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2018 | OriginalPaper | Chapter

Back to the Future: The First CAS Arbitrators on CAS’s First Award (TAS 86/1, HC X. c. LSHG) and Its Evolution Since Then

Author : Erika Hasler

Published in: Yearbook of International Sports Arbitration 2016

Publisher: T.M.C. Asser Press

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Abstract

On 30 January 1987, a panel composed of arbitrators François Carrard, Hans Nater and Jean Gay rendered an award resolving a dispute that had arisen between Hockey Club X. and the Swiss Ice Hockey Federation (LSHG), further to an incident during a match in the Swiss National Championship of 1985. The HC X. c. LSHG award was the very first award rendered by the then fledgling Court of Arbitration for Sport (CAS). History has shown that the establishment of the CAS responded to a real and important need in the international sports community, but this was far from certain at that time. Today, as the designated last-instance adjudicating body in most international sports regulations, and having issued more than 3,000 awards, including in the course of 11 editions of the Olympic Games, the CAS is universally seen as the “supreme court” of world sports. Arbitrators Carrard, Nater and Gay have kindly accepted to share their memories of that first case, their views on the CAS’s development over the 30 years that have elapsed since the issuance of their award, and some ideas for the future of this unique institution.

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next chapter Applicability of Swiss Law in Doping Cases Before the CAS and the Swiss Federal Tribunal

TAS 86/1, HC X. v. Ligue Suisse de Hockey sur Glace (LSHG), Award of 30 January 1987 (hereinafter: the Award), rendered by a panel composed of François Carrard (President), Hans Nater (Co-arbitrator) and Jean Gay (Co-arbitrator), available in the CAS Archives, at http://jurisprudence.tas-cas.org/Shared%20%Documents/Forms/AllDecisions.aspx.

The CAS officially started its operations in June 1984, when the first edition of the CAS Statutes and Regulations, which were adopted by the IOC in 1983, came into force. See the “Important dates” section on the CAS website at http://www.tas-cas.org/en/general-information/statistics.html.

See CAS Statistics, 1986–2016, available at http://www.tas-cas.org/fileadmin/user_upload/CAS_statistics_2016_.pdf.

CAS ad hoc divisions have been operating at major international sports events, starting with the Summer Olympic Games in Atlanta in 1996. Since 1998, ad hoc divisions have also been set up to deal with disputes at the Commonwealth Games, and since 2000 to deal with football disputes, first at the European Football Championships, and, since 2006, also at the FIFA World Cup.

See page 2 of the Award, third paragraph from the bottom: “[t]he parties agreed that only Swiss law would apply, and have expressly authorized the CAS to decide their dispute ex aequo et bono” (free translation), with a reference to Article 31(3) of the Concordat intercantonal sur l’arbitrage of 1969, the inter-cantonal treaty which at the time governed both domestic and international arbitration in Switzerland. Article 31(3) of the Concordat provided that “[t]he arbitral tribunal shall make its determination according to the rules of the applicable law, unless the parties have, in the arbitration agreement, authorized it to make its determination ex aequo et bono” (free translation).

Dr. Gilbert Schwaar was Secretary General of the CAS from 1984 to 1994 (see Fig. 1).

Until it moved to its current location in the Château de Béthusy (in 2005), the CAS was seated at the Villa du Centenaire, between the Beau Rivage Palace hotel and the Olympic Museum, on the Quai d’Ouchy in Lausanne (see Fig. 2).

See page 2 of the Award, in medio: “[t]he parties agreed to submit their dispute to the CAS in accordance with a submission agreement signed in Lausanne on 10 November 1986” (free translation).

A follow up suit—including a motion for an order enjoining the Lake Placid Games from going forward unless the Taiwan delegation was authorized to represent China—was also brought by a Taiwanese athlete before the courts of New York, and that motion was granted in the first instance, before being dismissed on appeal (see, e.g., Rigozzi 2005, para 216).

See Reeb 1998, p. XXIII, noting that the CAS Statutes were officially ratified by the IOC in 1983 and came into force on 30 June 1984 (see Fig. 3).

The provisions governing jurisdiction and the conclusion of a CAS arbitration agreement were contained in Articles 19 et seq. and 24 et seq. of the CAS’s then Statute and Regulations respectively, which essentially provided for the possibility of concluding an ex ante arbitration agreement (to be notified to the CAS upon conclusion and completed later, in case of dispute, with certain particulars), or an ex post submission agreement with regard to a specific dispute, providing for its referral to the CAS.

In 1991, the CAS published a “Guide to arbitration”, featuring several model arbitration clauses. Among these, there was one suggested for inclusion in the statutes or regulations of federations, which read as follows: “[a]ny dispute arising from the present Statutes and Regulations of the… Federation which cannot be settled amicably shall be settled finally by a tribunal composed in accordance with the Statute and Regulations of the [CAS] to the exclusion of any recourse to the ordinary courts. The parties undertake to comply with the said Statute and Regulations and to accept in good faith the award rendered and in no way hinder its execution”. The International Equestrian Federation (FEI) was the first sports-governing body to adopt that model clause. As noted by Mavromati and Reeb 2015, p. 2, “[t]his was the starting point for several ‘appeals’ procedures even if, in formal terms such a procedure did not yet exist. After that, other national and international sports federations adopted the appeals arbitration clause, which led to a significant increase in the workload of the CAS”.

See page 2 of the Award, in medio “HC X. brought an application for annulment against the LSHG’s Appeals Chamber’s decision before the Obergericht [Higher Cantonal Court] in Zurich, which declared the application inadmissible […] on 15 August 1985” (free translation). Obergericht des Kantons Zürich, 3rd Civil Chamber, Erledigungsbeschluss of 15 August 1985.

Ibid., para 4.1. For an overview of the evolution of the case law on the judicial (or arbitral) review of field of play decisions, see in particular CAS OG 96/006, Mendy v. AIBA, Award of 1 August 1996, with reference to the SFT’s case law and Prof. M. Baddeley’s analysis in point.

In 1987, 8 new cases were filed with the CAS (both in “ordinary” and in what was then known as the “consultation procedure” [note by the editors: this procedure was abrogated in 2012]), and from there onwards, until the adoption of the Paris Agreement establishing the CAS appeals procedure in 1994, that number gradually grew from one year to the next, reaching a total of 131 proceedings initiated (see CAS Statistics, 1986–2016, available at http://www.tas-cas.org/fileadmin/user_upload/CAS_statistics_2016_.pdf).

The Paris Agreement, adopted in June 1994, established the International Council of Arbitration for Sport (ICAS), provided that the CAS would be financed by international federations and national Olympic committees in addition to the IOC (until then the sole provider of funds), and reorganized and streamlined CAS proceedings, introducing the distinction between ordinary and appeals arbitrations, each governed by a specific set of rules within the newly drafted CAS Code of Sports-related Arbitration, which entered into force in November 1994.

CAS Statistics, 1986–2016, available at http://www.tas-cas.org/fileadmin/user_upload/CAS_statistics_2016_.pdf.

CAS 2014/A/3759, Dutee Chand v. Athletics Federation of India & The International Association of Athletics Federations (IAAF), Award of 24 July 2015.

Paulsson 2015.

Enacted in 1987, Chapter 12 of the Swiss Private International Law Act, which entered into force in 1989, replaced the Concordat (see footnote 5 above) as the statute governing international arbitration in Switzerland.

The CAS Code provides, in Article S14 (last amended in 2016), that: “[t]he ICAS shall appoint personalities to the list of CAS arbitrators with appropriate legal training, recognized competence with regard to sports law and/or international arbitration, [and] a good knowledge of sport in general […]”.

Riemer 2004.

At present, the CAS Code provides that “Minutes of the hearing may be taken” (Article R44.2). In practice, the CAS takes an audio recording of the hearing which may be provided to the parties upon request. Obviously, this is a much less practical working tool than a proper transcript. Several other examples that may provide inspiration also for CAS proceedings, where appropriate, can be found, for instance, in the ICC Techniques for Controlling Time and Costs in Arbitration (available at https://iccwbo.org/publication/icc-arbitration-commission-report-on-techniques-for-controlling-time-and-costs-in-arbitration/).

CAS Mediation Rules adopted in 2013 (amended in 2016), available at http://www.tas-cas.org/fileadmin/user_upload/CAS_Mediation_Rules_2016__clean_.pdf.

Raguz v. Sullivan [2000] NSWCA 240; http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2000/240.html?stem=0&synonyms=0&query=raguz&nocontext=1.

UNESCO’s International Convention Against Doping in Sport of 19 October 2005. To date, the Convention has more than 180 State parties (see http://portal.unesco.org/en/ev.php-URL_ID=31037&URL_DO=DO_TOPIC&URL_SECTION=201.html).

Mavromati D, Reeb M (2015) The Code of the Court of Arbitration for Sport – Commentary, Cases and Materials. Kluwer Law International, Alphen aan den Rijn

Paulsson J (2015) Assessing the Usefulness and Legitimacy of CAS. In: Duval A, Rigozzi A (eds) Yearbook of International Sports Arbitration 2015. TMC Asser Press, The Hague, pp. 3–15CrossRef

Reeb M (1998) Digest of CAS Awards I (1986–1998). Kluwer Law, The Hague

Riemer H (2004) Sportrechts-Weltmacht Schweiz Internationale Sportverbände und schweizerisches Recht. Causa Sport, pp. 106–107

Rigozzi A (2005) L’arbitrage international en matière de sport. Helbing Lichtenhahn, Basel

Title: Back to the Future: The First CAS Arbitrators on CAS’s First Award (TAS 86/1, HC X. c. LSHG) and Its Evolution Since Then
Author: Erika Hasler
Publisher: T.M.C. Asser Press
Book: Yearbook of International Sports Arbitration 2016
Print ISBN: 978-94-6265-236-1

Electronic ISBN: 978-94-6265-237-8

Copyright Year: 2018
DOI: https://doi.org/10.1007/15757_2017_15