1 What is CAS?

The Court of Arbitration for Sport (CAS) was founded in 1984 and is an independent organisation that facilitates the resolution of disputes involving sporting organisations and their individual members through mediation and binding arbitration.

CAS has its main seat in Lausanne, Switzerland but also has operational offices in Sydney, Australia and New York, United States.

The day-to-day organisation of CAS is overseen by the International Council of Arbitration for Sport (ICAS), which is responsible for its administrative and financial management, and for safeguarding its independence.

According to its own statistics, CAS oversees around 300 disputes each year, which are referred to it by individual litigants or as a result of its designation as the ‘go-to’ appeal body in the statutes and regulations of a large number of major international sports federations, including the International Cycling Union, world football’s governing body FIFA and the International Automobile Federation.

Disputes heard by CAS range widely in their subject matter from relatively low-value contractual and tortious disputes between private individuals, to selection- and doping-related disputes between national federations and participants, to disputes between international associations and their members regarding the interpretation and enforcement of regulations.

CAS boasts a panel of almost 400 arbitrators, representing nearly 90 countries, all of whom have been nominated for their specialist knowledge and experience of sports law and regulatory matters and who represent a broad cross-section of sports, including representatives of athletes, clubs, national associations and international federations. This includes a specific list of over 90 specialist football arbitrators. CAS also has a list of over 60 specialist sports mediators.

In addition to the ordinary dispute resolution services it provides, CAS has recently become renowned for the ad hoc dispute resolution services it offers at certain major international sporting events such as the Olympic and Commonwealth Games, and 2019 saw the establishment of its permanent Anti-doping Division, which deals with violations of anti-doping rules as a first-instance body.

2 How is CAS structured?

CAS operates in four separate areas as follows:

• Ordinary arbitration procedure – the arbitration procedure for determining contractual disputes or alleged tortious offences. This can be accessed by any parties involved in sport that agree in writing to submit their dispute to CAS for determination.

• Appeal procedure – the procedure for disputes arising out of decisions taken by sports governing bodies where the rules of such bodies designate CAS as the appellate body.

• Mediation – the procedure by which CAS appoints a mediator with specialist knowledge of the sports industry to assist the parties to a dispute in negotiating and resolving their differences by mutual agreement. CAS mediation services are available on a ‘stand-alone’ basis and are also offered to all parties to appeal and ordinary arbitration proceedings before CAS.

• Anti-doping procedures – the procedure by which anti-doping cases are heard and decided by CAS as a first-instance authority, pursuant to the delegation of powers from the International Olympic Committee (IOC), various international federations, the International Testing Agency and other signatories to the World Anti-Doping Code (the WADA Code).

Each of the above procedures is overseen and supported from an administrative perspective by the CAS Court Office.

3 What rules govern procedures before CAS?

Ordinary and appeal proceedings before CAS are governed by the Code of Sports-Related Arbitration (the Code). The Code is regularly updated and the current version came into force on 1 July 2020.

The Code governs:

• general matters pertaining to CAS, including the organisational structure of ICAS and CAS, CAS’s mission statement and its administrative duties, such as the maintenance of up-to-date lists of arbitrators and mediators;

• procedural provisions such as the scope of the Code, the seat and language of proceedings, the right of parties to be represented, the service of documents and time limits, the appointment and dismissal of arbitrators and the power to impose provisional measures;

• provisions that are specific to the ordinary arbitration procedure, including regulations for the commencement and conduct of the proceedings, formation of the panel, joinder and intervention of third parties, confidentiality, evidence, directions for any oral hearing, applicable law and the expedition of the proceedings;

• provisions that are specific to the appeal procedure, including regulations for the commencement and conduct of proceedings (including time limits), appointment of the panel, confidentiality, evidence, directions for any oral hearing, applicable law and the expedition of the proceedings; and

• provisions relating to the calculation, apportionment and payment of the costs associated with CAS arbitration.

Additional guidance was issued in March 2020 to supplement the Code to deal with complications arising out of the covid-19 pandemic, such as in relation to the service of hard copy documents and compliance with deadlines.

The Code is also supplemented by a bank of jurisprudence that has arisen out of published decisions of CAS arbitrators and panels, which can be found in the jurisprudence database on the CAS website. Amendments to the Code have routinely been implemented to codify key areas of CAS jurisprudence.

Mediation procedures before CAS are governed by the CAS Mediation Rules, which were last amended on 1 January 2016. These rules set out the procedure and basis of mediation proceedings.

4 Which parties have standing to bring a claim or appeal before CAS?

CAS will only accept jurisdiction to hear a dispute if a written and binding arbitration agreement exists between the parties in dispute. This agreement can take several forms including the following:

• Contractual provisions – many agreements within sport contain a jurisdiction clause that expressly provides for the exclusive resolution of disputes by CAS. Where disputes arise under such agreements the jurisdiction of CAS is ‘automatic’ unless the parties subsequently agree otherwise.

• Regulatory provision – the statutes and regulations of many international sports federations confer jurisdiction on CAS for the resolution of particular types of disputes. This includes both first-instance disputes (see, for example, article 27 of the General Regulations of the International Skating Union), appeals against disciplinary or anti-doping decisions of the relevant national association (see, for example, Rule C.12.13 of the Constitution of the Fédération Internationale de Natation) and appeals against decisions of the dispute resolution bodies of the relevant international federation in disputes between its members (see, for example, article 44 of the Statutes of the International Canoe Federation).

Written agreement – the parties to a contractual agreement can enter into a written arbitration agreement that confers jurisdiction on CAS by mutual agreement at any time after the contract has been entered into (including after the dispute itself has arisen), provided the parties are not subject to any regulatory provisions that oblige them to resolve the dispute in an alternative specified forum.

5 What are the key considerations when drafting an arbitration agreement stipulating CAS as the forum?

When drafting an arbitration agreement or clause it will be important to bear in mind the following:

• Freedom – the parties will need to ensure that they are entitled actually to refer disputes to CAS and are not under any obligations pursuant to the regulations of their national association or international federation that compel them to defer to a particular dispute resolution forum.

• Nature – it is important to be specific as to the nature of the dispute to which the arbitration agreement relates. For example, the parties may consider that certain types of potential dispute are suitable for determination by CAS, but others are more suitable to be determined under the regulations of the relevant international federation (see, for example, article 12-bis of the FIFA Regulations on the Status and Transfer of Players, which provides an expedited procedure for the recovery of uncontested contractual debts by football clubs, which is likely to be faster and more cost-effective than a debt claim before CAS).

• Procedure – given that the agreement is likely to come into force only when relations between the contracting parties have broken down, it is advisable to agree as much detail as possible about the conduct of the procedure before CAS at the outset. This includes the language and governing law of the proceedings (this is of particular importance given that the Code provides for the application of Swiss law in default of any pre-agreement), whether to appoint a single arbitrator or three-person panel and whether the parties agree to an expedited procedure, including the relevant time frame.

6 How does a party bring a claim before CAS?

The procedure for commencing a claim before CAS varies according to the nature of the claim.

Ordinary claim

A claimant must submit a request for arbitration to the CAS Court Office along with proof that the mandatory application fee (1,000 Swiss francs at the time of writing) has been paid to CAS.

The request should contain details and contact information for all parties to the dispute, a brief description of the facts of the dispute, the claimant’s request for relief, a copy of the arbitration agreement or details of the regulations pursuant to which jurisdiction is conferred on CAS, and the identity of the claimant’s proposed arbitrator.

The claimant will subsequently have the opportunity to provide a statement of claim providing full details of the claim, supporting documentation and any witness and expert evidence, so it is not necessary to include this with the request.

The time limit for bringing an ordinary claim before CAS is dictated in each case by the national law applied by CAS.

Appeal

An appellant is required to lodge a statement of appeal with CAS Court Office, along with proof that the mandatory application fee (as above) has been paid to CAS electronically.

The statement should include details and contact information for all parties to the dispute, a brief description of the grounds of appeal, details of the relief requested, a copy of the regulations pursuant to which jurisdiction is conferred on CAS and the identity of the claimant’s proposed arbitrator. Where a sporting sanction has been imposed the appellant can make submissions to request that this be stayed pending the outcome of the appeal. A copy of the decision under appeal must be attached to the statement.

The statement is required to be lodged within 21 days of receipt by the appellant of the full written reasons for the decision being appealed, unless an alternative time frame is provided for in the regulations of the body that issued the decision under appeal, which takes precedence.

Within 10 days of the expiry of the time limit for the appeal, the appellant must submit an ‘appeal brief’ providing full details of the appeal, supporting documentation, and any witness and expert evidence.

7 How is the panel constituted in a CAS appeal case?

CAS appeal cases will normally be heard by a three-person panel unless the parties agree to the appointment of a sole arbitrator.

Generally, the more straightforward a dispute, the more suitable it is for determination by a sole arbitrator, however, parties often prefer a three-person panel to ensure that the ultimate decision is as objective as possible and reflects a wider range of views.

Costs considerations are also important when determining the type of panel – in low-value matters or where parties are of limited financial means, a sole arbitrator may be the most appropriate choice.

Even where the parties do not agree on a sole arbitrator, the president of CAS has the power to rule that the case is suitable for determination by a sole arbitrator, but it is rare in practice for the president to overrule the parties’ will, and this generally only occurs where there is a dispute between the parties, and the party in favour of a three-person panel has refused to pay its share of the advance of costs (see ‘What is the Advance of Costs and when and how is this paid?’).

Where there is a sole arbitrator, his or her identity can be agreed between the parties. The appellant can identify a potential candidate in its statement of appeal and the respondent must acknowledge the same within 10 days of receipt. Where no candidate is proposed or no agreement is reached, the sole arbitrator is selected by the president of CAS.

Where there is a three-person panel, each party proposes its own arbitrator (in accordance with the timescale set out above) and the third arbitrator (who acts as chairman of the panel) is selected by the president of CAS.

A party can challenge the appointment of any arbitrator (whether proposed by another party to the proceedings or by CAS) if they have grounds to believe he or she is not sufficiently independent or impartial.

8 How is the language determined in a CAS case?

In accordance with the Code, CAS proceedings are conducted in either French, English or Spanish (the working languages of CAS) but CAS will have discretion to approve the hearing of proceedings in any other language designated by mutual agreement of the parties. Once the ‘official language’ has been chosen or ordered, all documents, submissions and evidence must be submitted in that language (in the form of a certified translation where necessary).

The choice of language for CAS proceedings is often expressly set out in the arbitration agreement that confers jurisdiction on CAS. However, where this agreement is silent (and there is no subsequent agreement between the parties) the president of CAS will rule on the choice of language in an order on language.

In appropriate cases, the president may order that a party can make submissions and give evidence in his or her mother tongue, notwithstanding that this is different from the official language designated by the president, provided a suitable panel can be constituted with an adequate command of both languages.

9 How is the choice of law applicable to the merits of a dispute determined in a CAS case?

Ordinary procedure

The merits of a dispute brought under the ordinary arbitration procedure are determined according to the governing law agreed by the parties, or according to Swiss law in default.

As such, any choice of law that is expressly set out in the arbitration agreement, or any national or international association rule pursuant to which jurisdiction is conferred on CAS, will automatically be applied by CAS.

CAS can also apply a choice of law that it considers has been made ‘tacitly’ by the parties. This can occur where  the  arbitration agreement is silent but the parties base their submissions on a common understanding that a particular law is applicable to the case. Alternatively, a tacit choice of law can be implied where the dispute has close links to a particular national law and no international element exists, such that the parties are deemed to have a mutual understanding that a particular national law applies.

Appeal procedure

Appeals before CAS are heard according to the applicable regulations (ie, those pursuant to which the decision under appeal was made) and, subsidiarily, the rules of law (whether national law or the regulations of a particular body) chosen by the parties.

The choice of law can be stipulated in the regulatory provision that confers jurisdiction on CAS (see, for example, article 57(2) of the FIFA Statutes), agreed by the parties or, alternatively, the choice of the par- ties can be tacit, as in ordinary arbitration proceedings.

In default of this choice, the panel may choose to apply the law of the country in which the body that made the decision under appeal is domiciled, or any other ‘rules of law that the Panel deems appropriate’, provided that reasons are given for its choice.

In appropriate circumstances, the panel may decide to apply different rules or laws in respect of different aspects of a dispute, known as dépeçage.

Where there are any doubts as to the applicable law in an ordinary or appeal case, it is open to the parties to request that CAS makes a preliminary award on the matter.

10 How are proceedings before CAS conducted?

Generally, CAS proceedings take place by way of written submissions and, where the panel considers it necessary, an oral hearing.

Parties will usually only be given one opportunity each to set out their case, but the panel has the power to order a second round of written submissions (normally limited to responses to points already raised) if it considers that issues raised in the first round of submissions need to be addressed further to afford each party the opportunity to fully set out its case. This is particularly common in cases where there is no oral hearing. Either party is entitled to request a second round of submissions.

Where a party intends to rely on any witnesses or experts in the proceedings, it is required to name each of them in the written submissions and provide a brief summary of their evidence or attach the witness statement to be relied on, or do both.

Either party can request a hearing, which will often be granted by the panel upon receipt of a justified request, including where oral evidence is required and where the legal issues are complex and need to be clarified for the panel. The panel also has the power to order a hearing absent any request from the parties where it has questions of its own.

The hearing will usually take place at the CAS offices in Switzerland, but parties and witnesses can join via video link or conference call upon receipt of permission from the panel, if considered preferable for logistical or costs reasons.

A hearing before CAS can comprise up to six stages: opening remarks of the parties, hearing of witnesses, hearing of experts, examination of the parties by the panel, closing submissions of the parties (including oral pleadings) and the deliberations of the panel.

11 What awards are available from CAS?

In ordinary arbitration cases, CAS has the power to order the payment of a sum of money, as well as to give declaratory relief (though this relief is limited to circumstances in which the party claiming relief can show a bona fide legal interest). CAS panels are not, however, entitled to impose sporting sanctions.

In appeal cases, the panel has full power to review the facts and the law on a de novo basis, meaning that the parties are free to introduce new arguments and evidence that were not relied on before the first-instance body. CAS will then have the ability to: (1) reject the appeal and uphold the decision under appeal; (2) annul the decision and make a new decision that replaces the decision under appeal; or (3) annul the decision and remit the case to the body that made the decision under appeal for reconsideration of the case by it.

CAS also has the ability to make costs awards in ordinary and appeal proceedings.

CAS jurisprudence makes clear that in all cases panels are only entitled to award relief where the relevant party’s requests are sufficiently specific to allow the panel to fully understand what is being requested (to avoid it acting ultra vires by misinterpreting the request) and to enable the other party to defend itself against the request.

12 How are CAS fees calculated in arbitration proceedings?

Pursuant to article R64.1 of the Code, fees for arbitration proceedings conducted by CAS are comprised of the following elements:

• CAS Court Office fee – currently 1,000 Swiss francs.

• Administrative costs of CAS – set according to a predetermined fee scale based on the financial value of the relevant dispute and currently ranging from 100 to 25,000 Swiss francs.

• Fees of the arbitrators – payable at a standard hourly rate deter- mined by reference to a fee scale based on the financial value of the relevant dispute (pursuant to which the rate ranges from 300 to 500 Swiss francs per hour). This can, however, be increased or decreased if the president considers it appropriate to do so, based on the complexity of the case and the level of work required.

• Expenses of the arbitrators – including return travel to the hearing, accommodation and subsistence expenses, subject to certain conditions and restrictions imposed by CAS.

• Fees of the ad hoc clerk (if any) – payable at a standard hourly rate of 150 to 200 Swiss francs depending on the level of qualification of the clerk and the nature of the work undertaken.

• A contribution towards the expenses of CAS – set by CAS based on the resources used (eg, courier and printing fees, hearing room).

• Costs of witnesses, experts and interpreters – these are paid by the parties relying on them in the first instance but can be included in any costs award made by the panel.

13 What is the ‘advance of costs’ and when and how is this paid?

In accordance with article R64.2 of the Code, at the outset of proceedings the CAS Court Office estimates the likely overall cost of the case, based on the scope and nature of the case and the standard fee rates (see ‘How are CAS fees calculated in arbitration proceedings?’). The parties are required to pay this amount (known as the advance of costs) by way of a deposit against the final fees in the case.

The advance of costs is initially split between the parties, with 50 per cent being payable by the claimant or appellant and 50 per cent payable by the respondent (split between multiple respondents if applicable).

Any party is entitled to refuse to pay its allocated share of the advance of costs, in which case CAS will invite the other parties to pay the share on its behalf. Where the advance of costs is not paid in full within the stipulated time frame (including any extension that is granted by the CAS in its discretion), the claim will automatically be deemed to have been withdrawn. As such, where any respondent refuses to pay its share of the advance of costs, the claimant or appellant usually pays the outstanding share in order to keep its claim or appeal alive.

Upon the conclusion of the proceedings, the overall cost of the case is calculated by CAS and the advance of costs is offset against this.

14 How are the costs of proceedings apportioned between the parties in CAS proceedings?

CAS arbitration panels are empowered under the Code to make a costs award as part of their substantive award in each matter, to confirm which party shall bear the costs of the proceedings, or in what proportion they should be shared.

As a general rule, the fees accrued are borne by the unsuccessful party in the arbitration, however, each panel has the power to depart from the general rule in appropriate cases (eg, where a dispute has arisen because of a lack of clarity in the rules of a governing body, the governing body can be penalised in costs even if it ultimately wins the case).

The panel is also empowered to award the successful party a ‘reasonable contribution’ towards its legal costs in connection with the arbitration. The nature and amount of such an award is entirely at the discretion of the panel and can be made on a percentage basis or based on the panel’s consideration of a statement of costs filed by the successful party. Awards of this nature are, however, generally limited.

A contribution towards legal fees is generally not available where the successful party has not been represented by external legal advisers – in these circumstances, any award is likely to be limited to the expenses of the successful party’s representatives.

If the proceedings are terminated as a result of settlement between the parties before a final award has been issued, but after costs have been incurred by CAS, these costs will ordinarily be apportioned in the settlement agreement between the parties. In the absence of this agreement, the president of CAS will determine how the costs are apportioned and will do so on the assumption that the party that brought the appeal or claim is the ‘unsuccessful party’, with withdrawal of the appeal considered akin to a rejection.

15 What are the timescales for proceedings before CAS?

No time frames are set out in the Code for the conduct of ordinary arbitration proceedings but the CAS estimates that these proceedings will last from six to 12 months from commencement of the arbitration to the issuing of an award. This period can vary depending on the complexity of the matter and the availability of the parties and arbitrators to schedule a hearing promptly.

In appeal cases, the Code provides that an award must be rendered within three months of the panel’s receipt of the file. However, this target is not always achieved in practice, particularly in complex cases and in cases where there is a three-person panel, making it difficult to promptly arrange a hearing. It can be difficult to enforce article R59 where a decision is not rendered within the stated time frame, as this will usually be for logistical reasons that cannot be avoided.

With the agreement and cooperation of the parties (and subject to the availability of a suitable panel) CAS proceedings can be expedited, such that the matter is dealt with in a number of weeks where a matter is required to be determined urgently.

16 Are CAS proceedings and decisions confidential?

The ordinary arbitration procedure is confidential in accordance with article R43 of the Code. The parties, arbitrators and CAS staff are obliged not to disclose any information connected with the dispute and decisions are not published unless all the parties agree to their publication, or the president of CAS orders publication. Such an order is uncommon and must be justified by clear reasons, which may include the existence of a genuine public interest in the subject matter of the decision.

The emphasis on confidentiality in ordinary proceedings arises out of the fact that, in most cases, these matters are private (between the parties) and involve sensitive commercial information.

The rules on confidentiality in relation to appeal proceedings before CAS are less restrictive, since these appeals are often cases of a disciplinary nature that have a significant public interest element and are often already in the public domain by the time an appeal is lodged. Under the Code, CAS is entitled to publish its final award (or, should it prefer, a summary of its findings) unless the parties agree otherwise. The proceedings themselves will remain confidential while they are ongoing, and under the Code, CAS arbitrators are subject to a duty of confidentiality in ongoing proceedings.

 

17 How, and in what forum, can a CAS award be enforced?

Awards of the Ordinary Division and Appeals Division of CAS are internationally recognised arbitration awards that can consequently be enforced through the national courts of any of the 125 member states that are signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).

18 How, in what circumstances and in what forum, can a CAS award be challenged or appealed?

As CAS has its legal seat in Switzerland, its final awards can only be appealed to the Swiss Federal Tribunal (SFT). A right of appeal is avail- able only in very limited circumstances.

An appeal to the SFT is essentially an application to set aside a CAS decision on procedural grounds. The SFT does not have the power to review the merits of a CAS award or to replace it with its own decision. There is no ability to challenge factual findings of the CAS or its application of the law before the SFT, even if the findings of CAS are obviously incorrect, unreasonable or arbitrary.

The grounds on which a party may appeal to the SFT are limited to circumstances where it is alleged that:

• the panel was unlawfully constituted (and this was raised as an issue during the proceedings but not properly dealt with);

• the panel has made an error in accepting or declining jurisdiction in the matter;

• the decision of the panel goes beyond the claim submitted to it or the panel has failed to decide any part of the claim;

• the proceedings have violated one party’s right to equal treatment or right to be heard (albeit it is not permitted to rely on article 6 of the European Convention on Human Rights); or

• the award is contrary to public policy.

Any appeal to the SFT must be brought within 30 days of receipt of the reasoned award of CAS.

19 What is the function of the Ad Hoc Division?

Since the 1996 Olympics, CAS has attended each Olympic (both Summer and Winter) and Commonwealth Games, as well as other major international sporting events such as the FIFA World Cup, to resolve disputes in the lead-up to and during the competition on an expedited basis. The Ad Hoc Division performs this function, operating out of a temporary on-site office staffed by CAS Court Office employees at the relevant competition.

In accordance with the Olympic Charter and its own procedural rules, the Ad Hoc Division has jurisdiction to hear ‘any dispute arising on the occasion of, or in connection with, the Olympic Games’. Participants in the competition are required to consent to this jurisdiction by virtue of an arbitration clause in the participation agreement signed by them in advance of the competition.

Proceedings before the Ad Hoc Division are governed by procedural regulations that are designed to ensure the resolution of disputes on an urgent basis. The regulations include competition-specific provisions, such as service of documents by hand to a specific on-site address, or service of notices or orders by telephone; lodging claims by completion of a standard form provided by CAS; and provision for a decision to be rendered within 24 hours of the relevant application being lodged. The regulations also specify that Swiss law governs the procedures of the Ad Hoc Division to ensure consistency in the way cases are treated, irrespective of a participant’s background.

The Ad Hoc Division has the power to impose provisional measures, such as staying the effects of an appealed decision, although this is rarely necessary in practice, given the speed with which final decisions are rendered.

Each dispute is determined by a three-person panel or sole arbitrator selected from a limited panel of arbitrators, identified before the competition, who have the relevant expertise and are on standby for the duration of the competition to hear disputes on short notice.

Proceedings undertaken by the Ad Hoc Division are free of charge to the parties.

20 What is the Anti-doping Division?

On 1 January 2019, CAS established a permanent Anti-Doping Division (ADD) to which alleged breaches of anti-doping rules are now referred for determination and, where appropriate, sanction. Decisions of the ADD can be appealed to the CAS Appeals Division.

Jurisdiction is conferred on the ADD by the anti-doping regulations of sports bodies that are signatories to the WADA Code or by contractual agreements between athletes and relevant sports bodies (or both).

Proceedings before the ADD are commenced by the service of a written request for arbitration by the sports body alleging the rule breach and follow a procedure based on the ordinary arbitration proceedings thereafter.

Cases are generally heard by a sole arbitrator, selected from a list of specialist anti-doping arbitrators. Any party is entitled to request the composition of a three-person panel, although if this request is granted, the right to appeal any subsequent decision to the CAS Appeals Division is forfeited.

The ADD also has the power to impose provisional suspensions on athletes charged with doping offences, pending the outcome of their case.

The IOC has agreed to cover the basic cost of up to four first-instance procedures per year before the ADD for each international federation, but the CAS administration fee and certain ’special costs’ (such as the cost of expert witnesses) must be funded by the parties and apportioned on conclusion of the proceedings. Appeal procedures must also be privately funded.   

It is envisaged that the ADD will also continue to provide on-site ad-hoc services at the Olympic Games in the future, having the power to impose suspensions on athletes found guilty of breaches of anti-doping regulations, as well as withdrawing medals awarded to them.

The procedural regulations of the ad hoc Anti-doping Division at future Olympic Games are expected to contain many of the same provisions as the general Ad Hoc Division as to service, applicable procedural law and the 24-hour time limit for issuing a decision.

Decisions of the ADD can be appealed to CAS.

By Stuart Baird and Matthew Bennett

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