Does the Court of Arbitration for Sport need a “Grand Chamber”?James Segan
The Court of Arbitration for Sport (“CAS”) is often referred to as the “Supreme Court of Sport”. In one sense, that title is warranted. There is no doubt that in the thirty years or so since CAS has existed, it has been at the forefront of developing sport-specific legal principles.
As one CAS Panel observed in the late 1990s:1
"Sports law has developed and consolidated along the years, particularly through the arbitral settlement of disputes, a set of unwritten legal principles – a sort of lex mercatoria [law of the merchants or, more generally, commercial law] for sports or, so to speak, a lex ludica [the laws of the games] to which national and international sports federations must conform, regardless of the presence of such principles within their own statutes and regulations ..."
This "lex ludica" consists not merely of well-known general legal concepts adapted to the sports context, such as proportionality or lex mitior2, but also a large body of case law on the meaning and effect of relevant sport-specific legal instruments, such as the World Anti-Doping Code ("WADC"). There is now a considerable body of CAS case law on various provisions of the WADC.
The title of a "Supreme Court of Sport" also carries with it, however, a somewhat misleading impression, namely that the decisions of CAS are in some way final as to the legal issues which they decide. The defining characteristic of a Supreme Court is, of course, that its decisions on points of law are final and binding, whether right or wrong. As the United States Supreme Court Justice Robert H Jackson famously remarked:
"We are not final because we are infallible, but we are infallible only because we are final."
The value in having a Supreme Court, however fallible or infallible, is that points of law are definitively settled. The principle of legal certainty, which is at the heart of any coherent system of law, requires that legal rules are reasonably accessible and predictable. Lawyers must be able to advise their clients, in future cases, with a degree of confidence as to what those rules actually are. Without legal certainty, every case, no matter how small and apparently straightforward, will descend into an expensive legal debate. That value of legal certainty is particularly important in the context of CAS, which is designed to offer a flexible, swift, expert and relatively inexpensive means of settling disputes in the sporting field.
It is an unfortunate fact that CAS cannot presently fulfil this function of providing finality on points of law. CAS is an arbitral system3 with one instance. The rules of CAS provide that each CAS Panel has full jurisdiction to review the "facts and the law". It is therefore perfectly open to one CAS Panel to depart from the decision of an earlier Panel, on a point of law. There is no particular constraint on a CAS Panel from doing so, and they regularly do. As a result, there are now a whole series of important issues in the "lex ludica" which are the subject of diverging strands of CAS case law, which can never be authoritatively resolved. Three good examples of this problem can be given.
1. Intention to enhance sport performance under the WADC
Under Article 10(4) of the WADC, an athlete can secure a reduction in the ordinary period of ineligibility for the presence of a specified substance in a sample if he or she can establish how it entered his or her body and that the ingestion was not intended "...to enhance ... sport performance". Specified substances are banned in competition but permissible out of competition. This raises a difficult issue as to how direct the intention "...to enhance ... sport performance" must actually be. If too wide a notion of intention is adopted, then that would effectively outlaw specified substances out of competition as well as in competition. CAS has, somewhat infamously, failed to speak with one voice on this topic. One line of CAS cases (Oliveira, Lapikov, Kolobnev and Qerimaj) says that taking a supplement out of competition with the intention of enhancing performance in competition is permissible: the relevant intention must instead be directed at the particular specified substance. 4 Another line of cases (Foggo and Kutrovsky) says the precise opposite.5 The result is a state of utter confusion. The UK National Anti-Doping Panel has since waded into the debate, venturing the view that the Oliveira line of cases "...should not in future be followed".6 That statement was of course in itself entirely non-binding and so the debate will sadly continue.
A series of CAS Panels from the mid-2000s onwards held that there is a general principle of proportionality, which can be applied by CAS so as to reduce even mandatory fixed sanctions in the WADC if they are disproportionate and thus contrary to overriding principles of law.7 The reasoning in these decisions is painstakingly careful, considering the relevance of general principles of EU law and of wider general principles of law. The CAS Panels emphasised that this proportionality principle could not be invoked lightly and therefore required "...exceptional circumstances" or could only indeed be applied in "...the very rarest of cases".8 Yet the principle clearly exists. By contrast, however, in the high-profile Alberto Contador case, the CAS Panel, when asked to consider reduction of a fixed penalty on proportionality grounds, simply ignored the earlier case law and asserted baldly that because a particular penalty was fixed, "...there is no discretion for the hearing body to reduce the period of ineligibility due to reasons of proportionality".9 Again, therefore, it is simply impossible to know where the law currently stands on this issue.
3. "No significant fault or negligence" in the WADC
In a number of cases, CAS Panels have waxed lyrical about the demanding duty of care expected from athletes and the need for the utmost caution, so that a plea of "...no significant fault or negligence" in Article 10.5.1 of the WADC would require "exceptional circumstances" before it would be allowed.10 In other cases, however, CAS Panels have cautioned against setting the bar "excessively high".11 These two lines of case law are then available for CAS Panels to deploy as they wish in future disputes, depending upon the perceived merits of the case before them one way or the other. Lawyers have no clue which line the Panels will choose: will the bar be set high or will it not?
Such divergences arise at first instance, of course, in any legal system. Courts will often differ in the way they understand the same provision. There is nothing exceptional or unusual in that. But what is unsatisfactory about the divergences in the CAS case law is that they can never be settled definitively. Each CAS Panel can revisit the underlying legal points again and again. And since no CAS Panel outranks or binds another, the debate simply rumbles on indefinitely. If one puts that together with the fact that the text of the vast majority of CAS awards are not even available on the CAS website, and instead have to be garnered by sports lawyers asking each other for much-prized pdfs, one has a recipe for almost endless and expensive legal debate.
This situation must surely change. A "lex ludica" requires some sort of system for resolving the key issues in that body of law definitively. The solution to this problem, and the way to provide a true "Supreme Court of Sport", is for the rules of CAS to be amended so as to provide for a "Grand Chamber". The precise modalities of this would of course be a matter for debate, but the basic idea that I propose would be that when a case is lodged with CAS which raises a point of general importance – the identification of which would be a matter for the President – then the case would be relinquished to a five-arbitrator Grand Chamber for a binding decision on the point. The rules of CAS would also be amended so that future panels were obliged to follow decisions of the Grand Chamber on a point of law unless satisfied that such a ruling was manifestly erroneous.
If this change were made then CAS could begin clearing the dense thickets of conflicting jurisprudence, and resolving the underlying issues definitively. Lawyers would then be able to advise their clients more cheaply, and with greater clarity as to what the relevant law actually is. In the place of a multitude of citations on a particular point, a single authoritative reference could be given. The overall costs of the system would be reduced, and many cases which currently go to a hearing might never get there. That would mean less work for ingenious counsel but it would be a positive development for sport in general.
It could be argued that such a change would increase formality and legal expense. That might be true in the limited number of cases which were relinquished to the Grand Chamber. However the additional costs of two further arbitrators, and any additional administrative costs of operating the new system, could be absorbed into the overall cost of CAS arbitration without much of an effect. Moreover, there can be little doubt that the overall effect of the change would be to reduce the legal costs inherent in the CAS system. CAS has made great strides in this direction over the years, but the truth of the matter is that the complexity of its case law renders many disputes far from "inexpensive".
It could further be argued that such a change would reduce the flexibility inherent in an arbitral system. But in a conventional arbitration, there will be an applicable law (or laws) governing the whole dispute, and the arbitral panel will be directed to decisions of the courts of the relevant country (or countries), including Supreme Courts, which settle the law which is to be applied. In a CAS arbitration, by contrast, much of the law which a Panel is required to apply is sui generis12. The flexibility to keep re-hearing debates as to what the content of that sui generis law actually is should not, in my view, be prized by any sensible litigant.
The only way to prevent this situation from continuing is to provide a much-needed element of finality. The introduction of a "Grand Chamber" solution would achieve this.
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- Tags: Anti-Doping | Court of Arbitration for Sport (CAS) | Governance | Regulation | Rule of Law | World Anti-Doping Agency (WADA)
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About the Author
James is regularly engaged in EU and competition matters, both commercial and regulatory. Many such cases arise in the Telecommunications, Sport and Financial Services sectors. James appears and advises in sports law matters both commercial and regulatory. He is often instructed in disciplinary hearings and has appeared for a number of different governing bodies.