The dichotomy and future of sports arbitration - Legal aid and publications of decisions
This four part series of articles by Nick De Marco1 reflects on the recent Pechstein case, a case that placed the Court of Arbitration for Sport (“the CAS”) and the sports arbitration system under great scrutiny, and consider:
- The issue of consent and compulsion in sports arbitration (Part 1);
- The appointment of arbitrators (Part 2);
- The use and accessibility of legal aid/assistance for players/athletes and the publications of decisions (Part 3); and,
- The structure of domestic sports arbitration, with a focus on The Football Association (Part 4).
Throughout this series of articles the author makes a number of recommendations to change the procedure of both the CAS and domestic sports arbitral bodies in order to promote fairness and impartiality and protect players.
The CAS, as it made clear in the Pechstein press release, has recently implemented a procedure for legal aid to assist players without sufficient financial means to have their case fairly resolved.2 The CAS’ Guidance on Legal Aid before the Court of Arbitration for Sport3 provides, amongst other things, that the ICAS Board decides upon requests for legal aid;4 that legal aid is granted on the basis of a reasoned request by a person who does not have sufficient assets, whose claim/defence is not obviously frivolous or vexatious;5 that the CAS will provide a list of “pro bono” counsel from which a successful legal aid applicant may choose;6 that at the end of the arbitral proceedings, the CAS can order costs against the legally aided party but will waive its right to claim those costs.7
These provisions are a welcome development. However, to enable parties to be on a more equal footing the legally aided party (who will almost always be the player, rather than the sports body) should not have to rely exclusively on the assistance of pro bono counsel. Instead, the panel of counsel established by the CAS should be paid by the CAS on behalf of the legally aided party (as with the system of legal aid in the UK). This is of vital importance in enabling equality of arms between the parties. There will necessarily be fewer counsel willing and able to act for free than those willing to act for payment, and those pro bono counsel will likely be of lesser quality and lacking in the relevant expertise (the reason why many lawyers offer to do such pro bono work being that they are keen for experience in that area). The ICAS would be able to finance these sums through charging those parties who can afford it a slightly higher administration fee.
(iii) Publication of decisions
Under the Procedural Rules to the 2016 Code, proceedings under the Ordinary Arbitration Procedure are confidential and awards will not be published unless agreed by all parties or decided by the President of the Division.8 Likewise, proceedings under the Appeal Arbitration Procedure are confidential but the award itself shall be made public unless both parties agree otherwise.9 This is a sensible distinction. It is right that where a regulator is a party to the dispute there should be a presumption that the decision is published not least because of the implications the decision may have for the sport and other participants and so as to enable consistency in decision making. Nonetheless, there is yet scope for improvement of these rules in order to better reflect the general interest in publication of arbitration awards:10
- First, with regard to “public” decisions—that is, where one of the parties is a regulator—the parties should not be able to simply agree not to have the decision published. Instead, the Procedural Rules should provide that there is a presumption that the decision be published unless one of the parties can establish, for example, that publication would cause them to undue hardship or harm. Strengthening the presumption of publication in this manner would:
- Better enable consistent sanctions. Although one CAS panel is not bound by another those panels should nonetheless be slow to depart from similar decisions. Given that, at least for doping violations, each sport, the world over, is regulated by the same WADA Code and that it would therefore be extremely unfair on one player to be more severely sanctioned for the same act under the same rules than another, it is particularly important that violations be consistently sanctioned. Publication of a greater number of decisions would clearly assist in the development of such consistency; and,
- Further disincentivise participants from committing anti-doping rule violations. If the circumstances and sanctions of anti-doping rule violations were clearly known, players would be less likely to inadvertently or deliberately commit anti-doping rule violations.
- Second, a similar test should be considered for “private” decisions—that is, those under the Ordinary Arbitration Procedure.Despite these disputes being between private parties, the very fact that they have reached the CAS (and have not been settled or resolved at an earlier stage in proceedings) reflects the likely public importance of the CAS’ final decision, and the implications it may have for other players and the sport as a whole. Many of these decisions, although arising from private disputes, relate to carefully regulated areas—such as agreements between football clubs, players and agents—and publication would assist in clarifying the effect of those sports regulations and other legal duties that frequently arise in sports disputes. Accordingly, even in these private cases there should be no presumption that the decision remain private. Instead, if the decision is of a sensitive or confidential nature and the parties agree to redactions or non-publication then the panel may decide not to publish the decision. If the parties cannot agree, then the panel or Division President, on the basis of representations from each party, should reach a final decision as to whether redactions or non-publication is necessary.
- Third, once it has been decided that a decision be published the CAS should make that decision readily available on its database. At present, only a small portion of CAS decisions are available on the database. This places players at a disadvantage. Regulatory bodies, unlike players, have access to previous decisions which they were party to, irrespective of whether the CAS has chosen to publish those decisions. Players have no such access. The CAS can easily remedy this inequality of arms, and at the same time protect itself from further criticisms of bias that these reforms seek to protect it from, by simply publishing all decisions on their database.
- Fourth, and as a result, the CAS should seek to establish a system of precedent that its own panels and domestic arbitral bodies are bound to apply. Such a system could provide that: (i) as set out above, individual CAS panels should aim for consistency in their decisions and should only depart from similar cases in exceptional circumstances; (ii) appellate domestic sports arbitral bodies should be bound by CAS decisions and consider their own decisions persuasive, and only to be departed from in exceptional circumstances; and, (iii) first instance domestic sports arbitral panels should be bound by both CAS decisions and those of the domestic appeal panel, and should consider their own decisions persuasive and only to be departed from in exceptional circumstances. This would provide for an integrated, consistent, global regulatory dispute resolution procedure and thereby provide an appropriate forum for decisions regarding sports regulatory regimes of global application. As referred to above, this would greatly assist players in providing some certainty with regard to the outcome of decisions and it would thereby greatly assist the CAS in improving its fair trial reputation.
Click here to continue reading Part 4 on domestic arbitrations.
This four part series is taken from the author's original paper which can be found here. For those who wish to read more about the Pechstein case and sports arbitrations the following articles will also be of interest:
- The Legality of the Arbitration Agreements in favour of CAS (Pechstein) Part 1 by Despina Mavromati
- The Legality of the Arbitration Agreements in favour of CAS (Pechstein) Part 2 by Despina Mavromat
- The Pechstein judgment: CAS’s reaction & potential ramifications by Andrew Smith
- A guide to the Higher Regional Court’s decision in the Pechstein case by Christian Keidel
- Another round in favour of sports arbitration: Court confirms boxing disciplinary appeal panel is an Arbitration by Nick De Marco
- 10 key considerations arising from Kaneria by Nick De Marco
- Civil liability for sports injuries and why courts compete with arbitration in Belgium by Sven Demeulemeester and Grégory Ernes
- Interview with Matthieu Reeb, Secretary General of the Court of Arbitration for Sport by Sean Cottrell
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- Barrister at Blackstone Chambers specialising in sports law. Nick is an expert in sports arbitration having acted for sports regulators in the leading recent UK cases on the developing area (such as the ECB in Kaneria and the BBBC in Paul Smith, mentioned below in the article); he regularly appears before a variety of domestic and international sports arbitral panels, including the CAS, representing both sports governing bodies and players; he sits as arbitrator across a number of sports (football, rugby and wrestling); he is currently assisting the football players’ union, the Professional Footballers’ Association, in attempts to reform certain disciplinary/arbitral processes in football.
- S6(9) of the Procedural Rules to the 2016 Code provides that the ICAS “may create a legal aid fund to facilitate access to CAS arbitration for individuals without sufficient financial means and may create CAS legal aid guidelines for the operation of the fund.”
- Those legal aid guidelines / rules came into force on 1 September 2013 and are available here at: https://www.tas-cas.org/fileadmin/user_upload/Legal_Aid_Rules_2016_ENG_.pdf.
- Article 3
- Article 5
- Articles 6 and 18-20
- Article 15
- This general interest in the publication of awards in some form (albeit summary or redacted) is recognised in other arbitral proceedings, even purely commercial ones where the points about regulation made above do not apply. The London Maritime Arbitrators Association, for example, provides at  of the 2012 LMAA Terms that “if the tribunal considers that an arbitration decision merits publication and gives notice to the parties of its intention to release the award for publication, then unless either or both parties inform the tribunal the tribunal of its or their objection to publication within 21 days of the notice, the award may be publicised under such arrangements as the Association may effect from time to time. The publication will be so drafted as to preserve anonymity as regards the identity of the parties, of their legal or other representatives, and of the tribunal.” (The terms are available at: https://www.lmaa.london/uploads/documents/2012Terms.pdf.) The LMAA’s Notes on London Arbitration observe that “since the number of arbitration awards going to the courts has been considerably curtailed since the introduction of the Arbitration Act 1979 (a situation which is not going to change under the 1996 Act) there may be something to be said for greater publicity being given to arbitration decisions which are likely to be of general interest. The Association has made arrangements with Lloyd’s Maratime Law Newsletter for summaries of awards to be published by it, provided the parties agree. These summaries do not disclose the names of the parties or the arbitrators or the ship (if any).” (The Notes are available at: https://www.lmaa.london/notes-on-arbitration.aspx.)
- Nick De Marco, 'Compelled Consent—Pechstein & The Dichotomy And Future Of Sports Arbitration', Blackstone Chambers, 4 July 2016, last accessed 19 July 2016 https://www.blackstonechambers.com/document.rm?id=680
- Arbitration Court of Arbitration for Sport (CAS) Dispute Resolution England Football Germany Governance Ice-Skating International Skating Union Litigation Olympic Professional Footballers’ Association (PFA) Regulation Switzerland The FA United Kingdom (UK) Winter Sports