It took almost six months, a record of 26 witnesses and a 68
pages final award for the CAS to put an end to a long-delayed, continuously
acrimonious and highly controversial presidential election for the Football
Association of Thailand (FAT). Worawi Makudi can sit easy and safe on the
throne of the FAT for his fourth consecutive term, since the CAS has dismissed
the appeal filed by the other contender, Virach Chanpanich.
Interestingly enough, it is one of the rare times that the CAS
Appeal Division has been called to adjudicate on the fairness and regularity of
the electoral process of a sports governing body. Having been established as the
supreme judge of sports disputes, by reviewing the electoral process of
international and national sports federations the CAS adds to its functions a
role akin to the one played by a constitutional court in national legal systems.
It seems that members of international and national federations increasingly see
the CAS as an ultimate guardian of fairness and validity of internal electoral
proceedings. Are these features - without prejudice to the CAS role as an
arbitral body- the early sign of the emergence of a Constitutional Court for Sport?
The CAS as reviewer of electoral proceedings in sports governing
The CAS Appeal Division jurisprudence reviewing electoral
processes in sports governing bodies, albeit still at a nascent stage, has
provoked vivid reactions due to its potential impact. One of the particularly
significant values of retracing this case-law is found not in the outcomes of
the decisions, but in the way the panels have scrutinized the electoral
On 27 September 2010, the CAS shaked the chess world by
rendering its decision on the validity of Kirsan Illymzhinov’s candidature for
the presidency of the Fédération Internationale des Echecs (FIDE).
Namely, the CAS proceedings were initiated by Karpov 2010 Inc. and five
national federations (of France, Germany, Switzerland, Ukraine and the US)
against FIDE. The claimant alleged the invalidity of the presidential ticket of
Illymzhinov, who had been nominated by the Russian Chess Federation as their
candidate for the FIDE presidential election. The majority of the CAS panel
considered that it had jurisdiction to decide on the National Federations’
claims and proceeded with the merits. Taking into consideration the FIDE’s
practice on membership requirements for candidates on a presidential ticket and
its compliance with the text of FIDE Electoral Regulations, the CAS confirmed
the validity of Illymzhinov’s ticket and dismissed the appeal. Had the CAS
accepted the arguments of the claimant, Anatoly Karpov would have been declared
new FIDE President. FIDE welcomed the award, since it sets straightforward and
transparent standards for the electoral proceedings, putting, therefore, an end
to what was perceived as frivolous claim against FIDE.
Three years later, the CAS was asked again to review electoral
this time involving the Union Cycliste Internationale (UCI). In fact, five
national federations asked the UCI Executive Board to submit to the CAS a
request for interpretation of Article 51.1 of the UCI Constitution concerning
the nomination of prospective candidates for office of President of UCI. The
federations claimed that the language of Article 51.1, which required that any
Presidential candidate be nominated by the ‘federation of the candidate’, was
ambiguous: it was unclear whether the provision was allowing an individual to
be nominated by any federation of which the candidate is a member or whether only
a nomination from the home federation of the candidate was allowed. The UCI
rejected the request to bring the case before the CAS and declared that the UCI
Congress was the only competent authority to decide on issues linked to the
elections. Nevertheless, it is remarkable that the parties regarded the CAS as
the ultimate guardian of fair and democratic elections, which could, “provide
a much-needed degree of certainty for UCI delegates in knowing that the current
and future candidates standing for election are in fact eligible to do so”.
Furthermore, in September 2014, the Nigeria Football
Federation’s (NFF) President, Chris Giwa, appealed FIFA’s order to vacate his
post to the CAS in his last-ditch effort to hold onto the presidency and
despite FIFA’s threat to suspend the NFF in the event he would stay president. The
CAS dismissed his request for provisional measures on the ground that the
request was without object, as FIFA decided that “two
cumulative conditions mentioned in the Emergency Committee’s decision dated 3
September 2014 had been complied with and that therefore the NFF would not be
finally suspended”. Indeed, at the last minute, Giwa abandoned his post and
therefore the order was not valid anymore. It is noticeable again that CAS was
called to be the final arbiter of a contested election.
However, it is in the Thai
case that the CAS for the first time was given broad authority to review
several irregularities in the electoral process. Namely, the appellant, Chanpanich,
challenged the validity of the presidential election for the FAT before the
CAS, alleging the existence of a plethora of procedural irregularities-
starting from the adoption of the 2013 Statues of the Electoral Code - so
severe as to flaw the election entirely. In addition, the appellant requested
from the CAS panel to issue guidelines as to the manner in which such elections
were to be held. On the basis of a specific arbitration agreement, the CAS
admitted jurisdiction on the dispute and proceeded with the merits. The CAS was
asked to address the following set of irregularities and breaches: the alleged
interference of the FAT Secretary General (‘M.’) and of the Secretary of the
Electoral Committee (‘U.’) with the electoral process; the unlawful amendment
in the composition of the Electoral Appeal Committee; the violation of basic
standards of procedural fairness (no proper hearing, no present parties,
limited documentation) in the proceedings before the Electoral Appeal
Committee; and the participation in the voting process of ineligible delegates,
i.e. non-members and members of the FAT Executive Committee. In scrutinizing
the electoral process, the CAS relied first on the text itself of the FAT 2013
Statutes and Electoral Code, which were adopted on the basis of FIFA’s
fundamental principles of separation of powers, accountability and
transparency, and under the FIFA supervision, and then on the factual evidence.
On the ground of the lack of sufficient evidence in conjunction with the rules
of the Electoral Code, the CAS rejected the alleged irregularities.
With regard to the CAS’s reasoning, two remarks can to be made.
Firstly, although the FAT Congress acted in breach of Article 4 of the
Electoral Code by allowing the members of the electoral bodies to be appointed
by the candidates themselves on the basis of a mandate granted to them by the
Congress and along a repartition agreed by the candidates, the CAS chose to
qualify this breach as a “deviation” which should be tolerated due to ‘political
Namely, the CAS panel embraced the “good intentions”
of the FAT Congress to pave the way to an electoral process based on consent, healing,
therefore, the violation of the Electoral Code. As a result of this “deviation”,
according to the CAS, the parties should accept the consequences it produced.
This assessment leads to the second remark. With regard to the alleged
violation of procedural fairness, the CAS recognized that the Appeal Electoral
Committee had limited time to render its decision, because of the delayed
previous decision of the Electoral Committee. However, since the Electoral
Committee was composed by Chanpanich - pursuant to the above mentioned deal
between the candidates and the Congress -, the appellant had to accept the
consequences of this situation. These assessments seem at least questionable:
the CAS qualifies a clear breach of the Electoral Code as “deviation”
and then declares that the parties are responsible for the problems provoked by
It is remarkable that although the CAS has been given broad
reviewing authority, it chose to stick to an ‘ostrich’ like behaviour. It refused to proceed with a true control of the
conformity of the electoral process with the relevant electoral code and left
the door open for more ‘behind the curtains’ irregularities, which would be based
on the consent of the Congress and the candidates. Thus, it seems that the CAS
is adopting a very cautious, hands-off, approach when reviewing electoral
The emerging constitutional role of the CAS: A shift towards
a sui generis function for arbitration?
From the above brief overview of the CAS jurisprudence, two
major trends can be identified: the diminishing autonomy of national and
international federations in deciding on their internal electoral proceedings (1)
and the growing readiness of the members of sports federations to have recourse
to the CAS to control the fairness of the electoral proceedings in sports governing
bodies. So far, the CAS Appeal Division has ruled over the eligibility of the
potential candidates for the presidential elections of sports federations as
well as over the regularity, validity and procedural fairness of the electoral
process itself. At this point, it has to be noticed that, apart from the sports
federations’ electoral processes, the CAS has also been asked to rule on the
validity of the pre-electoral practices of the candidates for the election to
the IOC Athlete’s Commission.
By controlling as well the electoral process of the IOC Commissions the CAS adds
more credentials to its function as guarantor of fair and democratic electoral
proceedings in international sports.
Since its emergence in the mid-1980s, the CAS’s role as the
arbitral body competent to resolve international sporting disputes arising from
appeals of decisions of sports governing bodies has evolved significantly. The
CAS Appeal Division has mainly played a role in disciplinary matters, in doping
cases for example, or contractual disputes, as in cases concerning transfers in
football. Nonetheless, it seems as if it is also about to become an important
institutional player in ‘constitutional’ disputes involving the political
structure of sports governing bodies. By deciding on the eligibility of the
candidates, on the composition of the electoral body, or on the conformity of
the electoral proceedings with the applicable electoral code and minimum
standards of fairness, the CAS acts not unlike a constitutional court of the
international sports world. This functional evolution appears to be the
reflexive answer of the CAS to the disputes submitted to it by sports governing
The unsettled interplay between Sports Politics and the CAS:
an emerging political role for the CAS?
The review of electoral proceedings can also imply a
political role – from a sporting point of view - of the CAS, bringing to the
surface the thorny issue of the political role of arbitrators in general. In
the Thai case, the CAS in a
remarkable obitur dictum declared its
duty to settle “a legal dispute according to the law”, denying, thereby, any
intention to enter the field of sports politics. It recognized, though, the
political implications “at least from a sporting point of view” of its award on
the governance of FAT.
The panel was clear: it did not want to address sports politics, “let alone
politics tout court”.
The CAS insisted on its legal role “rendering unto sports the things that are
sport and to courts the things that are legal”.
This assessment is not surprising. There is a widespread view that judges and
arbitrators only apply the law, irrespective of their policy beliefs and
backgrounds. This de-politicization of the arbitral process, however, masks the
fact that arbitral tribunals are composed of human beings, who are consciously or
not driven by non-legal factors, such as the political and sociological factors.
The CAS panels do not constitute an exception. A brief look at the CAS
jurisprudence demonstrates in the view of the author of this blogpost that CAS
panels are more likely to adopt a pro-international sports governing bodies
approach, acting very cautiously when it is called to interpret their
regulations and their decisions. Similarly, the CAS is aware of the significant
impact of its rulings on the governance of sports and their de facto precedential value at the
international and even national levels of sports.
Consequently, its awards have become increasingly self-referent, leaving a
small room for divergent interpretations.
However, it is the author’s opinion that the CAS, even when
acting as a “neutral” arbitral tribunal reviewing the electoral processes, will
inevitably grapple with the political dimensions of those decisions. Despite
the declaration of the Thai panel that it would abstain from any involvement in
sports politics, the Panel, as noted above, justified a breach of the Electoral
Code as mandated by political reasons and particularly by the overriding goal
to guarantee electoral process based on the consent of FTA’s members. This
decision was not neutral: in practice the panel decided who was to be president
of the FTA. This is a highly political decision and it is a duty of CAS to be
aware and reflexive of its impact when opting for one legal interpretation over
In overall, a modicum
of sports politics does not seem totally incompatible with the CAS role.
The former President of the IOC and founder of the CAS, Juan
Antonio Samaranch, had a dream: he envisaged the CAS as a “kind of Hague court
for the sports world”.
In fact, 30 years after, and despite its permanent roots in arbitration, it
seems that the CAS is becoming the Supreme Court of world sport. The CAS is a legal
chameleon, being one day a quasi-criminal Court and the next a constitutional one.
However, its increasing tendency to scrutinize the political processes at play
in sports governing bodies is probably one of its least developed, but also most
It remains to be seen whether the CAS will continue to be prudent
and deferent when reviewing electoral processes, or whether it has the
potential to morph into a more audacious, and maybe more “political”,
CAS 2013/A/3389, Virach Chanpanich v The Football Association of Thailand
A Erbsen, ‘The Substance and
Illusion of Lex Sportiva’ in I Blackshaw and others (eds) The Court of
Arbitration for Sport 1984-2004 (The Hague, TMC Asser Press 2006), 441.
2010/0/2166, National Chess Federation of France et al. v.FIDE
 CAS 2013/A/3389 (n 1) paras
 CAS 2012/A/2913 Mu-yen Chu
& Chinese Taipei Olympic Committee v.
International Olympic Committee (IOC) & CAS
2012/A/2912 Koji Murofushi & Japanese Olympic Committee v. International
CAS 2013/A/3389 (n1), para 115
M Beloff QC, ‘Is there such a
thing as Sports Law’ (2011) 33 The Circuiteer 13
G Kaufmann Kohler, ‘Arbitral
Precedent: Dream, Necessity or Excuse?’ (2007) 23 Arbitration International (3)
‘ Speech Delivered by Mr Juan Antonio Samaranch’ (1982) 176 Olympic Review 314,