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2016 | Book

Assessing the Usefulness and Legitimacy of CAS Read chapter Read first chapter

Yearbook of International Sports Arbitration 2015

Editors: Antoine Duval, Antonio Rigozzi

Publisher: T.M.C. Asser Press

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

The Yearbook of International Sports Arbitration is the first academic publication aiming to offer comprehensive coverage, on a yearly basis, of the most recent and salient developments regarding international sports arbitration, through a combination of general articles and case notes. The present volume covers decisions rendered by the Court of Arbitration for Sport (CAS) and national courts in 2015. It is a must-have for sports lawyers and arbitrators, as well as researchers engaged in this field. It provides in-depth articles on burning issues raised by international sports arbitration, and independent commentaries by esteemed academics and seasoned practitioners on the most important decisions of the CAS (e.g. the Dutee Chand case) and national courts (e.g. the Pechstein and Wilhelmshaven decision rendered by the OLG München and OLG Bremen in Germany).

Dr. Antoine Duval is Senior Researcher for International and European Sports Law at the T.M.C. Asser Instituut in The Hague. He holds a Ph.D. on the interaction between Lex Sportiva and EU Law from the European University Institute in Florence.

Prof. Antonio Rigozzi teaches international arbitration and sports law at the University of Neuchâtel, Switzerland, and is the partner in charge of the sports arbitration practice at Lévy Kaufmann-Kohler, a Geneva-based law firm specializing in international arbitration.

Table of Contents

Frontmatter

General Articles

Frontmatter
Chapter 1. Assessing the Usefulness and Legitimacy of CAS
Abstract
Disqualified athletes and their nationalistic supporters tend to be highly critical of the regime of sanctions for violations of the international law of sports, and specifically of the Court of Arbitration for Sport (CAS). The author maintains that CAS promotes public policy and favours fair competition, not the opposite, and that those who condemn CAS tend to be unacquainted with the facts and irresponsible in failing to explain how they would propose to remedy the chaos which would ensue if CAS were suddenly to disappear.
Jan Paulsson
Chapter 2. The Influence of Common Law Traditions on the Practice and Procedure Before the Court of Arbitration for Sport (CAS)
Abstract
The importance of the Court of Arbitration for Sport in the resolution of sporting disputes has become synonymous with the continuous development of sports law as a separate legal discipline. The unique structure of this supreme Court for sport, along with its composition, have created an unparalleled framework for the practice of sports law and at the same time a need for a better understanding of such practice. The author discusses the particular and unique elements of practice and procedure before the Court of Arbitration for Sport and explains that such practice has several similarities with the traditions of common law systems. He critically assesses specific elements of practice such as the standard of proof, examination of witnesses, the use of presumptions and negative inferences, along with the use by CAS Panels of previous decisions and concludes that although there is no declared system of binding precedent, in practice, CAS Panels, silently, operate a form of such binding precedent. He calls for ICAS to declare a system of binding precedent before the CAS and suggests that such system will restore certainty, predictability, consistency and clarity.
Gregory Ioannidis
Chapter 3. The Validity of Analytical Science in Anti-doping—A Scientific and Legal Challenge
Abstract
The solidity of scientific foundations underlying anti-doping programs is a key aspect of the effectiveness of the World Anti-doping Code. Taking as a starting point recent cases involving human Growth Hormone before the Court of Arbitration for Sport, this article provides insight into the growing complexity of anti-doping analytical science and the challenges arising there from for building a coherent legal framework, as well as the manner in which CAS panels deal with expert evidence in doping disputes, including the Athlete’s position in this respect.
Marjolaine Viret, Emily Wisnosky
Chapter 4. The Sell-on Clause in Football: Recent Cases and Evolutions
Abstract
The use of sell-on clauses is a regular practice in the world of football. Whenever a talented player is being transferred, several interested parties try to have a piece of the transfer fee, often by means of a sell-on clause. In its most common use, the sell-on clause is inserted in transfer contracts between two clubs, whereby the selling club, against a lower immediate transfer fee, retains the right to a certain percentage of a potential future transfer fee of the player to a third club. In this case both clubs enter into a partnership aimed at a win-win situation. In general, certain conditions need to be fulfilled to trigger the sell-on clause and this caused the occurrence of several disputes before FIFA and CAS, of which some will be discussed below. Among those, the case enrolled as ‘CAS 2014/A/3508 FC Lokomotiv v. Football Union of Russia & FC Nika’ will be discussed in more detail as it covers a series of interesting legal and practical issues and can be viewed as a recent leading case in that matter. However, the selling club is not the only interested party which may obtain a possible sell-on fee: the reality of football shows that even private investors could be interested in a return on a future transfer by retaining such type of percentage fees. This practice is prohibited now by recently implemented changes of the FIFA regulations, due to FIFA’s combat against the so-called ‘TPO—Third Party Ownership’, but some comments should be drawn upon, as the practice of sell-on fees seems to be still legitimate after the new FIFA regulations and circulars, if the percentage is retained by the club (and/or by the player, this being even compulsory in some countries).
Lucio Colantuoni, Willem-Alexander Devlies
Chapter 5. CAS Provisional and Conservatory Measures and Other Options to Be Granted Interim Legal Relief
Abstract
Article R37 of the CAS Code of Sports-related Arbitration empowers the CAS to grant provisional and conservatory measures for parties bound by the Code. When deciding whether to grant such measures, the CAS reviews whether (a) the relief is necessary to protect the applicant from irreparable harm, (b) the likelihood of success on the merits of the claim and (c) whether the interests of the applicant outweigh those of the respondent. Despite the fact that under the terms of Article R37 of the Code, the parties seeking provisional and conservatory measures expressly waive their rights to request the same type of measures from the ordinary competent courts, jurisprudence shows that state courts at least have parallel competence. First and foremost, the general exclusion of legal protection in advance is not valid as the CAS system does not offer a protection similar to the state courts. Additionally, state courts can usually act faster than the CAS. If third parties are affected, the CAS has no competence whereas state courts can order provisional measures against third parties. Contrary to provisional measures issued by state courts, there is no possibility to appeal provisional measures ordered by the CAS. However, once the CAS has issued its arbitral award, interim legal relief can be requested at the Swiss Federal Tribunal.
Ian Blackshaw, Thilo Pachmann
Chapter 6. The Basketball Arbitral Tribunal—An Overview of Its Process and Decisions
Abstract
In the course of its almost ten years of existence, the Basketball Arbitral Tribunal has grown from an innovative if not experimental mechanism to resolve contractual disputes quickly and cost-effectively into a well-established international sports tribunal. BAT proceedings put the flexibility of international arbitration under the Swiss lex arbitri to the users’ best advantage, while the tribunal’s awards, mostly decided ex aequo et bono, have gradually built a jurisprudence distilling equitable principles in relation to recurrent issues in the context of professional sports contracts.
Erika Hasler

Commentaries of CAS Awards

Frontmatter
Chapter 7. CAS 2013/A/3365 Juventus FC v. Chelsea FC and CAS 2013/A/3366 A.S. Livorno Calcio S.p.A. v. Chelsea FC, Award of 21 January 2015
Abstract
On 21 January 2015, the CAS rendered its award in the latest episode of the Mutu case. The core legal question raised concerned the interpretation of Article 14(3) of the FIFA RSTP, in their 2001 version, and more precisely whether, in the event a player is dismissed by his club for having consumed cocaine, the new club bears the duty to pay the compensation due by the player to his former club. Having won one of the most high profile cases in the history of the CAS, Chelsea FC has been desperately hunting for its money (as far as the US) since the rendering of the award. Thus, the English football club had the idea to turn against Mutu’s first employers after his dismissal in 2005, Juventus and Livorno, with success in front of the FIFA DRC, but, as we will see, not before the CAS. This award is extremely important for lawyers involved in disputes arising out of transfers in football as it provides a robust justification for the need to take into account the EU law context of the adoption of the FIFA RSTP in interpreting their provisions.
Antoine Duval
Chapter 8. CAS 2014/A/3486, MFK Dubnica V. FC Parma, Award of 2 February 2015
Abstract
The case centres around a request for training compensation for a player who played 65 matches in the ‘A’ team of a Slovak club before he was transferred to an Italian club at the age of 20 years. As the player moved within the EU, special FIFA provisions apply which require that in order to be eligible to receive training compensation, the old club must offer the player a new contract by registered mail at least 60 days before the expiry of the existing contract. The main issues in dispute between the parties were (i) if the old club had sent a new employment contract to the player by registered mail, and (ii) when the training of the player had ended. Further, this seems to be only the third time that a CAS Panel had to deal with the exclusion of evidence based on Article R57(3) CAS Code. Recently, also the Swiss Federal Tribunal—as the court of ‘supervisory jurisdiction’ dealing with appeals against CAS awards—decided on the legality and scope of this provision, expressing a different opinion from that of the CAS. This is why this article discusses the Panel’s discretion to exclude evidence in depth.
Roy Levy
Chapter 9. TAS 2011/A/2578, OGC Nice Côte d’Azur & Yannick Dos Santos Djalo v. FIFA, Order on Provisional Measures of 11 October 2011 and CAS 2013/A/3647, Sporting Clube de Portugal SAD v. OGC Nice Côte d’Azur & CAS 2013/A/3648, OGC Nice Côte d’Azur v. Sporting Clube de Portugal SAD & FIFA, Award of 11 May 2015
Abstract
This case evidences why clubs ought to be extremely diligent when negotiating the transfer of a player, even more so when such negotiations take place under severe time pressure to beat the closing of a transfer window. Following a hectic day of negotiating and re-negotiating a player’s transfer and employment contracts, OGC Nice failed to upload the necessary documents in TMS in due time for the ITC to be requested. Faced with this emergency, OGC Nice requested an exception to the FIFA transfer rule, but such exception was denied by the FIFA PSC Single Judge. In turn, also the CAS rejected the joint request of the player and OGC Nice for provisional measures by which they sought his registration outside the transfer window. In the absence of both payment of his salary and integration with the team, the player finally terminated his contract with OGC Nice, subsequently joining the former club’s big rivals Benfica SL via a free transfer. Unhappy with the unsuccessful transfer to OGC Nice, and even more so with the free transfer of the player to their rivals, Sporting Clube de Portugal initiated an action, seeking payment of the transfer amount as per the contract as well as additional damages for loss of chance and damages for sporting loss. The CAS panel had to evaluate how to apply the conditions precedent in the transfer contract, whether there was any contributory negligence to be taken into account, and after doing so finally ordered OGC Nice to pay Sporting Clube de Portugal a significant amount of money… this for a player from whose sporting performances it never benefitted.
Wouter Lambrecht
Chapter 10. CAS 2014/A/3832 & 3833, Vanessa Vanakorn v. Fédération Internationale de Ski (FIS), Award of 19 June 2015
Abstract
Vanessa Vanakorn’s participation in the women’s grand slalom at the 2014 Winter Olympics was tainted by controversy. Allegations of the manipulation of her qualification results surrounded the skier’s presence at Sochi where she represented Thailand, finishing last in her chosen event. Subsequently, the governing body for the sport, the International Ski Federation, suspended Vanakorn for four years for various breaches of the FIS’s betting and anti-corruption regulations. Vanakorn appealed to CAS. The CAS award presents some interesting discussion on legal technicalities such as the standing of an athlete in such a case and on the applicable standard of proof to be used by the investigating body. In substantive terms, the CAS award also revealed that what had happened in the qualification process was not, on the evidence presented, an occasion of result manipulation and, at best, was an incident of questionable “field of play” management. In sum, Vanessa Vanakorn, a celebrated classical musician by profession, successfully defended her amateur sporting reputation at CAS and thus can call herself, for now and ever more, an Olympian.
Jack Anderson
Chapter 11. CAS 2015/A/3874, Football Association of Albania v. UEFA & Football Association of Serbia, Award of 10 July 2015 and CAS 2015/A/3875, Football Association of Serbia v. UEFA, Award of 10 July 2015
Abstract
In cases CAS 2015/A/3874 and CAS 2015/A/3875, the Court of Arbitration for Sport dealt with the disciplinary consequences of the violent incidents which led to the Serbia versus Albania qualifier for UEFA EURO 2016 being abandoned. The CAS Panels in charge of these cases decided upon numerous procedural and substantive arguments raised by the national associations involved and UEFA. This match will not only be remembered for the drone device which was remotely controlled to fly low over the pitch carrying a banner with nationalistic symbols; it will be equally referenced in the future for the legal presumption used by the majority of the CAS Panel in case 3874 in order to determine that the Albanian FA was strictly liable for the operation of the drone. Equally, the CAS awards provide useful guidance to match officials and event organisers on how to react in cases of violent incidents and match interruptions. Communication with the teams and clear instructions are key to the event organiser being in a position to draw consequences from the teams’ refusal to continue the match. The 3874 award also adds a valuable summary and in-depth analysis on the interpretation of the term ‘directly affected party’ in the UEFA Statutes, being the party with a right to file an appeal against a UEFA decision. From a case-management perspective, the uninformed reader may wonder whether the CAS Appeals Division President, when deciding to appoint the same President of the Panel to two cases so closely connected, should also make use of the discretion embedded in Article R52 and consolidate the proceedings.
Andreas Zagklis
Chapter 12. CAS 2014/A/3759, Chand v. AFI & IAAF, Award of 24 July 2015
Abstract
Dividing competitions into male and female categories is a hallmark of most sports. So is the near-unassailable autonomy of sports organizations to regulate participation in their sport. Spanning 161-pages, and still only described as an “interim award,” the Chand award illustrates the complexity of attempting to fit into a traditional legal framework the highly charged ideological and ethical issues raised when sports organizations exercise this autonomy to “police” the male versus female divide. This comment analyses track-and-field athlete Dutee Chand’s challenge to the validity of the IAAF’s Hyperandrogenism Regulations, which excluded women whose testosterone levels fell within the “normal” male range from competition. In particular, Ms Chand challenged their scientific validity, discriminatory effect and proportionality, in addition to alleging a similarity to a doping sanction. While primarily focused on the legal questions that arise from the CAS award, this comment also addresses the bigger picture, in particular the dilemmas of organized sport caught between its ambition to strive for the limits of human performance and the need to secure a level playing field.
Marjolaine Viret, Emily Wisnosky
Chapter 13. CAS 2014/A/3474, Clube de Regatas do Flamengo v. Confederaçao Brasileira de Futebol (CBF) & Superior Tribunal de Justiça Desportiva (STJD), Award of 5 October 2015
Abstract
The jurisdiction of the Court of Arbitration for Sport is established in Article R47 of the CAS Code. The early jurisprudence established that Article R47 required that federative statutes explicitly recognize CAS jurisdiction to retain competence as an appeal court over their decisions. Here the CAS has consistently applied the doctrine of direct jurisdiction. Since the development of that jurisprudence, the doctrine of indirect jurisdiction has developed, namely in the Pizarro and Flamengo cases. Indirect jurisdiction is established in the CAS where national federation rules refer to or incorporate applicable international federation rules that explicitly recognize the jurisdiction of the CAS where the subsidiary regulations do not. The doctrine of indirect jurisdiction, however, does have some outer limits where it has not been recognized as applicable to appeals of the decisions regarding Financial Fair Play licensing decisions nor to decisions of the Fédération Internationale de l’Automobile. This article seeks to review the jurisprudence of the CAS with respect to its jurisdiction, demonstrate that the traditionally rigid interpretation of its jurisdiction has evolved in order to recognize the principle of indirect jurisdiction, and that in some cases CAS jurisdiction is recognized where a complex set of regulations requires a sophisticated analysis such as in the Flamengo case.
Juan de Dios Crespo, Paolo Torchetti
Chapter 14. CAS 2014/A/3730, FK Bohemians Praha v. FA Czech Republic, Award of 22 December 2015
Abstract
The dispute described below related to the interpretation of a FACR (“the Respondent”) rule indicating that the last two clubs of the Czech second division are to be relegated to the third division at the end of a season. In order to fill the resulting two vacant spots, two clubs are promoted from the third division. FK Bohemians Praha (“the Appellant”) claimed that in case of such vacancy, promotion shall be offered to the teams ranked second, third, or fourth. If these teams refuse promotion, the team ranked on the penultimate position in the Czech second division shall not be relegated. In the Respondent’s view, by contrast, the relevant rule provides that the promotion shall be offered to any further team of the third division according to its position. The Appellant filed a motion to the FACR Appeal Committee. The Appeal Committee held that it lacked jurisdiction and this decision was challenged before CAS. The CAS Panel held that the argument of the champion not being entitled to promotion was not raised before the FACR’s Appeal Committee and therefore could not be the subject of the decision. As the Appellant did not challenge the champion’s promotion at the Respondent’s level, the Panel could not rule on this issue. Finally, the champion of the third division, contrary to what the Appellant contended, was promoted to and competed in the 2014/2015 season of the Czech second division. The Appellant’s appeal invoking that the champion had refused promotion was therefore groundless.
Marketa Haindlova

Commentaries of Decisions of National Courts

Frontmatter
Chapter 15. Oberlandesgericht Bremen, 2 U 67/14, SV Wilhelmshaven v. Norddeutscher Fußball-Verband e.V, 30 December 2014
Abstract
At the very end of 2014, the Oberlandesgericht (OLG) Bremen rendered an important judgment in the dispute opposing a German club, the SV Wilhelmshaven e.V., to its regional association, the Norddeutscher Fußball-Verband e.V. The decision, which has been appealed to the Bundesgerichtshof (BGH), was not as commented as the nearly simultaneous judgment of the OLG München in the Pechstein case. Nonetheless, it entails important considerations regarding FIFA’s training compensation system and its private enforcement mechanism of CAS awards and FIFA decisions. In this commentary, I will first summarize the facts and the procedure of the case, and then discuss its impact on the compatibility of FIFA’s training compensation system with EU law. Finally, I will show how this ruling might put into question the internal enforcement system established by FIFA to bypass the traditional procedure of recognition of international awards.
Antoine Duval
Chapter 16. Oberlandesgericht München, Az. U 1110/14 Kart, Claudia Pechstein v/ International Skating Union (ISU), 15 January 2015
Abstract
CAS arbitration is fundamentally a forced arbitration. In the first instance, Ms Claudia Pechstein brought an action against the ISU before a German tribunal, which held that arbitration agreements were null given the absence of free consent of the athletes. On appeal, in a resounding ruling rendered on 15 January 2015, the Oberlandesgericht of Munich held that arbitration agreements imposed by sports institutions on their members constituted an abuse of dominant position. Contrary to the Swiss Federal Tribunal, the German Court considered, at least in appearance, the CAS as structurally favourable to sports governing bodies. Consequently, the Court refused to recognize the arbitral award in which the CAS had confirmed the sanction for doping imposed by the ISU on Ms Pechstein on the grounds that the award violated international public policy. Beyond this particular case, the ruling has led to an overall reflection on the CAS’s independence; for instance, by putting an end to the system of the closed list of arbitrators.
Mathieu Maisonneuve
Chapter 17. Sports Arbitration Cases Before the Swiss Federal Tribunal in 2015—A Digest
Abstract
This digest provides an overview of the legal framework governing actions for the annulment of arbitral awards before the SFT and a discussion of the requirements and other practical issues that should be kept in mind in that context, with particular emphasis on the aspects relevant to sports disputes. It then summarizes the decisions issued by the SFT in its capacity as the court of supervisory jurisdiction over sports-related arbitral awards rendered in Switzerland in the course of the year 2015.
Erika Hasler, Yann Hafner
Backmatter
Metadata
Title
Yearbook of International Sports Arbitration 2015
Editors
Antoine Duval
Antonio Rigozzi
Copyright Year
2016
Publisher
T.M.C. Asser Press
Electronic ISBN
978-94-6265-129-6
Print ISBN
978-94-6265-128-9
DOI
https://doi.org/10.1007/978-94-6265-129-6