The Court of Arbitration for Sport (CAS) confirms the registration of the request for arbitration filed by US transgender swimmer Lia Thomas (the Athlete), aimed at challenging certain parts of World Aquatics’ Policy on the Eligibility for the Men’s and Women’s Competition Categories in force as of 24 March 2023, and its associated Operational Requirements (the Challenged Provisions).
Ms Thomas accepts that fair competition is a legitimate sporting objective and that some regulation of transgender women in swimming is appropriate. However, Ms Thomas submits that the Challenged Provisions are invalid and unlawful as they discriminate against her contrary to the Olympic Charter, the World Aquatics Constitution, and Swiss law including the European Convention on Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women; and that such discrimination cannot be justified as necessary, reasonable, or proportionate to achieve a legitimate sporting objective.
In bringing the matter before CAS, Ms Thomas seeks an order from the CAS declaring that the Challenged Provisions are unlawful, invalid, and of no force and effect.
The CAS arbitration proceedings commenced in September 2023. In accordance with the Code of Sportsrelated Arbitration, this “ordinary” arbitration procedure (i.e. not an appeal) was subject to strict confidentiality rules governing CAS procedures. The parties involved in this case have now agreed that general information concerning the procedure itself be communicated by the CAS Court Office. At this point, no hearing date has been fixed yet.
The registration of this case coincided with the reference number 10’000, which is the number of arbitrations (and former consultation procedures, but without ad hoc procedures and mediations) registered by the CAS since its creation in 1984. On 31 December 2023, the CAS had registered a total of 10’638 procedures (all included) since its creation and 943 in 2023 only.
TO THE MEMBER ASSOCIATIONS OF FIFA
Circular no. 1867
Zurich, 7 December 2023
Failure to respect settlement agreements – competence of the FIFA Disciplinary Committee
Dear Sir or Madam,
On 16 December 2022, the FIFA Council adopted the 2023 edition of the FIFA Disciplinary Code (FDC – cf. FIFA circular no. 1833).
In this respect, and in line with FIFA’s commitment to achieving (financial) justice, a number of important changes were made to article 21 of the FDC (formerly art. 15, 2019 edition).
Amongst others, one such amendment was the inclusion of article 21 paragraph 9 of the FDC in order to grant the FIFA Disciplinary Committee the competence to enforce private settlement agreements concluded in the context of disciplinary proceedings opened against a debtor with respect to a final and binding decision issued by FIFA or the Court of Arbitration for Sport (CAS) 1
In this context, in light of the number of settlement agreements concluded by parties in connection with financial decisions and the related volume of requests received by the FIFA administration, the purpose of this circular is to clarify the scope and/or the application of this provision.
a. Settlement agreements concluded in the context of disciplinary proceedings opened against a debtor
Prior to the entry into force of the 2023 edition of the FDC, the conclusion of a settlement agreement would lead to the termination of (or prevent the initiation of) disciplinary proceedings. Indeed, in accordance with FIFA circular no. 1628, non-compliance with the agreement had to be resolved by the Football Tribunal or the relevant competent body as chosen by the parties.
As such, with a view to avoiding this need for parties to initiate a new procedure before the Football Tribunal or the relevant competent body to enforce such a settlement agreement, the FDC was amended in order to provide the Disciplinary Committee with the competence to enforce such agreements, this being provided that the applicable settlement concluded was directly linked to a final and binding financial decision issued by FIFA or CAS.
More specifically, if, following the opening/initiation of disciplinary proceedings in relation to (non-compliance with) a financial decision passed by FIFA (the Football Tribunal) or CAS, the parties decide to settle their dispute by means of a private settlement agreement, the Disciplinary Committee is now, pursuant to article 21 paragraph 9 of the FDC, competent to enforce such an agreement without the need for a new complaint to be lodged before the Football Tribunal (or the relevant competent body as chosen by the parties).
For the sake of good order, we would like to clarify that this procedure shall exclusively apply to those agreements concluded following the entry into force of the 2023 edition of the FDC, i.e. as from 1 February 2023.
b. Settlement agreements concluded after a financial decision passed by a body, a committee, a subsidiary or an instance of FIFA or by CAS
Based on its wording, the scope of article 21 paragraph 9 of the FDC should, in principle, be limited to those agreements concluded “in the context of disciplinary proceedings opened against a debtor with respect to a final and binding financial decision issued by a body, a committee, a subsidiary or an instance of FIFA or by CAS”
Notwithstanding the foregoing and taking into account the rationale behind the implementation of such provision as explained supra., it is considered that the competence granted to the Disciplinary Committee under article 21 paragraph 9 of the FDC shall also cover agreements concluded after any decision passed by a body, a committee, a subsidiary or an instance of FIFA or by CAS.
In other words, following the notification of such decision rendered by FIFA or CAS, if the relevant parties then conclude a private settlement agreement in order to settle their dispute, the Disciplinary Committee shall also be competent to enforce such agreement in accordance with article 21 paragraph 9 of the FDC, without the need for a new complaint to be lodged before the Football Tribunal (or the relevant competent body as chosen by the parties).
Similarly, the above shall exclusively apply to those agreements concluded following the entry into force of the 2023 edition of the FDC, i.e. as from 1 February 2023.
c. Other settlement agreements
Finally, and for the sake of good order, we would like to clarify that any settlement agreement concluded outside of the framework(s) stipulated above, i.e. any settlement falling outside of the remits of sections a. or b. supra, will remain subject to the provisions of FIFA circular no. 1628.
Consequently, any claim arising from a breach of these types of agreements shall still be lodged before the Football Tribunal or before the relevant competent bodies at national or international level, as mutually agreed by the parties.
We thank you for your kind attention to the above and for ensuring that your affiliated clubs are informed accordingly.
DE FOOTBALL ASSOCIATION
The Court of Arbitration for Sport (CAS) has registered two Requests for Arbitration filed by the World Anti-Doping Agency (WADA) in relation to (non-)compliance matters concerning the Russian Anti-Doping Agency (RUSADA) and the South African Institute for Drug-free Sport (SAIDS).
On 22 September 2023, the WADA Executive Committee endorsed the recommendation of its Compliance Review Committee (CRC) which alleged RUSADA to be non-compliant with the World Anti-Doping Code (the WADC) due to Russia’s federal sports legislation not being considered to be in line with the 2021 WADC. Similarly, on the same day, the WADA Executive Committee also endorsed the recommendation of the CRC to allege SAIDS as non-compliant with the WADC due to South Africa’s legislation not being considered to be in line with the 2021 WADA Code. Since both RUSADA and SAIDS have disputed their non-compliance, as set out in the International Standard for Code Compliance by Signatories (ISCCS), WADA has submitted both matters to the CAS Ordinary Arbitration Division for resolution.
Two separate CAS arbitration procedures have been registered. The procedures will be conducted according to the provisions of the ISCCS and the Code of Sports-related Arbitration (the CAS Code). In summary, for each procedure, there will be an exchange of written submissions while a Panel of three arbitrators is simultaneously constituted in accordance with the provisions of Article 9.4.1 of the ISCCS. Once appointed, the Panel for each matter will issue directions for the next phase of the proceedings and shall, save for extensions of time requested by the parties or other exceptional circumstances, issue its reasoned decision no later than three months after the date of its constitution. The Panels’ decisions will be publicly reported by CAS.
The decisions issued by the CAS Panels will be final and binding with the exception of the parties’ right to file an appeal to the Swiss Federal Tribunal within 30 days on limited grounds.
Further to the World Anti-Doping Agency’s (WADA's) Executive Committee (ExCo) meeting of 22 September 2023, WADA wishes to provide an update regarding the ExCo’s decision to endorse the recommendation of WADA’s independent Compliance Review Committee (CRC) and allege the National Anti-Doping Organization (NADO) of South Africa as non-compliant with the World Anti-Doping Code (Code). The alleged non-compliance in this case is a result of South Africa’s legislation not being in line with the 2021 Code.
Under Article 9.3.1 of the International Standard for Code Compliance by Signatories (ISCCS), the NADO had 21 days following the date of receipt of the formal notice of non-compliance to dispute WADA’s allegation of non-compliance, as well as the consequences and/or the reinstatement conditions proposed by the Agency.
On 10 October, WADA received formal notification from the South African NADO that it disputed the allegation of non-compliance against it, as well as the proposed consequences. Accordingly, and in line with Article 24.1.7 of the Code, WADA now publicly announces that it filed the request for arbitration with the Court of Arbitration for Sport (CAS) on 16 November 2023. As set out in Article 24.1.7, certain Signatories have the right to intervene in the CAS proceedings as a party whereas other persons may apply and be permitted to intervene under certain conditions. As per the same article, the notice of intervention or the application to intervene must be filed within 10 days of the publication of this notice.
The allegation of non-compliance and the consequences will not take effect until such time as CAS makes its ruling. Further details regarding the case including, in particular, the consequences and reinstatement conditions can be found in WADA’s update of 28 September 2023.