Arbitration In IndiaThe Court of Arbitration for Sport: Resolving Disputes in the World of Sports

INTRODUCTION 

Sports have always been a realm where passion, skill, and determination come together to create thrilling competitions. However, as with any human endeavor, disputes can arise, ranging from contractual issues, doping allegations, to disputes over results and eligibility. In such cases, the Court of Arbitration for Sport (“CAS”) serves as the ultimate authority for resolving legal disputes in the world of sports.

The idea of establishing such court exclusively for sports was that of H.E Juan Antonio Samaranch, the then-president (1981) of the International Olympic Committee. In 1982, the session of the International Olympic Committee was held in Rome. In this meeting, the working group was formed that was chaired by H.E. Judge Keba Mbyae who was the Judge of the International Court of Justice, Hague at that time.

The main object of this meeting was to prepare legislation to establish a court exclusively for sports, which we now know as the CAS. Apart from the increasing sports disputes, another reason to establish the CAS was to have a body that specialises in sports dispute and has the capability and skill to decide international disputes of sports.

The CAS officially came into existence in 1983 and thereafter, the statute was ratified on 30^th June, 1984. The court has both judicial and executive power. For 10 years i.e., from 1984 to 1994, the operations and the finance of the court was handled by the International Olympic Committee (“IOC”).

This dependence of the court on IOC was questioned by the Swiss Federal Tribunal in the case of G v Federation Equestere Internationale and Court of Arbitration (CAS 92/A/63). As a result of  a new division overlooking the judicial function of the court was established, namely, ‘The International Council of Arbitration for Sports’, and the same was affirmed and acknowledged by the Swiss Tribunal in the case of Lazuntina Danilovav v International Olympic Committee ( CAS 2002/A/370) in 2003.

The CAS’s integrity was again questioned when the first president of the court H.E KebaMbaye passed away. The rules before 2010 required IOC’s proposed candidates to elect the new president, the same was changed after the 2010 amendment that removed the mandate of electing the president proposed by IOC.  However, consultation with the committees of the IOC was still required.

The federation of the Olympic and the national committee of the Olympic have recognised the jurisdiction of the court by adding clauses to the legislation that they refer to in case of disputes. The headquarters of the court is in Lausanne, Switzerland and has two branches located at Australia and the United States of America. Under the World Anti-Doping Code and the United Nations Education, Scientific and Cultural Organization the CAS is a court of appeal for matters pertaining to disputes that involve doping. Recognition of the court as a court of appeal shows the acceptability and importance of this court in regard to sports-related disputes.

COMPOSITION OF THE COURT OF ARBITRATION FOR SPORTS 

The committee of Arbitrators is formed under the CAS Code which consists of twenty members, wherein the key requirement for these members is to be impartial and independent. The twenty members consists of individuals of the International Federation, IOC and the National Olympic Committee.

The term of these members is four years and the same can be renewed. After their appointment, the arbitrators have to sign an undertaking stating that they shall act in a personal capacity and be independent as required by the code. Adjudicative Divisions were setup for the Olympic games also, this was done to expedite the matters that are time-sensitive in nature. These Ad hoc Divisions are not just set up for Olympic Games but also for football cups like FIFA and UEFA. The timeline to resolve dispute under CAS is 6-12 months.

The ICAS meets as per the instructions of the Court of Arbitration, but it is necessary for the ICAS to meet at least once a year, quorum for these meetings would be the half number of the total members have to be present to make any decisions. The deciding vote would be with the president.

JURISDICTION OF CAS

CAS has jurisdiction over the matters arising out of sports and which are private in nature. The only restriction that is placed on these courts with regard to its jurisdiction is that the disputes shall be arising from sports, though the secretary general of the court stated that the “Court has never found it did not have jurisdiction simply because a dispute was unrelated to sport”.

The matters which are dealt by the court are generally pertaining to selection, breaches, discipline, doping, and eligibility. It does not include disputes like, the calls made by the referee in the field. Though there are constant efforts made to widen the horizon of the jurisdiction of the court beyond doping.

There is no restriction as to who can bring the suit to this court: it can be brought by the athletes and also by the federations of the International Olympic Committee. The only requirement is that the legislation or the statues under which the individual is bound shall consists of the clause that gives the jurisdiction to this court, the same has been expressly stated in the code:

“In order to settle sports-related disputes through arbitration and mediation, two bodies are hereby created: • the International Council of Arbitration for Sport (ICAS) and • the Court of Arbitration for Sport (CAS). The disputes to which a federation, association or other sports-related body is party are a matter for arbitration in the sense of this Code, only insofar as the statutes or regulations of the said sports-related bodies or a specific agreement so provide.”

Most of the disputes that are dealt by this court come through an arbitration clause in their agreement. The Olympic Charter states that all the athletes participating in the Olympic have to sign an agreement which gives this court i.e. the CAS, an exclusive jurisdiction.

Few of the federations like the International Amateur Athletic Federation and FIFA in the past had established their own adjudicative bodies, with time the acceptability of the court increased seeing which FIFA started admitting its dispute to CAS. The war of jurisdiction between the domestic courts and CAS is something which has been going on since many years.

The same was discussed in the case of Raguz v Sullivan,([2000] NSWCA 240) where the dispute was first admitted to the domestic court i.e. the New South Wales Court of Appeal, wherein the appeal was rejected by the court on the ground that the particular court didn’t have the jurisdiction to entertain the case as in their agreement they had specified that in case of dispute as the “Court of Arbitration for Sports” and hence, CAS shall have the exclusive jurisdiction.

The ad hoc tribunal had the jurisdiction to deal with the dispute but because of the clause of exclusive jurisdiction, it had to dismiss the case. Contradictory opinion was that of the Supreme Court of China, the court barred the inferior courts to entertain suits at the time of the Beijing Olympic Games,2008.

The jurisdiction of CAS has also been accepted by American courts, in the case of deciding the eligibility of an athlete who intended to participate in the American Olympics team. The appeal was from the decision of the CAS, the US district relying on the New York Convention held that the “Claims that have been properly submitted to arbitration and ruled upon by entities such as CAS are barred from relitigating in this forum”

As stated earlier the jurisdiction of the court is divided into two parts: the Ordinary Division and the Appeal Division.  The Ordinary Division deals with disputes concerning the procedure while the Appeal Division deals with disputes concerning the decisions of the associations, sports bodies or federations.

FUNCTIONS OF THE CAS

CAS is body for arbitration, it has jurisdiction for both ordinary arbitration and appeal arbitration. The disputes from both heads come to this court because of the clause in their agreement. Apart from arbitration CAS also provides for service of mediation and also gives an advisory opinions, as given by CAS in regard to disputes pertaining to swimsuits in Sydney Olympics. The basic difference between arbitration and advisory opinion is that the advisory opinion is not binding on the individual.

JUDICIAL PRECEDENTS

The CAS is a globally recognized institution for resolving sports-related disputes through arbitration and mediation. Over the years, the CAS has handled numerous cases involving athletes, teams, and organizations from various sports disciplines. These cases have resulted in landmark decisions that have shaped the landscape of sports law and have set precedents for future disputes.

1. Pechstein v. International Skating Union – CAS 2009/A/1912

This case, which was decided in 2016, wherein a German speed skater Claudia Pechstein, was banned for doping by the International Skating Union (“ISU”). Pechstein appealed the ban to the CAS, challenging the validity of the ISU’s arbitration clause that required her to resolve disputes through the CAS. The CAS upheld the validity of the arbitration clause, stating that it was not incompatible with public policy and that Pechstein had voluntarily agreed to it when she became a member of the ISU. This case reaffirmed the CAS’s authority as the ultimate dispute resolution body for sports-related matters and clarified the enforceability of arbitration clauses in sports contracts.

2. Sun Yang v. World Anti-Doping Agency (WADA) – CAS 2019/A/6148

 This case, which was decided in 2020, involved Chinese swimmer Sun Yang, who was banned for doping by the International Swimming Federation (FINA). Sun Yang appealed the ban to the CAS, challenging the jurisdiction and impartiality of the CAS panel that heard his case. The decision of the CAS panel to ban Sun Yang for eight years was upheld, however, the case raised significant issues pertaining to the role of the CAS in doping cases and the independence of its arbitrators. The case highlighted the complexities of doping disputes and the challenges of ensuring fairness and impartiality in sports arbitration.

3. Essam El Hadary v. FIFA – CAS 2009/A/1881

 This case, which was decided in 2018, involved Egyptian goalkeeper Essam El Hadary, who was banned by FIFA for anti-doping violations. El Hadary appealed the ban to the CAS, challenging the validity of the anti-doping regulations and the sanctions imposed by FIFA. The CAS panel upheld the ban, stating that El Hadary had failed to prove that the anti-doping regulations were invalid. However, the case raised important issues regarding the application of anti-doping regulations in football and the responsibilities of athletes in ensuring compliance with anti-doping rules.

4. Chelsea FC v. FIFA CAS 2019/A/6301

This case, which was decided in 2020, involved the English football club Chelsea FC, which was banned by FIFA from signing new players for two transfer windows due to alleged violations of FIFA’s rules on the transfer of minors. Chelsea FC appealed the ban to the CAS, challenging the severity of the sanctions imposed by FIFA. The CAS panel partially upheld the ban, reducing it to one transfer window, but confirmed the violation of FIFA’s rules. The case highlighted the importance of complying with FIFA’s rules on the transfer of minors and the consequences of non-compliance in the football industry.

CAS AND INDIA 

In India, the field of sports has witnessed significant growth in recent times, with athletes excelling in various disciplines and bringing glory to the nation. However, along with the rise of Indian sports, there has also been an increase in disputes and conflicts, ranging from selection controversies to doping allegations. In such cases, CAS has emerged as a vital forum for Indian athletes and sports organizations to seek fair and impartial resolution of disputes.

One of the key areas where CAS has been involved in India is anti-doping. Doping has been a global concern in sports, including in India, where there have been instances of athletes testing positive for banned substances. CAS has been actively involved in hearing appeals from Indian athletes who have been sanctioned for anti-doping rule violations (ADRVs) and providing a platform for them to present their case and seek justice. CAS panels, comprising of experienced and knowledgeable arbitrators, have rendered decisions that have upheld the principles of fairness, transparency, and integrity in Indian sports.

CAS has also been involved in other disputes involving Indian sports organizations and athletes, including disciplinary actions, contractual disputes, and issues related to governance and administration. CAS provides an alternative to traditional litigation, allowing parties to resolve their disputes in a more expeditious and cost-effective manner. Its decisions are generally binding and enforceable, and its procedures are designed to ensure a fair and transparent process.

Some of the landmark cases involving India and CAS are as follows:

i. IAAF vs. Athletics Federation of India (AFI) and Akkunji Ashwini – CAS 2012/A/2763

ii. IAAF vs. AFI & Mandeep Kaur, JaunaMurmu – CAS 2012/A/2732

iii. Indian Hockey Federation vs. International Hockey Federation – CAS 2014/A/3828

iv. World Anti-Doping Agency (WADA) vs. Indian National Anti-Doping Agency (Indian NADA) &MhaskarMeghali – CAS 2016/A/4626

v. Amar Murlidharan vs. Indian NADA – CAS 2014/A/3639

vi. Dutee Chand vs. AFI – CAS 2014/A/3759

However, it is worth mentioning that CAS decisions are not always free from controversy, and there have been instances where Indian athletes and sports organizations have raised concerns about the fairness and transparency of the CAS process.

Some have criticized the high costs associated with CAS proceedings, which can be a barrier for athletes and smaller sports organizations with limited financial resources. Others have raised concerns about the lack of diversity in the CAS arbitrator pool, with a perceived bias towards certain countries and sports.

In recent years, CAS has also played a role in resolving disputes related to football in India. The Indian Super League (“ISL”), which is a professional football league in India, has adopted CAS as its preferred forum for dispute resolution. CAS has heard cases involving contractual disputes, breach of contracts, and player transfers in the ISL, providing a speedy and effective resolution mechanism for football-related disputes in the country.

AMLEGALS REMARKS

In conclusion, the Court of Arbitration for Sport (CAS) serves as a vital institution in the world of sports, providing a fair and impartial forum for resolving disputes related to sports. As a specialized tribunal with expertise in sports law, CAS plays a crucial role in upholding the principles of fairness, integrity, and transparency in sports. Its efficient and effective dispute-resolution processes, along with its commitment to the principles of natural justice, have made CAS a trusted entity for athletes, clubs, and other stakeholders in the sports community. Through its decisions, CAS has helped shape sports law and set precedents that impact the world of sports globally. As sports continue to evolve and face new challenges, the CAS will likely continue to play a pivotal role in safeguarding the rights and interests of athletes and maintaining the integrity of sports competitions.

The CAS has emerged as a valuable forum for the resolution of sports-related disputes in India. Its independence, neutrality, and expertise in sports law have made it a credible and effective mechanism for resolving complex legal matters related to sports. CAS has contributed to the development of sports juris.

For any query or feedback, please feel free to get in touch with himanshi.patwa@amlegals.com or rohit.lalwani@amlegals.com