Editor’s note: Emilio García (emilio.garcia@uefa.ch)  is a doctor in law and head of disciplinary and integrity at UEFA. Before joining UEFA, he was the Spanish Football Federation’s legal director (2004–12) and an arbitrator at the CAS (2012–13).In this blog, Emilio García provides a brief review of a recent case before the Court of Arbitration for Sport (CAS): Klubi Sportiv Skënderbeu v UEFA (CAS 2016/A/4650)[1], in which he acted as main counsel for UEFA. 

Sport and match-fixing – A quick overview

Match-fixing is now legally defined as “an intentional arrangement, act or omission aimed at an improper alteration of the result or the course of a sports competition in order to remove all or part of the unpredictable nature of the aforementioned sports competition with a view to obtaining an undue advantage for oneself or for others”.[2] It has been said that there has always been match-fixing in sport.[3] From the ancient Olympic Games to the most important global sports competitions of today, manipulation of results has always been an all-too-frequent occurrence.

We have seen a number of very prominent instances of this kind of issue over the years. One of the most remarkable examples, which was even the subject of a film,[4] was the match-fixing episode during the 1919 World Series, where several players from the Chicago White Sox were found guilty of accepting bribes and deliberately losing matches against the Cincinnati Reds.[5]

The situation has changed considerably since then. In particular, the globalisation of the sports betting industry has had a massive impact, with recent studies estimating that between €200bn and €500bn is betted on sport every year.[6] Match-fixing does not just affect football either;[7] it is also affecting other sports, most notably tennis.[8] 

In addition to these impressive figures, it is well recognised that match-fixing has become a global issue because it allows organised criminal gangs to expand their illegal and violent activities – which include murder, extortion and assault – worldwide. It also results in the loss of billions of dollars of tax revenue and public income every year. Indeed, match-fixing is now one of the most profitable forms of money laundering.[9]

In light of the growth of this phenomenon, both international sports federations and public authorities are now engaged in a continuous battle against this scourge. More and more sports federations are establishing specific programmes in this area, which is having a major impact at national level.[10] And as regards public authorities, various resolutions have been adopted by the European Union, several initiatives have been launched by INTERPOL and EUROPOL, and, in particular, excellent work has been done by the Council of Europe, which adopted the first ever international treaty aimed at combating the manipulation of sports competitions. These are all good examples of cooperation between public authorities and the world of sport, but we are still a long way from winning this particular battle.

UEFA’s rules and integrity-related cases

AC Milan: UEFA’s first modern-day integrity case

In May 2006, a match-fixing scandal – christened the ‘Calciopoli’ – was unearthed in Italian football. Investigations led by the Italian police revealed that a network of club managers, officials responsible for referees and other individuals had sought to influence the outcome of various matches in the Serie A. Several clubs were punished by the Italian Football Federation (FIGC). One of those clubs was AC Milan, which was given a 30-point penalty. However, despite the deduction of those points, AC Milan still managed to qualify for the 2006/07 UEFA Champions League.

Thus, the admissions process for the 2006/07 UEFA Champions League presented UEFA with a real legal conundrum: could UEFA allow a club that had been punished for its involvement in the Calciopoli to take part in a European competition? On 2 August 2006, the UEFA Emergency Panel decided to allow AC Milan to participate in UEFA’s flagship competition on the basis of the following considerations:

“The UEFA Emergency Panel, being competent to decide on the matter, came to the conclusion that it had no choice but to admit AC Milan for the UEFA club competitions 2006-07 for formal reasons because of an insufficient legal basis in the regulations which would allow not admitting AC Milan under specific circumstances.”[11]

This situation was highly frustrating for UEFA, which felt that it was unable to prevent AC Milan from participating in its competition, despite the club’s involvement in match-fixing. It should also be noted that AC Milan went on to win that competition, beating English side Liverpool FC in the final on 23 May 2007.

Evolution of the legal framework

UEFA’s response to the AC Milan case was a swift one. At the very next UEFA Congress, which took place in Dusseldorf on 25 and 26 January 2007, representatives of the various member associations approved a new paragraph 3 for Article 50 of the UEFA Statutes.[12]

That amendment, which remains in force today, established a two-stage process aimed at guaranteeing the integrity of UEFA’s competitions. The first stage involves an administrative measure, whereby the offending club is excluded from European competitions for one season. The second stage involves disciplinary measures, which may be imposed subsequent to the administrative measure and do not have a maximum duration.[13]

Article 50(3) of the UEFA Statutes reads as follows:

“The admission to a UEFA competition of a Member Association or club directly or indirectly involved in any activity aimed at arranging or influencing the outcome of a match at national or international level can be refused with immediate effect, without prejudice to any possible disciplinary measures.”

That provision has also been incorporated in the regulations governing the UEFA Champions League and the UEFA Europa League, which currently feature the following wording:

“If, on the basis of all the factual circumstances and information available to UEFA, UEFA concludes to its comfortable satisfaction that a club has been directly and/or indirectly involved, since the entry into force of Article 50(3) of the UEFA Statutes, i.e. 27 April 2007, in any activity aimed at arranging or influencing the outcome of a match at national or international level, UEFA will declare such club ineligible to participate in the competition. Such ineligibility is effective only for one football season. When taking its decision, UEFA can rely on, but is not bound by, a decision of a national or international sporting body, arbitral tribunal or state court.”[14]

Key CAS rulings (2008-15)

UEFA has been very active in applying this two-stage process to its European club competitions – particularly as regards the first stage. Since the introduction of this peculiar but successful process, more than ten clubs from all over Europe have been declared ineligible to participate in UEFA competitions. In some cases, those one-season bans have been accompanied by disciplinary measures.

Inevitably, many of those cases have resulted in proceedings before the CAS in Lausanne.[15] The CAS case law derived from those key cases can be summarised as follows:

• It is firmly in the interest of UEFA, as the organiser of sports competitions, for the integrity of its competitions to be ensured and perceived to be so by the public. It is undeniably in UEFA’s interest to show the public that it takes all necessary steps to safeguard the integrity of its competitions.[16]
• UEFA does not need to wait for a final decision at domestic level, particularly when it comes to criminal proceedings, since neither UEFA nor the CAS can be forced to defer their decisions when an effective fight to ensure the integrity of sport depends on prompt action. UEFA and the CAS are not subject to the same rules as the ordinary courts in terms of procedure, proof (types of evidence and standard of proof) and substance.[17]
• The essential aim of the administrative measure is not to punish the club, but to protect the values and objectives of UEFA’s competition, its reputation and its integrity. It seeks not only to prevent a club which has violated such values from taking part in UEFA’s competition (i.e. to protect the integrity of that competition), but also to dispel any doubts in the public domain regarding the integrity, values and fairness of its competition (i.e. to protect the reputation of that competition).[18]
  
• The administrative measure is not of a disciplinary nature. Consequently, the fundamental legal principles that could potentially be applicable to disciplinary matters are not relevant.[19]
  
• The question of whether the club has any degree of culpability as regards the prohibited activities is entirely irrelevant. The principle of nulla poena sine culpa does not apply to administrative measures adopted by sports associations.[20]
  
• The range of conduct resulting in the application of an administrative measure is broader and more generic than that resulting in a disciplinary measure, which is, in principle, more restrictive and specific.[21]
  
• The administrative measure is only applicable to a club, whereas disciplinary measures can be imposed on all persons bound by UEFA’s rules and regulations (i.e. member associations and their officials, clubs and their officials, match officials, players, etc.).[22]

The CAS ruling on KS Skënderbeu: Is betting analysis sufficient to declare a club in breach of UEFA’s integrity rules?

UEFA’s betting fraud detection system

UEFA’s betting fraud detection system (BFDS) was established in 2009 in response to the growing threat of match manipulation in both UEFA and domestic competitions.

The BFDS highlights irregular betting patterns, both before and during matches, in the core betting markets, monitoring all major European and Asian bookmakers. The core betting markets are: the Asian handicap market; the totals market (number of goals in a match); and the 1X2 market (home win, draw or away win). The BFDS covers all UEFA competition matches (approximately 2,000 per season) and all matches in member associations’ top two divisions and cup competitions (approximately 30,000 matches per season).

The BFDS uses sophisticated algorithms and mathematical models to compare calculated odds with actual bookmakers’ odds, in order to determine whether the odds at a specific point in time or over a specific period are irregular.[23]

If a match displays irregular betting patterns, the matter is escalated and a report is generated. These reports include detailed information on the betting operators being monitored, together with match-specific data – e.g. regarding the current form of the teams involved, on-field action, players, match officials and motivational factors (such as the potential for promotion, relegation or qualification for a UEFA competition). Reports contain textual analysis and expert assessments, as well as graphical representations of movements in the relevant betting market.[24]

UEFA’s primary BFDS partner and information provider is Swiss-based company Sportradar. Founded in 2001, this company employs a team of highly trained sports betting analysts dealing exclusively with European football.

The facts of the case

On the basis of analysis of BFDS reports, it was concluded that Albanian football club KS Skënderbeu had been involved in a very large number of matches with inexplicable betting patterns. These included matches in Albania’s domestic league, the Albanian Cup and UEFA competitions, as well as several friendlies against foreign clubs. On the basis of UEFA’s experience in the areas of betting and match-fixing, it was concluded that the activities relating to Skënderbeu were of a highly organised nature.

While the vast majority of clubs will never feature in BFDS reports, it should be noted that Skënderbeu has appeared in more than 50. If we look at all the clubs that have been the subject of BFDS reports since 2010, Skënderbeu has been flagged up far more times than any other club in Europe.

Proceedings before UEFA’s disciplinary bodies

Against this background, charges were brought against Skënderbeu before UEFA’s disciplinary bodies with a view to imposing an administrative measure preventing the club from taking part in the 2016/17 UEFA Champions League.[25] A hearing took place before the UEFA Appeals Body, which acted as the first and final instance in this case.[26] The Appeals Body upheld the charges against the club – i.e. it deemed that Skënderbeu had indeed been involved in domestic and international activities aimed at arranging or influencing the outcome of matches. Consequently, the club was declared ineligible to participate in the 2016/17 UEFA Champions League.

Skënderbeu then lodged an appeal against this decision before the CAS.

The CAS award

The dispute between UEFA and Skënderbeu before the CAS essentially revolved around the interpretation of the BFDS reports and the legal value that should be attributed to them. UEFA, for its part, relied on those betting reports in concluding that the Albanian club had been involved in activities aimed at arranging or influencing the outcome of matches at domestic and international level. Skënderbeu, on the other hand, maintained that the BFDS reports (i) were not sufficient to prove match-fixing, (ii) were not capable of attributing specific responsibility as regards involvement in match-fixing, and (iii) were simply objective alarm mechanisms, which needed to be supported by other external evidence pointing in the same direction.

The CAS limited itself to an analysis of four Skënderbeu matches in UEFA competitions (namely, the club’s matches against Crusaders FC on 21 July 2015, against GNK Dinamo Zagreb on 25 August 2015, against Sporting Clube de Portugal on 22 October 2015 and against FC Lokomotiv Moskva on 10 December 2015) and refrained from analysing domestic matches and other pieces of evidence submitted by UEFA. It did so in order to avoid prejudicing any disciplinary measures that UEFA might potentially impose on the club.[27]

The starting point for the legal analysis conducted by the CAS Panel tallied with UEFA’s approach to this case and the question of whether BFDS reports could be used as the sole piece of evidence when prosecuting cases of match-fixing. The CAS agreed with UEFA that there were potential analogies between athletes’ biological passports and BFDS reports: “The Panel notes the similarities between the procedures followed in respect of the BFDS and the athlete blood passport (the ‘ABP’) in doping matters. Both rely initially on analytical data which is subsequently interpreted by experts/analysts before conclusions are drawn as to whether a violation is presumed to be committed or not.”[28]

Using this analogy, the Panel explained how analytical information was processed within the BFDS, highlighting the fact that the BFDS – like the ABP – indicates the likelihood of a violation having occurred, rather than providing absolute proof one way or the other: “The BFDS analyses whether the analytical information regarding betting on football matches can be explained by ‘normal’ circumstances. The conclusion that the statistical information cannot be explained by ‘normal’ circumstances does not necessarily entail that it must hence be concluded that the results are to be explained by match-fixing.”[29] The Panel went on to say that “[i]n order to come to the conclusion that a match is fixed […] the analytical information needs to be supported by other, different and external elements pointing in the same direction”.[30] With this in mind, the Panel noted that “the final conclusions drawn are not only based on analytical data and the absence of any ‘normal’ explanation, but indeed take into account several external factors corroborating the theory that the abnormal betting behaviour was likely to be explained by match-fixing: suspicious actions of players that took place on the field of play, suspicions raised by an opponent after the match, the emergence of a betting pattern in respect of the Club whereby it would concede late goals when the tie was no longer competitive and the fact that the Hong Kong Jockey Club, a prominent Asian bookmaker, removed the Club from live markets before the end of a game”.[31]

The Panel also attributed considerable weight to the betting patterns surrounding the four European matches under examination: “The Panel particularly considers the emergence of a betting pattern […] to be convincing evidence that the Club is at least indirectly involved in match-fixing activities. This betting pattern consists of the fact that it was observed in four different matches of the Club in either the UEFA Champions League or the UEFA Europa League in the first half of the 2015/2016 sporting season, that the actual bookmakers’ odds started to divert considerably from the calculated odds at the end of the match when the tie was no longer competitive (i.e. when it was clear that the Club would lose the tie on the basis of the aggregate score or that it would win the tie).”[32]

All in all, the Panel concluded that the “analytical information derived from the BFDS is valuable evidence that, particularly if corroborated by further evidence, can be used in order to conclude that a club was directly or indirectly involved in match-fixing”.[33]

Conclusion

Over the last few years, I have heard many betting experts state that monitoring is not the answer to match-fixing in sport. I fully agree with all of them, particularly since they know far more about the betting market than I do. Perhaps as a consequence of my limited legal skills (since even bad lawyers are always trying to find solutions to a complex reality), I would prefer to say that monitoring is not the only answer to match-fixing.

What the CAS ruling on Skënderbeu shows is that action can be taken if you have a proper monitoring system. Again, monitoring is not the sole solution to this problem, but it represents an additional evidentiary tool and can play an important role in legal proceedings. We should remember that match-fixing is linked to corruption and that the parties involved will inevitably “seek to use evasive means to ensure that they will leave no trail of their wrongdoing”.[34] Importantly, the legal framework governing match-fixing is clearly different for ordinary courts, where “the applicable rules in terms of procedure, proof (types of evidence and standard of proof) and substance are not the same as those that apply before UEFA and the CAS”.[35] In this context, a monitoring system can play a key legal role in safeguarding the integrity of a competition.

[1] A copy of the CAS award is available at: http://www.uefa.org/disciplinary/casdecisions/index.html.

[2] Article 3(4) of the Council of Europe Convention on the Manipulation of Sports Competitions.

[3] See Hill, D. (2016). Why sport is losing the war to match-fixers. Global Corruption Report: Sport, Transparency International, p. 231.

[4] Eight Men Out, directed by John Sayles, which was released in 1988.

[5] See Carpenter, K. (2013). Global Match-Fixing and the United States’ Role in Upholding Sporting Integrity. Berkeley Journal of Entertainment and Sports Law, Vol. 2, Issue 1.

[6] See Sorbonne-ICSS (2014). Protecting the Integrity of Sport Competition: The Last Bet for Modern Sport.

[7] See FIFPro (2016). 2016 FIFPro Global Employment Report.

[8] See ESSA (2016). ESSA Q3 2016 Integrity Report.

[9] See Anderson, J. (2014). Match Fixing and Money Laundering. The International Sports Law Journal.

[10] Among others, the Tennis Integrity Unit (see http://www.tennisintegrityunit.com/) or the Cricket Anti-Corruption Unit (see http://www.icc-cricket.com/about/46/anti-corruption/overview).

[11] The full official UEFA statement is accessible at the following link: http://www.telegraph.co.uk/sport/2342180/Milan-restored-to-Champions-League.html. 

[12] See http://www.uefa.org/documentlibrary/aboutuefa.

[13] CAS 2013/A/3256, Fenerbahçe SK v UEFA, para. 160 et seqq.

[14] Article 4.02 of both the Regulations of the UEFA Champions League 2016/17 and the Regulations of the UEFA Europa League 2016/17 (http://www.uefa.org/documentlibrary/regulations/index.html).

[15] The CAS has reviewed a total of six cases relating to the refusal of admission on grounds of integrity. See generally Deakes, N. (2014). Match-Fixing in football: The epistemology of the Court of Arbitration for Sport Jurisprudence. Australian and New Zealand Sports Law Journal

[16] TAS 2011/A/2528, Olympiacos Volou FC v UEFA, para. 141.

[17] Ibid., para. 136.

[18] CAS 2014/A/3625, Sivasspor Kulübü v UEFA, para. 123.

[19] Ibid., para. 128.

[20] CAS 2014/A/3628, Eskişehirspor Kulübü v UEFA, para. 136.

[21] Ibid., para. 105.

[22] Ibid.

[23] Calculated odds are a mathematical representation of the true probability of an occurrence, without the external effects of money and subjective opinions. In effect, they show what should be happening to the odds, instead of what is actually happening.

[24] See Forrest, D., & McHale, I. (2015). An evaluation of Sportradar’s fraud detection system.

[25] See García, E. (2015). UEFA’s Judicial Bodies. Football Legal, Issue 4.

[26] See Article 24(4) of the UEFA Disciplinary Regulations.

[27] See Article 4.03 of the Regulations of the UEFA Champions League 2016/17.

[28] CAS 2016/A/4650 Klubi Sportiv Skënderbeu v UEFA, para. 82.

[29] Ibid., para. 85.

[30] Ibid., para. 86.

[31] Ibid., para. 87.

[32] Ibid., para. 97.

[33] Ibid., para. 79.

[34] CAS 2010/A/2172, Mr Oleg Oriekhov v UEFA, para. 54.

[35] TAS 2011/A/2528, Olympiacos Volou FC v UEFA, para. 136.

The Pechstein ruling of the Oberlandesgericht (OLG) München rocked the sports arbitration world earlier this year (see our initial commentary of the decision here and a longer version here). The decision has been appealed to the German Bundesgerichtshof (BGH), the highest German civil court, and the final word on the matter is not expected before 2016. In any event, the case has the merit of putting a long-overdue reform of the Court of Arbitration for Sport (CAS) back on the agenda. The last notable reform of the structure and functioning of the CAS dates back to 1994, and was already triggered by a court ruling, namely the famous Gundel case of the Swiss Federal Tribunal (SFT). Since then, the role of the CAS has shifted and its practical significance has radically changed (the growth of CAS’s caseload has been exponential). It has become the most visible arbitration court in Switzerland in terms of the number of awards appealed to the SFT, but more importantly it deals with all the high-profile disputes that arise in global sport: think, for instance, of Pistorius, the recent Dutee Chand decision or the upcoming FIFA elections.

In response to the Pechstein ruling, the CAS issued a press release claiming “that the findings of the Munich Appeals Court [the OLG] are based on the CAS rules and organization in force in 2009, when Claudia Pechstein appealed before CAS, and do not take into account the changes leading to the current organization, with amended procedural rules regarding the nomination of arbitrators, development of the legal aid program and the appointment of new ICAS Members not active in or connected to sports-bodies”. The CAS administration implied that the decision would have been different if the OLG had taken into account the current rules. This is a slightly misleading statement. The OLG’s reasoning as to the CAS’s lack of independence was based on various features of CAS procedure that are still in place today, most notably the composition of the CAS governing body: the International Council of Arbitration for Sport (ICAS). In the same press release, the CAS emphasizes that “[i]t is always prepared to listen and analyze the requests and suggestions of its potential users i.e. the athletes, sports federations and other sports entities, in order to continue its development with appropriate reforms”. If it is to avoid a true revolution targeting (and potentially destroying) CAS arbitration, it should better put its money where its mouth is and urgently initiate an inclusive and participative reform procedure. Such a reform process ought to bring to the table not only the Sports Governing Bodies (SGBs), as was the case after the Gundel ruling, but also representatives of athletes and public authorities.

This long blog post aims at providing a blueprint to start thinking about how to reform the CAS. It will highlight the key issues that need to be discussed and make 10 preliminary (and necessarily incomplete) proposals. Three pillars for a reform of CAS are identified: independence, transparency and access to justice.

I.               Independence

The Pechstein ruling of the OLG focuses mainly on the question of the independence of the CAS (and chiefly the ICAS). This is not a new matter of concern. Over the years, there has been mounting academic scholarship putting this independence into doubt[1]. However, the SFT sided with the CAS and shielded it from challenges, until the OLG München begged to differ. In fact, ensuring independence ought to be the fundamental objective of any future reform of the CAS. In my view, this is not so much about securing the institution’s financial independence from the SGBs, nor should the CAS’s financial reliance on the SGBs be seen as a big threat to its independence, as long as its management is truly independent. Indeed, it is the SGBs’ duty, in the interest of sports, to finance the CAS via a form of tax on their revenues.  The true issues to be tackled in relation to independence arise from the composition of the ICAS, the identity and role of the President of the CAS Appeals Division and the closed list of arbitrators.

a.    Independence of ICAS

The ICAS is the body in charge of taking the most significant institutional decisions in the life of the CAS. It decides, in particular, who gets to be a CAS arbitrator[2], who gets to be the president of the CAS appeal division[3], and who gets to be the secretary general of the CAS[4]. It also rules on challenges to the independence of arbitrators[5]. In short, the ICAS decides all the main institutional matters which have a decisive influence on the broader legal orientations of the CAS and its jurisprudence. This powerful body, sitting quietly at the top of the CAS, is all but independent. Three fifths of its current members are selected by the SGBs, and that group, in turn, selects the remaining two fifths of the members[6]. It is natural that the SGBs would pick individuals who share their views on the application of their rules and more broadly their mindset in relation to the management of sports. Thus, many ICAS members have had (or still have) a career inside national and international SGBs, and several among them have acted as legal advisors to the SGBs[7]. The President of the ICAS himself, John Coates, is the Vice-president of the IOC. Can you imagine, for example, the Vice-president of the United States presiding at the same time over the Supreme Court? How can such a homogenous group of people be deemed independent from the collective interest and views of the members of the Olympic movement? Simply put, it can’t and it isn’t. This is the crux of the OLG’s decision in Pechstein and it is extremely difficult not to be convinced by it. 

However, and this is a legitimate question, how should we then select ICAS members? There are in my view two solutions that ideally should be combined. On the one hand, a slight change should be made to the CAS statutes, imposing that only 4 of the ICAS members shall be selected by the SGBs, while the next 4 shall be selected by representatives of the athletes (at a specific conference or assembly including, for example, FIFPro, UNI World Athletes, EU Athletes, and the IOC Athletes' Commission), and the final 12 members shall be picked by the first 8. By empowering athlete representatives to appoint half of the first 8 members of ICAS, the CAS would automatically ensure the independence and impartiality of the additional 12 (neutral) ICAS members, who would still have the upper hand on the two partisan fractions inside ICAS. On the other hand, it is necessary to impose stringent individual requirements of independence for all ICAS members. They should both fulfill qualitative requirements (i.e. show some legal credentials) and be subjected to strict conflicts of interests restrictions (i.e. ICAS members must sever all personal, contractual and financial ties with SGBs and athlete representatives). In short, no IOC or FIFPro member should be able to have a seat at the ICAS’s table. This is a preliminary proposal and other analogical solutions can be devised. It aims at tackling the two core challenges for the independence of ICAS: its selection procedure and the individual independence of its members.

Recommendation 1: Change the selection procedure for ICAS members, with SGBs to select 4 members, athletes’ representatives to select 4 other members, and those 8 members together jointly selecting the remaining 12 members.

Recommendation 2: Impose a strict regime governing conflicts of interest for ICAS members. ICAS members should forego all their mandates within the SGBs and sever all contractual and other ties susceptible of giving rise to a conflict of interest.

b.    Independence of the President of the Appeals Division

The Appeals Division of the CAS is for our purposes (as well as in quantitative terms) the only one that truly matters. Indeed, it deals with all the disputes related to doping and transfer cases, but also those arising from disciplinary sanctions imposed by the SGBs and their political decisions. In short, the appeals procedure transforms the CAS in the ‘Supreme Court of World Sport’ as the saying goes. In Pechstein, the OLG was particularly troubled with the way in which the president of each appeal panel is selected. Basically, as provided by article R54 of the CAS Code[8], the president of the Appeals Division decides who is to be the president of a specific appeal panel. He or she will consult the arbitrators nominated by the parties, but their suggestions are not binding. In fact, especially when they disagree, the Division President is the one that decides who is to chair the panel, and, thus, who is most likely to tilt the balance in one direction or another. Consequently, the President of the Appeals Division occupies probably the most important and powerful position at the CAS. You wouldn’t guess who was occupying this position until 2013…Thomas Bach, the current IOC President. The current holder is Ms. Corinne Schmidhauser, herself a President of Antidoping Switzerland and a member of the Legal Committee of FIS (Fédération Internationale de Ski). Athletes challenging an anti-doping decision cannot be expected to believe in the independence of a panel which has been composed, to a significant (decisive) extent, by someone so directly involved in the anti-doping fight and thus necessarily and inevitably partisan of the work done by anti-doping authorities.

The position of head of the CAS Appeals Division is so crucial, that it cannot be occupied by anybody who is closely connected to any one side of the sporting world. The designation process must ensure that the person selected is universally perceived as independent and impartial. Only by ensuring that he or she has no direct and personal, contractual or financial links with the SGBs can the CAS preserve its independence and legitimacy.

Recommendation 3: Impose a regime of incompatibilities to the President of the Appeals Division. He or she must accept to forego all his or her mandates within the SGBs and sever all contractual ties susceptible of giving rise to a conflict of interest.

c.     Independence of individual arbitrators

The final, most often discussed, yet in my view less important, point concerns the independence of individual CAS arbitrators. The OLG München pointed out that it is not against a closed list of CAS arbitrators. However, the fact that under the current procedures the arbitrators are selected by a structurally biased ICAS was seen as highly problematic. Even more so due to the lack of transparency as to who had proposed the nomination to the CAS under the pre-2010 rules. Closed lists of arbitrators are a relatively rare occurrence in international arbitration, nonetheless it does make sense to introduce a qualitative limit to who is deemed sufficiently qualified to become an arbitrator in a specific sector, where disputes can raise rather complex “technical” or scientific issues, such as sport (think of some anti-doping cases). This is especially so because CAS arbitration, contrary to commercial arbitration, is mandatory in essence and aims more at providing legal certainty in the global sports sector than at solving individual disputes. This calls for enhanced stability in the judicial personnel. In this regard, some have suggested providing tenure and a fixed wage to CAS arbitrators[9]. This might be difficult to put in place logistically, at least for now, though it is not necessarily a bad idea in the long run. 

Be that as it may, implementing such measures would still not exonerate the CAS from having to deal with some of the acute problems that arise regarding the independence of CAS arbitrators included on the list. In particular, the phenomenon of so-called repeat arbitrators, ie arbitrators who are nominated several times by the same party, poses a real danger. In such cases, the party that is frequently involved in disputes before the CAS has an edge over the other party because it knows which arbitrator is more susceptible to favor its cause. One way to avoid this bias would be to clearly limit the number of times an arbitrator can be selected by a specific party. Moreover, to put the parties on an equal stand, the CAS would need to publish detailed information on arbitrators’ past nominations (in this regard, see also point II.a. below). Finally, the ICAS should exercise a more stringent standard of control over the independence of individual arbitrators in case of challenge. Nevertheless, if the list is drawn by an independent ICAS and the parties have the possibility to know better the record of each arbitrator and have a true ability to challenge them in case of doubt, the existence of a closed list does not seem to be as such a structural limitation to the independence of the CAS.

Recommendation 4: Limit the number of times an arbitrator can be nominated by a specific party (e.g. 5 times during his or her four-year mandate).

Recommendation 5: CAS to provide detailed information on each arbitrator’s past nominations.

Recommendation 6: ICAS to exercise a more stringent control over the independence and impartiality of CAS arbitrators in case of challenge.

II.             Transparency

The OLG in Pechstein did not tackle the question of the lack of transparency of the CAS. Yet, some authors have insisted that as the jurisdiction of CAS is mandatory for athletes wanting to participate in international competitions (as the Olympic Games or, as in Pechstein’s case, the world championships) its processes should abide by the standards of the European Convention of Human Rights[10]. In this regard, the independence of the arbitrators is important, but also the transparency of the judicial process.

a.    Information on arbitrators

First, as discussed above, there is a lack of transparency as far as the arbitrators are concerned. The list of CAS arbitrators on the CAS website gives too little substantial information for parties to be comprehensively informed on the arbitrators’ personal jurisprudential record. Here again, due to the phenomena of repeat-players, information asymmetries are indirectly promoted. The parties, mainly SGBs, which have been involved in many CAS arbitration proceedings will typically dispose of an internal database tracking the different positions of CAS arbitrators as they have access to the raw data. The majority of athletes, who are not supported by a strong legal team, will be unable to rely on the same knowledge and will necessarily be in an unfavorable position compared to the SGBs. This calls for full transparency regarding the profile and record of each CAS arbitrator. Similarly, the CAS lacks mandatory disclosure rules regarding the arbitrators’ biographical details[11]. Each arbitrator should have to disclose, in the information included on the CAS website, their past (for example over the last 5 years) and/or present contractual relationships, or other significant personal or financial ties with SGBs and any other relevant stakeholder in sport.

Recommendation 7: CAS to impose more stringent ex ante disclosure rules imposing that each CAS arbitrator discloses on the CAS website all present and past (previous 5 years) contractual links with SGBs and other sport stakeholders.

b.    Publication of CAS awards

What is even more important, also because it would enable the parties and external observers to better check the independence and evaluate the track record of arbitrators, is the systematic publication of CAS awards. Nowadays, the CAS publishes only a limited sample of all the awards rendered by the Appeals Division. Indeed, article R59 CAS Code provides that “[t]he award, a summary and/or a press release setting forth the results of the proceedings shall be made public by CAS, unless both parties agree that they should remain confidential”. It is true that compared to commercial arbitration the CAS is relatively transparent. Yet, commercial arbitration is the wrong benchmark, as the CAS’s function is more akin to that of a court of law. The secrecy might be acceptable, though it remains hotly debated, when two multinationals decide to settle their dispute via arbitration. This state of affairs is, however, totally unsatisfactory in the context of a forced arbitration process. CAS draws its legitimacy from the necessity to provide a global level playing field to settle disputes arising out of international sport. This might be a valid justification to impose the global jurisdiction of the CAS, but in return it must also entail that CAS has the duty to publish all the decisions it renders. This, in fact, could be very easily achieved by amending article R59 CAS Code and by simply deleting its final sentence indicating that the award is published “unless both parties agree that they should remain confidential”.

The full publication of CAS awards is a necessity to secure the equality of arms of the parties to CAS arbitration. Indeed, in the current situation, some actors, often SGBs, have access to much greater pools of CAS awards, which they can refer to, thus improving their chances of prevailing. In contrast the general public and the athletes are unable to critically assess and use the many awards that remain unpublished and therefore inaccessible. A transparent access to all appeal awards is a vital question of procedural justice, and a crucial development in order to subject the CAS and its judicial work to the critical scrutiny of the global public sphere.

Recommendation 8: CAS to systematically publish on its website all the CAS awards rendered following the appeal procedure.

c.     Publication of administrative documents

The CAS is extremely reluctant to publish internal administrative material. In other words, nobody knows precisely the financial records of the CAS or the precise content of the discussions happening inside the ICAS. This is not compatible with the very public function played by the CAS in global sports. With great power, comes great responsibility. Transparency, as a tool serving enhanced public scrutiny, is a key element of CAS’s accountability. Thus, it is important that the CAS adopts transparent administrative practices. It should, for example, publish the minutes of the ICAS meetings and its annual reports.

Recommendation 9: CAS to systematically publish on its website all the key administrative documents (such as the minutes of ICAS meetings and its annual reports)

III.           Access to Justice

Finally, and this is largely overlooked by many, the CAS has a problem with access to justice[12]. CAS proceedings are too expensive for many athletes who are not part of the 1% elite of superstars. Article R64.1 CAS Code provides that « [u]pon filing of the request/statement of appeal, the Claimant/Appellant shall pay a non-refundable Court Office fee of Swiss francs 1,000 »[13]. Moreover, the parties must pay an advance on the costs of arbitration and bear the costs of their own witnesses, experts and interpreters[14]. Unless the dispute involves a decision by an international federation in disciplinary matters[15], an appellant will have to bear the costs of the arbitration process, usually several thousands Swiss Francs. Athletes end up in a double bind: they are often constrained to go to the CAS by a mandatory arbitration clause, but cannot afford to do so properly. In recent years, the CAS has started to tackle the issue by introducing two mechanisms: a pro-bono list of CAS lawyers and a procedure granting legal aid to athletes in financial hardship. These steps certainly go in the right direction, but as some with hands-on experience have pointed out[16], they are still too small and uncertain. Athletes, especially in doping cases, are faced with disputes which require costly scientific investigations, experts must be recruited etc. Thus, they can be forced to waive their access to the national courts (and state legal aid), only if the CAS provides sufficient financial means for them to dispose of a fair chance to present their case, ie to “have their day in the CAS”. It is again a question of equality of arms; SGBs are way richer and enjoy substantial economies of scale thanks to their repeat player status. This potential inequality before sporting justice runs counter to the very essence of a fair process, and should be remedied. This will be possible only if the SGBs which provide for CAS arbitration in their regulations accept to take on a larger share of the costs of CAS proceedings, for instance by paying a levy corresponding to a specific share of their revenues.

Conclusion

Now is not the time for the CAS to put its head in the sand and pray for the BGH to overrule the OLG in the Pechstein case. Sure, that might happen. Yet, the BGH cannot magically erase the fundamental questions that have been raised by the lower courts as the case made its way into its docket. It will only be a matter of time for those same questions to pop up again in another judicial forum (be it the ECHR or the CJEU). The independence of ICAS, and therefore of the CAS, is simply too fragile and urgently needs to be buttressed. Let’s not just wait, comme si de rien n’était, for the revolution to come. Now is the time for all interested parties (CAS, SGBs, athletes, public authorities) to come together and shape a comprehensive reform of the CAS that must be guided by the will to ensure a stronger independence, greater transparency and broader access to justice.

[1] See ten years ago A. Rigozzi, L’arbitrage international en matière de sport, Helbing & Lichtenhahn, Basel, 2005; pp. 289-300 and D. Yi, ‘Turning Medals into Metal : Evaluating the Court of Arbitration of sport as an international tribunal’, 6 Asper Rev. Int’l Bus. & Trade L. 289, 2006. More recently, A. Vaitiekunas, The Court of Arbitration for Sport : Law-Making and the Question of Independence, Stämpfli Verlag, Berne, 2014 and P. Zen-Ruffinen, ‘La nécessaire réforme du Tribunal Arbitral du Sport’ in A. Rigozzi and al (eds), Citius, altius, fortius : mélanges en l'honneur de Denis Oswald, Helbing & Lichtenhahn, Basel, 2012, pp. 555-567.

[2] Article S6 para 3 CAS Code (Statutes of ICAS and CAS).

[3] Article S6 para 2 CAS Code.

[4] Article S6 para 6 CAS Code.

[5] Article S6 para 4 CAS Code.

[6] See Article S4 CAS Code :
ICAS is composed of twenty members, experienced jurists appointed in the following manner :

1.     four members are appointed by the International Federations (IFs), viz. three by the Association of Summer Olympic IFs (ASOIF) and one by the Association of the Winter Olympic IFs (AIOWF), chosen from within or outside their membership;

2.     four members are appointed by the Association of the National Olympic Committees (ANOC), chosen from within or outside its membership;

3.     four members are appointed by the International Olympic Committee (IOC), chosen from within or outside its membership;

4.     four members are appointed by the twelve members of ICAS listed above, after appropriate consultation with a view to safeguarding the interests of the athletes;

5.     four members are appointed by the sixteen members of ICAS listed above, chosen from among personalities independent of the bodies designating the other members of the ICAS.

[7] In the current ICAS, 13 (out of 20) members have (or had) direct ties to SGBs if you trust their official bios: Abdullah Al Hayyan, Tjasa Andrée-Prosenc, Patrick Baumann, Scott Blackmun, Alexandra Brilliantova, John D. Coates, Moya Dodd, Ivo Eusebio, Michael B. Lenard, Göran Petersson, Richard W. Pound, Corinne Schmidhauser, Tricia C.M. Smith. None of the 20 has any ties with athletes’ representative organisations.

[8] Article R54 CAS Code stipulates:

“If three arbitrators are to be appointed, the President of the Division shall appoint the President of the Panel following nomination of the arbitrator by the Respondent and after having consulted the arbitrators.”

[9] A. Vaitiekunas, The Court of Arbitration for Sport: Law-Making and the Question of Independence, Stämpfli Verlag, Berne, 2014, p. 199.

[10] R. Muresan and N. Korff, ‘Sportschiedsgerichtsbarkeit: Wie weiter nach dem « Pechstein-Urteil » des Landgerichts München?’, Causa Sport 3/2014, pp. 199-211.

[11] Article R33 CAS Code only stipulates that «Every arbitrator shall be and remain impartial and independent of the parties and shall immediately disclose any circumstances which may affect his independence with respect to any of the parties».

[12] But not by all see A. Rigozzi & F. Robert-Tissot, ‘"Consent" in Sports Arbitration: Its Multiple Aspects’, E. Geisinger & E. Trabaldo de Mestral (eds), Sports Arbitration: A Coach for other players?, ASA Special Series No. 41, pp. 59-95, at 73-81.

[13] This is true also in case of an appeal against decisions issued by international federations in disciplinary matters, see article R65.2 CAS Code.

[14] See article R64.2 and R64.3 CAS Code.

[15] See article R65 CAS Code.

[16] A. Rigozzi & F. Robert-Tissot, ‘"Consent" in Sports Arbitration: Its Multiple Aspects’, E. Geisinger & E. Trabaldo de Mestral (eds), Sports Arbitration: A Coach for other players?, ASA Special Series No. 41, pp. 59-95, at 73-81.