DLA Piper
by Gitanjali Bajaj, Gigi Lockhart, Carol Lin, and Taut Anusaitis – DLA Piper
Introduction
With the Paris 2024 Olympic Games just around the corner, and the UEFA European Football Championships just concluded, sports-related dispute resolution forums are also in the spotlight. Olympic committees, sports’ governing bodies, athletes and all manner of sports’ stakeholders are looking to ensure that disputes are resolved expeditiously so that athletes can complete their training and ‘go for gold’.
The Court of Arbitration for Sport (CAS) is the premier body at the centre of international sports dispute resolution. CAS primarily uses arbitration to resolve disputes with a nexus to sport, and also offers a panel of mediators to assist parties in resolving both contractual and disciplinary-related matters. CAS’ broad jurisdiction, international panel of arbitrators, sound arbitral procedures and ad hoc divisions are all attributes which contribute to a forum capable of effectively resolving a diverse range of sports-related disputes. The forum therefore goes a long way to safeguarding the interests of athletes, maintaining the integrity of elite sporting competitions, and as expected by any arbitral framework, upholding the principles of procedural fairness.
This article provides an overview of CAS’ jurisdiction and procedure and demonstrates these in action through two case studies: one involving elite swimmer, Lia Thomas’ ineligibility for selection for the Paris Olympics, and the other involving the potential disqualification of the USA and Dominican Republic 4 x 400 relay teams from the 2020 Tokyo Olympics. Given the public importance of some of the disputes that come before CAS, the article discusses areas that may serve to enhance CAS’ reputation as the ‘Supreme Court’ of international sport.[1]
Back to basics: Overview of CAS
Established in 1984, CAS has a broad jurisdiction to resolve sports-related disputes in accordance with the Code of Sports-related Arbitration 2023 (Code). CAS is administered by the International Council of Arbitration for Sport (ICAS), which is primarily responsible for safeguarding the independence of CAS, its arbitrators and the rights of the parties.[2]
The ICAS consists of 22 members, 14 of which are appointed by various international sports governing bodies and their associations, namely the:
- International Federations, which appoint six members;
- Association of the National Olympic Committees (NOCs), which appoints four members; and
- International Olympic Committee, which appoints four members.[3]
These 14 members appoint four more members, and the group of eighteen members then select two additional members from outside the International Federations, NOCs and the International Olympic Committee. The representation of various sports governing bodies within ICAS is critical to its integrity and workability as ICAS not only administers and finances CAS, but also controls the appointment of arbitrators to CAS (discussed further below).[4]
CAS comprises three main divisions, namely the:
- Ordinary Arbitration Division (Ordinary Division), which hears disputes at first instance between parties with a valid arbitration agreement nominating CAS as the forum for dispute resolution;
- Appeals Arbitration Division (Appeals Division), which resolves appeals concerning decisions of sports-related bodies insofar as the statutes or regulations of the relevant body or specific agreements so provide; and
- Anti-doping Division, which resolves disputes related to anti-doping matters as a first-instance or sole instance authority.
CAS’ tri-divisional framework is significant because it facilitates appeals both from the Ordinary Division and from decisions of other sporting organisations. For instance, decisions of the internal dispute resolution mechanisms at World Athletics and the International Tennis Federation can be brought before the Ordinary Division by agreement under R39 of the Code or appealed in the Appeals Division under R47.
In special circumstances, such as in the lead up to, and during, an Olympic Games,[5] Commonwealth Games, FIFA World Cup tournaments,[6] or UEFA European Football Championships,[7] specialist ad hoc divisions of CAS are established to deal with more pressing disputes in an expedited manner. This helps to prevent disruption to athletes’ ability to compete. Relevantly, in the case of the upcoming Paris 2024 Olympic Games, the ad hoc divisions are permitted to determine, “…any disputes covered by Rule 61 of the Olympic Charter, insofar as they arise during the Olympic Games“[8] or in the ten days preceding the Opening Ceremony of the Olympic Games.[9]
1. Jurisdictional framework
Broad jurisdiction
A primary advantage of CAS over other sporting organisations’ internal dispute resolution mechanisms or national tribunals is that CAS has a broad jurisdictional scope. Issues that can be brought before CAS include selection disputes, disciplinary actions, anti-doping matters, television broadcast rights and transfer regulations.[10] Given its broad jurisdiction, CAS is therefore well-placed to resolve the full spectrum of sports-related disputes for all stakeholders, including athletes, coaching staff, officials, sports’ governing bodies, media organisations and sponsors. Like any other international arbitral award, the successful party in a CAS arbitration may seek to enforce its award in accordance with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
Seat of Arbitration
CAS differs to many other international arbitration forums however in that the seat of all arbitrations is prescribed as Lausanne, Switzerland and not left to party choice.[11] By fixing the seat of arbitration to Lausanne, the Code arguably removes some level of party autonomy, but simultaneously offers parties procedural consistency and predictability in international sports dispute resolution. This has the effect of removing the inefficiencies of forum shopping that might arise in other arbitral institutions.[12] Therefore, regardless of whether an Arbitration Panel ‘hears’ the dispute at CAS’ offices in Lausanne, Sydney, or New York City therefore, parties can be certain that Swiss procedural law will apply.
Substantive Law
The law applicable to the merits of the dispute will, however, vary across CAS’ divisions, with the arbitration panel deciding the dispute “…according to the rules of law chosen by the parties, or in the absence of such choice, according to Swiss law.”[13] Given the nature of the parties involved in these disputes, there can however be instances that question whether the party affected did in fact have a choice in relation to the applicable law governing its dispute. For instance, a renowned International Federation, World Aquatics (which accords CAS exclusive jurisdiction over anti-doping and some selection disputes) specifies that its Constitution and rules will apply to those disputes, supplemented by Swiss law.[14] This means that any individual who participates in competitive swimming, whose association is a member of World Aquatics and finds themselves in a dispute before CAS, will be bound by World Aquatics’ rules. This is discussed in Lia Thomas’ case study below.
2. Appointment of arbitrators
CAS maintains a closed list of international arbitrators (List of Arbitrators) who are legally trained, have recognised competence in sports law and / or international arbitration, and have a general knowledge of sport.[15] The List of Arbitrators consists predominantly of legal practitioners and bureaucrats whose sporting knowledge is derived from their legal specialisation or appointments to sporting bodies or organisations, and for a select few, prior participation as elite athletes.
Parties to CAS arbitrations are only permitted to appoint arbitrators from the List of Arbitrators.[16] From that list, parties may appoint arbitrators to an arbitration panel in accordance with the usual process for appointing arbitrator, i.e. by agreement where there is one arbitrator, and with each party-appointed arbitrator to appoint a President where there are three arbitrators.[17]
However, the fact that an arbitrator need only have a “good knowledge of sport in general” to be appointed to the List of Arbitrators leaves a small risk that the appointed arbitrator may lack the relevant specialist expertise to deliberate on an issue specific to a particular sport, scientific or technical matter in question. While this is a possibility, it generally should not impact on an arbitration panel’s ability to rule on all issues in dispute.
3. Timing of proceedings
The particularly unique feature of CAS is its expeditious resolution of disputes, taking as little as 24 hours to render a decision in the specialist ad hoc divisions. While the Ordinary Division typically follows the usual procedure and associated timing for commencing an arbitration, and filing submissions and evidence, the Appeals Division and ad hoc divisions place stricter time limits on arbitration processes to avoid major disruption to athletes’ preparation and competition.
When compared to other international arbitration forums, the Appeals Division has particularly short timeframes. To invoke its jurisdiction, an appellant must file a statement of appeal within 21 days of receiving the decision that it seeks to appeal. After that, pleadings and evidence are exchanged within 30 days, following which a hearing takes place.
The specialist ad hoc divisions deal with disputes even more expeditiously and are generally established as a dedicated dispute resolution mechanism for major sporting events. Arbitration panels in an ad hoc division typically must render a decision within 24 hours from the time a notice of arbitration is filed. Despite swift decision-making, the usual procedural requirements must still be complied with to ensure due process. This involves the parties filing their pleadings, giving written and if necessary, oral submissions, filing evidence and calling on witnesses to give evidence all within a 24-hour time frame. Given the ad hoc divisions are dedicated resources for a specific competition or tournament, the expedited process necessarily ensures that disputes keep pace with the competition and allow fixtures to continue as scheduled.
CAS(e) Studies
1. Lia Thomas Selection dispute: CAS’ jurisdiction and application of World Aquatics’ rules
CAS’ decision not to allow elite swimmer Lia Thomas to compete in the 2024 Paris Olympics demonstrates how the rules in relation to applicable law of a dispute are applied under the CAS Code.
Parties’ arguments
In 2023, Lia Thomas commenced proceedings in CAS’ Ordinary Division against World Aquatics. The thrust of her application was to overturn World Aquatics’ rules which prohibit an athlete who has undergone “any part of male puberty” from participating in the female swim category (WA Policy).[18] Ms Thomas, a transgender woman, initially made an application that the WA Policy was “invalid and unlawful“. However, CAS did not need to decide the merits of the case, as it first dealt with Ms Thomas’ ‘standing’ under World Aquatics’ rules to bring the proceedings in the first place, which CAS ultimately resolved, she did not have.
Following a successful bifurcation application by World Aquatics to deal solely with the issue of standing prior to the merits of the case, Ms Thomas sought a declaration from CAS that she did indeed have standing to compete on the basis that:
- she was a female member of USA Swimming, a subordinate organisation of World Aquatics and is eligible to compete in “Female Competition” pursuant to the USA Swimming policy;
- as USA Swimming is a subordinate federation of World Aquatics and subject to its guidelines, she was therefore subject to World Aquatics rules and had standing to challenge them; and
- it was irrelevant that she was not a member of USA Swimming at the time of initiating the proceedings.
World Aquatics sought to dismiss the proceedings on the basis that:
- the WA Policy only applied to athletes who were already members of World Aquatics’ national member federations, such as USA Swimming;
- Ms Thomas did not satisfy the eligibility requirements for “Elite Events” and had not performed in a domestic “Elite Event” capable of qualifying her for an International Team Selection Event; and
- Ms Thomas had not submitted an application to the USA Swimming panel to be approved for such events.
Applicable law on the Merits
The primary issue for the panel was the relevant applicable law that would govern the dispute. R45 of the Code stipulates that the rules of law governing the dispute are determined by agreement between the parties. Therefore, while no contract between Ms Thomas and World Aquatics existed in the strictest sense, World Aquatics’ rules, specifically its ‘Operational Requirements’, would automatically apply to Ms Thomas by virtue of her current membership of USA Swimming.[19] Relevantly, section A.1 of the Operational Requirements state that the Operational Requirements bind all individuals “subject to World Aquatics’ jurisdiction“,[20] and section F.3 specifies that any challenge or appeal would be “governed by the World Aquatics Constitution and other World Aquatics Rules (in particular, the Policy and these Operational Requirements), with the laws of Switzerland applying subsidiarily.”
Ms Thomas’ Standing
CAS then considered that the notion of standing to sue was a question of whether Ms Thomas had a claim on the merits according to the applicable law. Since the issue of standing related to the merits, the Arbitration Panel relied on World Aquatics’ rules and regulations, read with Swiss law.
Swiss civil procedural law carries the basic principle that a claimant has standing to sue, providing that person invokes a substantive right they derive from contract, tort or another source. CAS found that while Ms Thomas had become a member of USA Swimming by 5 January 2024, being before the bifurcation hearing, she had not registered to compete in any “Elite Events” within the meaning of the USA Swimming Policy. CAS held that unless and until an athlete is registered for a WA Competition by a member federation (USA Swimming), then the WA Policy had no legal effect on that athlete. Since Ms Thomas did not meet this precondition, her contest on the merits could not proceed and she could not compete in a WA competition to qualify for the Olympics.
Outcome
Ms Thomas’ case touches upon a key difference between arbitrations generally and CAS arbitrations with respect to party choice on applicable law. Given Ms Thomas’ ‘agreement’ to the WA Policy was condition precedent to her membership of USA Swimming, it is arguable that Ms Thomas did not have ‘party autonomy’ in electing the applicable rules of law governing the dispute (however, her filing the application is suggestive of her consent to the application of those rules).
2. Expedited hearing in a ‘field of play’ dispute at the Tokyo 2020 Summer Olympics
A decision of CAS’ ad hoc division for the 4 x 400m track relay race in the Tokyo 2020 Summer Olympics exemplifies how CAS’ expedited hearings can resolve ‘field of play’ disputes quickly to prevent disruptions to major sporting events. ‘Field of play’ decisions are challenges brought against Olympic officials and require quick turnarounds to ensure the Olympic Games run smoothly and in a timely manner. As a result, the decisions are limited to allegations of fraud, arbitrariness, or corruption in respect of officials’ decisions to prevent athletes attempting to appeal an outcome rather than addressing unfair treatment.
The facts in dispute were somewhat straightforward. During the 4 x 400m track relay race at the Tokyo 2020 Summer Olympics, the USA and Dominican Republic teams were disqualified due to an alleged illegal baton pass and switching lanes respectively. In the first instance, both teams appealed to the World Athletics Jury of Appeal, asserting the fault lay with the Olympics officials’ directions. Despite a challenge from NOC Belgium and NOC Netherlands Sports Federation, both teams were ultimately successful in their appeal and ran in the final race, leading to a silver medal for the Dominican Republic and bronze for USA. Following the race, the NOCs made applications to CAS’ ad hoc division to reinstate the original disqualification and overrule the final result.[21]
Ad hoc division’s jurisdiction
As outlined above, a specialist ad hoc division for an Olympic Games has exclusive jurisdiction over all disputes arising on occasion of, or in connection with, an Olympic Games.[22] Although the World Athletics Technical Rules provide that no appeal is available to CAS from the Jury of Appeal, the ad hoc division concluded that this rule did not preclude it from having jurisdiction pursuant to the Olympic Charter to deal with the matter as an ‘on field’ dispute. Given the urgency of disputes before the ad hoc division, the arbitration rules specific to the ad hoc division for the Tokyo 2020 Summer Olympics specified Swiss law as the rules of law governing procedural and substantive matters in dispute.[23] This helped to avoid contests to jurisdiction, which would distract athletes, officials and sports’ governing bodies from the competition.
Timeline of the expedited proceeding
The timing of the proceeding was critical to giving the athlete’s finality in the outcome of the races. It went something like this:
- At 8:22 pm on 31 July 2021: Following the Jury of Appeal’s decision to allow the Dominican Republic and USA to compete in the final race, NOC Belgium filed its application to appeal that decision.[24]
- At 9:00 pm on 31 July 2021: The race nonetheless took place and the Dominican Republic and USA were awarded silver and bronze medals respectively.
- At 11:49 pm on 31 July 2021: NOC Netherlands filed its application with respect to the same issues.
- Between 10:57 am and 11:05 am on 1 August 2021: The Respondents and the International Olympic Committee were notified of the proceedings.
- Over the next two hours: The ad hoc division appointed the arbitration panel which consolidated both applications and issued procedural directions, including a request that the parties inform CAS by 7:00 pm whether they considered it necessary to hold a hearing.
- At 5:01 pm on 1 August 2021: World Athletics filed its reply.
- Shortly after: Since none of the parties requested a hearing, the arbitration panel determined the issues on the papers and issued its award. Since the ad hoc division can only reach an adverse decision in a ‘field of play’ decision if there is an allegation of arbitrariness or fraud, and the NOCs made submissions solely on technical points regarding the competition, the arbitration panel did not find in their favour and the USA and Dominican Republic teams held on to their medals.
The rapid succession of procedural events demonstrates how the ad hoc division can efficiently resolve disputes in order to provide elite athletes with certainty during periods of intense competition.
Conclusion
As the case studies demonstrate, CAS is primed to tackle the majority of disputes arising in the global sporting context by offering athletes, sports’ governing bodies and other stakeholders a dispute resolution framework that is equipped to make fair decisions quickly. As we round the bend to the Paris Olympic Games, CAS’ ad hoc division remains the best option to challenge organisational decision-making while minimising disruptions to the state of play so that athletes can focus on the competition.
Now the legal analysis is out of the way, let the Games begin!
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Endnotes
[1] Johan Lindholm, ‘ A legit supreme court of world sports? The CAS(e) for reform’ (2021) 21 International Sports Law Journal 1.
[2] Code for Sports-related Arbitration 2023 (Code), S6.
[3] Code, S4.
[4] Code, S7.
[5] See for example, Arbitration Rules for the XXII Commonwealth Games in Birmingham 2022.
[6] See for example, Arbitration Rules for the FIFA Women’s World Cup Australia and New Zealand 2023.
[7] See Arbitration Rules for the UEFA EURO 2024 Final Round.
[8] Rule 61 of the Olympic Charter governs dispute resolution. Specifically, rule 61.2 provides that CAS has exclusive jurisdiction over any dispute arising on the occasion of, or in connection with, the Olympic Games.
[9] Arbitration Rules for the Olympic Games 2021, art 1.
[10] The rules governing the employment and transfer of athletes from one organisation to another.
[11] Code, R28.
[12] See Raguz v Sullivan (2000) 50 NSWLR 236.
[13] Swiss law can also govern substantive disputes in the Ordinary Division, Code, R45.
[14] World Aquatics, By-laws 2023, r 4.2.5; World Aquatics, Operational Requirements in relation to World Aquatics’ Policy on Eligibility for Men’s and Women’s Competition Categories, F.3.
[15] Code, S14.
[16] Commentators consider the List of Arbitrators is a ‘closed’ list because arbitrators not listed cannot be appointed to an Arbitration Panel in CAS, even if they possess the relevant expertise to deal with a highly specialised scientific or technical matter.
[17] Code, R40.2.
[18] CAS 2023/O/10000 Lia Thomas v. World Aquatics.
[19] World Aquatics, Operational Requirements in relation to World Aquatics’ Policy on Eligibility for Men’s and Women’s Competition Categories, F.1.
[20] World Aquatics, Operational Requirements in relation to World Aquatics’ Policy on Eligibility for Men’s and Women’s Competition Categories, A.1.
[21] CAS OG 20/10 NOC Belgium v World Athletics & USOPC & NOC Dominican Republic; CAS OG 20/10 NOC Belgium v World Athletics & USOPC & NOC Dominican Republic.
[22] Olympic Charter, r 61.
[23] Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games 2021.
[24] All times in this section are displayed in the time of Tokyo, Japan.