The Court of Arbitration for Sport: Current

Practice, Emerging Trends and Future Hurdles

by M A R K M A N G A N *

ABSTRACT

The Court of Arbitration for Sport has enjoyed considerable success in its short history. This
article explores the sources of that success, including reforms to the organisational structure of
CAS and its arbitral procedures. Particular attention is paid to the establishment of an appellate
body at CAS and how the procedures adopted by CAS compare to those utilised by other arbitral
institutions. The article concludes with a look at some of the hurdles CAS is yet to clear,
including potentially difficult choice of law questions.

I. I N T R O D U C T I O N
FOLLOWING ITS establishment by the International Olympic Committee
(IOC) in 1984,1 and the implementation of significant reforms 10 years later, the
Court of Arbitration for Sport (CAS) has quickly ascended to the summit of the
sports arbitration world. Indeed, after receiving a handful of cases in the late
1980's,2 the institution has increasingly been called upon to resolve sports disputes
with 20 new claims filed in 1996, followed by 75 in 2000, nearly 200 in 2005 and
a little over 250 in 2007. This exponential growth has shown no signs of abating,
with over 300 new matters submitted to CAS last year.
In light of this success, it could be said that in its short existence, CAS has gone
some way to fulfilling the Olympic creed of Citius Altius Fortius, or faster higher
stronger, both as compared to its original incarnation, and as compared to other
arbitral institutions. In this article, the strength, speed and heights achieved by
CAS will be explored, first, by considering the evolution in its organisational

* Mark Mangan and Jan Paulsson of Freshfields Bruckhaus Deringer LLP were counsel to the International
Olympic Committee in some of the legal proceedings described herein.
1
For a complete history of the origins of CAS, see Matthieu Reeb, 'The Court of Arbitration for Sport:
History and Operation' in Court of Arbitration for Sport, Digest of CAS Awards HI, 2001-2003, pp. xxvii-
xxxv. Mr Reeb is the current Secretary General of CAS.
2
Statistical data on the number of cases submitted to CAS is available on the CAS website at www.tas-cas.org
(last accessed 1 October 2009).

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© LCIA, 2009

591
592 Arbitration International, Volume 25 Issue 4

structure, and secondly, through an analysis of the features of CAS procedure that
distinguish it from other forms of arbitration. With the scene set, some of the
hurdles that remain to be cleared by CAS in the future will be addressed.

II. R E F O R M S T O T H E O R G A N I S A T I O N A L
S T R U C T U R E O F CAS

(a) Role of the IOC and ICAS

At its inception, CAS was dominated, both in form and in substance, by the
organisation from which it had sprouted, the IOC. The I O C bore all operating
costs, appointed half of the members of CAS, and it alone had the power to
modify the CAS Statute. 3
While the financial strength and influence of the I O C was necessary to bring
to life the dream of establishing a specialised body capable of determining sports
disputes in a relatively quick, inexpensive and predictable manner, questions were
soon raised about the dependence of CAS on the IOC, which often appeared before
it as a party. After these concerns were brought to the attention of the Swiss
Federal Tribunal, 4 the International Council of Arbitration for Sport (ICAS) was
created on 22 June 1994 to replace the IOC as the body responsible for the
administration and financing of CAS. 5 The Swiss Federal Tribunal has since given
its blessing to this new structure, declaring CAS to be sufficiently independent of
the parties that appear before it, and in particular the IOC, so as to constitute a
genuine international arbitral institution. 6

(b) CAS Arbitration Divisions

In addition to the establishment of ICAS in 1994, an Ordinary Arbitration
Division and an Appeals Arbitration Division were established under the terms of
the Code of Sports-related Arbitration (the 'CAS Code'). As explained below, a
third division was added in 1996. 7

3
Reeb, supra n. 1.
4
See Elmar Gundel v. Federation Equestrian International, CAS 92/63, published in Recueil Officiel des Arrets du
Tribunal Federal (Official Digest of Federal Tribunal Judgments) 119 II 271. For a commentary on the case
and the subsequent need for reform of CAS working procedures, see]. Paulsson, 'The Swiss Federal Tribunal
Recognises the Finality of Arbitral Awards relating to Sports Disciplinary Sanctions Rendered by the IOC's
Court of Arbitration for Sports' in (1993) 8 Int'l Arb. Rep. 12.
5
Reeb, supra n. 1. See also,]. Paulsson, 'Arbitration of International Sports Disputes' in (1993) 9(4) Arb. Int'l 359
and the Code of Sports-related Arbitration ('CAS Code'), arts. S4-S6 ICAS, which is composed of 20 high-
level jurists appointed for renewable four-year terms, has the authority to elect the CAS President and the
two CAS vice-presidents.
6
Lazutina and Danilova v. IOC, FIS and CAS (27 May 2003), first civil court 129 III 445.
7
In addition, the IOC (and certain other sports bodies) may request an advisory opinion from CAS about
'any legal issue' with respect to the practice or development of sport or any activity related to sport: CAS
Code, art. R60. If such a request were accepted, the CAS President would be required to constitute a panel
of one or three arbitrators and formulate the questions to be determined: CAS Code, art. R61. CAS is also
able to provide mediation services: CAS Code, art. S20.
 The Court of Arbitrationfor Sport 593

(i) Ordinary Arbitration Division

The scope of the jurisdiction of the CAS Ordinary Arbitration Division extends to
first instance sports disputes, usually of a commercial nature, arising out of such
things as sponsorship agreements, the sale of broadcast rights, the staging of sporting
events, player transfers, sports insurance and athlete employment contracts. 8

(ii) Appeals Arbitration Division

Much of the stunning growth in the use of CAS can be attributed to the estab-
lishment of an appeals body in 1994. Eight appeals were submitted to the Appeals
Arbitration Division in its first year of operation. Within 10 years, the number of
new cases had increased twenty-fold, with 185 appeals filed in 2005. The appeal
docket at CAS has continued to expand in recent years with 276 new appeals
lodged in 2008. 9
Three different types of appeal may be referred to CAS. First, the Appeals
Arbitration Division will hear appeals from disciplinary decisions rendered by
national and international sports bodies. 10 By way of illustration, decisions
reached by the IOC Disciplinary Commission can be appealed to CAS under the
terms of the I O C Anti-Doping Rules and the Olympic Charter.''
Secondly, the Appeals Arbitration Division can be empowered to hear appeals
from the decisions of first instance CAS panels sitting in the Ordinary Arbitration
Division.12
Thirdly, parties to a dispute before tribunals established under the rules of other
institutions (or indeed before ad hoc tribunals) can agree to refer appeals to CAS.
Thus, the original winner of the 2006 Tour de France, Floyd Landis, was able to
appeal (unsuccessfully, as things transpired) a decision of an arbitral tribunal
appointed under the aegis of the American Arbitration Association (AAA) to CAS. 13

(Hi) Ad Hoc Division

Starting with the Games of the XXVI Olympiad in Atlanta in 1996, CAS has
also made available an Ad Hoc Division to hear cases on site during the course of

8
See Reeb, supra n. 1.
9
Statistics are available at www.tas-cas.org (last accessed 1 October 2009).
10
CAS Code, arts. S20 and R47. Such appeals are only allowed insofar as the statutes and regulations of a
sports body so provide, and subject to any available internal legal remedies having been exhausted: Hoch v.
Federation Internationale de Ski and the International Olympic Committee, CAS 2008/A/1513 (26 January 2009), at
para. 5.1.
1
' Illustrations of the appeal process at work can be seen in Pinter, Tauber & Eder v. International Olympic Committee,
CAS 2007/A/1286, 1288 and 1289 (4 January 2008). For an example of an attempted (but unsuccessful)
referral of a matter to CAS where the relevant sports body's rules did not support the appeal, see Sheffield
United Football Club Ltd v. West Ham United Football Club Pic [2008] EWHC (Comm) 2855.
12
CAS Code, art. R47. The right to bring an appeal must be expressly stipulated in the rules applicable to the
first instance proceedings.
13
Floyd Landis v. United States Anti-Doping Agency, CAS 2007/1/1394 (30 June 2008). In the result, Mr Landis'
appeal was dismissed and Mr Landis was found to have committed an anti-doping rule violation and
declared ineligible to compete in cycling races for two years.
594 Arbitration International, Volume 25 Issue 4

each edition of the summer and winter Olympic Games. The CAS Ad Hoc
Division is used also at the Commonwealth Games, as well as the European and
world football championships. 14 CAS has promulgated a special procedural code
for CAS ad hoc arbitrations, which is modified slightly for each sporting event at
which the division is made available.
The procedures followed in each of the three CAS arbitration divisions is
considered below.

III. C A S P R O C E D U R E S

(a) Fixing of a Common Seatfor All CAS Arbitrations

Perhaps the most striking feature of CAS procedure is the fixing of a unique legal
seat for all CAS arbitrations. 15 Thus, regardless of where a sports dispute falling
within CAS jurisdiction arises, the legal seat for the arbitration will always be the
same.
One of the consequences of fixing Lausanne, Switzerland as the seat for all
CAS arbitrations is that only one court, the Swiss Federal Tribunal, has the
authority to supervise CAS arbitrations, no matter where they take place — a
point brought home in Raguz v. Sullivan.16 There, the New South Wales Court of
Appeal (Australia) refused to exercise its supervisory powers over an arbitration
that had taken place on Australian soil in relation to the rights of Australian
athletes as determined by Australian arbitrators pursuant to proceedings administered
by a body incorporated within Australia. All of that notwithstanding, the Court of
Appeal chose to stay on the sidelines because it accepted that the legal seat for the
arbitration, as with all CAS arbitrations, was in Lausanne. 17
That was not an unreasonable outcome. By fixing a common seat for all CAS
arbitrations, the legitimate expectation of international athletes that the rules of
the game will be applied in a uniform and predictable manner on the sports field
carries across to the regulation of any resulting sports disputes. Just as there can
only be one referee on the pitch, only the Swiss Federal Tribunal has been
empowered to supervise CAS arbitrations.

(b) Appointment of Arbitrators

Party autonomy is, of course, one of the defining characteristics of international
arbitration, and the ability of a party to nominate his or her arbitrator for
three-person tribunals, one of its fundamental manifestations. Parties that appear

14
Reeb, supra n. 1. Ad Hoc Divisions have been used for the Commonwealth Games since 1998, during the
UEFA European Championships since 2000 and for the FIFA World Cup in 2006. The CAS Ad Hoc
Division can determine disputes arising during or in connection with an event in which the division has been
established: Court of Arbitration for Sport Arbitration Rules for the Olympic Games ('CAS Ad Hoc Rules'),
art. 1.
15
CAS Code, art. R28.
16
Raguz v. Sullivan (2000) 50 NSWLR 236, excerpted in Digest of CAS Awards (1998-2000), vol. II, p. 783.
17
Ibid, paras. 90-111.
 The Court of Arbitrationfor Sport 595

before the Ordinary Arbitration or Appeals Arbitration Divisions at CAS,

however, may only nominate arbitrators from a closed list established by ICAS. 1 8
It is true that a list of arbitrators has also been established under the terms of
the 1965 Convention on the Settlement of Investment Disputes between States
and Nationals of Other States (the ICSID Convention). Parties appearing before
ICSID, however, (unlike those at CAS) are not obliged to nominate someone from
the fixed list of arbitrators. 19
There are presendy 270 arbitrators on the CAS list of arbitrators, each of
whom has been appointed for a renewable period of four years. 20 In order to be
appointed to the list, a candidate must be legally trained and have 'recognized
competence with regard to sports law and/or international arbitration, a good
knowledge of sport in general and a command of at least one CAS working
language', 21 namely English or French.
While a party's choice of arbitrator may be limited in the Ordinary and
Appeals Arbitration Divisions to the names appearing on the CAS list,
interestingly, parties appearing before the CAS Ad Hoc Division have no choice
at all. Consistent with the fast-moving nature of international sport, CAS ad hoc
panels are required to render a decision within 24 hours of a matter having been
submitted to CAS. 22 In order to facilitate the determination of disputes within
such a short period of time, ICAS appoints 12 arbitrators to the Ad Hoc Division
for the duration of each event at which it is used. 23 The President of the Ad Hoc
Division then selects all three panellists, or, if appropriate, a sole arbitrator, from
the list of 12 arbitrators for any disputes that arise during the particular event. 24
Party autonomy has thus been sacrificed in the interests of efficiency.
Nevertheless, parties that appear before a CAS ad hoc panel retain the right to
challenge an appointed arbitrator for any actual or perceived lack of
independence. 25

18
CAS Code, art. S6. This can be contrasted with, say, art. 8(4) of the Rules of Arbitration of the International
Chamber of Commerce ('ICC Rules'), which grants parties an unfettered discretion as to whom they may
nominate to an ICC tribunal. Naturally, party nominations are subject to confirmation by the ICC Court;
ICC Rules, art. 9.
19
Convention on the Settlement of Investment Disputes Between States and Nationals of Other States,
Washington, 18 March 1965, in force on 14 October 1966, 575 UNTS 159, art. 40.
20
CAS Code, art. SI3. The list of CAS arbitrators is available at www.tas-cas.org.
21
CAS Code, art. S14.
22
CAS Ad Hoc Rules, art. 18.
23
CAS Ad Hoc Rules, art. 3. The 12 arbitrators appointed by ICAS for the Beijing Olympic Games were
Michael Beloff, Margarita Echeverria Bermudez, Luigi Fumagalli, Thomas Lee, Chi Liu, Prof. Richard
McLaren, Dr Stephan Netzle, Sharad Rao, David Rivkin, Alan Sullivan, Jingzhou Tao and Judge Deon Van
Zyl. The President of the CAS Ad Hoc Division at Beijing was Robert Briner.
24
CAS Ad Hoc Rules, art. 11.
25
For a recent decision of the Swiss Federal Tribunal confirming that the demanding standards of
independence required of commercial arbitrators apply to CAS arbitrators, see X v. T Association, 4A-506/
2007 (20 March 2008), first civil court (available at www.bger.ch.). Notably, the court ruled that the parties to
a CAS arbitration had an obligation to investigate and ensure that the nominated arbitrators were
independent and impartial, failing which any subsequent objection would be time-barred.
596 Arbitration International, Volume 25 Issue 4

(c) Interim Relief

Many commercial arbitral institutions empower tribunals to order interim or
conservatory relief once they have been constituted. 26 The problem, however, is
that an arbitral tribunal cannot come to the aid of a party until it has been
constituted, yet the constitution of a tribunal can take many months, during
which the assets sought to be seized may have dissipated; the evidence needed
possibly destroyed; or the harm suffered may have become irreversible.
The CAS Code offers a possible solution to this dilemma by empowering the
Presidents of the Ordinary Arbitration and Appeals Arbitration Divisions to
make orders for provisional or conservatory measures pending the constitution of
a CAS panel. 27 The rules specifically allow applications for interim relief to be
considered by the President of either division on an ex parte basis in 'cases of
utmost urgency', provided a party who is not present at the time an application is
determined is heard subsequently. 28

(d) Joinder of Parties

Commercial arbitration rules are usually silent in relation to the issue of joinder. 29
In such circumstances, the joinder of a new party can only be achieved with the
consent of all pre-existing parties to a dispute. 30 Not so for CAS arbitrations,
however, where it is possible for a party to join an action over the objections of a
party already participating in the proceedings. 31

(e) De Novo Appeals

A CAS appellate panel has the authority to review the facts and the law of a
challenged decision on a de novo basis. It may issue a new decision replacing the
old one or refer the case back to the body that handed down the challenged
decision. 32
Some have questioned the wisdom of allowing CAS appeals to proceed on a de
novo basis. To be sure, a de novo hearing is often more protracted and costly than
an appeal restricted to specific grounds. But one of the effects of granting a party

26
See e.g., London Court of International Arbitration Rules (TLCIA Rules'), art. 25.
27
CAS Code, art. R37.
28
Ibid. CAS panels, once constituted, can also grant interim relief. It has been held that a party seeking interim
relief should establish that (a) they will suffer irreparable harm if the relief is not granted; (b) they are likely
to succeed on the merits; and (c) the balance of convenience favours the granting of the preliminary relief:
Azerbaijan National Olympic Committee (ANOC) and Azerbaijan Field Hockey Federation (AFHF) et at. v. Federation
Internationale de Hockey (FIH) and Affected Parties, CAS OG 08/05 (8 August 2008), para. 4.2.
29
For instance, the ICC Rules and SCC (Stockholm Chamber of Commerce) Arbitration Rules are silent on
the issue of joinder. In contrast, CEPANI (Belgian Centre for Arbitration and Mediation) Rules, art. 12
empowers the Appointments Committee of the Chairman of CEPANI to order the joinder of a party to
arbitration proceedings. Domestic arbitration legislation may also address the issue of joinder. See e.g., English
Arbitration Act 1996, s. 35.
30
See D. St John Sutton, J. Gill and M. Gearing, Russell on Arbitration (23rd edn, 2007), para. 1-031.
31
CAS Code, arts. R41.3 and R41.4. See Hoch v. Federation Internationale de Ski and the International Olympic
Committee, CAS 2008/A/1513 (26 January 2009), para. 3.7.
32
CAS Code, art. R57.
 The Court of Arbitrationfor Sport 597

a full right to be heard on appeal is that any perceived procedural violations,

including alleged breaches of the European Convention on Human Rights, committed
by a first instance body are effectively rendered redundant on appeal. 33
Moreover, the potential problems associated with having only narrow grounds
of appeal, as opposed to the de novo appeals allowed at CAS, were highlighted in
CMS v. Argentina. The ICSID ad hoc committee in that case identified a series of
'errors and defects', 'lacunae and elisions' and 'manifest errors of law' with the
challenged arbitral award, but nevertheless largely upheld the award due to its
'narrow and limited mandate' conferred by the ICSID Convention. 34
Perhaps most significantly, without a full review of the facts and law, any
decision rendered by a CAS appellate panel would be unlikely to be considered
an international arbitration award, thereby depriving it of the benefits of
enforcement under the 1958 New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards. 35 This is due to the fact that the
disciplinary decisions that are appealed to CAS have usually been handed
down by bodies that are not completely independent. For instance, the I O C
Disciplinary Commission, whose decisions are occasionally referred to CAS, is an
organ of the IOC. Thus, in order to avoid a CAS award being tarnished by any
lack of independence associated with the challenged decision of a first instance
disciplinary body, any appeal to CAS should continue to be conducted on a de
novo basis.

(f) Time Limits

The CAS Code does not stipulate a standard timetable for the resolution of
matters referred to the Ordinary Arbitration Division. Rather, much like
commercial arbitrations under the rules of other institutions, the procedure in the
Ordinary Arbitration Division for the filing of submissions and the conduct of
any hearings is determined by each panel once constituted. 36
In contrast, the CAS Code prescribes a relatively tight procedural timetable for
appeals. A party has only 21 days from receipt of a sports body's decision to file
an appeal with CAS. 37 The appellant must then file its first (and, in theory, only)
written submission, which is referred to as an Appeal Brief, and any supporting
evidence, 10 days thereafter. The respondent will then have 20 days from receipt
of the Appeal Brief to file an Answer containing its defence, any counterclaims
and all evidence intended to be relied upon. 38

33
Hoch v. Federation Internationale de Ski, supra n. 31 at para. 8.2.2.
34
CMS Gas Transmission Co. v. Argentine Republic, ICSID Case no. ARB/01/8, para. 158, Decision on Annulment
(25 September 2007), available at icsid.worldbank.org (last accessed 1 October 2009). Argentina's complaints
regarding the tribunal's analysis of the relevant investment treaty's umbrella clause led to a partial
annulment of the award.
35
See]. Paulsson, Arbitration of International Sports Disputes' in (1993) 9(4) Arb. Int'l 359.
36
CAS Code, arts. R44.1 and R44.2.
37
Ibid. art. R49. The 21 -day limit is subject to any time limit set out in the statutes or regulations of the sports
body whose decision is being appealed.
38
Ibid. arts. R51 and R55.
598 Arbitration International, Volume 25 Issue 4

The arbitrators in the appellate division are expected to move almost as

quickly as the parties that appear before them. CAS panels are required to
consider the parties' arguments and evidence relied upon, hold any hearings and
hand down a decision, all within four months of the filing of an appeal. 39
CAS ad hoc arbitrators are required to move even faster than their appellate
colleagues. As noted above, CAS ad hoc panels must determine a dispute within
24 hours of it having been submitted to CAS. 4 0

(g) Jurisprudence
Consistent with the practice at other arbitral institutions, the doctrine of stare
decisis is not formally recognised under the terms of the CAS Code. CAS
precedents are, nevertheless, becoming increasingly relied upon in the
determination of sports disputes by CAS panels. 41 It has even been suggested that
CAS jurisprudence is solidifying into a body of principles applicable to sports
disputes, or a lex sportiva. As stated by one CAS panel:

CAS jurisprudence has notably refined and developed a number of principles of sports law, such
as the concepts of strict liability (in doping cases) and fairness, which might be deemed part of an
emerging lex sportiva.4,2

(h) Confidentiality
The emergence of a lex sportiva has been facilitated by the publication of most
CAS awards emanating from the Appeals Arbitration Division. While the rules of
commercial arbitral institutions often provide that arbitral awards are to be
confidential unless the parties expressly agree otherwise, 43 the CAS Code
effectively reverses this rule (in the context of appeals) by providing that 'the
award, a summary and/or a press release setting forth the results of the
proceedings shall be made public by CAS, unless both parties agree that they
should remain confidential'. 44
Given that publication of a decision is usually in the interests of at least one of
the parties to a disciplinary dispute, a body of case law has developed, which can

39
Ibid. art. R59. There is, of course, scope for the President of the Appeals Arbitration Division to grant an
extension in time for the finalisation of an award.
40
CAS Ad Hoc Rules, art. 18.
41
For an overview of CAS jurisprudence, see R. McLaren, 'CAS Doping Jurisprudence: What Can We Learn'
in (2006) ISLR 4.
42
Norwegian Olympic Committee and Confederation of Sports, Thomas Alsgaard, Frode Estil and Kirsten Skjeldal v.
International Olympic Committee, CAS 2002/O/372, p. 19. See also, AEKAthens and SK Stasia Prague v. Union of
European Football Associations (UEFA), CAS 98/200, excerpted in Digest of CAS Awards (1998-2000), vol. II,
p. 38, at para. 156.
43
See e.g., Swiss Rules of International Arbitration, art. 43 and LCIA Rules, art. 30.
44
CAS Code, art. R59 (emphasis added). This rule only applies to matters submitted to the Appeals
Arbitration Division. For matters referred to the Ordinary Arbitration Division, the CAS Code provides
that: Awards shall not be made public unless the award itself so provides or all parties agree': CAS Code,
art. R43.
 The Court of Arbitrationfor Sport 599

be accessed and searched on the CAS website and in volumes that are
periodically published (although, perhaps, not as often as one might hope).

(i) Costs
Consistent with the commercial nature of the cases generally referred to the
Ordinary Arbitration Division, the costs of an ordinary CAS arbitration are
borne by the parties. 45
For the Appeals Arbitration Division, other than the Swiss FR500 paid by an
appellant upon the filing of its statement of appeal, the fees and costs of the
arbitrators and the administrative costs of the Secretariat are borne by CAS. 46
Similarly, the services of the CAS Ad Hoc Division, including its arbitrators, are
provided free of charge to the parties. 47
While parties remain liable to pay their own costs, 48 and potentially those of
their opponent, 49 losing parties in practice (at least in the Appeals Arbitration
Division) are rarely required to pay anything more than a fraction of the
prevailing parly's costs.
The decision handed down by the CAS panel that considered the appeal
lodged by Floyd Landis, however, may serve as a beacon for future appellate
panels. A CAS panel chaired by David Williams Q C dismissed Mr Landis' appeal
with costs. Among the stated reasons for the US$100,000 costs order imposed
against Mr Landis were his failure to eliminate any of the unsuccessful challenges
he made before the first instance tribunal constituted by the AAA and his
decision to pursue serious allegations of misconduct without sufficient evidence. 50

(j) Appeals and Enforcement

Notwithstanding the existence of an appellate procedure within CAS itself, CAS
awards may be challenged before a national court. The fixing of a common seat,
however, means that, as noted above, only the Swiss Federal Tribunal has the
authority to entertain such challenges.
And while CAS awards may on occasion require the intervention of a court
other than the Swiss Federal Tribunal for enforcement purposes, most CAS
awards are effectively self-enforcing. This is because the majority of CAS awards
relate to disciplinary matters, which rarely require the imprimatur of a national
court in order to be enforced. By way of illustration, the I O C does not need the
aid of an enforcement court to withhold medals or accreditation for future
Olympic Games from an athlete found to have engaged in doping.
Even for non-disciplinary disputes, enforcement of a CAS award is facilitated
by the contractual matrix that is often found to exist between athletes, their clubs

45
Ibid. arts. R64.1-R64.5.
46
Ibid. arts. R65.1-R65.2.
47
CAS Ad Hoc Rules, art. 22.
48
CAS Code, arts. R64.3 and R65.3, and CAS Ad Hoc Rules, art. 22.
49
Ibid. arts. R64.5 and R65.3.
50
Fhyi Landis v. United States Anti-Doping Agency, CAS 2007/1/1394 (30 June 2008).
600 Arbitration International, Volume 25 Issue 4

and regional and international sports bodies. For example, FIFA, the world
governing body for football, could theoretically prevent Brazil from competing in
the FIFA Football World Cup if one of its clubs refused to honour a CAS award
in light of the contractual arrangements between FIFA and its constituent
members.
As a result, there has been near universal compliance with CAS awards.
For all its success, however, the CAS system is not perfect. Like all other
systems of arbitration, it certainly could be improved, as considered in the next
section.

I V H U R D L E S T O BE C L E A R E D

(a) Application of Different Laws Depending on which Sports Body has Taken Action
Most commercial arbitral institutions do not prescribe specific substantive laws to
be applied by tribunals in the resolution of a dispute. 51 In contrast, the CAS Code
prescribes that, for cases submitted to the Ordinary Arbitration Division, the law
that will be applied by default in the absence of an agreement on applicable law
having been reached by the parties will be Swiss law.52
The CAS Code stipulates a different choice of law rule for matters referred to
the Appeals Arbitration Division. In the absence of the parties having agreed the
applicable rules of law, article R58 of the CAS Code requires appeal panels to
apply the law of the place of domicile of the sports body whose decision is being
challenged or, in exceptional circumstances, other rules of law considered
appropriate for the determination of an appeal. 53
Thus, for disputes relating to sports bodies domiciled outside of Switzerland,
the default law to be applied by a CAS panel in the absence of an agreement
between the parties will, curiously, depend on whether the matter has been
referred to the Ordinary Arbitration Division or the Appeals Arbitration
Division; this despite the fact that the assignment of a matter by the CAS Court
Office to either division 'may not be contested by the parties or raised by them as
a cause of irregularity'. 54
The picture is further complicated by the CAS Ad Hoc Division having its
own choice of law rule. Article 17 of the CAS Ad Hoc Rules provides:

51
By way of illustration, art. 34.1 of the Australian Centre for International Commercial Arbitration (ACICA)
Arbitration Rules provides that an ACICA arbitral tribunal shall apply the substantive law designated by the
parties, failing which, the rules of law the tribunal considers applicable. See also, ICC Rules, art. 17.
52
CAS Code, art. R45 provides: 'The Panel shall decide the dispute according to the rules of law chosen by
the parties or, in the absence of such a choice, according to Swiss law'.
53
CAS Code, art. R58 provides that appeal panels 'shall decide the dispute according to the applicable
regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the
law of the country in which the federation, association or sports-related body which has issued the
challenged decision is domiciled or according to the rules of law, the application of which the Panel deems
appropriate. In the latter case, the Panel shall give reasons for its decision'.
54
CAS Code, art. S20.
 The Court of Arbitration/or Sport 601

The panel shall rule on the dispute pursuant to the Olympic Charter, the applicable regulations,
general principles of law and the rules of law, the application of which it deems appropriate. 5 5

In the words of one commentator, each of these sources of law, with the
possible exception of the last, are 'transnational, universal, global [and] their
application is not dependent on a territorial nexus, nor is it restricted
territorially'. 56
While some may question the appropriateness of having a different choice of
law rule in each of the three CAS Arbitration Divisions, more concerning is the
fact that the CAS Code can lead to multiple appeals in relation to the same event
being governed by different laws, as illustrated recently in a series of cases
involving Austrian athletes.
During the course of the Olympic Winter Games in Turin in 2006, the Italian
police discovered a virtual medical laboratory in the accommodation of some
Austrian athletes and that of their support staff. Besides the inquiries undertaken
by the Italian criminal authorities, numerous independent sports bodies,
including the Austrian Ski Federation, the I O C , the World Anti-Doping Agency
(WADA) and the Federation Internationale de Ski (FIS), subsequently investigated
the matter and imposed sanctions against those found to have been implicated.
Many of those decisions were subsequently appealed to CAS. While the
underlying circumstances of the appeals remained largely the same, the governing
law applied by each CAS panel depended upon the domicile of the sports body
whose decision was being challenged. Thus, the appeal of the decision rendered
by the Austrian Ski Federation against one of its athletes was governed by
Austrian law,57 whereas Swiss law was applied by the CAS panels tasked with
reviewing the decisions made by the I O C 5 8 and FIS. 59
Arguably, the application of different laws in this manner in relation to cases
arising out of the same factual matrix compounds the risk of inconsistent
decisions, which, in turn, risks damaging the credibility of the institution.

(b) Reforms to the Structure of the CAS Code

The structure of the CAS Code itself may also need to be revisited. In its current
form, a number of general provisions applicable to all CAS arbitrations are first
enumerated. Thereafter, the provisions applicable to the Ordinary Arbitration

55
CAS Ad Hoc Rules, art. 17.
56
Prof. G. Kaufmann-Kohler, Identifying and Applying the Law Governing the Arbitration Procedure: the Role of the Law of
the Place of Arbitration, ICCA Congress Series No. 9 (Paris/1999) (Kluwer Law International), p. 336, at p. 348.
57
Johannes Eder v. Ski Austria, CAS 2006/A/1102 (13 November 2006) (the panel upheld the one-year ban
imposed against Mr Eder by the Austrian Ski Federation).
58
Pinter, Tauber and Eder v. International Olympic Committee, CAS 2007/A/1286, 1288 and 1289 (4 January 2008)
(the panel confirmed the lifetime bans handed down by the IOC); Diethart v. International Olympic Committee,
CAS 2007/A/1290 (4 January 2008) (the IOC lifetime ban for Mr Diethart was reduced to four years).
59
International Olympic Committee and World Anti-Doping Agency v. Federation Internationale de Ski and Pinter, CAS 2007
A/1434 and 1435 (20 November 2008) (FIS's decision to exonerate Mr Pinter was replaced with a four-year
ban); Hoch v. Federation Internationale de Ski and the International Olympic Committee, CAS 2008/A/1513
(26 January 2009) (the lifetime ban from FIS events imposed on Mr Hoch was reduced to 15 years).
602 Arbitration International, Volume 25 Issue 4

Division are listed, followed, in a separate section, by those applicable for appeals.
The difficulty is that panels sitting in the Appeals Arbitration Division have been
known to rely upon provisions that fall within the section of the CAS Code
entitied 'Special Provisions Applicable to the Ordinary Arbitration Division' (such
as those dealing with the joinder and intervention of third parties and the
production of documents) without their authority to do so being entirely clear.

(c) Open Proceedings for Disciplinary Matters

Finally, CAS may wish to consider breaking new ground by declaring
proceedings in the Appeals Arbitration Division open to the public unless both
parties agree otherwise. Such a move would improve the transparency of the
proceedings, discourage unmeritorious claims and appeals, help develop the
profile of CAS, and spread important messages about such things as the fight
against doping.