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Book Review: Questioning the (in)dependence of the Court of Arbitration for Sport

Book Review: Vaitiekunas A (2014) The Court of Arbitration for Sport : Law-Making and the Question of Independence, Stämpfli Verlag, Berne, CHF 89,00

The book under review is the published version of a PhD thesis defended in 2013 by Andrew Vaitiekunas at Melbourne Law School. A PhD is often taking stock of legal developments rather than anticipating or triggering them. This was definitely not the case of this book. Its core subject of interest is the study of the independence of the Court of Arbitration for Sport (CAS) – an issue that has risen to prominence with the recent Pechstein ruling of January 2015 of the Oberlandesgericht München. It is difficult to be timelier indeed.

The fundamental question underlying Vaitiekunas’ research is: “does CAS have sufficient independence to be a law-maker?”.[1] Indeed, as many in the field, Vaitiekunas considers the CAS as a key institution in the production of a lex sportiva or transnational sports law. Hence, he thinks that “the closer CAS’s standards of independence and impartiality are to those that apply to the judiciary, the stronger may be the claim that CAS’s lex sportiva constitutes law”.[2] Although I am myself sympathetic to the idea of the existence of a lex sportiva, I would be cautious in attributing it mainly to the CAS. Instead, I think that the notion of lex sportiva is rather reflecting the complex legal interaction between the rules (and raw political power) of international Sports Governing Bodies (SGBs) and the CAS’s jurisprudence.[3] Yet, this should not detract from the value of posing the question of CAS independence as a hallmark of its legitimacy.

The book is relatively slow in tackling this question. The author is keen on providing a comprehensive analysis of the general context of his work in Chapter 2 on the CAS and the lex sportiva[4], of his theoretical apparatus in Chapter 3 on the relevant theories of law[5] and of his analytical frame to assess the independence of the CAS in Chapter 4 on independence and impartiality.[6] Although these parts are certainly useful to comprehend the red thread guiding his research, they certainly could have been synthetized and shortened. Any reader interested mainly in the assessment of the independence of the CAS might be tempted to jump directly to Chapter 5 and 6 providing the core of the author's analysis and his most valuable contribution to legal scholarship.

Chapter 5 reviews in detail the well-known favourable assessment by the Swiss Federal Tribunal of the independence of the CAS.[7] Yet, the most important and interesting aspect of the chapter is that it already engages in a critical assessment of this jurisprudence. When discussing the impact of the post-Gundel Paris reform agreement, Vaitiekunas concludes that “a number of facets of the reform indicate continuing links, albeit indirect between the Olympic governing bodies and CAS, thus undermining the perception that CAS is truly an independent arbitral body”.[8] He notes that ��[w]hether ICAS members are appointed from within or outside the membership of the top sports bodies, they ultimately owe their appointment to these bodies”.[9] He criticizes the CAS arbitrator list as it “does not indicate who nominated the individual arbitrators, leaving an athlete at risk of choosing an arbitrator nominated by the very IF [International Federation] against which they are taking CAS proceedings”.[10] In any case, “the appointment [as CAS arbitrator] can be seen as occurring under the control of the Olympic governing bodies through their members or delegates in ICAS”.[11] Interestingly, this reasoning is analogue to the one used by the Oberlandesgericht München in its Pechstein ruling.[12] Unsurprisingly, Vaitiekunas is also extremely critical of the SFT’s judgment in the Lazutina case endorsing the independence and the legitimacy of the CAS post-Gundel.[13] He argues that the SFT “appears almost as an apologist for CAS”[14] and criticizes its “non-objective approach to statements by people close to CAS”.[15] Moreover, he denounces a “formalistic approach in assessing CAS’s independence from the IOC”.[16] Indeed, by privileging formal factors, such as the ICAS formal legal independence, “the SFT implicitly chose not to lift ICAS’s veil to consider who has the real powers behind ICAS”.[17] Importantly in light of the Pechstein case, he attacks the fact that “the SFT limited its analysis concerning CAS’s institutional independence solely to CAS’s independence from the IOC and did not consider CAS’s independence from the Olympic governing bodies collectively”.[18] Finally, he reiterates his critique against the closed list system, arguing that “the very process for the nomination and selection of arbitrators to the list creates an appearance of bias in favour of the Olympic governing bodies”.[19] 

Henceforth, Chapter 6[20] vows to pitch CAS’s independence against judicial independence standards discussed in Chapter 4. Coming from Chapter 5, the suspense as to the outcome of the assessment is relatively limited, it is clear ex ante that the author is doubtful of the independence of CAS. He assesses first the individual independence of the arbitrators, referring to four main criteria: 

"The four main recognised safeguards of a judge’s personal independence under judicial independence norms are security of tenure in a judge’s appointment, restrictions on the removability of a judge, adequate and secure remuneration for judicial service and immunity from legal action in the exercise of judicial functions."[21]

Furthermore, he contends that an arbitrator must fulfil a yardstick of substantive independence implying “a judge to be free from any inappropriate connections or influences".[22] In this regard, he argues “all CAS arbitrators […] owe their presence on the closed list to the Olympic governing bodies, thereby creating the appearance of a lack of independence from them”.[23] Finally, regarding the institutional independence of the CAS, Vaitiekunas suggests three main focal points: the structural links, the administrative links and the financial links. The structural links of the CAS are perceived as the main hindrances to CAS’s independence. This is because, “[g]iven the mutual ties and links which the IOC, the IFs and the NOCs […] have under the Olympic Charter, these bodies may appear to have influence collectively on ICAS”.[24] His conclusions is sans appel: “The potential influence that the Olympic governing bodies may be perceived to exercise over ICAS and the CAS secretary general is inconsistent with judicial independence norms which require judicial matters to be exclusively within the responsibility of the judiciary”.[25]

This highly sceptical view regarding the independence of CAS, leads him to propose a set of potential reforms.[26] His first recommendation is to implement “a restructuring of ICAS to ensure that it is institutionally independent”.[27] This would imply that “appointments to ICAS should exclude members of the IOC, executive members of the IFs, NFs and NOCs and their employees and anyone recently in these roles”.[28] Moreover, “the CAS code should be amended to prohibit the appointment of Olympic governing body associates or athlete associates as CAS arbitrators”.[29] Regarding the funding of ICAS and CAS, he suggests “the imposition of a levy on the broadcasting rights to or sponsorships of major sports events”.[30] In order to secure CAS arbitrators individual independence, he is in favour of appointing them “on a tenured basis to a specified retirement aged”.[31] He also recommends, “that arbitrators be appointed randomly to cases or on a predetermined basis”.[32] Eventually, he advises “to provide arbitrators with greater security in remuneration by appointing them on a fixed salary, like judges, payable regardless of whether and how many cases they are appointed to arbitrate”.[33] Vaitiekunas is convinced that if his recommendations were implemented, “CAS would be a true sports court, rather than an arbitral tribunal”.[34] 

The final chapter 7 of the book dedicated to CAS’s independence from external judicial review is a bit of a mystery to the reviewer. Vaitiekunas offers a relatively succinct but rigorous comparative study of the various national (and European) judicial avenues where CAS awards can be reviewed. He concludes rightly that CAS awards can be subjected to the control of national courts and European Institutions. However, his assumption that “CAS awards must be independent from review or intervention by state courts, such that they operate as final authority in the resolution of sports disputes”[35] and especially the consequence he derives from it, denying to lex sportiva any status as a legal order seems to be flawed.[36] Indeed, in no legal context, national or otherwise, is a judicial decision absolutely final. National courts’ judgments are often contested when their recognition is asked in another country, this does not entail that national law is not law. Similarly, the subjection of the judgments of the highest national courts of the EU Member States to the preliminary reference mechanism in place under EU law should not lead us to deny any legal value to national law. We are living in a pluralist legal age ruled by complex transnational legal assemblages and lex sportiva fits very well into this picture. Nonetheless, on this point I share the view of the author of this book, the question of the legitimacy of both the rulemaking bodies of lex sportiva (read FIFA or the IOC) and its adjudicative bodies (read the CAS) is of great importance. In fact, their illegitimacy, and here I differ from Vaitiekunas’ argument, should not mainly imply their non-existence as law-making bodies, but the need for a reform (or even a revolution) in the way they operate.

This book is precious, because it highlights very well the challenges ahead in our transnationalizing legal world. Democratizing international (or transnational in this case) judicial bodies is key, if the ideal and democratic function of an independent justice for world citizens is to be sustained.[37]  We need to understand that transnational private bodies are in the business of exercising a kind of public authority and should live up to analogous accountability and legitimacy standards than the one that have been progressively developed in the framework of the nation-states for national courts. The CAS is one of those, and the pending Pechstein case is a necessary itch to reflexively trigger a much-needed reform of its internal structure and functioning. Which precise form this reform will take is not crucial. What is essential, however, is that it ensures that CAS arbitrators be seen as rendering sporting justice at a personal (if not geographical) distance from those who are adopting and enforcing the rules of the lex sportiva. This book is an important critical contribution in that direction.


[1] Vaitiekunas A (2014) The Court of Arbitration for Sport: Law-Making and the Question of Independence. Stämpfli Verlag, Berne, p 2.

[2] Ibid, p 3.

[3] Duval A (2013) Lex Sportiva: A Playground for Transnational Law. European Law Journal 19: 822-842.

[4] Ibid, pp 7-50.

[5] Ibid, pp 51-83.

[6] Ibid, pp 85-120.

[7] Ibid, pp 121-177.

[8] Ibid, p 142.

[9] Ibid, p 146.

[10] Ibid, p 150.

[11] Ibid, p 151.

[12] See supra n 1, Oberlandesgericht (OLG) München [2015], paras 3b, bb, 3aaa and bbb.

[13] Supra n 2, Vaitiekunas, pp 168-174.

[14] Ibid, p 169.

[15] Ibid.

[16] Ibid, p 171.

[17] Ibid.

[18] Ibid.

[19] Ibid, p 174.

[20] Ibid, pp 179-200.

[21] Ibid, p 184.

[22] Ibid, p188.

[23] Ibid, p 189.

[24] Ibid, p 191.

[25] Ibid, p 193.

[26] Ibid, pp 197-199.

[27] Ibid, p 197.

[28] Ibid, p 198.

[29] Ibid.

[30] Ibid, p 199.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid, p 265.

[36] Ibid, p 269 : ”CAS’s lack of final authority, in particular where state public policy or EU law are in question, derogates from CAS’s lex sportiva being an independent legal order“.

[37] For a similar idea applied to international courts, see Von Bogdandy A, Venzke I (2014) In Whose Name? A Public Law Theory of International Adjudication. Oxford University Press, New York.

 

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