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.