADA and Canas v ATP in 2007.

• Swiss arbitral supervisory jurisdiction. See SFT Decisions: A v FCB

& FIFA (2010); Valverde v WADA & Ors (2011); Matuzalem v FIFA

(2012) and Federal Code on Private International Law 1987 (SUI),

Arts 190 & 191.



III. CAS: Structure and Core Procedure

• The CAS is comprised of: Ordinary Division (CAS Code, R38-46) and the

Appellate Division CAS (CAS Code, R57-59) (See also: CAS Code, S20-22).

• CAS Arbitrators (1 or 3) can only be appointed from the CAS Panel of

Arbitrators [appointed by ICAS, renewable every 4 years] (CAS Code, S3,

S13-19, R40 [Ordinary Division (‘OD’)]; R 50, 52-54 [Appeal Division (‘AD’)]) and who

must remain independent (CAS Code, S18 R33-36).• CAS proceedings are conducted privately, but unless the parties

otherwise agree, CAS Awards are published in the public arena (CAS

Code, Rules S19, R43, 46, 59).• Appeal hearings are conducted ‘de novo’ (CAS Code, R57).

• Costs? CAS costs. Parties’ costs discretionary: complexity; outcome;

and financial resources of the parties, are considered (CAS Code, R64-65;French v Australian Sports Commission & Cycling Australia CAS 2005; Marinov v

ASADA CAS 2007; Inglis v EFA CAS 2004).


III. CAS in 2014 – 30 years onC• The past decade has witnessed a

dramatic increase in the number of

sporting disputes filed with the CAS.

• Despite its original aspiration to offer

‘low cost and rapid action’ and

consistency in the determination of

sporting disputes (Reeb, 2006), CAS has

become expensive (CAS Code, R64-65),

procedurally slower (in part due to the

greater complexity of sporting

disputes) and to some degree,

weighed down by its own success.

• CAS continues to successfully operate

its AHD at OGs.


CAS STATISTICS

1986: 2 cases

1995: 13 cases

2002: 86 cases

2003: 109 cases

2004: 271 cases

2005: 198 cases

2006: 204 cases

2007: 252 cases

2008: 313 cases

2009: 275 cases

2010: 298 cases

2011: 365 cases

2012: 374 cases

2013: 408 cases

2014: over 400

cases


III. CAS – The Future?

• Despite its admirable original objectives, the CAS has become

financially expensive and logistically challenging for both athletes and

sports organisations. Is the CAS sustainable in its current form?

• CAS costs assessed under Rules 64.2 and 64.4 of the CAS Code

(incl. the ‘CAS advance’), in addition to the filing fee payable has

made CAS unaffordable for many, especially for those cases which

are complex and evidentially voluminous (ie. non-analytical positive

ADRVs; sports integrity cases). (Cf. Marinov v ASADA CAS 2007). Such

costs are compounded when incurred at a first instance CAS hearing

and are then incurred again at a CAS ‘appeal de novo’.

• Regional sports arbitration panels hearing ‘sporting disputes’ at first

instance (with a limited right of appeal to CAS) could thrive if sports

arbitrations could be efficiently and affordably conducted (Cf. domestic

tribunals). A purely appellate role for the CAS? ‘Rehearing’ (with the

opportunity to introduce new evidence not led at first instance)?



IV. CAS: Crucial Procedural Considerations• Time Limit for action / appeal. 21 days - subject to arbitration agreement

(CAS Code, R32 [OD]; R49 [AD]). Compliance with directions in Order of

Procedure (payment of fees, filing of submissions), also vital.

• Form of application / appeal. State basis of application / grounds of

appeal (CAS Code, R38, 39 [OD]; R48 [AD]).

• Filing Fee + Advance on Costs (CAS Code, R64); Language (CAS Code, R29).

• Urgent? Interim Measures (CAS Code, R37).

• Written Memorials (CAS Code, R38, 39, 44 [OD]; R51, 55, 56 [AD]).

• Governing Law - in the absence of parties’ choice: Swiss law [OD]; law

of the country of the IF’s domicile [AD] or as Panel considers

appropriate (CAS Code, R45 [OD]; R58 [AD]. Cf. Lex arbitri = Swiss law.

• Form of Hearing (including D/Hs) (CAS Code, R44 [OD]; R57 [AD]). Note:

‘comfortable satisfaction’ standard of proof (French v ASC & CA, CAS 2005).

• Form of Award (CAS Code, R46 [OD]; R50 AD]).



IV. Time Limits in CAS – Jurisdiction!

• CAS Code: R48, 51 (Statement of Appeal & Appeal Brief to be filed

within time [only 1 extension], otherwise appeal ‘shall not proceed’, or

be deemed ‘withdrawn’); R64.2 (Where the entire CAS advance on

costs not paid on time (by either party), ‘the request/appeal shall be

deemed withdrawn and the CAS shall terminate the arbitration’).

Extensions must be applied before expiry of time period.

• CAS Arbitrator declined to accept jurisdiction - Appellant was 3 days

late in filing R51 Appeal Brief (BSC Budevelnyk Ltd v Lukashov CAS 2014).

• SFT declared that Arbitrator properly declined jurisdiction where

Appellant did not pay the advance of costs on time, holding that

termination of the arbitration in such circumstances would not offend

‘procedural public policy’ under Swiss law (Y v FIFA, SFT 4A_600/2008, 2009).

• Cf. CAS arbitrator accepts jurisdiction where a party declined to pay its

share of CAS advance – arbitration only terminated where the ‘entire

advance’ not paid (ASADA v Mottrom CAS 2015; Cf Baggaley v ASADA CAS 2009).



IV. CAS: The Olympic Games Ad Hoc Division

• CAS AHD operates 10 days either side of OGs (CAS 2012 AHD Rules, Arts 1

& 2). Special List of ‘Olympic arbitrators’ drawn from CAS Panel (CAS

2012 AHD Rules, Arts 3 & 12).

• Provision for ‘stay’ (interim measures) in ‘extremely urgent’

circumstances (CAS 2012 AHD Rules, Arts10, 14, 20b). Note: considerations of

‘irreparable harm’ and whether ‘interests of Applicant outweigh interests

of Olympic community’).

• Arbitral decision ordinarily required within 24 hours of lodgment of

application (CAS 2012 AHD Rules, Arts 18 & 19).

• Arbitral decision (in writing and briefly reasoned) enforceable

immediately; No appeal (CAS AHD Rules, Arts 19 & 21).

• CAS arbitration costs ‘free’; Parties bear own costs (CAS 2012 AHD Rules,

Art 22).

• Arbitrators & Counsel ‘on call’ during OGs – CAS AHD arbitrations

occur at breathtaking speed!



V. An accessible body of sports jurisprudence?

• On of the great frustrations of sports lawyers world-wide, in seeking to

stay appraised of a rapidly emerging body of sports jurisprudence

(CAS Awards and international regulation), has been the absence of a

central and navigable repository of such resources.

• No stare decisis in the CAS jurisdiction, but comparable well-

reasoned CAS Awards (derived from strong panels) are of

considerable persuasive value in CAS arbitrations and promote the

consistent application of international sports principles or lex sportiva.

• ‘Access to justice’ and fairness not only encompasses cost

considerations, but also access to the body of regulation and case law

which governs individuals’ participation in sport. Such access is

fundamental to the ‘international rule of [sports] law’ which informs the

normative environment in which international sport is conducted.

• CAS now publishes Awards online, but still there is much to be done...



V. ‘Sports Law’ & Resources

• Court of Arbitration for Sport

CAS Ruleshttp://www.tas-cas.org/en/icas/code-statutes-of-icas-and-cas.html

CAS Jurisprudencehttp://www.tas-cas.org/en/jurisprudence/recent-decisions.html

• World Anti-Doping Agency

WADACodehttps://www.wada-ama.org/en/what-we-do/the-code

Anti-Doping Jurisprudencehttps://www.wada-ama.org/en/what-we-do/legal

• British Association for Sport & Law (‘BASL’)http://www.britishsportslaw.org/links/

• Australian and New Zealand Sports Law Journal (‘ANZSLJ’)https://anzsla.com/content/australian-new-zealand-sports-law-journal



VI. Challenging CAS Awards

• Recent increase in the number of CAS Awards being challenged in the

SFT.

• Grounds of review under Article 190 of the Federal Code on Private

International Law 1987 (SUI):

- Irregular constitution of the tribunal;

- Tribunal erroneously seizes jurisdiction;

- Tribunal rules beyond scope of arbitration, or fails to address issue

submitted for arbitration;

- ‘audi alteram partem’ rule and equality of the parties not respected;

- Award is incompatible with Swiss ‘public policy’ (Cf. ECHR).

• SFT: Valverde (2011);Matuzalem (2012); SCB Ice Hockey AG (2012).

• Pechstein (Landersgericht, GER, 2014). Athletes ‘voluntarily’ submit to

CAS arbitration? Separable sports arbitration agreement enforceable?




VI. Challenging/Enforcing Sports Arbitral Awards

• Matuzalem v FIFA (unreported, Swiss Federal Tribunal, 27 March

2011):

Player ordered to pay damages to former football club (player transfer

case). Player could not pay. FIFA commenced disciplinary action for

non-payment and CAS suspended the player indefinitely, until the

monies were paid. However, the player could only earn income to pay

from his occupation as a football player. SFT stayed the CAS Award

because it offended Swiss ‘public policy’ – curtailment of economic

freedom (FCPIL, Art 190(2)(e)).

• Guido van der Garde BV v Sauber Motorsport AG [2015] VSC 109,

[19]-[21] (Croft J) (See also: Sauber Motorsport AG v Guido van der Garde BV

2015] VSCA 37, [8], [17]).

“I would regard an order staying enforcement until further order of the

enforcing court as being consistent with the New York Convention, but not an

order vacating, discharging, or permanently staying an enforcement order”.



The Finishing PostC

• The whole idea of ‘sport’ rests on a stable foundation of fairness and

transparency on and off the field of play.

• Accessible and effective sports arbitration (internationally and

domestically) is essential to ensure fairness prevails in the sporting

disputes.

• Sports arbitration practitioners (as Counsel and as Arbitrators) play a

vital role in ensuring fairness and just outcomes in sporting disputes.

• The sports arbitration practitioner’s ‘kit bag’ will lawfully enhance the

performance of practitioners playing in this arena!

Sport has the power to change the world. It has the power to inspire, it has the

power to unite people in a way that little else does.

- Nelson Mandela, 2000.