Introduction
The Court of Arbitration for Sports ("CAS") is an independent institution established to provide dispute settlement through mediation or arbitration for any sports-related disputes. The Statutes of Bodies Working for the Settlement of Sports-Related Disputes ("Statutes") foresees two bodies in Article S1, the International Council of Arbitration for Sports ("ICAS") and the CAS - both bodies are seated in Lausanne, Switzerland. The CAS is administered and financed by the ICAS.
The CAS adapted its own Procedural Rules ("Rules")1 to address specific the character of sports disputes. Pursuant to Article S12 of the Statutes, the CAS resolves sports-related disputes by constituting panels. These panels are responsible to resolve disputes at hand in accordance with the Rules. The three main responsibilities of these panels are to resolve disputes that are addressed through ordinary arbitration in cases where the federation, associations, sports-related bodies statutes, or an agreement, provide resolution through appeals of arbitration procedure disputes, which are related to such decisions of federations, associations or other sports-related bodies, and to resolve disputes addressed through mediation2.
Organization of CAS
The CAS is divided into two divisions: the Ordinary Arbitration Division, and the Appeals Arbitration Division. The organization and distinction between these two divisions are provided in the Statutes, Article S20. Pursuant to Article S20, the Ordinary Arbitration Division is entitled to settle disputes submitted through ordinary procedure, and the Appeals Arbitration Division is authorized to resolve decisions of federations, associations or sports-related bodies on appeal. Pursuant to Article R47 of the Rules, the CAS Court Office is responsible to refer disputes to the competent division.
Ordinary Arbitration Division
In order for a dispute to be settled by the Ordinary Arbitration Division, Article R27 of the Rules provides that the dispute should be related to sports, and parties who wish to resolve disputes through the CAS should come to an agreement in this regard. This agreement can be achieved through an arbitration clause or a provision of a statute with reference to the CAS.
Content of the Dispute
The leading qualification to submit a dispute to the CAS is that it be a sports-related dispute. This condition is referred to in several Articles of the Statute as S1, S3, and S12.
R27 of the Rules provides that "such disputes may involve matters of principles relating to sports, or pecuniary matters, or other interests relating to the practice or the development of sports, and may include, more generally, any activity or matter related to, or connected to, sports." The CAS, in none of its decisions, recused itself by claiming that the disputes are unrelated to sports3. The role or titles of the parties, whether the party is a federation or sportsman, do not play a role in determining whether the dispute is sports related.
Arbitration Agreement
The conditions for an arbitration agreement are subject to the law of the seat of the arbitration. As previously stated, Article R28 of the Rules clearly regulates the seat of the CAS as Lausanne, Switzerland, which will mean that lex arbitri, the law governing the arbitration, is Swiss Law. In order to have a valid arbitration agreement, parties must comply with Swiss Law. Arbitration is regulated under two codes; the Swiss Private International Law Act of 1987 ("PILA"), which will come into enforce when the parties are not domiciled or habitual residents in Switzerland, and in other cases, the Swiss Civil Procedure Code ("CPC") will prevail.
Pursuant to Article 178 III of the PILA, "The arbitration agreement must be made in writing, by telegram, telex, telecopy, or any other means of communication, which permits it to be evidenced by text." CPC Article 358 reads, "The arbitration agreement must be made in writing, or in any other form allowing it to be evidenced by text." It is clearly derived from the regulations of Swiss Law that arbitration agreements must be in writing, or evidenced by text.
Applicable Law
The general rule regulated under Article R45 of the Rules states that the parties are free to choose the law that will be applied to the merits of the case; if the parties fail to make such decision, Swiss law apply. The Panel can decide ex aequo et bono upon the parties' authorization. In most cases where a dispute is related to football, the parties will most likely have previously determined the application of the FIFA Rules in their agreements. In these cases, the Panel primarily applies FIFA Rules and subsidiary Swiss law4.
Language
Article R29 of the Rules provides, in detail, the working language of the CAS as either French or English. Pursuant to R29, the parties are free to choose between English or French. In cases where the parties lack this determination, the President of the Panel or the President of the Division will make the decision. If the Panel or the CAS Court Office agree, the parties may request to conduct the proceedings in another language.
Arbitrators
The independence and qualifications of arbitrators are regulated under R33 of the Rules. The crucial point to be considered while appointing an arbitrator is the list drawn up by the ICAS. The parties can only decide amongst the arbitrators who are qualified to serve as arbitrators, and who are included in the list. With the amendment made in 2012 to the Rules, the parties are now obliged to use free will to appoint arbitrators from the abovementioned list in accordance with Article R40.2 of the Rules. There are pro and con views regarding this closed list regulation. Pro-view scholars claim that this list strengthens confidence that the parties will have regarding the expertise of the arbitrator in sports and in the CAS's jurisprudence. To the contrary, some scholars are of the view that these parties are capable to choose an arbitrator who has expertise and knowledge in the related sports field and with the CAS, without the need of a closed list5.
The arbitrators may be challenged, and if not so challenged, confirmed by the Division. Once the Panel is formed, the file will be transferred to the arbitrators.
Request of Arbitration and Answer
In order to conduct an arbitration, the claimant is obliged to prepare a request of arbitration regulated under Article R38 of the Rules. This request is submitted to the CAS Court Office, and in general terms, contain; information regarding the respondents, a brief explanation of the facts and claims, request for relief, the arbitration agreement, information on arbitrators, including the determination of the arbitration, whether a sole arbitrator is to be appointed, or whether a tribunal of three arbitrators is preferred. In the request, the claimant mostly includes matters related to the competence of the CAS; detailed information regarding the dispute is not necessarily included.
Following the request, the CAS Court Office will obtain from the parties their views on the applicable law, and will set a time limit within which the respondent is to submit its answer. The answer that is to be submitted by the respondent is regulated under R39 of the Rules, and must include the statement of defense, the defense regarding lack of jurisdiction, and any counterclaims.
R39 of the Rules also provides that in cases where the request for arbitration is similar to a pending arbitration case in terms of the facts, the President of the Panel, or the President of the Division, may consolidate the two cases after consulting with the parties.
Procedure
Pursuant to Article of R44 of the Rules, there is a written procedure phase before the Panel, as well as an oral phase. In terms of Article R44, the parties are allowed to exchange one statement of claim, one response and, if necessary for the case at hand, provide one reply and one second response ("Written Submissions"). This provision further provides that the parties can include claims that were not raised previously in their statements of claim and responses. After this step of the procedure, the parties are not allowed to raise additional new claims.
In their written submissions, it is important for the parties to gather their evidence. This evidence will be included in the statement of claim and response. The parties can only produce evidence following the written submission phase through mutual agreement, or with the permission of the Panel.
If the parties wish to call a witness or expert, each party must include the names and summaries of the testimonies of the witnesses into the written submissions.
The oral phase of the CAS procedure, which is the actual hearing, is not obligatory. Pursuant to Article 44.2, if the Panel decides that the information submitted is satisfactory, upon confirmation from the parties, the Panel can decide not to hold a hearing. The rule stipulated under Article 44.2 is to hold a single hearing where the Panel hears all of the oral arguments, witness and expert statements, and the respondent's arguments are heard last. Article 44.2 allows the President of the Panel to conduct a hearing via teleconference or video conference subject to his/her decision. After the hearing is concluded, the parties are permitted to produce any other written pleadings, and the Panel has the discretion to decide otherwise.
The proceedings under the Rules are confidential and will not be disclosed by the parties, arbitrators, or the CAS to any third parties.
Expedited Procedure
It is important to note that parties may wish to proceed with an expedited procedure; the Division or the Panel can decide to expedite the procedure upon confirming the same with the parties. Due to the nature of the sport, the parties, in most cases, prefer to choose the expedited procedure, and even state in their arbitration agreement that the disputes will be resolved through an expedited procedure. The Rules do not provide any guidance as to how the expedited procedure will be conducted. The Division will first fix the stages of the procedure, and if objected to by the parties, this decision will be left to the Panel. In most cases, the expedited procedure is conducted with short deadlines, and with a single round of written submissions. However, the nature of the case may justify a different approach.
Award
The award shall be made by the majority of the Panel, and in the absence of a majority, the decision will be made by the president of the Panel, alone. The award shall be written, dated, signed and, unless otherwise agreed to by the parties, and must state the reasons. The award is subject to the scrutiny of the CAS as to its form. Dissenting opinions are not recognized by the CAS and are not notified.
The award is final and binding upon the parties. However, under Article R47, an appeal against a CAS award rendered by CAS where it acts as a first instance tribunal, is regulated.
Awards will not be made public, unless agreed to by the parties or decided by the Division.
Conclusion
The Rules regulate specific provisions to address sports related disputes through the CAS where the parties execute a written arbitration agreement with a reference to the CAS. In terms of the CAS regulation, it is important to resolve sports-related matters in expedited manners. Specific importance to the experience and expertise of the arbitrators are given through the closed rule system where the parties are obliged to choose the arbitrator. As a result of the expedited nature of the CAS, it provides that the parties submit one round of written submissions and, in cases where it is considered necessary, a final round of replies and second responses, as well as one hearing. It should be emphasized that the lex arbitri is Swiss law, and in terms of applicable law, the parties are free to make a distinction, and in cases where the parties fail to determine the applicable law, the Panel will apply Swiss Law. The parties may appeal the decisions of the CAS, acting as a first instance tribunal.
Footnotes
1. See: http://www.tas-cas.org/en/arbitration/code-procedural-rules.html.
2. See: http://www.tas-cas.org/en/icas/code-statutes-of-icas-and-cas.html.
3. Reeb Matthieu, Le role du Tribunal Arbitral du Sport (TAS), in, Sports und Recht, Zürich, Basel, Schulthess, 2004, p. 134; Sternheimer William/Le Lay Herve, Arbitrages ordinaires pouvant être soumis au Tribunal Arbitral du Sport, Bulletin, 2012/I, p. 49.
4. See: http://jurisprudence.tas-cas.org/sites/CaseLaw/Shared%20Documents/1192.pdf
5. Kocasakal Özdemir Hatice, Sportif Uyuşmazlıkların Tahkim Yoluyla Çözümü ve Spor Tahkim Mahkemesi, İstanbul, 2013, p. 248 vd.
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