«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
АРБИТРАЖА В УЗБЕКИСТАНЕ»
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Sherzod Khodjimurotov
Independent researcher, Tashkent State University of Law
https://doi.org/10.47689/978-9943-7818-6-3/iss1-pp54-62
THE CAS AS AN INDEPENDENT ARBITRAL TRIBUNAL
Abstract.
Since its formation under the auspices of the International Olympic
Committee, the Court of Arbitration for Sport (CAS) has had to contend with
allegations about its impartiality and independence. Some scholars believe that the
CAS still lacks independence and impartiality considering the appeals sent to the
Swiss Federal Tribunal by athletes, and also its funding which comes from
international sports federations. This article seeks to shed light on several issues
concerning the CAS’s independence from the sports governing bodies and the
International Olympic Committee, as well as the impartiality of its appointed
arbitrators when resolving sports-related disputes between players and clubs.
Key words:
Court of Arbitration for Sport, International Olympic Committee,
impartiality, independence, Swiss Federal Tribunal, sports federations, funding,
sports governing bodies, arbitrators, sports-related disputes, players, clubs.
Шерзод Ходжимуротов
Самостоятельный исследователь,
Ташкентский государственный юридический университет
CAS КАК НЕЗАВИСИМЫЙ АРБИТРАЖНЫЙ СУД
Аннотация.
Спортивному арбитражному суду (CAS) с момента своего
создания под эгидой Международного олимпийского комитета приходилось
бороться с обвинениями в его беспристрастности и независимости.
Некоторые ученые считают, что CAS по-прежнему не хватает
независимости и беспристрастности, учитывая апелляции, направляемые
спортсменами в Федеральный трибунал Швейцарии, а также его
финансирование, поступающее от международных спортивных федераций.
Эта статья призвана пролить свет на некоторые вопросы, касающиеся
независимости CAS от спортивных руководящих органов и Международного
олимпийского комитета, а также беспристрастности назначенных ею
арбитров при разрешении спортивных споров между игроками и клубами.
Ключевые слова:
Спортивный арбитражный суд, Международный
олимпийский комитет, беспристрастность, независимость, Федеральный
трибунал Швейцарии, спортивные федерации, финансирование, спортивные
руководящие органы, арбитры, споры, связанные со спортом, игроки, клубы.
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
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Concerns about the CAS’s independence and impartiality have generated
much debate among sports lawyers and academics. Despite the Swiss Supreme
Court’s recognition of the CAS as an independent arbitral tribunal in its opinion of
March 15, 1993, the CAS has had some of its judgments contested and appealed to
the Swiss Federal Court. The first prominent cases in the history of the CAS were
those of a jockey, Elmar Gundel [1], and two Russian cross-country skiers, Larisa
Lazutina and Olga Danilova
[2], who all attempted to question the impartiality of
the CAS because of the CAS’s relationship with the IOC.
CAS awards are enforceable in line with the standards of International
Private Law, as well as the provisions of the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958 [3].
A dissatisfied party may legitimately dispute the CAS awards in the Swiss Federal
Court in Lausanne, but only in extremely limited circumstances, according to the
rules of Article 190(2) of the Swiss Federal Code on Private International Law of
December 18, 1987. [4]
In accordance with Article 190(2) of the Swiss Federal Code on Private
International Law, CAS awards may only be challenged in the following
circumstances:
– if a sole arbitrator was irregularly designated or the arbitral tribunal was
irregularly constituted;
– if the arbitral tribunal erroneously held that it had or did not have
jurisdiction;
– if the arbitral tribunal ruled on matters beyond the claims submitted to it
or failed to rule on one of the claims;
– if the equality of the parties or their right to be heard in an adversarial
proceeding was not respected;
– if the award is incompatible with Swiss public policy. [5]
The case, which led to the reform in 1994
In February 1992, a German horse rider named Elmar Gundel, filed his
appeal for arbitration with the CAS basing his claim on the arbitration clause in
the Statutes of the International Federation for Equestrian Sports, challenging a
decision rendered by the federation. According to that decision, Gundel was
disqualified and got imposed a suspension and a fine on him for misconduct which
was qualified as horse doping. Despite getting his suspension reduced by the CAS
Gundel was still unsatisfied with the CAS decision, and submitted an appeal to the
Swiss Federal Tribunal. Gundel, the appellant, challenged the CAS award’s
validity, contending that it was delivered by a court that did not fulfill the required
standards of impartiality and independence for a legitimate arbitration court [6].
In its judgment, the Swiss Federal Tribunal ruled that it recognizes the CAS as a
true court of arbitration, and noted that the CAS was not an organ of the
International Federation for Equestrian Sports that it did not have to receive
instructions from this Federation, and that it preserved considerable autonomy
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with respect to it. However, the Swiss Federal Tribunal questioned its close ties
with the IOC, which raises some question marks on the independence of the CAS
[7]. The Swiss Federal Tribunal further emphasized various linkages between the
CAS and the IOC, noting that the CAS was entirely funded by the IOC, that the IOC
had the authority to amend the CAS Statutes, and that the IOC and its President
were accorded considerable authority in the nomination of CAS members [8].
Consequently, the Swiss Supreme Court judgment on the Gundel case led to a
major reform of the CAS that aimed to make it independent from the IOC. The
International Council of Arbitration for Sport (ICAS) was created to organize the
work of the CAS and take care of financing it, thereby substituting the IOC [9].
The 1994 Paris Agreement and a Swiss Federal Tribunal ruling concerning horse
rider Elmar Gundel resulted in numerous significant institutional and procedural
modifications to the CAS framework [10].
Another high-profile case that placed CAS under pressure and, once again,
CAS’s impartiality was brought into question before the Swiss Federal Tribunal,
involved two Russian cross-country skiers, Larissa Lazutina and Olga Danilova
who both questioned the independence of CAS in the Swiss Federal Tribunal in
2003 [11]. After the 2002 Winter Olympic Games in Salt Lake City, the
International Olympic Committee (IOC) disqualified the two skiers for doping
violations. The International Ski Federation (FIS) imposed a two-year suspension
on both of them. The Russian skiers filed their appeal to CAS, asking for the
IOC and FIS decisions to be overturned but it was unsuccessful. Then they
appealed the CAS decision to the Swiss Federal Tribunal, claiming that the CAS is
not genuinely independent since it gets financing directly from the International
Olympic Committee.
The Swiss Federal Tribunal found that the CAS maintained all of the
necessary guarantees of independence and impartiality to be deemed a genuine
court of arbitration, even in cases involving the IOC [12].
After going through the benchmark cases that were aimed to test the CAS’s
independence and impartiality, it’s much of an importance to observe what
academic scholars had to say on this matter.
Margaret Moses, a professor at Loyola University, characterized the
impartiality of arbitrators as follows: “Impartiality generally means that the
arbitrator is not biased because of any preconceived notions about the issues and
has no reason to favor one party over another” [13]. She also brought some
description to the independence of the arbitrators which was exclusively asserted
as “Independence generally means that the arbitrator has no financial interest in
the case or its outcome. It can also mean that the arbitrator is not dependent on
one of the parties for any benefit, such as employment or client referral, and that
the arbitrator does not have a close business or professional relationship with one
of the parties” [13].
Regarding the CAS’s legitimacy and impartiality, Johan Lindholm brought to
light an important point that must be considered, the CAS’s decision makers lack
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diversity and representativeness. He suggests that this could help strengthen the
CAS’s legitimacy in the eyes of parties who may struggle to make a choice due to
a lack of diversity among arbitrators on the verge of appointment or in cases
where they are forced to choose arbitrators strictly from the list due to limited
options and a lack of geographical diversity [14]. He also argues in his book that a
lack of diversity among arbitrators has a significant influence on the institution’s
perceived credibility. Lindholm cites the fact that European arbitrators,
particularly Swiss arbitrators, are disproportionately overrepresented in the CAS
as an illustration of a diversity issue [15].
The Court of Arbitration for Sport has come under criticism for its lack of
diversity in selecting arbitrators to resolve sports disputes. According to the
report, the profiles of the 330 arbitrators reveal significant disparities in terms of
gender and ethnic origin (by referring to skin color). In another study, it was
found that only 17.3% of the 330 arbitrators were non-white and just 3.6% were
black, when looking at the ethnicity of those arbitrators appointed [16].
Additionally, an analysis of those 517 appointments in terms of ethnic diversity
(as assessed by skin color) indicates worrying findings. Only 31 (or 6% of all
appointments) were granted to non-white arbitrators, and only one was given to
a black arbitrator (i.e. 0.2%).
Those cases, which were examined above also indicates, the IOC and the UCI
did not even appoint a single non-white arbitrator despite making 131 arbitrator
appointments between them. The table below displays the percentage of
arbitrator appointments at the CAS in the example of major sports institutions
based on arbitrators’ ethnicity [16].
Not only the geographic diversity or reference to skin colour have been
questioned with regards to CAS`s impartiality and legitimacy, but also gender of
the appointed arbitrators stirred a big debate among experts and academics that
it could also negatively affect to the CAS’s image as an impartial arbitration court.
According to a study undertaken by Morgan Sports Law, only 38 of the
330 unique arbitrators were female (11.5 percent), and these arbitrators
received only 226 appointments (4.5 percent) between them. On average, female
arbitrators get almost 10 fewer appointments than their male counterparts,
averaging 6 appointments per female arbitrator versus over 16 appointments per
male arbitrator [17]. This is a clear indication of how female arbitrators have been
underrepresented in CAS proceedings for many years and continues to be a
source of concern about the CAS’s impartiality in assigning arbitrators.
There are some other questions with regard to independence and
impartiality of the CAS arbitrators, when the appointment of arbitrators for a CAS
Panel is on the agenda. Johan Lindholm was once again quick to emphasize the
significance of the arbitrator nomination process, stating that the Repeat
Arbitrator and Compatriot Arbitrator appointments would jeopardize the CAS’s
impartiality and independence. International arbitration is based on the
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
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fundamental principle that each arbitrator must be and remain independent and
impartial toward the parties and the dispute [18]. The outcome of the award
always rests with the composition of an independent and impartial arbitral
tribunal. A similar statement can be found in the CAS Code, which includes that
“every arbitrator shall be and remain impartial and independent of the parties
and shall immediately disclose any circumstances which may affect her/his
independence with respect to any of the parties” [19].
There is usually considerable debate about whether the relationship
between arbitrators and parties brings into question the arbitrators’ impartiality
and independence. The term “repeat arbitrator” is defined in several sports law
publications and refers to individuals who are repeatedly appointed by the same
party in multiple arbitration proceedings [20]. Moreover, it is critical to determine
if such arbitrators are sufficiently unbiased and independent of the parties who
appoint them.
Dr. Kyriaki Noussia argues that the arbitral community must pay close
attention to repeated appointments of arbitrators and, if any are appointed, they
must be disclosed in order to avoid a party using the undisclosed repeated
appointment as a basis for contesting or setting aside the judgement [21].
The International Bar Association’s IBA Guidelines on Conflicts of Interest in
International Arbitration offer three lists outlining the scenarios that could result
in a conflict of interest, dubbed the Red, Orange, and Green lists [22]. Sub
paragraph 3.1.3 of the Paragraph 3 of the IBA Guidelines, which describes the
Orange list as:
“The arbitrator has, within the past three years, been appointed as
arbitrator on two or more occasions by one of the parties or an affiliate of one of
the parties”. This proves that the arbitrator has to disclose of any conflicts of
interests which within the past three years [23]. However, in a case
Newcastle
United Football Company Ltd v The Football Association Premier League Ltd and
others
, English Commercial court rejected Newcastle United Football Company
Ltd (NUFC) request to remove the arbitrator nominated by the Football
Association Premier League Ltd (PLL) even if the details of the case matched with
the provisions provided [24]. NUFC and PLL both selected their own arbitrators,
who in turn appointed the arbitral tribunal’s chair. Each arbitrator (including the
chair) completed an impartiality declaration as part of the appointment
procedure. After the appointment, Newcastle United lawyers found out that the
chair had not disclosed in the statement the following:
In the last three years, the chair had been involved in 12 arbitrations that
included PLL’s lawyer and the chair was appointed by PLL’s lawyer in three of them
(although two out of the three were after the present dispute) [24].
The chair advised PLL four times in the past (although the most recent
advice was more than two years before the present dispute)” [24]. However, after
considering the facts, the Court concluded that there was a reasonable possibility
«ПЕРСПЕКТИВЫ РАЗВИТИЯ МЕЖДУНАРОДНОГО КОММЕРЧЕСКОГО
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that the arbitrator was biased. Nonetheless, taking into account additional details,
the Court found that:
“In respect of the past advice provided by the arbitrator to PLL,
the court stated that the prior advice was sufficiently different to the issue in dispute
and there was no suggestion that the arbitral tribunal would need to consider the
subject of the earlier advice. The court decided that the provision of the previous
advice did not, therefore, create a risk of prejudgment of the issues in the present
dispute and did not show an ongoing relationship with PLL” [24].
Johan Lindholm,
on the other hand, is of the opinion that repeat arbitrators can be a concern and that
if an arbitrator has been nominated by the same party enough repeatedly, he or
she may be required to disclose this information [24]. Further, he argues that in
order for an arbitrator to be considered a repeat arbitrator in CAS hearings, there
must be repeat disputing parties, which sometimes includes certain Sports
governing bodies [24]. In accordance with Lindholm’s opinion, it may be assumed
that not only do arbitrators have to be appointed repeatedly in order to hear any
case at CAS, but the same parties also have to be involved in the dispute before CAS.
Finally, yet importantly, it was noted that the CAS’s financial dependence on
various other sports federations might possibly result in challenges that the
institution would have to face in certain instances. On February 20, 2018,
a Belgian football club brought a new challenge against the CAS award which was
issued in disciplinary appeal proceedings between a Belgian football club (the
“Club”) and the FIFA before Swiss Federal Tribunal in a case 4A 260/2017 [25].
The Club challenged the judgement on the grounds that CAS was financially
dependent on FIFA and that the award was delivered by an arbitral tribunal that
was not properly constituted within the meaning of Swiss PILA-Private
International Law Act Article 190.2(a). In the Club’s view, the fear of losing a major
client like FIFA might influence the CAS ruling to the prejudice of parties to the
dispute against FIFA. SFT analyzed all of FIFA’s financial contributions to CAS and
revealed that FIFA’s contributions to CAS’s budget were less than 10% of the total
of 16,000,000 CHF, or perhaps just 1,500,000 CHF [26]. As a result, SFT
determined that the Club was unable to produce any statistical analysis that there
was a predisposition by CAS to decide in favor of FIFA whenever it was involved
in arbitration procedures before CAS. The Swiss Federal Tribunal dismissed the
Belgian Club’s challenge of the CAS award and its arguments regarding the CAS’s
financial dependence on FIFA.
3
In sum, it is evident that the CAS has had to deal with some of the issues
regarding its independence and impartiality and come under so much criticism for
having close ties to IOC. Despite being recognized as an independent arbitral div by
the Swiss Supreme Court, several decisions of the CAS have been contested and
appealed to the Swiss Federal Court. The Swiss Federal Tribunal called into question
the CAS’s tight links to the International Olympic Committee (IOC).
On the other hand, it was underlined that the Commission’s financial
dependency on a variety of different sports federations may potentially result in
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issues that the institution would have to deal with in certain circumstances.
Additionally, it was noted that the Court of Arbitration for Sport has come
under fire for failing to appoint a broad pool of arbitrators to resolve sports
disputes. A large disparity between men and women arbitrators, as well as
between arbitrators of different ethnic backgrounds, is shown in the report, which
may be seen here (by referring to skin color). When looking at the ethnicity of the
arbitrators chosen, it was discovered in another investigation that only
17.3 percent of the 330 arbitrators were non-white, with just 3.6 percent being
black, according to the findings.
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