A data analysis of the arbitrators, cases and sports at the Court of Arbitration for Sport

Published 04 July 2019 By: Rustam Sethna

Gates of the Court of Arbitration for Sport

The focus of this report (Report) is to dissect the DNA of the CAS and look at the individuals responsible for the constantly evolving body of sports law (or lex sportiva) jurisprudence; namely, the closed list of arbitrators.

As one of the defining features of the CAS, the “closed list” is, in reality, more exclusive than in theory, with publicly available data pointing towards an “old boys club1 of sorts, though as the author discusses below there may be good reasons for what the data shows that reflect greater market and societal issues.

As will be seen from the analysis, the lingering question is whether diversity – be it age, gender or geography - among arbitrators can and ought to be compromised in the face of the “specificity of sport”.

Contents:

  • Introduction

  • Method and qualifications

  • Analysis:

  • Arbitrators

    • Representation by region:

    • Representation by nationality

    • Gender

    • Age

      • Range

      • Mean and mode

      • Age brackets

    • Appearances (published decisions)

    • The unappointed arbitrators (published decisions)

    • Legal tradition

  • Sports

  • Cases

    • Nature of dispute

    • Nature of Procedure

    • Case outcome

    • Subsequent appeals and their outcome

  • Conclusions and recommendations

Introduction

2018 was somewhat of a significant year in the almost 40-year existence of the Court of Arbitration for Sport (CAS); particularly in light of the landmark decisions of the Cour d’appel Bruxelles (Brussels Court of Appeal) in Doyen Sports Investments Ltd, RFC Seraing United & Others v. FIFA, UEFA, URBSFA & FIFPro (Seraing)2 and the European Court of Human Rights (ECtHR) in Adrian Mutu & Claudia Pechstein v. Switzerland (Pechstein)3.

The Seraing court found that the CAS arbitration clause found in the FIFA Statutes was vague and did not constitute a “defined legal relationship”, meaning that the Brussels Court of Appeal accepted jurisdiction and the ability to hear Seraing’s appeal against their third-party ownership (TPO) sanction4. However, in a press-release issued after the Brussels Court of Appeal decision, the International Council of Arbitration for Sport (ICAS)5, stated that the issue was merely with the wording of FIFA’s arbitration clause. Had the arbitration clause been more detailed, the Brussels Court of Appeal would have denied jurisdiction and upheld the CAS award. Nevertheless, this sent out a message to FIFA, arguably CAS’ biggest litigant, to amend its statutes, so as to avoid the risk of parallel proceedings and contrasting decisions issued by state courts.

The ECtHR, in Pechstein, found that the CAS panel in that instance, ought to have respected Claudia Pechstein’s right to a public hearing enshrined by Article 6 § 1 of the European Convention on Human Rights. This prompted a rule change to the Code of Sports-Related Arbitration (“CAS Code”) at the start of 2019, which now makes an allowance for public hearings. However, in what was termed as a “confirmation…that CAS is a genuine arbitration tribunal6, the ECtHR confirmed that the CAS fulfils the requirements of independence and impartiality despite its mandatory, closed list of arbitrators, which as of 13 April 2019, were 392 in number.

However, how many of these ~400 arbitrators are, in reality, active? In fact, at what stage is an arbitrator classified as “active”, to begin with? Is there a link between factors such as age, gender, nationality, and legal tradition and the number of times an arbitrator is appointed to a case at the CAS?

The following analysis seeks to address all these questions and more, subject to the qualifications below. In addition, analysis on the types of sport, nature of dispute together with the outcome and statistics on subsequent appeals have also been carried out.

Acknowledgements: The CAS and Its Jurisprudence (Book by Johan Lindholm)

While data presented through this report intends to provide a unique view of the CAS, it is important to acknowledge that such study is by no means novel, particularly in light of the recent book by Johan Lindholm titled “The Court of Arbitration for Sport and Its Jurisprudence: An Empirical Inquiry into Lex Sportiva7 (hereinafter, the “Book”).

While the Book presents a thorough and detailed analysis of the many facets of the CAS, the aim of this Report is solely to present information that is publicly available on the CAS Database (see: Method and Qualifications below). Indeed, no analysis of a few pages can do justice to the ~350-page Book.

However, as will be seen below, the findings in this report are largely in line with those from the Book. Broadly, both the Book and Report highlight:

  1. The inequitable distribution of cases among arbitrators, with a small number of arbitrators delivering a disproportionately large number of CAS decisions8.

  1. The low representation of female, non-European and younger arbitrators.

Nonetheless, this Report also differs with the Book, albeit marginally. This is not to state that one approach is “better” than another, but to highlight that data relating to the CAS can be approached and analysed in different ways. For example:

  1. The main difference in approach between the Book and this Report is that the Book aims to study appointed arbitrators (i.e. no matter if they are no longer currently on the list)9 whereas this Report seeks to analyse appointable arbitrators (i.e. only those arbitrators who currently feature on the list; see “Method” and “Qualifications” below).

  1. The Book is based on a data set of publicly available CAS awards from 1985 to 2015. The data set for this Report is all CAS awards featuring a current arbitrator, as of April 2019 (see: “Qualifications” below).

Therefore, gratitude ought to be extended to Mr. Lindholm, whose publication has not only aided the analysis in this one, but also hopefully (together with this Report) brings to the fore, questions about the CAS which are often considered the “elephant(s) in the room”.

Finally, special thanks to Alessio Santosuosso, who ably assisted with gathering large quantities of data.

Method

It is important to note the approach adopted in drawing the facts, figures and conclusions below. This was done as follows:

The CAS DIssected Method

Qualifications

The analysis below is subject to the following qualifications:

  1. All data has been gathered from information that is publicly available on the Website; particularly from the following sources:

    1. the “general list” of Arbitrators found under the “arbitration” section of the Website; and

    1. the PDF list of “Arbitrators by Nationality” (updated as of 15 March 2019) found under the “arbitration” section of the Website.

  1. All data reproduced in this report is updated as of 13 April 2019.

  1. It is noted that the CAS does not publish all its decisions and the data reflected below might not be an entirely accurate reflection of the CAS case make-up.

  1. The age of each Arbitrator has been calculated based on his/ her age in the year 2019. All references to age in this report shall be construed as such.

  1. The total number of Arbitrators considered for this analysis is 392. There is one Arbitrator who has been listed on the PDF, but not on the Website. His/ her details have been included for the purposes of this analysis, nonetheless.

  1. Only current Arbitrators have been considered for the purpose of this analysis. Details of former Arbitrators who have had cases published on the Database have not been considered, even if those cases might have featured current Arbitrators on the same panel(s).

  1. As such, the analysis below is not of every published decision but rather of every published decision featuring a current Arbitrator.

  1. The analysis seeks to count the service of an Arbitrator on any case in any role, and not necessarily only as the president of a panel.

  1. The count of published decisions per Arbitrator has been retrieved solely from the Database and does not include appearances in Awards which are published by other means (for e.g. by WADA, party representatives or parties themselves), and found via a general internet search, which is often the case.

  1. The sum of appearances by each current Arbitrator does not equal the sum of cases heard by all current Arbitrators (because every published decision rendered by a panel will feature three Arbitrators).

  1. There are several Arbitrators with 0 appearances. However, some arbitrators are recognised in the drop-down menu in the Database search-box while there are others which the Database does not recognise. For the purpose of this analysis, these have been classified as “Listed” and “Unlisted” respectively.

  1. The data set in this Report does not include the following recent developments at the CAS:

    1. The publication of approximately 80 arbitral awards on 19 May 2019; and

    1. The update to the list of Arbitrators in June 2019.

Analysis - Arbitrators

Representation by Region:

Barring Antarctica, the CAS has empanelled Arbitrators from all regions of the world. The CAS classifies regions as follows: Europe, North America, Central America & Caribbean, South America, Oceania, West Asia and East Asia.

Unsurprisingly, the CAS list is dominated by European arbitrators, with a count of 210; that’s ~53% of Arbitrators.

The chart below depicts the split of Arbitrators across all regions.

arbitratorsbyregion

  • It is interesting that the distribution of Arbitrators by region almost mirrors the distribution of global wealth, with Europe and North America occupying the largest piece of the pie.

  • However, the emergence of Arbitrators from Asia is notable (almost on par with North America), although in reality, 72% of Arbitrators from West Asia and 59.37% of Arbitrators from East Asia have never had a single (published) case (see: “Unappointed Arbitrators” below).

  • Shares of Oceania and Africa are inversely proportionate to the territory they occupy. This perhaps sheds light on the lack of professionalisation of sport and sports governance in Africa as opposed to sophisticated structures within Australia, known to be a sporting powerhouse.

Representation by Nationality:

As is the case with the range of regions represented, Arbitrators represent a total of 85 countries across the globe. That’s ~44% of all countries recognised by the United Nations. On the face of it, this equals to a simple average of 4.6 Arbitrators per country. However, the distribution of Arbitrators across nationalities is in reality more inequitable, with the top 10 countries (i.e. ~11%) represented by 210 Arbitrators (~53%), and only 9 countries represented by more than 10 Arbitrators.

The 10 countries with the most arbitrators are as follows10:

The CAS DIssected Representation by Nationality

Unsurprisingly, the “mode”, or the most commonly occurring number of arbitrators per country, is 111. 30 different countries are represented by 1 Arbitrator each.

Gender

Of the 392 Arbitrators, 348 are male, and just 44 are female, with a clear majority of females coming from Europe (25), followed by North America (9), Asia (5) and Oceania (4).

Notably, Africa and South America remain unrepresented by females while Central America and the Caribbean is represented by just 1. However, this Arbitrator, Ms. Margarita Echeverria Bermudez from Costa Rica has the highest number of female appearances (published cases) at the CAS, with 29 cases (see: “Appearances” below).

As for males, the most represented region is (unsurprisingly) Europe (185), with the least represented being Central America and the Caribbean (6).

The eldest female Arbitrator (89), originates from Poland, with 8 published cases; while the youngest female Arbitrator (37) is a Ukrainian, with no published cases. The eldest male Arbitrator (92) is 3 years older than the eldest female Arbitrator and the youngest male Arbitrator (33) is 4 years younger than the youngest female Arbitrator. The average female Arbitrator is aged 56. Interestingly, the average male arbitrator is 6 years elder (62) to the average female (56), perhaps pointing towards greater gender diversity over recent years. (see: “Age” below).

The average number of published cases among females is 2.93, as opposed to the male average of 9.15, meaning that males on average are appointed 3 times as often as females. However, this figure shows that females on average outperform their male counterparts, as there are almost 8 times as many males on the CAS list.

Age

Range

Arbitrators at a CAS display an impressive age range of 59 years (1927 – 1986). The eldest Arbitrator (92) is from Australia, while the youngest, who hail from Slovakia, Ecuador and Saudi Arabia are each aged 3312. It is interesting to note that each of these youngest Arbitrators come from countries which are not among the “conventional”, dominant nationalities represented at the CAS, pointing perhaps towards greater diversity among the emerging set of Arbitrators (see: “Representation by Nationality” above).

Mean and mode

The average age among Arbitrators is 61 (i.e. born in 1958). That’s just 4 years shy of the global average retirement age of 65 for males and 63.5 for females13.

The "mode" among Arbitrators is 62 (i.e. born in 1957), meaning the highest number of Arbitrators on the list having the same age is 18 (15 male, 3 female). For the sake of completeness, there are 14 aged 67, 13 aged 56, and 12 Arbitrators each with 76, 71, 63 and 51 years of age.

Age brackets

As shown alongside, 309 out of 392 Arbitrators are 50 years of age or older (almost 80% of Arbitrators on the list), with 206 of them between age 50 and 70 (i.e. more than 50%).

However, it is interesting to note that 83 Arbitrators (~21%) are aged 40 or younger, while only 28 (~7%) are aged 80 or above. This points towards the emergence of the next generation of CAS Arbitrators.

The CAS Dissected Age Bracket

 

Appearances (published decisions)

The Arbitrators have collectively made 3,314 appearances between themselves14. That averages out to ~8 published decisions per Arbitrator.

Furthermore, the “median15 number of published cases is just 1, and the “mode16, 0; with 163 Arbitrators (~42%) who have never had a published decision.

This is further evidence that across a scale of 392 Arbitrators there is a glaring concentration of cases in the hands of a small percentage of Arbitrators. However, and as observed below (see: Recommendations and Conclusions), the appointment of Arbitrators is largely a party-driven process, and parties would be expected to appoint experienced and seasoned arbitrators/ lawyers with an expertise in sport to serve as factfinders in their cases.. However, with that being said, no Arbitrator aged 40 or below has more than 1 published award to their name.

The chart below shows the 20 Arbitrators with the most published decisions. Co-incidentally, the top 20 Arbitrators are those with more than 50 published decisions each, averaging 89.5 cases between themselves, more than 10x the general average of ~8. The average age among these arbitrators is ~64, which is higher than both, the general average (61) and the male average (62). All 20 Arbitrators are male. 19 are European with 1 North American.

In short, 5% of the Arbitrators, have been involved with ~54% of CAS’ published decisions (including appearances as “wings” and those as president). The specifics have been captured graphically, below.

top20arbitrators

belowaverageaboveaverage

Thus, it is evident from the figures above, that not all Arbitrators are “active”. But at what number of published decisions can an Arbitrator be considered to be active? Given the subjectivity involved with answering this question, the more appropriate benchmark would be the average; and so the question would be how many Arbitrators are “above the average” (i.e. with more than 8 published awards)?

belowaverageaboveaverageRED 

The answer to that question is 74, meaning that just ~19% of Arbitrators occupy ~87% of the published case load (see: pie charts above).

Furthermore, the graph below aims to depict the disparity among Arbitrators, in terms of the count of published decisions. The higher the individual dots on the trendline below, the greater the count of published decisions per Arbitrator, corresponding to that number of published decisions. Therefore, there is an inverse relationship between the number of published decisions per Arbitrator and the count of that number of published decisions in that the lower the number of published decisions (X-axis), the higher the count of that corresponding number of published decisions (Y-axis).

spreadofpublisheddecisionsacrossarbitrators

The Unappointed Arbitrators (published decisions)

Given that 163 out of 392 Arbitrators (~42%) have never had a decision published, it is worth understanding if there is a verifiable link between their lack of appointment and factors such as age, gender and nationality.

The average age among these unappointed Arbitrators is 58, which is 3 years below the average age across all Arbitrators. However, the difference in average age is not vast, drawing the conclusion that there are also senior (and experienced) Arbitrators who have not been active at the CAS. This is further substantiated by the fact that the median age is 57 and the mode is 62; i.e. the same as the mode across all Arbitrators (see: “Age” above).

In terms of gender, ~58% of the 44 female arbitrators on the list have not had a single published decision to their name. This is depicted in the diagram alongside.

With respect to geography, more than 40% of Arbitrators from every region, except for Oceania (37%) and Europe (33%), have never had a single published case to their name (see: table below).

unpublishedfemaledecisions

At this juncture, it is equally important to account for the fact that since the CAS is based in Lausanne, the cost to parties of appointing Arbitrators from outside Europe would be considerably higher. This alone might offer a practical explanation as to why most cases are heard by European-based Arbitrators.

The CAS Dissected European Arbitrators

Legal Tradition

The varied legal backgrounds and perspectives that Arbitrators possess, coming from over 80 different countries across the world (see: “Representation by Nationality” above), is an important factor in determining the composition of CAS panels. For the purposes of this analysis, legal systems have been categorised as (a) civil law; (b) common law; (c) Religious law (e.g. Islamic law); or (c) a mixture (of civil law and common law, or of either civil or common law with religious or socio-political ideologies (for e.g. socialist law)).

As shown alongside, civil law arbitrators dominate the list (67%), with a common law background accounting for just 19%. 75% of the top 20 most appointed Arbitrators (see: “Published Decisions” above), have a civil law background. Indeed, it has been suggested that legal tradition may affect the approach of an Arbitrator and hence the outcome of proceedings, not least because of how civil and common law Arbitrators use precedent (which in civil law systems is persuasive at best, but binding under common law).

legaltraditionsatthecas

Therefore, while it is not uncommon for civil law and common law Arbitrators to appear together, it has been argued that “legal tradition, on a general level, appears to be an important factor with regard to with whom CAS arbitrators appear.”17

Analysis – Sports

According to R27 of the CAS Code, the CAS has the jurisdiction to hear all disputes which “involve matters of principle relating to sport or matters of pecuniary or other interests relating to the practice or development of sport and may include, more generally, any activity or matter related or connected to sport”, subject to a valid arbitration clause/ agreement.

Therefore, so long as a dispute has a link with sport, it may be heard by the CAS. However, apart from the obvious sports (no prizes for guessing what the dominant sport at the CAS is!), the CAS has, in its 38-year history, published cases involving disputes across 66 different sports, at an average of ~25 cases per sport.

Some of the more obscure of them are air sports, life-saving, Wushu and Sambo. That being said, the sports with the most published decisions are also among the world’s most popular.

These are:

  1. Football (914);

  2. Athletics (107);

  3. Cycling (86);

  4. Aquatics (60);

  5. Equestrian (45);

  6. Skiing (40);

  7. Weightlifting (38);

  8. Tennis (27);

  9. Basketball (25); and

  10. Hockey (24).

Football’s dominance is so evident, that there are almost 9 times as many cases as the second most published sport, Athletics, and twice as many as the remaining 9 of the top 10 sports, combined. In fact, Football’s 914 published cases is greater than that of the combined total of the other 65 sports!

Further, the top 10 sports account for more than 80% of published cases at the CAS.

publishedcasesbysport

Therefore, and notwithstanding the array of sports that the CAS has previously adjudicated upon, disputes are concentrated among a few widely practiced sports in reality. This is evidence of a positive and direct relationship between the (a) the popularity of a sport; (b) its commercial appeal; (c) the stakes at play; (d) the standard of regulation; and therefore (e) the room for disputes. However, and notwithstanding the global popularity and commercial appeal of football, there is something to be said about the dispute culture within the sport which is also a plausible explanation of the vast difference between other sports.

Analysis – Cases

Nature of Dispute

As mentioned above (see: “Sports” above) any dispute with a link to sport can be heard by the CAS. However, the CAS classifies disputes into 8 different categories. These are:

  • Contractual Litigation (except transfers) (Ct)
  • Disciplinary (except doping) (Di)
  • Eligibility (E)
  • Governance (G)
  • Nationality (N)
  • Transfer (T)
  • Other (X)

Unlike the split between sports, the CAS has published decisions dealing with the 8 types of disputes in a relatively even manner. The pie chart alongside shows that doping disputes is a front runner (29%), followed by contractual litigations (24%), disciplinary, transfer and eligibility cases (15%, 14% and 9% respectively).

This is interesting however, because even though football represents the most cases, only ~5% of published football cases are related to anti-doping matters (a question worthy of further exploration in its own right).

dopingdisputesisafrontrunner

Nature of Procedure

There are 5 different types of procedures that can be instituted before the CAS. These are:

  1. Ordinary: Ordinary procedures allow the CAS to resolve sports-related disputes in the first instance. Parties to an “ordinary” dispute would necessarily have expressly submitted their disputes to the CAS by way of a prior agreement. Issues dealing with media rights, or disputes arising out of contracts between athletes and their agents or sponsors are examples of ordinary disputes18.

  1. Appeal: Appeal procedures before the CAS involve the resolution of disputes concerning the decisions of federations, associations or other sports-related bodies insofar as the statutes or regulations of the said sports-related bodies or a specific agreement so provide19.

  1. Ad hoc: Ad hoc panels of the CAS are set up to hear disputes at major sports events, such as the Olympic Games, the FIFA World Cup and the Commonwealth Games, among others20.

  1. Advisory: Until 2012, the CAS also issued non-binding advisory opinions concerning any sports-related legal questions at the request of the International Olympic Committee, national Olympic committees and international sports federations, the World Anti-Doping Agency, the associations recognized by the IOC and the Olympic Games Organizing Committees. However, since the amendment of the CAS Code in 2012, advisory opinions have been discontinued. However, as the data in this report is historical, it will nevertheless cover the number of published advisory opinions prior to 2012.

  1. Australian cases: These are ordinary cases referred by Australian parties to the CAS Oceania Registry, who has the jurisdiction to hear disputes.

Prior to the entry into force of the first CAS Code in 1994, the CAS only had ordinary jurisdiction and issued advisory opinions. However, as shown below, most cases heard by the CAS today, are on appeal.

Given the rules on confidentiality of awards for ordinary and appeal procedures (R43 and R59 respectively), the CAS has published 1449 appeal awards and 45 ordinary awards. However, these figures vastly differ from the actual number of cases commenced, as published by the CAS itself – 790 ordinary and 4053 appeal cases21.

The graph on the left below shows the difference between the number of cases published and the number submitted to the CAS since its inception22. While the graph on the right below highlights the difference between the number of awards and advisory opinions rendered as against those eventually published23.

doublegraph

The graphs above lead to the following conclusions:

  1. While approximately 35% of Appeal cases instituted at the CAS are published, only 5% of Ordinary cases are published. However, almost all ad hoc cases commenced before the CAS are published (89%).

  1. Despite the different date ranges in the published and rendered awards data sets (see: footnote 8), a ballpark ratio of rendered to published cases is 2:1 (i.e. approximately 50% of all rendered awards are published).

Case Outcome

The Database classifies 8 possible outcomes among all published CAS awards.

These are:

  1. Upheld: In upholding an appeal a CAS panel essentially grants an appellant the relief requested for by way of its submissions.

  1. Partially upheld: When an appeal is partially upheld, an appellant is granted the relief requested, but only in part.

  1. Dismissed: An appeal is considered dismissed when an appellant is not granted any part of the relief requested by it.

  1. Inadmissible: A declaration of inadmissibility is made by a CAS panel when it dismisses an appeal on grounds of failure to comply with relevant filing timelines as prescribed under the CAS Code.

  1. Referral: A referral means to send the case back to the previous instance for further consideration.

  1. Withdrawal: A case is considered withdrawn when an appellant no longer wishes to request for relief as initially sought when the claim was instituted. A withdrawal of the appeal, which therefore renders the decision appealed against unchallenged, is a situation which de facto corresponds to a dismissal of the appeal aiming at setting aside the decision24.

  1. Jurisdiction affirmed: When a CAS panel confirms its ability to hear the merits of each party’s claim, it affirms jurisdiction.

  1. Jurisdiction denied: When a CAS panel declines or denies its ability to proceed with hearing the merits of the case, it denies jurisdiction.

The CAS Dissected Most Probable CAS Outcomes

As shown above, the most common outcome among published decisions is the dismissal of an appeal (38.4%), while 37.2% of cases are entirely upheld. Together with cases that are partially upheld (18.9%), dismissed and upheld claims account for 94.5% of all published cases.

Interestingly, cases have only been referred to the previous instance twice; both times to the FIFA Player Status Committee, being football transfer disputes.

Subsequent Appeals and their Outcome

Despite CAS’ effort in providing legal certainty and finality to its litigants, aggrieved parties often take recourse to their right of appeal, 96% of the time before the Swiss Federal Tribunal25, also based in Lausanne. However, there have been instances of appeals to other courts such as the Vaud Cantonal Tribunal (where all/both parties are Swiss domiciled)26 and the Australian Supreme Court27 28.

However, successful appeals from the CAS are few and far between, with ~82% of appeals being dismissed by higher courts, with an appeal successfully upheld only 2.5% of the time, thus providing affirmation to the decision-making abilities of the CAS Arbitrators, who are certainly highly regarded.

Recommendations and Conclusions

As noted by Lindholm29,

regardless of whether diversity among arbitrators actually contribute to making the decisions that come out of CAS qualitatively better, a CAS that is perceived by other actors as inclusive and representative is more likely to be viewed as legitimate, credible and authoritative”.

However, the data presented in this Report is not in a vacuum. While the data above might be a useful metric to highlight (among others) the demographic, gender and age diversity (or lack thereof) among Arbitrators, it is equally important to not lose sight of the ground reality, which, when viewed together with the data, provides an explanation on why the data is represented as it is.

In that regard, the following themes warrant an analysis that is far more nuanced:

  1. Opportunity for more arbitrators: while Pechstein may have affirmed the independence of the CAS, owing, among other factors, to the range of arbitrators that can be chosen from, there is a case to be made that the CAS ought to begin providing more opportunity to those arbitrators with fewer appearances (see: “Appearances (Published Decisions)” above) (based on published decisions). This would help in erasing any doubt regarding the question of independence and more so, avoid future challenges, such as those lodged by Pechstein.

On the flipside, Arbitrators are being appointed because parties to a dispute select them (or in the case of ordinary proceedings, are appointed by the two party-selected arbitrators). Thus, “opportunity” can only be provided to more arbitrators, if the parties to a dispute so decide. However, since the CAS has the ability to select the chair of a panel/ sole arbitrator (as applicable) in appeal proceedings, there is a case to be made that the CAS ought to use this power to appoint lesser appointed Arbitrators as chair, or to suggest them as sole arbitrators to the parties, particularly when he/she would have the support of more experienced arbitrators on the wings, and in cases with a lower degree of complexity.

  1. Opportunity for young arbitrators: following on from the point above and given the relatively high average age among CAS arbitrators, it is important also to provide young arbitrators with opportunity (see: “Age” above). Although experience (and as a consequence, age) is necessary to ensure the effective delivery of justice, there is a large percentage of relatively young arbitrators already on the list who have yet to receive an opportunity at the CAS.

As pointed out above, the appointment of Arbitrators is largely a party-driven process. From the perspective of a party to a dispute, it is natural for a party to appoint an arbitrator that they believe would be best positioned to resolve their case, and an arbitrator, particularly in sport, would only be “best positioned”, if he/she had the knowledge, expertise and experience to deal with similar disputes, which is augmented through previous appointments, in the first place.

  1. More female arbitrators: With a male to female ratio of almost 8:1 (see: “Gender” above), the CAS ought to consider bridging this gap – particularly considering the current socio-political, gender discrimination and equality movements, generally, but also specifically within sport.

However, the CAS can only enlist those who apply to be enlisted as Arbitrators in the first place. Thus, the application to be an Arbitrator is a necessary precursor to the appointment of female arbitrators on the panel, and this is a factor which is largely outside the CAS’ control. As such, the male-female imbalance is more likely the result of broader societal issues rather than the CAS perpetuating any such discrimination. In fact, the ICAS, the body responsible for overseeing and selecting Arbitrators on the closed list, has dramatically increased its female representation over time (the ICAS Board has a female majority30, while 9 out of 19 ICAS members are female31), which is a step towards addressing gender diversity within the Arbitrator base.

  1. More published cases: Finally, it is important that all cases are published, insofar as they are legally permitted to do so (i.e. not bound by confidentiality restrictions). Very often, decisions are found “in the public domain” (i.e. through search engines and websites of sports bodies, federations, clubs etc.) but not on the Database. Indeed, the Database only reflects a sliver of the total case load since the inception of the CAS, but it is unclear as to what drives the decision making behind the publication (or the withholding) of a decision or the editing of decisions that are published.

This article is based solely on the author’s interpretation of publicly available information on the CAS website, and does not represent the views or opinions of any other person(s), firm or organisation.

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Author

Rustam Sethna

Rustam Sethna

Rustam is an Indian qualified lawyer and sports law paralegal at Mills & Reeve, Manchester. He has recently completed a Master’s degree in International Sports Law from Instituo Superior de Derecho y Economía (ISDE), Madrid (2018 edition) and has previously gained 3 PQE as an Associate with AZB & Partners, one of India’s leading full-service law firms.