sports arbitration essentials: the practitioner’s kit …...paul j. hayes barrister-at-law...
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PAUL J. HAYES BARRISTER-AT-LAW
Paul J Hayes FCIArb
Barrister & Arbitrator
Kuala Lumpur International Arbitration Week 2015
Kuala Lumpur
8 May 2015
Sports Arbitration Essentials:
The Practitioner’s Kit Bag
PAUL J. HAYES BARRISTER-AT-LAW
Overview
I. Sports Arbitration, the Sporting Contract and
Sporting Disputes
II. Domestic Tribunal or Arbitration?
III. The Court of Arbitration for Sport (‘CAS’)
IV. CAS: Procedural Considerations
V. ‘Sports Law’ & Resources
VI. Challenging and Enforcing Sports Arbitral Awards
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials Glossary of Common Abbreviations• ADRV Anti-Doping Rule Violation
• AHD Ad-Hoc Division of the Court of Arbitration for Sport (Olympic Games)
• ANOC / NOC Association of National Olympic Committees / National Olympic Committee
• ATP Association of Tennis Professionals
• CAS Court of Arbitration for Sport
• CAS Code Court of Arbitration for Sport Code of Sports-related Arbitration
• FCPIL Federal Code on Private International Law 1987 (Switzerland)
• FIFA Federation Internationale de Football Associations
• GAIF General Association of International Federations
• ICADS International Convention Against Doping in Sport 2005
• ICAS International Council of Arbitration for Sport
• ICC International Cricket Council
• ICSS International Centre for Sport Security
• IF International Sports Federation
• IOC International Olympic Committee
• KLRCA Kuala Lumpur Regional Centre for Arbitration
• NF National Sports Federation
• NADO National Anti-Doping Organisation
• NGs National Governments
• NSC National Sports Council of Malaysia
• NZSDT New Zealand Sports Dispute Tribunal
• OC / OGs Olympic Charter / Olympic Games
• OCM Olympic Committee of Malaysia
• RF Regional Sports Federation
• SDRCC Sports Dispute Resolution Centre of Canada
• SDRP Sports Dispute Resolution Panel (United Kingdom)
• SFT Swiss Federal Tribunal
• WADA / WADC World Anti-Doping Agency / World Anti-Doping Code
PAUL J. HAYES BARRISTER-AT-LAW
I. Sports Arbitration and Sporting Disputes
For good or bad, few passions are as widely and as profoundly shared around the
globe as the passion for sport. Its symbolism is often awesome. It brings out the
noblest human qualities (good sportsmanship, the quest for excellence, a sense of
community), and the basest (chicanery and mob violence). It is also big
international business. Its capacity to motivate vast populations is nothing less
than fabulous, and so naturally exercises a powerful attraction on those who would
use its magic for their own ends.
The appetite for political influence and for money moves the heart inside the
business suit with a force as primal as that of the dreams of glory that swell the
distance runner’s tunic. In a word, the realm of sport is that of a precious
commodity. Therefore it is coveted. It is also an internationally significant resource
which can be squandered or debased. Therefore the way it is controlled is not
indifferent. And at the heart of the issue of control is that of ultimate authority to
establish norms and settle disputes.
- Jan Paulsson (Court of Arbitration for Sport, Panel Arbitrator, 2006).
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
I. Sports Arbitration?
• What is sports arbitration?
Sports arbitration is the private adjudication of ‘sporting
disputes’.
• Sports arbitration has been principally conducted by the Court of
Arbitration for Sport (‘CAS’) since its foundation in 1984, after the idea
of an international sports tribunal was first conceived in 1981 by then
IOC President, Juan Antonio Samaranch, in response to the growth in
the number of sports-related disputes at a time when sport (especially
Olympic sport) was becoming more international and professional.
• The CAS is an international arbitration tribunal which determines
sporting disputes by producing arbitral awards which are legally binding
upon parties to a ‘sporting contract’ (ie. Athletes and Clubs/NFs/NOCs
and by association IFs and the IOC) in accordance with the New York
Convention 1958. It is permanently seated in Lausanne, Switzerland.
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
I. International Sport: The ‘Sporting Contract’• Sports contests - private events. Participation in international sport (ie.
the OG) is governed by the law of contract: a series of umbrella
agreements, which incorporate by reference, the OC, the WADC and the
rules/regulations of each Olympic IF, which in turn through dispute
resolution clauses, establish the jurisdiction of the CAS (Riverwood
International Australia Pty Ltd v McCormick (2000) 177 ALR 193 (Lindgren, North and
Mansfield JJ; Smythe v Thomas (2008) 71 NSWLR 537 (Rein AJ)). OGs participants
are bound to the IOC (and OC) by NOC Team Agreements (which
regulate on & off field conduct, doping, social media use, sponsor
obligations, etc and contain CAS arbitration clauses).
• Sports rules must be clear and predictable, properly made and be
capable of understanding by athletes (Quigley v UIT, CAS 1994 at [34]), ‘so
that the entire sport community are informed of the normative system in
which they live, work and compete and the circumstances in which these
rules apply’. (USOC v IOC & IAAF, CAS 2004 at [73]. Cf. Anderson & Ors v IOC, CAS
2010 and USOC v IOC, CAS 2011 at [8.9]-[8.19]).
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
Local Sports Clubs
& Organisations
NOCs
I. Legal Structure of International [Olympic] Sport
IOC
(Olympic Games)
National
Governments (NGs)
National
Governments (NGs)
Athlete
IFs(World C’ships)
IFs(World C’ships)
NFs
(National C’ships)
NFs
(National C’ships)
LEGEND:
Contract (Private)
Legislation (Public)
Standard arbitration
(CAS) , anti-doping
(WADC) and other key
‘Olympic’ clauses are
included in agreements
between the IOC and
NOCs/IFs and are then
passed on in sub-
agreements with
NOCs/NFs and
ultimately the Athlete
(through a membership
or competition
agreement), via the
‘umbrella’ contractual
structure of most sports
agreements (ie.
incorporation of such
terms by reference, by
which each sub-ordinate
party agrees to be
bound).
National legislation (enacted as a
consequence of NGs signing international
conventions) addressing issues such as
anti-doping (ie. ICADS 2005), sports
integrity and sports administration also
regulate an individual’s or group’s means
of sports participation.
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
I. What are sporting disputes?
• Sport? A highly organised social activity comprised of persons
voluntarily playing ‘games’ in accordance with an agreed set of rules
to produce an outcome which results in a ‘winner’ of the game.
• Sporting Disputes? A distinct body of regulatory and case law
unique to ‘sport’ (ie. Eligibility; Selection; Game Rule; Doping; On
and Off-Field Conduct; Integrity). A jus ludorem (law of games) or
lex sportiva. Genesis in the early 1980s. Cf. lex mercatoria?
• What are not ‘sporting disputes’: Legal actions primarily founded in
contract, tort, or public law which involve sport, which are curially
determined, save those disputes arising under the ‘sporting contract’
itself.
• ‘Sports law’ spans private and public, domestic and international
law. Is primarily international in character, given the dominant roles
of the IOC, WADA, IFs & NFs (regulation) and the CAS (case law).
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
I. The Sports Arbitration Agreement
• The 2012 AOC Team Agreement:18. Dispute Resolution
18.1 I agree that any dispute relating to this Agreement, whether arising during the term of this Agreement or
after its termination, will be solely and exclusively resolved by the Appeals Arbitration Division of the Court of
Arbitration for Sport according to the Code of Sports-Related Arbitration.
18.2 The Court of Arbitration for Sport will rule on its jurisdiction and has exclusive power to order provisional
and conservatory measures. The decisions of the Court of Arbitration for Sport will be final and binding on the
parties.
18.3 In the interests of speedy and expert resolution of any such disputes, I hereby surrender any right I may
have to institute or maintain proceedings in any court or other judicial authority in relation to any such dispute
or any right to file any appeal, review or recourse to any court or other judicial authority from any arbitral
award, decision or ruling issued by the Court of Arbitration for Sport. In particular, and without restricting the
generality of the foregoing and for further and better assurance notwithstanding that such provisions have no
applicability, I agree that neither party will have the right of appeal under sections 34 and 34A of the
Commercial Arbitration Act, 2010 (NSW) or equivalent in any of the Australian states or territories or to apply
for the determination of a question of law under section 27I of such Act or equivalent in any of the Australian
states or territories.
18.4 The sole grounds for disputing a decision or other act or omission by the AOC or the Chef de Mission or
their authorised delegate(s) are that it:
(1) was affected by actual bias; or
(2) was obviously or self evidently so unreasonable or perverse that it can be said to be irrational.
18.5 The parties consent to the Grounds of Appeal to CAS, the names of the arbitrators, the date for hearing,
the award and the reasons being made public.
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
II. Domestic Tribunal or Arbitration?
• What were the parties intentions objectively ascertained? (Toll (FCGT) PtyLtd v Alphapharm Pty Ltd [2004] HCA 52, [40]; Codelfa Constructions Pty Ltd v State
Rail Authority of New South Wales (1982) 149 CLR 337, 352 (Mason J; Stephen &
Wilson JJ concurring).
• Did the parties agree (ie. dispute resolution clause) for their dispute
under the sporting agreement (incorporating by reference all ‘stated’
policies) to be dealt with by way of a domestic tribunal procedure, or by
arbitration? (Cf. Sports Development Act 1997 (Malaysia), ss 23, 24).
• Raguz v Sullivan (2000) 50 NSWLR 236, [91]-[93], [102]-[109]:
- The seat of arbitration can be different to the place of arbitration.
- CAS = international (not domestic) arbitration.
• ASADA v 34 Players and One Support Person [2014] VSC 635, [15]-
[18]; [56]:
- The ingredients of ‘arbitration’.
- Sporting disputes: ‘employment’ rather than ‘commercial’ disputes?
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
III. The Court of Arbitration for Sport: History
• 1984: IOC establish the CAS to address the rise in the number of
sporting disputes (� commercialisation & internationalisation in sport).
• 1994: Paris Agreement and the establishment of ICAS (20 members)
post Gundel (Swiss Federal Tribunal ‘SFT’). Primary function of ICAS
is to oversee the operation of the CAS and to safeguard its
independence (IOC, ANOC, GAIF, Athlete and Independent
representatives – rolling appointment system). ICAS Statutes & CAS
Code of Sports-related Arbitration (‘CAS Code’).
• 1996: First Olympic Ad-Hoc Division (‘AHD’) of the CAS.
• 2012: Establishment of the CAS regional office at the KLRCA.
• The CAS is the pre-eminent specialist international jurisdiction for the
determination of sporting disputes. Final court of ‘merit’ appeals. Over
300 CAS arbitrators world-wide hear approximately 300 cases per
annum (ranging from doping to football transfer cases).
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
III. CAS: Jurisdiction
• The CAS derives its ultimate jurisdiction from dispute resolution
clauses in the ‘sporting contract’ and also under OC, Arts 15(4), 59
and WADC Art 22.3, which in turn often import the CAS Code.
• CAS permanently seated in Lausanne, SUI (lex arbitri), although
arbitrations can be conducted world-wide (Cf. lex loci). Awards
enforceable under the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, New York, 1958.
• CAS independence upheld by the SFT in Lazutina and Danilova v
IOC, FIS and CAS in 2003. Limited grounds of review. Cf. Hondo v
WADA and Canas v ATP in 2007.
• Swiss arbitral supervisory jurisdiction. See SFT Decisions: A v FCB
& FIFA (2010); Valverde v WADA & Ors (2011); Matuzalem v FIFA
(2012) and Federal Code on Private International Law 1987 (SUI),
Arts 190 & 191.
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
III. CAS: Structure and Core Procedure
• The CAS is comprised of: Ordinary Division (CAS Code, R38-46) and the
Appellate Division CAS (CAS Code, R57-59) (See also: CAS Code, S20-22).
• CAS Arbitrators (1 or 3) can only be appointed from the CAS Panel of
Arbitrators [appointed by ICAS, renewable every 4 years] (CAS Code, S3,
S13-19, R40 [Ordinary Division (‘OD’)]; R 50, 52-54 [Appeal Division (‘AD’)]) and who
must remain independent (CAS Code, S18 R33-36).• CAS proceedings are conducted privately, but unless the parties
otherwise agree, CAS Awards are published in the public arena (CAS
Code, Rules S19, R43, 46, 59).• Appeal hearings are conducted ‘de novo’ (CAS Code, R57).
• Costs? CAS costs. Parties’ costs discretionary: complexity; outcome;
and financial resources of the parties, are considered (CAS Code, R64-65;French v Australian Sports Commission & Cycling Australia CAS 2005; Marinov v
ASADA CAS 2007; Inglis v EFA CAS 2004).
PAUL J. HAYES BARRISTER-AT-LAW
III. CAS in 2014 – 30 years onC• The past decade has witnessed a
dramatic increase in the number of
sporting disputes filed with the CAS.
• Despite its original aspiration to offer
‘low cost and rapid action’ and
consistency in the determination of
sporting disputes (Reeb, 2006), CAS has
become expensive (CAS Code, R64-65),
procedurally slower (in part due to the
greater complexity of sporting
disputes) and to some degree,
weighed down by its own success.
• CAS continues to successfully operate
its AHD at OGs.
Sports Arbitration Essentials
CAS STATISTICS
1986: 2 cases
1995: 13 cases
2002: 86 cases
2003: 109 cases
2004: 271 cases
2005: 198 cases
2006: 204 cases
2007: 252 cases
2008: 313 cases
2009: 275 cases
2010: 298 cases
2011: 365 cases
2012: 374 cases
2013: 408 cases
2014: over 400
cases
PAUL J. HAYES BARRISTER-AT-LAW
III. CAS – The Future?
• Despite its admirable original objectives, the CAS has become
financially expensive and logistically challenging for both athletes and
sports organisations. Is the CAS sustainable in its current form?
• CAS costs assessed under Rules 64.2 and 64.4 of the CAS Code
(incl. the ‘CAS advance’), in addition to the filing fee payable has
made CAS unaffordable for many, especially for those cases which
are complex and evidentially voluminous (ie. non-analytical positive
ADRVs; sports integrity cases). (Cf. Marinov v ASADA CAS 2007). Such
costs are compounded when incurred at a first instance CAS hearing
and are then incurred again at a CAS ‘appeal de novo’.
• Regional sports arbitration panels hearing ‘sporting disputes’ at first
instance (with a limited right of appeal to CAS) could thrive if sports
arbitrations could be efficiently and affordably conducted (Cf. domestic
tribunals). A purely appellate role for the CAS? ‘Rehearing’ (with the
opportunity to introduce new evidence not led at first instance)?
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
IV. CAS: Crucial Procedural Considerations• Time Limit for action / appeal. 21 days - subject to arbitration agreement
(CAS Code, R32 [OD]; R49 [AD]). Compliance with directions in Order of
Procedure (payment of fees, filing of submissions), also vital.
• Form of application / appeal. State basis of application / grounds of
appeal (CAS Code, R38, 39 [OD]; R48 [AD]).
• Filing Fee + Advance on Costs (CAS Code, R64); Language (CAS Code, R29).
• Urgent? Interim Measures (CAS Code, R37).
• Written Memorials (CAS Code, R38, 39, 44 [OD]; R51, 55, 56 [AD]).
• Governing Law - in the absence of parties’ choice: Swiss law [OD]; law
of the country of the IF’s domicile [AD] or as Panel considers
appropriate (CAS Code, R45 [OD]; R58 [AD]. Cf. Lex arbitri = Swiss law.
• Form of Hearing (including D/Hs) (CAS Code, R44 [OD]; R57 [AD]). Note:
‘comfortable satisfaction’ standard of proof (French v ASC & CA, CAS 2005).
• Form of Award (CAS Code, R46 [OD]; R50 AD]).
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
IV. Time Limits in CAS – Jurisdiction!
• CAS Code: R48, 51 (Statement of Appeal & Appeal Brief to be filed
within time [only 1 extension], otherwise appeal ‘shall not proceed’, or
be deemed ‘withdrawn’); R64.2 (Where the entire CAS advance on
costs not paid on time (by either party), ‘the request/appeal shall be
deemed withdrawn and the CAS shall terminate the arbitration’).
Extensions must be applied before expiry of time period.
• CAS Arbitrator declined to accept jurisdiction - Appellant was 3 days
late in filing R51 Appeal Brief (BSC Budevelnyk Ltd v Lukashov CAS 2014).
• SFT declared that Arbitrator properly declined jurisdiction where
Appellant did not pay the advance of costs on time, holding that
termination of the arbitration in such circumstances would not offend
‘procedural public policy’ under Swiss law (Y v FIFA, SFT 4A_600/2008, 2009).
• Cf. CAS arbitrator accepts jurisdiction where a party declined to pay its
share of CAS advance – arbitration only terminated where the ‘entire
advance’ not paid (ASADA v Mottrom CAS 2015; Cf Baggaley v ASADA CAS 2009).
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
IV. CAS: The Olympic Games Ad Hoc Division
• CAS AHD operates 10 days either side of OGs (CAS 2012 AHD Rules, Arts 1
& 2). Special List of ‘Olympic arbitrators’ drawn from CAS Panel (CAS
2012 AHD Rules, Arts 3 & 12).
• Provision for ‘stay’ (interim measures) in ‘extremely urgent’
circumstances (CAS 2012 AHD Rules, Arts10, 14, 20b). Note: considerations of
‘irreparable harm’ and whether ‘interests of Applicant outweigh interests
of Olympic community’).
• Arbitral decision ordinarily required within 24 hours of lodgment of
application (CAS 2012 AHD Rules, Arts 18 & 19).
• Arbitral decision (in writing and briefly reasoned) enforceable
immediately; No appeal (CAS AHD Rules, Arts 19 & 21).
• CAS arbitration costs ‘free’; Parties bear own costs (CAS 2012 AHD Rules,
Art 22).
• Arbitrators & Counsel ‘on call’ during OGs – CAS AHD arbitrations
occur at breathtaking speed!
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
V. An accessible body of sports jurisprudence?
• On of the great frustrations of sports lawyers world-wide, in seeking to
stay appraised of a rapidly emerging body of sports jurisprudence
(CAS Awards and international regulation), has been the absence of a
central and navigable repository of such resources.
• No stare decisis in the CAS jurisdiction, but comparable well-
reasoned CAS Awards (derived from strong panels) are of
considerable persuasive value in CAS arbitrations and promote the
consistent application of international sports principles or lex sportiva.
• ‘Access to justice’ and fairness not only encompasses cost
considerations, but also access to the body of regulation and case law
which governs individuals’ participation in sport. Such access is
fundamental to the ‘international rule of [sports] law’ which informs the
normative environment in which international sport is conducted.
• CAS now publishes Awards online, but still there is much to be done...
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
V. ‘Sports Law’ & Resources
• Court of Arbitration for Sport
CAS Ruleshttp://www.tas-cas.org/en/icas/code-statutes-of-icas-and-cas.html
CAS Jurisprudencehttp://www.tas-cas.org/en/jurisprudence/recent-decisions.html
• World Anti-Doping Agency
WADACodehttps://www.wada-ama.org/en/what-we-do/the-code
Anti-Doping Jurisprudencehttps://www.wada-ama.org/en/what-we-do/legal
• British Association for Sport & Law (‘BASL’)http://www.britishsportslaw.org/links/
• Australian and New Zealand Sports Law Journal (‘ANZSLJ’)https://anzsla.com/content/australian-new-zealand-sports-law-journal
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
VI. Challenging CAS Awards
• Recent increase in the number of CAS Awards being challenged in the
SFT.
• Grounds of review under Article 190 of the Federal Code on Private
International Law 1987 (SUI):
- Irregular constitution of the tribunal;
- Tribunal erroneously seizes jurisdiction;
- Tribunal rules beyond scope of arbitration, or fails to address issue
submitted for arbitration;
- ‘audi alteram partem’ rule and equality of the parties not respected;
- Award is incompatible with Swiss ‘public policy’ (Cf. ECHR).
• SFT: Valverde (2011);Matuzalem (2012); SCB Ice Hockey AG (2012).
• Pechstein (Landersgericht, GER, 2014). Athletes ‘voluntarily’ submit to
CAS arbitration? Separable sports arbitration agreement enforceable?
Sports Arbitration Essentials
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
VI. Challenging/Enforcing Sports Arbitral Awards
• Matuzalem v FIFA (unreported, Swiss Federal Tribunal, 27 March
2011):
Player ordered to pay damages to former football club (player transfer
case). Player could not pay. FIFA commenced disciplinary action for
non-payment and CAS suspended the player indefinitely, until the
monies were paid. However, the player could only earn income to pay
from his occupation as a football player. SFT stayed the CAS Award
because it offended Swiss ‘public policy’ – curtailment of economic
freedom (FCPIL, Art 190(2)(e)).
• Guido van der Garde BV v Sauber Motorsport AG [2015] VSC 109,
[19]-[21] (Croft J) (See also: Sauber Motorsport AG v Guido van der Garde BV
2015] VSCA 37, [8], [17]).
“I would regard an order staying enforcement until further order of the
enforcing court as being consistent with the New York Convention, but not an
order vacating, discharging, or permanently staying an enforcement order”.
PAUL J. HAYES BARRISTER-AT-LAW
Sports Arbitration Essentials
The Finishing PostC
• The whole idea of ‘sport’ rests on a stable foundation of fairness and
transparency on and off the field of play.
• Accessible and effective sports arbitration (internationally and
domestically) is essential to ensure fairness prevails in the sporting
disputes.
• Sports arbitration practitioners (as Counsel and as Arbitrators) play a
vital role in ensuring fairness and just outcomes in sporting disputes.
• The sports arbitration practitioner’s ‘kit bag’ will lawfully enhance the
performance of practitioners playing in this arena!
Sport has the power to change the world. It has the power to inspire, it has the
power to unite people in a way that little else does.
- Nelson Mandela, 2000.