Sports Arbitration: An Introduction to the Court of Arbitration for Sport

This is the second article in Clyde & Co’s international arbitration series covering the topic of Sports Arbitration. In this piece Partner and CAS arbitrator Chris Murray and Associate Alexander Stewart provide an overview of CAS and explore some of its recent controversies.

The Court of Arbitration for Sport (CAS) has been the primary sports arbitral institution globally since its establishment in 1984. CAS was created by the then International Olympic Committee President Juan Antonio Samaranch to be a specialist body to resolve sports disputes. Since then, CAS has grown dramatically and it now handles sporting disputes of all kinds. A large number of the most high-profile sports disputes have been decided by CAS – including Man City overturning UEFA’s sanction for breach of financial rules, Maria Sharapova’s doping ban and Gibraltar’s accession into UEFA and FIFA. 

This article provides an introduction to CAS with an overview of its procedural rules, closed arbitrator list and issues with enforceability of CAS arbitration agreements.

CAS Procedural Rules

As with any arbitral institution (including Sport Resolutions as detailed in the previous article in this series), CAS has its own set of procedural rules. The rules provide for two different arbitral procedures: the ‘Ordinary Arbitration Procedure’ and the ‘Appeal Arbitration Procedure’. The rules confirm that all CAS arbitrations are seated in Lausanne, Switzerland, where CAS is based.

The appeal procedure is a notable feature of CAS arbitration and makes up the bulk of CAS’s case load. Unlike commercial arbitral institutes, CAS generally acts as an appeal body. Sports governing bodies when dealing with regulatory disputes with athletes, for example on anti-doping, will often have their own disciplinary procedures. If an athlete (or governing body) wishes to appeal against any decision taken as a result of those procedures, the appeal will often be made to CAS, who act as the final arbiter on the dispute.¹

In both the ordinary and appeal procedures, the parties file written submissions and can adduce evidence in support of their case. Such evidence can be documentary or witness (both fact and expert). The arbitration will usually culminate in an oral hearing; however, the tribunal does have the power to decide not to hold a hearing if it considers itself sufficiently well informed.

The timetable for any arbitration is to be decided by the tribunal. CAS arbitrations may need to be conducted in narrow timeframes. For example, in football certain decisions will need to be reached prior to the conclusion of seasons (or the commencement of transfer windows) or if an athlete is challenging a selection decision for a particular tournament, such a decision will need to be reached prior to that tournament commencing – as illustrated by the case study below. In these circumstances, deadlines are often strictly enforced by CAS tribunals – meaning that if a deadline for a submission is missed, such a submission is likely to be struck out. This can be contrasted with commercial arbitrations where tribunals can afford parties some leeway if (for example) they file a submission very shortly after a given deadline. 

The Closed Arbitrator List 

CAS has a closed list of arbitrators from which its tribunals are formed. One cannot be selected as an arbitrator in a CAS arbitration unless they are on the closed list. The idea behind the list is to ensure that all the arbitrators have the requisite expertise to handle sports disputes. Sports disputes raise unique challenges that arbitrators need to be well versed in, and so by having a closed list, CAS ensures its arbitrators have the necessary level of sports expertise.

One of the authors of this article is a CAS arbitrator. He has particular expertise in swimming, water polo and sports agent disputes – accordingly most of his appointments to CAS tribunals have been in those fields. Other CAS arbitrators will typically have a specific sporting expertise of their own – be it football, anti-doping, athletics, tennis etc.

This is not to say that the closed list has not faced criticism. The existence of a closed list necessarily limits parties’ choice with respect to its arbitrator. As at the date of this article, there are 464 arbitrators in total across all of the CAS lists. This can be contrasted with commercial arbitrations where parties have free choice (subject to conflicts) of arbitrators. 

Further, the appointment process for arbitrators to the CAS list can be opaque and so, those looking in from the outside, have limited information on the criteria through which CAS selects its arbitrators. This opacity has led to criticism of CAS. CAS’ selection process can be contrasted with the Sport Resolutions panel of arbitrators where arbitrators are selected to the panel for 3 year terms, with a public application process where the selection criteria is clearly outlined. 

In the author’s experience, a key aspect of the selection process for CAS is the quality of the prospective arbitrator’s sponsors. This approach ensures that CAS can maintain the quality of its arbitrators by ensuring that no one is selected unless high profile and important individuals from the sport and legal world are willing to sponsor them. This does not, however, resolve the opaque nature of the selection process.

Enforceability of CAS Arbitration Agreements

CAS arbitration agreements are often found in the applicable governing rules for any sport (at either a national or international level) – most prominently both the Olympic Charter and the Word Anti-Doping Code contain CAS arbitration agreements. Clubs and athletes usually agree to sign up to the rules of the applicable governing bodies in order to compete and participate in tournaments. By signing up to the applicable rules, clubs and athletes are, also, agreeing to CAS arbitration to resolve disputes.

This has led to criticism of CAS arbitration agreements. Namely, that these arbitration agreements are compulsory rather than forming part of a contract freely entered into between parties. The European Court of Human Rights (ECHR), in Mutu and Pechstein v Switzerland (Application Nos 40575/10 and 67474/10), confirmed that the CAS arbitration clause in respect of Ms Pechstein was compulsory, as she either had to accept CAS arbitration or she could not compete in her chosen profession (skating). 

Nonetheless, despite their apparent compulsory nature, CAS arbitration agreements have generally been found to be enforceable and upheld. In particular, the ECHR in Mutu and Pechstein did not state the arbitration agreement was unenforceable, merely that the arbitration proceedings needed to afford the safeguards of Article 6(1) (right to a fair trial) of the European Convention on Human of Rights (the Convention). The ECHR also confirmed that CAS procedures regarding the appointment of an arbitrator are compliant with the Convention.

However, on 21 December 2023, the Court of Justice of the European Union (CJEU), in International Skating Union v European Commission (Case C-124/21 P), issued a judgment that may have a profound impact on CAS arbitration agreements. The International Skating Union (ISU) had appealed against a decision by the European Commission in 2017 that the ISU’s eligibility rules violated EU competition law. The Commission had, also, decided that compulsory and exclusive CAS arbitration agreements reinforced the competition law violation. The CJEU in its judgment upheld the Commission’s decision.

The CJEU’s judgment is not going to see CAS arbitration agreements overturned wholesale. It is restricted in scope to competition issues. Further, the compulsory nature of CAS arbitration agreements was not the mischief that led to the CJEU’s decisions, rather that CAS arbitration agreements prevent EU member states courts and competition tribunals from deciding on matters of EU public policy (such as competition law). CAS arbitration agreements remain likely to be deemed enforceable in respect of the vast majority of sports disputes.

Nonetheless, the number of athletes and clubs seeking to bring challenges against governing bodies on the grounds of competition law violations is growing. On the same the day as International Skating Union, the CJEU issued its judgments in European Super League Company v FIFA and UEFA (Case C-333/21) and Royal Antwerp v Union Royale Belge des Societes de Football Association (Case C-680/21). Both cases related to challenges to football governing body rules on competition grounds. This trend of raising competition complaints potentially indicates a future in which the enforceability of CAS arbitration agreements is brought under more scrutiny.

Case Study

Manchester City and UEFA’s dispute from 2019 - 2020 regarding alleged breaches of UEFA’s financial rules provides a useful case study of CAS arbitrations. 

In 2018, a series of articles were published by news outlets, notably Der Spiegel, making various allegations regarding Manchester City’s finances – some of the allegations were based on leaked documents obtained via hacking. A key allegation in this regard was that Manchester City had disguised equity funding from its ownership as third party sponsorship deals.

In March 2019, UEFA opened an investigation into Manchester City on the basis that these reports and leaked documents evidenced breaches of UEFA’s financial rules. 

In February 2020, UEFA concluded its investigation and found Manchester City in breach of various UEFA financial rules. Manchester City was banned from UEFA competitions (ie the Champions League) for two seasons and fined EUR 30,000,000.

Manchester City appealed to CAS 10 days after the decision was issued. CAS issued its award on 13 July 2020. CAS partially upheld Manchester City’s appeal and found that the majority of the breaches alleged by UEFA were time barred. As a result, CAS overturned the ban on Manchester City competing in UEFA competitions and reduced the fine to EUR 10,000,000. 

These CAS proceedings highlight the ability of CAS to be flexible and expeditious to suit the particular circumstances of a given sport. The qualifying rounds of the Champions League commenced for the 2020/21 season on 17 July 2020 with the main competition commencing in October 2020. The CAS tribunal was able to hear the entire arbitration and issue its award in under 5 months. This enabled the issue of Manchester City’s eligibility to be resolved in sufficient time prior to the commencement of the 2020/21 Champions League. There is no guarantee other institutions or tribunals would have been able to achieve the same result. 

Conclusion

CAS has been the pre-eminent arbitral institution for sports disputes globally since its inception in 1984 and it seems set to stay that way for the foreseeable future. It has significant expertise in sporting disputes and its procedures are flexible enough to tackle the unique demands of sport. However, that is not to say that it does not face challenges. In particular, regarding the opacity of its closed list of arbitrators and the enforceability of its arbitration agreements in respect of competition law disputes. 

The series continues next week with a perspective from Paris.

¹ Assuming the governing body’s rules provide for CAS arbitration.