Due to the fact that more and more interesting cases are being submitted to the Court of Arbitration for Sport (CAS), we decided to tell you about the specifics of dispute resolution in CAS.
You can find our previous posts about CAS at the following links:
Basis for applying to CAS
The basis for applying to CAS is the existence of a valid arbitration clause. It is recommended that the arbitration clause contain the following:
- Indication of dispute resolution in CAS;
- Number, nationality and qualifications of arbitrators;
- The place of arbitration;
- Language of arbitration proceedings;
- Law applicable to the substance of the dispute;
- Law applicable to the dispute resolution procedure.
CAS competence
There are the following types of procedures within CAS:
- Ordinary Arbitration Division - ordinary arbitration, i.e. General dispute resolution procedure;
- Anti-doping Division - procedure for considering disputes in the field of anti-doping as the first or only instance;
- Appeals Arbitration Division - appeals arbitration, i.e. the procedure for considering complaints and protests against decisions of international federations, associations or other sports organizations, if the statutes or regulations of such organizations provide for it. According to CAS statistics, decisions made in the appeal procedure constitute the majority;
- Mediation - mediation procedure (mediation);
- Ad hoc Division - the ad hoc procedure is created specifically for the Olympic games;
- Procedure for providing Advisory opinions.
Specificity of dispute resolution in CAS
Dispute resolution in CAS has the following specifics:
- The place of arbitration is exclusively Switzerland (article R 28 of the Code of Arbitration for Sport);
- Applicable law in ordinary arbitration - the law chosen by the parties in the contract, in the absence of such law - the law of Switzerland;
- The parties may grant the arbitrators the right to make a decision on equity ex aequo et bono (article R45 of the Code of Arbitration for Sport);
- Applicable law in the appeal procedure - the law chosen by the parties, if there is no such law -the law of the country where the Federation that issued the disputed decision is located (article R58 of the Code of Arbitration for Sport);
- Applicable law in ad hoc proceedings - the Olympic Charter, applicable rules, General principles of law and rules of law that the CAS arbitrators deem appropriate to apply (article 17 of the ad hoc CAS Rules);
- Applicable procedural law - Swiss law on private international law of 18 December 1987 (PILA), namely section 12 (international arbitration);
- The official languages in CAS are French and English. The parties may request that the dispute be considered in another language if CAS does not object (article R29 of the Code of Arbitration for Sport);
- When filing a claim, the claimant / appellant must pay an arbitration fee of CHF 1000. After the complaint is accepted the administrative costs from 100 to 25,000 CHF and the remuneration of arbitrators from 300 to 500 CHF per hour are paid;
- Appeals against disciplinary decisions are free of charge for the parties (article 65.2 of the Code of Arbitration for Sport);
- The term for appealing a decision of a sports federation is 21 days from the date of receipt of the decision (article R49 of the Code of Arbitration for Sport);
- Within 10 days from the date of filing the complaint, you must provide the CAS with the justification and all evidence;
- The time frame for consideration of the case in the normal procedure is on average from 6 to 12 months, depending on the complexity of the case, the schedule of arbitrators. In the framework of the appeal procedure, the CAS review period is no more than 3 months from the date of application. The ad hoc dispute resolution period is 24 hours;
- It is possible to take interim measures after hearing the application of one party, without waiting for the reaction of the other party (article R 37 of the Code of Arbitration for Sport, article 14 of the ad hoc Rules);
- The award and / or press-release must be published by CAS, unless both parties have agreed otherwise (article R 59 of the Code of Arbitration for Sport);
- Decisions on ad hoc cases are published on the CAS official website, as well as in regularly published collections;
- CAS awards are binding on the parties and enforceable under the 1958 New York Convention on the recognition and enforcement of foreign arbitral awards. States that have acceded to the Convention: 159 States, including the Russian Federation, Kazakhstan, Switzerland. CAS States in its decision that they are enforceable in all member countries of the 1958 New York Convention;
- Examples of decisions of state courts on the enforcement of CAS decisions: The decision of the High Court of England of 19 January 2016 in the case Pencil Hill Limited v US Citta di Palermo S. p. A.; The decision of the Swiss Supreme court of 27 March 2012 in the case no. 4A_558 / 2011;
- A special feature of CAS is the ability to enforce decisions through sports organizations under the threat of sanctions in the form of deprivation of "points", disqualification of the player, transfer of the team to the lower division.
Appeal against CAS decisions
CAS decisions can be appealed to the Swiss Supreme court. The Statute of limitations for appeal is 30 days from the date of the CAS decision (article 100 (1) of the Swiss Federal court Act).
Grounds for appeal:
- lack of competence;
- invalid arbitral tribunal;
- violation of fundamental procedural rules;
- consideration of issues that go beyond the subject of the application;
- refusal to review complaints;
- non-compliance of the decision with public policy (article 192 of PILA).
The percentage of canceled CAS decisions is very low. No more than 30 decisions of the CAS have been canceled during its existence.
Source: presentation "Court of Arbitration for Sport in Lausanne (CAS)" by Pryakhina M. Y. in the framework of the discipline "Dispute resolution system in sport" of the SPbSU master's program “Lawyer in sports law”