Introduction
In recent weeks, the Court of Arbitration for Sport (CAS) has been at the center of significant attention in India due to the controversy surrounding Vinesh Phogat's disqualification. This incident highlights the growing prominence of international sports, both in terms of participation and viewership. The global nature of these sports has given rise to a new category of international litigation—sports-related disputes. Considering the prominent nature of the forum, it becomes imperative to delve into the ambiguities of its structure and procedure. Given this context, the authors shall examine the challenges faced by CAS, particularly in light of the recent disqualification of Vinesh Phogat from the finals.
What is the Court of Arbitration for Sport?
The Court of Arbitration for Sport (CAS) is the top global authority for resolving sports disputes outside national courts. Established by the International Olympic Committee (IOC) in 1983, CAS was formed to offer a fast, flexible, and cost-effective arbitration process. Based in Lausanne, Switzerland, it provides a neutral forum for athletes and sports federations worldwide. CAS operates under the International Council for Sports Arbitration (ICAS) and cases are handled by a select list of arbitrators available on its website.
CAS envisages two broad divisions, firstly the Ordinary Division which is responsible for resolving contractual and infringement related disputes; and secondly, the Ad-Hoc Division which is established specifically during major sports tournaments such as Olympic Games to resolve disputes within 24 hours.1
A. Applicable Law
CAS Code stipulates that all CAS Arbitrations shall be seated at Lausanne, Switzerland,2thereby differing from international commercial arbitrations where the parties are conferred with discretion to choose the procedural rules applicable. Insofar as the substantive law is concerned, the parties enjoy autonomy to decide the same.3 However, if the parties fail to choose the applicable law, the merits are decided in terms of Swiss Law by default.
For arbitrations under the CAS Ad-Hoc division, which is established for specific international tournaments, regulations of the relevant sports body shall be applicable in addition to Swiss Law.
B. What is the available recourse against a CAS Award?
The appeal mechanism under CAS Code is unique and relatively different from that of Ordinary Arbitration Procedure. The parties may still choose the applicable law, but if they are unable to do so, the CAS panel will determine the applicable law at its discretion. This can be either the law of the nation where the federation, association, or sports-related body that issued the impugned decision is passed, or it can be any law the Panel deems appropriate, which is typically Swiss law.4 The CAS appeals mechanism is particularly distinctive, in contrast to appellate tribunals that serve as foundational frameworks for commercial arbitrations in various jurisdictions worldwide, CAS appeals tribunals possess the authority to conduct a de novo review of the facts and legal precedent surrounding the decision made by the forum of first instance.5 This clause is important because it grants the CAS unfettered authority to examine the forum of first instance's award and arrive at a separate conclusion. As a result, none of the facts, evidence undertaken, or even the conclusions formed by the forum of first instance bind the CAS Appellate Tribunal in any manner. They have the authority to set aside the initial award in part or in its entirety, replace it with a new award, or even remand it back to the original forum.6
Vinesh Phogat's tussle with CAS
In the past couple of weeks, there has been an increased interest of Indians in the working of CAS due to the infamous disqualification of Vinesh Phogat by United World Wresting (UWW) before the gold medal match of Women's Freestyle 50kg competition at the Olympic Games Paris 2024 as she failed her second weigh-in. She had filed an application with CAS Ad Hoc Division.7
A. Brief facts:
Vinesh Phogat is a female Indian wrestler who was to compete in the finals of Olympic Games 2024 on 07.08.2024, meaning thereby that if she had competed, she would have either won silver or gold medal. However, for the purpose of finals, when the second weigh-in was taken as per the applicable rules8 i.e., UWW's International Wrestling Rules, she was over 50 kg weight limit. Hence, she was disqualified pursuant to Article 11 of UWW Rules.9
B. Challenge before CAS Ad-hoc Panel:
Vinesh Phogat filed an application on 07.08.2024 seeking relief that the disqualification decision be set aside, and she remains eligible to be awarded her silver medal. By the time the arbitrator was appointed on 08.08.2024, finals had already taken place and medals were awarded.
C. Reasoning of the Court
The Sole Arbitrator noted that the applicant was over the 50 kg weight limit for her wrestling class when she weighed in for the Paris Olympic finals, which was not a disputed face. She would have received the gold or silver medal if she had participated. While interpreting Article 11 of UWW Rules, which states that if the athlete fails the weigh-in, he/she shall be eliminated and ranked last, it was observed that said Rule required strict compliance. Eliminating an athlete who does not meet the weight requirements for a category is a decision about eligibility rather than the field of play.10
According to the Sole Arbitrator's stricto-senso interpretation of "eliminated of the competition" in Article 11, she opined that the "competition" in question is not just the final round of the tournament. There is only one competition, i.e., the Olympic Wrestling Tournament, and it consists of multiple phases spread over two days. The wrestlers must pass the first weigh-in and, if qualified, the second to be eligible for the second day of the competition. The term "competition" in the Rules refers to events that take place across multiple days. Had there not been "of the competition" in Article 11, the interpretation could be rendered in the manner that elimination would apply only to the final round.11
In furtherance to the relief sought regarding joint-silver medal, it was opined that Medals cannot be given out by the Sole the International alone has the authority to decide whether to award, withdraw, or reallocate any victory medals or diplomas.12 IOC bestows the medals during the Olympic Games in accordance with the International Federations' rankings.13 Hence, the IOC cannot be directed to award the applicant with an extra silver medal by the Sole Arbitrator.14
Critique/ Critical Analysis
A. Lack of transparency
In the International Council of Arbitration for Sport (ICAS), the body overseeing the Court of Arbitration for Sport (CAS) has most of its twenty members selected by the IOC and other sports organizations, who also appoint arbitrators to CAS's exclusive list. This process allows sports officials to exert significant influence over CAS's makeup and, potentially, its rulings, thus raising concerns about the arbitrators' independence and impartiality. This undermines the core principles of unbiased justice, which should remain free from influence. Further, ICAS is also tasked with managing CAS's funding and administration and its operations are shrouded in secrecy. It rarely holds meetings and fails to publish annual reports or minutes of meetings, thus casting doubts over its transparency.15
B. Selection of Arbitrators
CAS operates with a minimum of three hundred arbitrators16 (as amended w.e.f. 1 November 2022 from 150 to 300) who are deemed suitable for the role due to their legal training and knowledge of sports. These arbitrators are recommended to the ICAS by various entities, including the International Olympic Committee (IOC), International Federations (IFs), National Olympic Committees (NOCs), and their athletes' commissions. However, the composition of CAS arbitrators is notably dominated by a few countries, like USA, UK, Switzerland, Australia, and France each contributing more than twenty arbitrators.17 This dominance indicates a European/North American, Western, and predominantly white presence within the CAS. Furthermore, a small group of arbitrators, constituting just seven per cent of the list, receive more than 45 per cent of all appointments. Concerns also arise regarding potential conflicts of interest, as many CAS arbitrators hold positions within sports organizations that may influence their impartiality. In fact, 203 arbitrators i.e., almost half of the CAS arbitrators list—are involved in legal, governance, ethics, and other commissions of international or national sports federations and organizations, essentially making them part of the sporting conglomerate's payroll.
C. Meager success rate of appeals and Challenge
Appeals against CAS decisions can only be brought before the Swiss Supreme Court i.e., the Swiss Federal Tribunal (SFT)18. However, in CAS's 40-year history, only about a dozen appeals have succeeded. This is largely due to the narrow grounds for appeal, which are typically limited to procedural matters. The substance of a case is not reconsidered unless a CAS decision is egregiously inconsistent with Swiss "public principles of law."
Under Swiss law, an arbitrator's credibility may be questioned if there are valid concerns regarding their independence. However, the ICAS (Challenge Commission) usually dismisses the majority of such objections. Between 2016 and 2020, CAS records show that out of forty-two challenges against arbitrators, only two were successful.
D. Lack of party Autonomy
While entering any sports events, athletes are required to sign an entry form which often has a dispute resolution clause which mandates the referral of dispute to CAS Arbitration exclusively. The athletes are given no fair option to choose their forum of dispute resolution, thus restricting the remedies available to them. Additionally, there is a limited choice of enlisted arbitrators from which the applicants are required to choose their adjudicator. In case of Ad-Hoc division, this option is also not available to the players, and they must submit their dispute before the arbitrator chosen by the CAS.19
E. Lack of choice in Applicable law
In CAS since the seat of arbitration is Switzerland the procedural law followed is that of Switzerland, but which law will govern the substantive issues in an appeal remains a question of complexity. Article 187(1) of the PILA (Federal Act on Private International Law)20 governs the applicable law in international arbitration. The clause is as follows:
"The arbitral tribunal shall rule according to the law chosen by the parties or, in the absence of such a choice, according to the law with which the action is most closely connected."
Thus, the law, in theory, allows for two scenarios, firstly where the parties choose the applicable law, and secondly, where no such choice is made, the law most closely connected to the dispute applies. A choice-of-law agreement can be informal and may be explicit or implicit but must be evident through clear signs. According to a settled position in CAS the 'closest connect test' seldom applies as it is implied that by choosing CAS as a forum of dispute resolution the parties have at least agreed to the application of CAS rules aligning with Rule 58 of the CAS Code.21 The Rule reads as follows:
"The Panel shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such choice, according to the law of the country in which the federation, association or sports-related body has issued the challenged decision is domiciled or according to the rules of law, the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision."
The issue is how a CAS panel should act when the parties have made both an implicit and explicit choice of law. This happens when, apart from agreeing on CAS jurisdiction (implying the application of the CAS Code), parties also explicitly designate the governing law in the contract. The question then becomes as to how the implicit and explicit choices of law relate, and whether there is still scope for the application of Rule 58 of the CAS Code.
Even when the parties explicitly choose a governing law in their contract, CAS Panels prioritize the conflict-of-law rule found in Rule 58 of the CAS Code, which contradicts the consensus in Swiss legal doctrine. The reason for prioritizing implicit and indirect choice of law over an explicit choice remains unclear, especially considering the "international nature" of the arbitration proceedings. There is no legal foundation for this, but several CAS awards have set the said precedent. The same was held in one of the CAS Awards reproduced hereunder:
"The Panel notes that... the Mandate... also refers to... the existing laws applicable in the territory of the federation... The Panel finds that it should be restrictive in applying national provisions other than Swiss law... Consequently, the Panel will... [in application of R58 of the CAS Code] primarily apply the rules and regulations of FIFA... Italian and Serbian laws and regulations are, in principle, not applicable..."22
The CAS Panel provides no coherent justification as to why the national laws agreed upon by the parties should be applied only "restrictively" or disregarded entirely except when Swiss law is made applicable.
Conclusion
The recent disqualification of Vinesh Phogat and her appeal to the Court of Arbitration for Sport (CAS) highlight both the strengths and weaknesses of this key institution in sports dispute resolution. CAS provides a swift and specialized forum for resolving sports-related issues, crucial in high-stakes situations like Phogat's. However, the case also exposes concerns about the transparency and impartiality of CAS, given the influence of sports organizations and the limited success rate of appeals. As global sports grow, addressing these issues is vital for ensuring that CAS continues to deliver fair and effective resolutions. The issues above highlighted were challenged before the European Court of Human Rights which backed the functioning of the sport's 'court', albeit not unequivocally, and ruled that it met the requirements of 'independence' and 'impartiality' applicable to arbitration tribunals.
Footnotes
1. Introducing the Court of Arbitration for Sport: The Ad Hoc Division at the Olympic Games, Richard H. McLaren, Marquette Sports Law Review, Volume 12 Issue 1, 2001.
2. Rule 28 of CAS Code.
3. Rule 45 of CAS Code.
4. Challenging Awards of the Court of Arbitration for Sport, Antonio Rigozzi, Journal of International Dispute Settlement, Volume 1 Issue 1, February 1, 2010.
5. Rule 58 of CAS Code.
6. Challenging Awards of the Court of Arbitration for Sport, Antonio Rigozzi, Journal of International Dispute Settlement, Volume 1 Issue 1, February 1, 2010.
7. Vinesh Phogat v. United World Wrestling & IOC, CAS OG 24/17.
8. Article 3, UWW Rules.
9. Article 11, UWW Rules.
10. Vinesh Phogat v. United World Wrestling & IOC, CAS OG 24/17, Paragraph 59.
11. Vinesh Phogat v. United World Wrestling & IOC, CAS OG 24/17, Paragraph 89.
12. Rule 56(1) of Olympic Charter.
13. Rule 46 of Olympic Charter.
14. Vinesh Phogat v. United World Wrestling & IOC, CAS OG 24/17, Paragraph 114.
15. The secretive life of the Court of Arbitration for Sport, Grit Hartmann, November 2021, available at https://www.playthegame.org/news/the-secretive-life-of-the-court-of-arbitration-for-sport/.
16. Article S13 of ICAS Statutes.
17. Human rights in sport regulations, Estelle de La Rochefoucauld, Matthieu Reeb, Sport and Human Rights, November 2023, available at: https://www.tascas.org/fileadmin/user_upload/CAS_Human_Rights_in_Sport__November_2023_.pdf
18. Rule 47, CAS Code.
19. Court of Arbitration for Sport: Rules and Issues, Wenjun Yan, Open Journal of Social Sciences, Volume 11 No. 1, January 2023. available at: 10.4236/jss.2023.111007.
20. Article 187(1) of Federal Act on Private International Law (Switzerland).
21. CAS 2014/A/3850 at no. 45 & 49, CAS (17.7.2015) 2014/A/3850, no. 45 et seq.; see also Mavromati/Reeb, The Code of the Court of Arbitration for Sport, 2015, Art. 58 no. 10.
22. US Città di Palermo S.p.A. v. Goran Veljkovic, CAS 2014/A/3742 (07.04.2015).
Disclaimer: This article was first published in the S&A Law Offices - 'Indian Legal Impetus' newsletter in August 2024.