Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Conference - Empowering athletes’ human rights: Global research conference on athletes’ rights - Asser Institute - 23 October

The newly launched ‘Global Sport and Human Rights Research Network’, an initiative jointly hosted by the T.M.C. Asser Instituut and the Centre for Sport and Human Rights, together with the European Union-funded project ‘Human Rights Empowered Through Athletes Rights (H.E.R.O.)' is organising an in-person conference on October 23 at the Asser Institute in The Hague, to map the field of athletes' rights and engage in critical discussions on protection of these rights and how to prevent rights violations.

The one-day conference will kick off with a presentation by the H.E.R.O. team on their research results, followed by a short panel discussion. The rest of the day will be filled with four panels on different aspects related to the topic of athletes’ human rights, with speakers from academic institutions around the world.

Check out the full programme HERE and register for free HERE

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Luxembourg calls…is the answer from Nyon the way forward? Assessing UEFA’s response to the ECJ’s ISU judgment - By Saverio Spera

 

Editor's note: Saverio P. Spera is an Italian qualified attorney-at-law. He has practiced civil and employment law in Italy and briefly worked at the Asser International Sports Law Centre before joining FIFA in 2017. Until May 2024, he has worked within the FIFA legal division - Litigation Department, and lectured in several FIFA sports law programmes. In the spring of 2024 he has co-founded SP.IN Law, a Zurich based international sports law firm.

 

 

On 21 December 2023 a judicial hat-trick stormed the scene of EU sports law. That day, the European Court of Justice (the “ECJ”) issued three decisions: (i) European Superleague Company, SL v FIFA and UEFA (Case C-333/21); (ii) UL and SA Royal Antwerp Football Club v Union royale belge des sociétés de football association ASBL (Case C-680/21)and (iii) International Skating Union (ISU) v. European Commission – Case C-124/21.

These judgments were much scrutinised (see herehere and here) in the past 6 months. For the reader’s relief, this paper will not venture into adding another opinion on whether this was a fatal blow to the foundation of EU sports law or if, after all, the substantive change is minimal (as persuasively argued here). It will analyse, instead, UEFA’s recent amendments of its Statutes and Authorisation Rules governing International Club Competitions (the “Authorisation Rules”) and whether these amendments, clearly responding to the concerns raised in the ISU judgment with respect to the sports arbitration system,[1] might pave the way for other Sports Governing Bodies (SGBs) to follow suit and what the implications for CAS arbitration might be. More...

The International Cricket Council and its human rights responsibilities to the Afghanistan women's cricket team - By Rishi Gulati

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. More...

Women’s Football and the Fundamental Right to Occupational Health and Safety: FIFA’s Responsibility to Regulate Female Specific Health Issues - By Ella Limbach

Editor's noteElla Limbach is currently completing her master’s degree in International Sport Development and Politics at the German Sport University Cologne. Her interests include human rights of athletes, labour rights in sport, the intersection of gender, human rights and sport and the working conditions in women’s football. Previously, she graduated from Utrecht University with a LL.M in Public International Law with a specialization in International Human Rights Law. This blog was written during Ella's internship at the Asser Institute where she conducted research for the H.E.R.O. project. The topic of this blog is also the subject of her master's thesis.

Women’s football has experienced exponential growth over the past decade, though the professionalization of the women’s game continues to face barriers that can be tied to the historical exclusion of women from football and insufficient investment on many levels. While attendance records have been broken and media coverage has increased, the rise in attention also highlighted the need for special accommodations for female footballers regarding health and safety at the workplace. Female footballers face gender specific circumstances which can have an impact on their health such as menstruation, anterior cruciate ligament (ACL) injuries and the impact of maternity. As the recent ILO Brief on ‘Professional athletes and the fundamental principles and rights at work' states “gender issues related to [occupational health and safety] risks are often neglected (p. 23).” While it could be argued that from a human rights point of view article 13(c) of the Convention on the Elimination of Discrimination of Women stipulates “the right to participate in […] sports [on an equal basis to men],” reality shows that so far practices of men’s football were simply applied to women’s football without taking into consideration the physiological differences between male and female players and the implications that can have for female players’ health. The ILO Declaration on Fundamental Principles and Rights at Work(ILO Declaration, amended in 2022) includes “a safe and healthy working environment” as one of the fundamental rights at work (Art. 2e). This begs the question whether the scope of the right to occupational health and safety at the workplace includes the consideration of female specific health issues in women’s football. More...

[Call for Papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024 - Reminder!

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review. 

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[New Event] Feminist theory and sport governance: exploring sports as sites of cultural transformation - 9 July -15:00-17:00 - Asser Institute


This seminar is part of the Asser International Sports Law Centre's event series on the intersection between transnational sports law and governance and gender. Dr Pavlidis will present her take on feminist theories and sport governance by exploring sports and in particular Australian rules football and roller derby as sites of cultural transformation.

Register HERE

Australian rules football is Australia's most popular spectator sport and for most of its history it has been a men's-only sport, including in its governance and leadership. This is slowly changing. Roller derby on the other hand has been reinvented with an explicitly DIY (Do It Yourself) governance structure that resists formal incorporation by 'outsiders'. This paper provides an overview of sport governance in the Australian context before focusing in on these two seemingly disparate sport contexts to explore the challenges of gender inclusive governance in sport.

Dr Adele Pavlidis is an Associate Professor in Sociology with the School of Humanities, Languages and Social Science at Griffith University in Australia. She has published widely on a range of sociocultural issues in sport and leisure, with a focus on gender and power relations. Theoretically her work traverses contemporary scholarship on affect, power and organisations, and she is deeply interested in social, cultural and personal transformation and the entanglements between people, organisations, and wellbeing.

We look forward to hearing Dr Pavlidis present on this topic, followed by reflections and comments by Dr Åsa Ekvall from the Erasmus Center for Sport Integrity & Transition, and Dr Antoine Duval from the T.M.C. Asser Institute. There will also be a Q&A with the audience.

Download the latest programme here 

Register HERE


[Call for papers] - International Sports Law Journal - Annual Conference - Asser Institute, The Hague - 24-25 October 2024

The Editors of the International Sports Law Journal (ISLJ) invite you to submit abstracts for the next edition of the ISLJ Conference on International Sports Law, which will take place on 24 and 25 October 2024 at the Asser Institute in The Hague. The ISLJ, published by Springer and TMC Asser Press, is the leading academic publication in the field of international sports law and the conference is a unique occasion to discuss the main legal issues affecting international sports and its governance with renowned academic experts.

We welcome abstracts from academics and practitioners on all issues related to international and transnational sports law and their impact on the governance of sport. We also welcome panel proposals (including a minimum of three presenters) on specific issues of interest to the Journal and its readers. For this year’s edition, we specifically invite submissions on the following themes and subthemes:


Reformism in transnational sports governance: Drivers and impacts

  • Legal and social drivers of reforms in transnational sports governance   
  • The role of strategic litigation (before the EU/ECtHR/National courts) as a driver of reform;
  • The role of public/fan pressure groups on clubs, competition organisers and governments as a driver of change.
  • The impact of internal reforms in transnational sports governance: Cosmetic or real change? (e.g. IOC Agenda 2020+5, FIFA governance reforms, CAS post-Pechstein changes, WADA sfter the Russian doping scandal)
  • Emerging alternatives to private sports governance – the UK’s Independent Football Regulator.


The organization and regulation of mega sporting events: Current and future challenges 

  • Mega-sporting events as legalized sites of digital surveillance 
  • Greening mega-sporting events (e.g. carbon neutral pledges, environmental footprints of events, the impact of multiple hosting sites)
  • Mega-sporting events and the protection of human rights and labour rights (e.g. Paris 2024 Social Charter, Euro 2024 human rights commitments)
  • The Olympic Games and athletes’ economic rights (remuneration/advertisement)
  • Reviews of the legal issues raised at Euro 2024 in Germany and the Paris 2024 Olympic Games
  • Previews of the legal issues likely to have an impact on the FIFA 2026 World Cup and the Milano-Cortina 2026 Winter Olympic Games


Please send your abstract of 300 words and CV no later than 15 July 2024 to a.duval@asser.nl. Selected speakers will be informed by 30 July.

The selected participants will be expected to submit a draft of their paper by 1 October 2024. Papers accepted and presented at the conference are eligible for publication in a special issue of the ISLJ, subject to peer-review. 

The Asser Institute will provide a limited number of travel & accommodation grants (max. 300€). If you wish to be considered for a grant, please explain why in your submission.


[Online Summer Programme] - International sports and human rights - 22 - 29 May 2024 - Last spots!

Join us for the first online version of our unique training programme on ‘Sport and human rights’ jointly organised by the Centre for Sport and Human Rights and the Asser Institute taking place on May 22-24 & May 27-29.

After the success of the first editions in 2022 and 2023 the programme returns, focusing on the link between the sport and human rights and zooming in on a number of topics, such as the UN Guiding Principles for Business and Human Rights and their application in sports. We will also adopt a human rights lens to sport governance and address freedom of speech, the rights of athletes, and access to remedy.

Tackling contemporary human rights challenges in sport

The programme brings together the latest in academic research with practical experiences from working in the field in an interactive package, fostering productive exchanges between the speakers and participants. Theoretical knowledge will be complemented by exposure to hands-on know-how.

Participants will have the opportunity to learn from experts from the Asser Institute, the Centre for Sport and Human Rights, and high-profile external speakers from both academia and practice.

What will you gain?

  • An extensive introduction to the emergence of the sport and human rights movement
  • A greater understanding of the normative framework for human rights standards in sport
  • A comprehensive overview of the latest developments in the interplay between gender and sports
  • Practical know-how to govern  human rights in the context of sporting organisations
  • Practical know-how to address  human rights risks in the context of day-to-day sports, including safeguarding
  • Practical know-how to access remedy in human rights disputes
  • The opportunity to engage in discussions and network with leading academics and professionals

Topics addressed in this summer programme include:

  • The emergence of the sport and human rights discussion/movement
  • The integration of human rights in the governance of sport
  • The protection of athletes’ rights
  • Access to remedy for sport-related human rights harms


Read the full programme.

Register HERE


In partnership with:

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[Call for Papers] Through Challenges and Disruptions: Evolution of the Lex Olympica - 20 September 2024 - Inland School of Business and Social Sciences

Editor's note: This is a call for papers for a workshop inviting sports lawyers and historians to reflect on how the lex olympica developed within the last 128 years through the prism of challenges and disruptions to the Olympic Games and the sharp and incremental changes they provoked.


Background

The lex olympica are legal rules the International Olympic Committee created to govern the Olympic Movement. Since the revival of the Olympic Games in 1896, the lex olympica, with the Olympic Charter taking its central place, has undergone tremendous changes. It has increased not only in volume but also in complexity and reach.

While some changes were designed to give further detail to the Olympic values, others seem to serve as responses to numerous disruptions and challenges that the Olympic Games experienced on their way. History shows that the Olympic Games faced boycotts, apartheid, armed conflicts, wars, propelled commercialisation, corruption, critique based on human rights and sustainability, pandemics, and many other obstacles.

One can see triggers for changes in specific incidents, broader societal changes, external political interests, long-term internal processes, etc., or further differentiate them according to relevant stakeholders impacting the change, such as IOC, NOCs, IFs, NFs, athletes, commercial partners, television, activist groups, NGOs, governments, host countries, etc. Regardless of their taxonomies, all these challenges met different reactions and affected the Olympic regulation in various ways. The IOC chose to distance the Olympic Games from some challenges and fully embrace others.


Keynote speakers

  • Jörg Krieger, Associate Professor, Department of Public Health and Sport Science, Aarhus University; co-leader of the Lillehammer Olympic and Paralympic Studies Center; Associate Professor II Inland Norway University of Applied Sciences.
  • Mark James,  Professor of Sports Law and Director of Research in the Manchester Law School at Manchester Metropolitan University, Editor-in-Chief of the International Sports Law Journal.


Deadline for abstract submission: 15 June 2024

Confirmation of participation: 30 June 2024

Publication: Selected contributions will be considered for a special issue at International Sports Law Journal


Contact information

Yuliya Chernykh (Associate Professor)

yuliya.chernykh@inn.no


Organizer

Lillehammer Olympic and Paralympic Studies Center (LOSC), Inland School of Business and Social Sciences and Legal development research group at INN University


[New Publication] - The European Roots of the Lex Sportiva: How Europe Rules Global Sport - Antoine Duval , Alexander Krüger and Johan Lindholm (eds) - Open Access

Dear readers, 


I have the pleasure to inform you that our (with Prof. Johan Lindholm and Alexander Kruger from Umeå University) edited volume entitled 'The European Roots of the Lex Sportiva: How Europe Rules Global Sport' has been published Open Access by Hart Publishing. 



You can freely access the volume at: https://www.bloomsburycollections.com/monograph?docid=b-9781509971473


Abstract

This open access book explores the complexity of the lex sportiva, the transnational legal regime governing international sports. Pioneering in its approach, it maps out the many entanglements of the transnational governance of sports with European legal processes and norms. The contributors trace the embeddedness of the lex sportiva within national law, European Union law and the European Convention on Human Rights. While the volume emphasizes the capacity of sports governing bodies to leverage the resources of national law to spread the lex sportiva globally, it also points at the fact that European legal processes are central when challenging the status quo as illustrated recently in the Semenya and Superleague cases. Ultimately, the book is also a vantage point to start critically investigating the Eurocentricity and the complex materiality underpinning the lex sportiva.


Table of contents

1. Made in Europe: Lex Sportiva as Embedded Transnational Law - 1–14 - Antoine Duval , Alexander Krüger and Johan Lindholm

I. The European Roots of Lex Sportiva

2. Embedded Lex Sportiva: The Swiss Roots of Transnational Sports Law and Governance - 17–40 - Antoine Duval

3. Putting the Lex into Lex Sportiva: The Principle of Legality in Sports - 41–68 - Johan Lindholm

4. Europeanisation of the Olympic Host (City) Contracts - 69–92 - Yuliya Chernykh

5. The Influence of European Legal Culture on the Evolution of Lex Olympica and Olympic Law - 93–118 - Mark James and Guy Osborn

6. Who Regulates the Regulators? How European Union Regulation and Regulatory Institutions May Shape the Regulation of the Football Industry Globally - 119–152 - Christopher A Flanagan

7. The Europeanisation of Clean Sport: How the Council of Europe and the European Union Shape the Proportionality of Ineligibility in the World Anti-Doping Code - 153–188 - Jan Exner

II. The Integration of European Checks into the Lex Sportiva

8. False Friends: Proportionality and Good Governance in Sports Regulation - 191–210 - Mislav Mataija

9. Sport Beyond the Market? Sport, Law and Society in the European Union - 211–228 - Aurélie Villanueva

10. EU Competition Law and Sport: Checks and Balances ‘à l’européenne’ - 229–256 - Rusa Agafonova

11. Is the Lex Sportiva on Track for Intersex Person’s Rights? The World Athletics’ Regulations Concerning Female Athletes with Differences of Sex Development in the Light of the ECHR - 257–282 - Audrey Boisgontier

III. Engaging Critically with a Eurocentric Lex Sportiva 

12. Lex Sportiva and New Materialism: Towards Investigations into Sports Law’s Dark Materials? 285–308 - Alexander Krüger


Asser International Sports Law Blog | Book Review: Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport—Commentary, Cases, and Materials (Wolters Kluwer International 2015). By Professor Matthew Mitten

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Book Review: Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport—Commentary, Cases, and Materials (Wolters Kluwer International 2015). By Professor Matthew Mitten

Editor’s note: Professor Mitten is the Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin. He currently teaches courses in Amateur Sports Law, Professional Sports Law, Sports Sponsorship Legal and Business Issues Workshop, and Torts. Professor Mitten is a member of the Court of Arbitration for Sport (CAS), and has served on the ad hoc Division for the XXI Winter Olympic Games in Sochi, Russia.

This Book Review is published at 26 Marquette Sports Law Review 247 (2015).


This comprehensive treatise of more than 700 pages on the Code of the Court of Arbitration for Sport (CAS) (the Code) is an excellent resource that is useful to a wide audience, including attorneys representing parties before the CAS, CAS arbitrators, and sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars.  It also should be of interest to national court judges and their law clerks because it facilitates their understanding of the CAS arbitration process for resolving Olympic and international sports disputes and demonstrates that the Code provides procedural fairness and substantive justice to the parties, thereby justifying judicial recognition and enforcement of its awards.[1]  Because the Code has been in existence for more than twenty years—since November 22, 1994—and has been revised four times, this book provides an important and much needed historical perspective and overview that identifies and explains well-established principles of CAS case law and consistent practices of CAS arbitrators and the CAS Court Office.  Both authors formerly served as Counsel to the CAS and now serve as Head of Research and Mediation at CAS and CAS Secretary General, respectively, giving them the collective expertise and experience that makes them eminently well-qualified to research and write this book.

The extensive commentary and materials in this prodigious work are useful in understanding the history and operation of the CAS, as well as the process by which CAS arbitration resolves disputes and establishes an evolving, rich body of lex sportiva. The book’s many useful features include the following: a thorough and detailed index; a table of acronyms; integrated discussion of the Code’s provisions and their application by CAS panels, their relationship to and consistency with the Swiss Private International Law Act (PILA) requirements along with relevant comparisons to the Swiss Code on Civil Procedure (Swiss CCP), and judicial interpretation through review of CAS awards by the Swiss Federal Tribunal (SFT); thousands of footnotes and citations, reflecting the product of exhaustive research; comparisons to analogous International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), and United Nations Commission on International Trade Law (UNCITRAL) rules; an extensive bibliography; numerous charts and graphical illustrations; several sample provisions and documents; and comprehensive lists of all referenced CAS awards and SFT cases reviewing CAS awards.

Based on my perspective as a sports law professor and a CAS arbitrator who also arbitrates domestic sports, commercial, and consumer disputes in the United States, I found the authors’ discussion of many of the Code’s provisions to be particularly helpful and/or interesting.

Article R27 provides that the Code’s procedural rules apply when the “parties have agreed to refer a sports-related dispute to CAS.”[2]  A variety of important issues are carefully addressed, including the authority of a CAS panel to determine its jurisdiction (“Kompetenz- Kompetenz”), which also is discussed in connection with Article R39 (in which this authority is explicitly conferred), as well as the form and material conditions Article 178 of the PILA requires for a valid arbitration clause and for CAS jurisdiction to exist.  In addition, there is a thorough discussion of the relationship and differences among CAS jurisdiction, the arbitrability of particular disputes, the legal standing of the parties whose substantive rights are affected under Swiss law, and the relevance of foreign laws in resolving these issues.  Several examples of clauses permitting CAS jurisdiction to resolve sports-related disputes are provided in the accompanying Annexes.

Article R28 provides that the seat of any CAS arbitration is Lausanne, Switzerland, regardless of the geographical location of the arbitration proceeding.  The authors explain the importance and implications of this rule, which effectively provides that Swiss law governs the procedural aspects of all CAS arbitration proceedings throughout the world.  The creation of a uniform procedural regime establishes a stable legal foundation for CAS arbitrations that ensures coherence in determining the law governing the merits of the dispute pursuant to Articles R45 and R58, in the developing body of Olympic and international sports law established by CAS awards (with limited judicial review by the SFT under the PILA), and in equal treatment of the parties. 

Article R33 inter alia requires the independence and impartiality of CAS arbitrators and panels in connection with the cases to which they are appointed. Article R34 establishes the process pursuant to which the International Council of Arbitration for Sport (ICAS) considers and resolves challenges to an arbitrator’s independence or impartiality.  There is an elaborate discussion of this important topic that explains the distinction between “independence” and “impartiality,” provides guidance regarding an arbitrator’s disclosure obligations (with references to the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration), and gives illustrative examples of circumstances giving rise to objectively justifiable doubts regarding an arbitrator’s independence (and those that do not) from the perspective of the ICAS or the SFT.  The authors’ commentary provides a historical perspective regarding the application and evolution of these Code rules and identifies their underlying roots in Articles 179 and 180 of the PILA.

Article R37 is based on Article 374 of the CCP and enables the appeals or ordinary arbitration president or a CAS panel to grant provisional (i.e., interim) measures to either safeguard a party’s right that is at risk or to exercise its right during the pendency of a CAS arbitration proceeding.  For example, an athlete may request the stay of an appealed decision of a sport body imposing a doping or disciplinary suspension that prevents him from participating in an upcoming athletic event.  The text explains the prerequisites for granting provisional relief, including: exhaustion of potential legal remedies within the sports organization or tribunal rendering the appealed decision, plausible CAS jurisdiction, irreparable harm, reasonable likelihood of success on the merits, and balance of interests.  There is a detailed discussion of the irreparable harm requirement, which provides several illustrative examples.  The authors note that a party’s request for provisional relief constitutes a waiver of any right to request such relief from a court and that a CAS order granting or denying provisional relief cannot be challenged before the SFT because it is not a final CAS award. 

Article R44 governs the CAS ordinary arbitration procedure (e.g., written submissions, hearing, evidentiary proceedings, expedited procedure, and default awards). The authors provide a detailed overview of each of these procedures, while pointing out that all evidence (e.g., exhibits and\ summaries of the testimony of witnesses and experts) must be filed at the same time as written submissions—which are mandatory—and that a hearing is optional.  They note the responsibilities of the CAS panel president in connection with these procedures and offer guidance regarding the steps to be taken to ensure appropriate discharge of the procedures. There is a particularly useful explanation regarding a CAS panel’s discretion in determining the admissibility of evidence, as well as its authority to order the production of evidence (e.g., documents, examination of witnesses) from a party and appointment of independent experts and the procedure for doing so.  The Annexes include a helpful checklist regarding the eight stages of a CAS hearing (i.e., opening of hearing, preliminary remarks by parties, hearing of witnesses, hearing of experts, examination of parties, closing of evidentiary proceedings, closing oral arguments, and the deliberation by the panel) that supplements the discussion in the text. 

Articles R47, R48, R49, R51, R55, and R56 collectively constitute the key Code provisions governing the CAS appeals arbitration procedure for appeals against a final decision of a sports federation or association, the largest group of cases before the CAS.[3]  Similar to their discussion regarding the CAS ordinary arbitration procedure, the authors provide detailed commentary regarding the appeals arbitration procedure, which is more complex and governed by more rules.  Among the important topics covered are the following: prerequisites for CAS jurisdiction, including the need for a final decision by a sports body and exhaustion of its internal legal remedies, along with a valid arbitration agreement; the importance and method of determining applicable deadlines for each stage of the appeals arbitration procedure, as well as the consequences of late submissions; and the required components of an appellant’s statement of appeal and appeal brief as well as a respondent’s answer.  The accompanying Annexes for these rules provide checklists and illustrative charts that significantly facilitate an understanding of the appeals arbitration procedure.

Articles R45 and R58 determine the substantive law applicable to the merits of cases arising under the CAS ordinary and appeals procedures, respectively.  The authors explain that parties’ agreement to submit their dispute to CAS arbitration for resolution, which constitutes their agreement to have the Code and Swiss law provide the applicable procedural rules, does not necessarily mean that Swiss law is the substantive law to be applied regarding the merits of a dispute.  They note that: (1) both Articles permit parties to choose the applicable rules of law, which may be a system of rules other than national law (e.g., the Olympic Charter, International Federation statutes, or the World Anti-doping Code in an appeals arbitration proceeding) if the laws “satisfy the need of rationality, security and foreseeability”[4] and are relevant to the disputed issues; (2) each Article identifies the governing national law in ordinary Swiss law or appeals arbitration (“law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled”[5]) if the parties do not do so; and (3) a CAS panel should apply laws considered to be “mandatory” according to Article 19 of the PILA (e.g., European Communities law).  The authors identify and discuss the narrow limits on parties’ freedom to choose the law to be applied to the merits of their dispute (i.e., the chosen law cannot manifestly violate international or transnational public laws).  They point out the important distinction between the provision of Article R45, which empowers a CAS panel to rule ex aequo et bono (i.e., as a matter of equity rather than according to specific legal rules) if the parties authorize the panel to do so, and the differing provision of Article R58, which authorizes a panel to apply the “rules of law [it] deems appropriate”[6] and to give reasons for its decision, while providing detailed explanations of both provisions and the CAS practices pursuant thereto. They observe that a CAS panel should apply the parties’ validly chosen rules of law to avoid a judicial challenge to a CAS award on the ground it violates the right to be heard, while noting that its mere failure to do so or to apply the wrong law is not a per se violation of a party’s right to be heard.  A CAS award will be vacated by the SFT pursuant to Article 190 paragraph 2(e) of the PILA on the ground that public policy is violated only if application of the chosen or appropriate law would change an award’s outcome. 

Article R57 governs a CAS appeals arbitration procedure hearing. The authors note that,

this provision is the milestone of the CAS appeals procedure, since it not only specifies the scope of the Panel’s review of the case . . . but also provides essential information on the conduct of the hearing and the power of the Panel to proceed with the hearing in case one of the parties is duly summoned but fails to appear.[7] 

Because Article R57 provides a panel with “full power to review the facts and the law”[8] (i.e., de novo review), the scope of CAS arbitral review is broader than the more limited arbitrary or capricious standard of judicial generally exercised by sport governing body decisions in Swiss and other national courts.[9]  The authors point out that this broader scope of review has significant legal consequences:

The Panel is thus not limited in merely reviewing the legality of the decision challenged, but can issue a new decision on the basis of the applicable rules . . . [admit] new prayers for relief and new evidence and [hear] new legal arguments . . . [and correct] procedural flaws, which occurred during the proceedings of the previous instance.”[10] 

Limits on the CAS’s de novo power of review, which preclude the panel from adjudicating issues other than those raised by the parties, changing or rewriting sports federation rules, and reviewing field of play decisions, are also identified and discussed.  They note that a CAS panel should be cautious about exercising its discretion under Article R57 “to exclude evidence presented by the parties if it was available to them or could reasonably have been discovered by them before the challenged decision was rendered”[11] in order “to guarantee the parties’ access to justice and a full review by an independent arbitral tribunal.”[12] The authors also describe the eight main stages of an appeals arbitration hearing (which are the same as those for an ordinary arbitration appeal) in both the text and an accompanying checklist in the Annex, as well as provide an overview of how a hearing generally is conducted and issues that may arise in connection therewith.

Articles R46 and R59 apply to the award in ordinary and appeals arbitrations, respectively.  The authors note that awards in both proceedings are by majority decision; must state brief reasons for each resolved issue and be written, dated, and signed; set forth the basis of CAS jurisdiction; determine which party bears the arbitration costs;[13] are final and binding on the parties with res judicata effect; and are enforceable on the date the parties are notified of the operative part of the award.  The CAS Secretary General reviews all awards for form (e.g., errors in grammar, spelling, or calculation of numbers are corrected) and fundamental issues of principle.  Although CAS arbitration awards do not constitute binding precedent or have a stare decisis effect in subsequent similar cases, CAS panels frequently cite to and rely on prior awards. This effectively “accord[s] to previous CAS awards a substantial precedential value and it is up to the party advocating a jurisprudential change to submit persuasive arguments and evidence to that effect.”[14]  Thus, the CAS Secretary General’s review of an award regarding fundamental issues of principle includes pointing out any departure from well-established CAS jurisprudence without adequate reasons and suggesting revisions in an effort to “ensure that there is no unjustified change in the CAS established case law under the same or similar conditions.”[15] However, the authors note that “the CAS Secretary General may only suggest some changes and cannot impose them to the Panel, which remains solely responsible for the award and is free to accept the suggestions or not.”[16]  They observe that CAS ordinary arbitration awards, which typically resolve commercial disputes between the parties, generally are confidential and not published; whereas CAS appeals arbitration awards, which resolve appeals from final decisions of sports federations, are usually published to facilitate the development of a uniform body of Olympic and international sports law (including interpretation and application of the World Anti-doping Code).  The commentary regarding Article R59 includes a comprehensive discussion of the grounds on which the SFT may vacate a CAS ordinary or appeals arbitration award pursuant to Article 190 paragraph 2 of the PILA: (1) irregular composition of the CAS panel (e.g., lack of independence or impartiality); (2) lack of CAS jurisdiction over the parties or claims; (3) failure to decide a validly raised claim, or deciding a claim or issue not raised by a party; (4) violation of the parties’ right to be heard or equal treatment; and (5) violation of procedural or substantive Swiss and international public policy (i.e., the essential and widely recognized values prevalent in every legal system).  The authors provide a detailed qualitative analysis of each of these defenses, as well as provide aggregate statistics regarding their respective success, and identify the SFT cases in which a particular defense is successful. 

This excellent book is a must-read for attorneys representing parties before the CAS and CAS arbitrators.  It is a valuable resource for sports law professors and scholars, as well as international arbitration counsel, arbitrators, and scholars concerning the CAS arbitration process for resolving Olympic and international sports disputes.  This book is an important addition to my library of sports law materials, which I anticipate consulting and referencing frequently.



[1] See James A. R. Nafziger, International Sports Law, Handbook on Int’l Sports Law 27–28 (James A. R. Nafziger & Stephen F. Ross eds., 2011) (the CAS has established the “gold standard in resolving sports-related disputes” by “ensuring fairness in terms of even-handedness, impartiality, acting in good faith, and coherence.”); Matthew J. Mitten, The Court of Arbitration for Sport’s Jurisprudence: International Legal Pluralism in a World Without Boundaries, 30 Ohio St. J. on Disp. Resol. 1, 42 (2014) (“The CAS arbitration system ‘demonstrates how civil and common law legal systems can function effectively together within an international tribunal to resolve a wide variety of complex, time-sensitive disputes between parties of different nationalities,’ which produces ‘globally respected adjudications” of Olympic and international sports disputes’).

[2] Despina Mavromati & Matthieu Reeb, The Code of the Court of Arbitration for Sport – Commentary, Cases, and Materials 19 (2015).

[3] The authors also provide helpful commentary regarding Articles R50, R53, and R54 that addresses the number, nomination, appointment, and confirmation of arbitrators as well as Article R52, which addresses initiation of the appeals arbitration proceeding by the CAS, as well as expedited and consolidated proceedings.

[4] CAS 2006/A/1123& 1124, Al-Gharafa SC v P. Wanchope Watson & P. Wanchope Watson v. Al-Gharafa SC, award of 18 December 2006, §67.

[5] Mavromati & Reeb, supra note 3, at 535.

[6] Id.

[7] Id. at 505.

[8] Id. at 503.

[9] “The full review by the CAS is the principal reason for excluding a full review by the state courts (i.e., in case of a subsequent appeal against a CAS award to the SFT, the later will not fully review the case but will act as a cassatory court based on the exhaustively enumerated grounds of Article 190 paragraph 2 PILA).”  Id at 520.

[10] Id. at 507–08.

[11] Id. at 519.

[12] Id. at 520.

[13] Article R64 applies to CAS ordinary and appeals arbitration costs, but Article R65 pertains only to CAS appeals arbitration costs in proceedings involving appeals against decisions issued by international federations in disciplinary matters; both of which the authors comprehensively discuss in their commentary and Annexes regarding these rules.  

[14] CAS 2008/A/1545, Anderson et al v IOC, award of 16 July 2010, §116.

[15] Mavromati & Reeb, supra note 5, at 367.

[16] Id. at 366–67.

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