Latest amendments to the CAS Code: What you need to knowMark Hovell, Jake Cohen
On 1 January 2016, the latest amendments to the Code of Sports-related Arbitration came into effect.1 Commonly known as the “CAS Code,” these rules and regulations govern the procedure the Court of Arbitration for Sport (CAS).
For those lawyers actively engaged at the CAS, recognising and understanding the amendments are fundamental to best practices and effective advocacy on behalf of a client.
For those who aren’t actively engaged at the CAS, we hope that this article helps provide a better understanding of the arbitral body for which much of sport relies on for dispute resolution and some of the rules that govern it.
In this article, we will review each of the amendments made to the CAS Code in a format that we hope will be accessible to both those who appear before the CAS and those in sport who want to keep apprised of the ongoing developments at sport’s “supreme court.”
First, in all provisions of the Code, both masculine and feminine pronouns are used jointly. This is no doubt a welcome amendment and reflects the fact that members of both genders regularly engage in business at the CAS.
The International Council of Arbitration for Sport (ICAS) is the governing body for the CAS. The ICAS consists of twenty members, each serving four-year terms. The current ICAS president is John Coates.
One of the ICAS’ responsibilities is to appoint people to the list of available CAS arbitrators.
Previously, S14 stated that the ICAS would appoint people with the required legal training, arbitral experience, and sporting knowledge who were brought to its attention by the International Olympic Committee, the various International Federations and the National Olympic Committees.
Now, S14 expressly states that the ICAS will also appoint people who are brought to its attention by the athletes’ commissions of the International Olympic Committee, the various International Federations, and the National Olympic Committees.
Whilst this may be seen as a step in the right direction by those representing the athletes, some may question whether this goes far enough to promote equal representation of athletes, as the appointment of those athletes’ commissions are often done by the International Olympic Committee, the various International Federations, and the National Olympic Committees. That said, in practise, ICAS does take note of bodies such as FIFPro and has added a dozen or so of its recommendations to the list of arbitrators in the last revision.
The working languages of the CAS are French and English. However, parties may request that a different language be used for the arbitration proceedings.
If a different language is used, the Panel may order the parties to bear all or part of the costs of translation and interpretation.
This rule has been amended to specify that if a hearing takes place, the Panel may allow a party to use a language other than the one originally chosen for the arbitration on the condition that it provides, at the party’s own cost, interpretation into and from the language of the arbitration originally selected.
In an increasingly globalised sporting landscape, there are many different languages being spoken. It is important for the Panel to hear all possible relevant evidence and to be as flexible as possible. Flexibility is one of the great advantages of the arbitration system.
This rule reflects the fact that in addition to making submissions via fax, e-mail submissions are now acceptable. However, hard copies of certain submissions (appeal briefs, responses to the appeal brief, etc.) still must be filed with the CAS Court Office.
This is no doubt a welcome change to everyone, as e-mail submissions are more convenient than submissions via fax. The CAS had already accepted annexes of evidence (statements, documents, copies of regulations, etc.) by e-mail, so this harmonises all filings at the CAS.
Another welcome change is that written submissions must be filed by courier within the first subsequent business day of the relevant time limit (emphasis added).
Previously, the written submissions must have been filed within the relevant time limit. This “courier grace period” should have the effect of allowing parties (and their legal counsel) to fully utilise the time limit provided by the CAS when preparing their submissions.
This rule addresses provisions for when an arbitrator needs to be replaced.
The rule has been amended to state that if the party who brought the claim does not appoint an arbitrator to replace the arbitrator it had initially appointed within a specified time limit, the arbitration shall not go forward. If the arbitration had already began, it will be terminated.
Clearly, this is something for Appellants’ lawyers to be aware of, in case their chosen arbitrator has to be replaced.
Previously, this rule stated that the proceedings before the Panel comprise written submissions, and if the Panel deems it appropriate, an oral hearing.
The amendment reflects that an oral hearing is an important part of CAS proceedings, and states, “The proceedings before the Panel comprise written submissions and, in principle, an oral hearing.” (emphasis added).
However, it is not at all uncommon to see parties request that the Panel forego a hearing and decide the case on the basis of the parties’ written submissions. This is to help keep costs down.
In rare cases, even if the parties request a hearing, the Panel may decline the request and decide the case solely on the basis of the parties’ written submissions. A Panel may take this somewhat bold step when there is no evidence to consider, no witnesses to hear and/or when a party requesting a hearing is clearly doing so simply as a tactic to delay an inevitable outcome of the appeal.
A Panel taking the decision on whether a hearing will take place out of the parties’ hands does so at its own risk, as it could then open itself up to an appeal before the Swiss Federal Tribunal for failing to respect the parties’ right to be heard.
R46 and R59
CAS awards are often the final step in the appeals process of a sporting decision and become final and binding upon the parties upon notification of the award by the CAS Court Office.
However, as rule now reflects, there are limited situations in which CAS awards may be appealed, pursuant to Swiss law (specifically, Article 190 of the Private International Law Act), to the Swiss Federal Tribunal. This is not a new rule however. Far from it, in fact. At the time of the new version of the CAS Code, 124 CAS awards had been appealed to the Swiss Federal Tribunal, but only 10 of such appeals had been upheld.
This rule addresses when the CAS will set an arbitration proceeding in motion and lists situations in which the CAS will not take action.
In addition to when there is clearly no arbitration agreement referring to the CAS or where the arbitration agreement is clearly unrelated to the dispute at stake, the rule has been amended to include where the internal legal remedies available to the party making the claim before CAS have clearly not yet been exhausted.
Whilst the changes to the CAS Code were small in number, it’s good to see that the CAS is keeping its rules under frequent review and modernising the CAS Code to ensure that the CAS maintains its flexible arbitration system.
1 “Amendments to the Code of Sports-related Arbitration (2016 edition)”,https://www.tas-cas.org/fileadmin/user_upload/Amendments_to_the_Code__2016_.pdf (last accessed 25 May 2016)