Role of Courts and Tribunals in Sports
WHAT WILL WE LEARN? In its broad sense, governance can be
defined as the management of an
• An introduction to the role played by organization through the exercise of
courts in shaping sports law power. The judicial system has an
important role to play in ensuring better
• The role played by the tribunals in public governance. There may be a
developing sports law plethora of regulations, rules and
procedures but when disputes arise, they
• The importance of Court of Arbitration for
• The Organisational structure of Court of
Arbitration for Sports
have to be settled in a court of law. In
sports governance, as well, courts play a pivotal role in the effective functioning of sporting
organisations, and as a result, the wide range of participants involved. These participants include
each and every person – be it individual or group – such as players, clubs, organisations (local,
national and international), spectators, media, interested parties (commercial and non-commercial)
as well as educational and training bodies. Considering the fact that there is a pretty large
percentage of population which is affected by the organisation of sports, evolution of courts and
tribunals specializing in sports was inevitable.
Now let’s imagine you’re a female athlete who is undergoing training for a very important
international competition such as the Commonwealth Games. You’ve been preparing for months,
you’re in shape, and you’ve never felt more confident about your performance. A month before
the competition, you’re told that you can’t compete because your testosterone levels are higher
than ‘regular’ women, giving you an unfair advantage. How would you feel? This is exactly what
happened with Dutee Chand, an Indian sprinter who was banned from the 2014 Commonwealth
Games because her body testosterone levels were naturally higher than others. A similar incident
had also occurred with South African distance runner Caster Semenya, investigated in 2009. So
what will you do? Who provides you the remedy?
Situations like the aforementioned are exactly the reason why we need a designated panel
providing dispute resolution mechanism specifically for sports. Historically, the idea of sports and
conflict resolution originated around 776 BC, during the first Olympic Games. It is believed that
a civil war was tearing Greece apart, and after the Olympic Games were held in Olympia – Greece
flourished and the war came to an end making the Olympics a lasting symbol of peace.
Coming back to the present, today we have analysts talking for hours about each and every move
made by a player along with intense media and public pressure, it is safe to say that the career of
a sportsperson is short lived and the underlying risk of injuries and loss of form is immense.
Therefore, it is essential that sports dispute resolution be effective as well as expeditious.
The need to be autonomous combined with the pressure to be accountable make the governance
of sports quite confusing. While autonomy of sport from the state has been a prized virtue, it has
often been used to shield some abysmal governance. This is difficult to countenance because
several important rights are at stake, including the basic livelihood of many athletes.
Unlike most forms of law, sports do not have a fixed hierarchy of mechanisms available for
grievance redressal. There is no fixed lower court or court of original jurisdiction. There are
basically three methods for conflict resolution –
1. You can file a complaint with internal authorities present within sports federations, which
are there at the national and international level both,
2. Depending on whether the offence falls under the category of civil or criminal, a writ
petition can be instituted in a court of law, and
3. You can try to resolve the issue through alternative dispute resolution (ADR).1
Filing a writ petition in the High Court or Supreme Court is a viable option, especially when the
questions of law involved is one which interlinked with other Indian laws – such as the case of Zee
Telefilms and Another v. Union of India.2 Despite calls from reforms from the public or from the
1 Mukul Mudgal and Vidushpat Singhania, “Law and Sports in India”, (2016), .
2 (2005) 4 SCC 649.
network of agreements that bind it to the international Olympic movement, sports in India have
failed to respond. Rampant corruption throughout the country and administrative apathy lead us to
the assumption that there are glaring conflicts of interest at the very top of the administration where
the directions flow from. The fact that this is the with cricket as well, which is probably among the
best-governed sports in the country, is the reason that the pressure to reform has come from a third
direction - the law of the land in the form of writs instituted in courts.3
If dispute does not work out through intervention from a court of law, the modern method of
resolving disputes i.e. Alternative Dispute Resolution or ADR encompasses any or all ‘methods
of resolving disputes in sports’ otherwise, that through the traditional method of normal trial in
The types of ADR in sports vary according to the dispute that has arisen. According to that, ADR
can be of the following kind – arbitration, mediation, and other forms such as sports ombudsman,
expert determination, good offices, negotiation and conciliation.
HOW COURTS GAIN JURISDICTION TO GET INVOLVED IN THE AFFAIRS OF
SPORTS GOVERNING BODIES
The jurisdiction of a body or a tribunal essentially lies in the parent statue, rule or regulation under
which under which it has been created and is exercising its decision-making powers. The
governance of sports is all about rules – without rules and a mechanism to enforce, sports cannot
function properly. The general rule is that international federations are the primary source of law
– and all the regional federations and clubs in a particular country are under their jurisdiction.
Occasionally, more than one sporting body may have jurisdiction over a certain matter of dispute
due to the sport or different governing bodies having charge of different areas of the sport. In cases
like this, jurisdiction is determined by the doctrine of ‘pith and substance’. This means, the dispute
has to be addressed by the body under whom the cause of action of the dispute falls, in order to
prevent multiple jurisdictions for a singular sporting dispute.
3 Aju John, “How SC verdict on BCCI has pushed Indian sports towards accountability”, Jan 23, 2015, Available at
In Internal Dispute Resolution proceedings, the jurisdiction can be conferred on the defaulting
party through –
1. An express contract – Before entering any competition, the participant signs the
2. An implied contract
3. Membership of an affiliated club
4. Acceptance of rules and regulations of the governing body and submitting oneself to its
This was held in the case of Diane Modahl v. BAF,5 in which Modahl was accused of a doping
offence and found guilty by a disciplinary committee appointed by the defendant (BAF). An appeal
to an independent appeal body was successful and the ban was lifted as the drug testing had been
carried out by an unaccredited laboratory, therefore the evidence was not completely reliable.
Modahl sought civil action due to BAF’s breach contractual duties and sought damages for
expenses and loss on income.
As with all arbitration, the parties' consent to CAS arbitration is paramount. Arbitral jurisdiction
is based on an agreement between the parties to submit a dispute for arbitration, and this agreement
can occur either before or after the dispute has arisen. Usually, the agreement is before the dispute
only, in the form of an arbitration clause in the contract between the parties or as a rule contained
within the regulation or statute of a sports organisation which governs the parties or is the party
An appeal against the decision of a federation, association or sports related body may be filed with
the CAS if the statutes or regulations of the said body so provide, or insofar as the parties have
concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies
4 Mukul Mudgal and Vidushpat Singhania, “Law and Sports in India”, (2016), .
5  1 WLR 1192.
available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-
Arbitral jurisdiction is very straightforward – parties may adopt the jurisdiction of a body
providing an arbitration service, a sports, organisation may adopt a rule providing for arbitration
which automatically becomes binding on all members of that particular organisation, or two or
more parties may agree to simply submit a dispute to particular tribunal on ad hoc basis. The
arbitral tribunal must be fair and independent in compliance with the standards and must follow
the due process of law or it will be subject to scrutiny of state courts6 e.g. The Swiss Federal Code
on Private International Law provides for judicial review of a CAS arbitration award by the Swiss
Federal Tribunal (SFT) on very narrow grounds.
Rule 27 of the CAS Code talks about Application of the Rules, where it is mentioned that –
These Procedural Rules apply whenever the parties have agreed to refer a sports-related dispute
to CAS. Such reference may arise out of an arbitration clause contained in a contract or
regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) or
may involve an appeal against a decision rendered by a federation, association or sports-related
body where the statutes or regulations of such bodies, or a specific agreement provide for an
appeal to CAS (appeal arbitration proceedings).
Such disputes may involve matters of principle relating to sport or matters of pecuniary or other
interests relating to the practice or the development of sport and may include, more generally, any
activity or matter related or connected to sport.7
CAS’ jurisdiction depends more or less on the arbitration clause incorporated in the statutes of
various sporting federations or organisations, or in declarations signed by athletes when they’re
entering the national team or international tournaments.
The CAS has its seat in Laussane. In the context of ordinary arbitration, the parties are free to agree
on the law applicable to the merits of the dispute, which in case of failure leads to the applicability
of Swiss law. Judicial recourse to the Swiss Federal Tribunal is allowed on a very limited number
6 Mukul Mudgal and Vidushpat Singhania, “Law and Sports in India”, (2016), .
7 Available at http://www.tas-cas.org/en/arbitration/code-procedural-rules.html.
of grounds, such as lack of jurisdiction, violation of elementary procedural rules (e.g. violation of
the right to a fair hearing) or incompatibility with public policy.
Mediation has very different judicial scrutiny as compared to arbitration or litigation proceedings,
as its nature is very non-binding and a binding decision cannot be imposed on parties against their
will. It is upon the parties to halt litigation or arbitration proceedings to try dispute resolution
In recent times, there has been a development of court ordered or mandatory mediation as a pre-
perquisite to filing litigation proceedings in the area of jurisdiction in mediation. This was done
with the view of reducing the burden on courts and possibly reaching a settlement between the
parties quickly as compared to the long winded procedure of commercial courts. Many
commentators were of the opinion that the mediation will fail unless all parties are participating
voluntarily. The case of Star Sports v. Hathway Dispute in India is an example, after the
appointment of Telecom Disputes Settlement and Appellate Tribunal as a mediator.
Internal Dispute Resolution does provide quite a few remedies, however, there is a third option
available to the aggrieved in a sports dispute. Aside from Arbitration and Mediation, they can still
go to regular courts, unless they are specially ousted from doing so. With reference to the ordinary
commercial, criminal or non-regulatory activities of sporting bodies – courts can act as a good
medium for resolving these issues where there is no need for a high specialized branch of Sports
Law. The reason people don’t prefer to go to courts is majorly the costs associated with invoking
jurisdiction of courts, creation of animosity between parties, negative publicity and media image,
and several times – the ineffective remedies awarded by the court in sporting disputes.9
8 Mukul Mudgal and Vidushpat Singhania, “Law and Sports in India”, (2016), .
9 Mukul Mudgal and Vidushpat Singhania, “Law and Sports in India”, (2016), .
However, on the evidence of today, constitutional courts acting in exercise of their writ jurisdiction
seem like a useful device for pushing sports governing bodies towards better governance. The new
era of legal reforms in sports started from the case of Ajay Jadeja10 where it was held that sporting
bodies perform certain functions and are amenable to the writ jurisdiction of High Court. This
principle was upheld by the Supreme Court in the Zee Telefilms case. The scope of jurisdiction of
writ petitions under Article 226 was also propounded upon in detail in the Aditya Verma v. BCCI
case – where it was laid down that the BCCI performs certain number of public functions, therefore
it was held that their decisions would bear the same scrutiny as quasi-judicial decisions.
10 Ajay Jadeja v. Union of India, 95 (2002) DLT 14.
II. SPORTS GOVERNING BODIES AND THEIR JUDICIAL SCRUTINY
Sports in the 21st century is big business and sporting governing bodies wield very considerable
power and control over large number of individuals and organisations. The commercialisation of
sport has added a new layer of complexity to the role of the sport governing bodies. International
sporting federations legislate and create their own general norms. They operate a discrete
independent regulatory regime globally. In this sense, they are a legally plural regime independent
of nation states. They can thus be said to create an ‘international governance of sport.’ In several
countries sporting bodies exercising monopoly status are increasingly coming under judicial
scrutiny. The fact that the sporting associations are performing some public functions and affecting
vital public interest cannot be denied. Judicial opinion in Scotland, New Zealand and Canada is
already in favour of judicial supervision of sporting bodies, while in England, changes are being
The extension of the scope of Judicial Review in
recent years to bodies that are not necessarily thought DID YOU KNOW?
of as public bodies has been the most interesting and
promising development in the field of public law. And Fourteen cricketers of India, including
the growing acceptance of the philosophy all those the then captain, were penalized for the
who wield power should be accountable and should be unauthorised cricketing trip to the
subject to the general principles of good USA by being banned from international
administration indicates possibilities for developing the role of court in controlling the power of
private corporations and self-regulatory bodies. In India, a public law remedy in writ jurisdiction
can, in given cases, be swift. Fourteen cricketers of India, including the then captain, were
penalized for the unauthorised cricketing trip to the USA by being banned from international
cricket. This penalty was challenged in the Supreme Court in Vineet Kumar v. BCCI. In about a
span of 6 weeks, by two hearings in the Supreme Court, the ban was revoked and the cricketers
reinstated. Since the ban on the cricketers was revoked and the dispute resolved amicably, the
Supreme Court did not have the occasion to go into the issue of the maintainability of the writ
petition. The Court's supervisory jurisdiction helps to ensure that public bodies do not abuse their
power and do not act arbitrarily, capriciously, unreasonably or unfairly. Whatever other regulatory
control they may be subject to, it is becoming increasingly desirable that private bodied wielding
controlling power be generally subject to some measure of judicial supervision. Litigation and the
possibility of litigation can play a useful regulatory role.
An important question which surfaced in India was whether the autonomous bodies representing
different sports in India fell within the purview of ‘State’ or other authorities as given under Article
12 of the Indian Constitution, and thus, were they amenable to the writ jurisdiction of the High
Court and Supreme Court. In fact, this question had been raised in 1989 at the Supreme Court in a
writ petition challenging the ban on fourteen Indian cricketers penalized for playing an unofficial
match not approved by BCCI in USA, while on their way back from the West Indies Tour.
The following extract from the decision of the Hon’ble Supreme Court of India in Binny Ltd. v. V.
Sadasivan11, is particularly instructive in this regard:
“Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public
authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of
mandamus could be issued even against a private authority. However, such private authority must
be discharging a public function and the decision sought to be corrected or enforced must be in
discharge of a public function.
Even when it comes to international sports, one of the most contentious issues in relation to sports
governing bodies (such as the Jockey Club – which was the subject of many cases concerning
judicial scrutiny) is Judicial Review. Over the years, there has been considerable discussion on
whether the actions of sports governing bodies could be challenged in a court of law.
The starting point has always been - because sports governing bodies are private bodies, they are
not subject to judicial review. The English courts have displayed a marked reluctance to extend
the boundaries of public law to include judicial review of the competency of sports bodies. Firstly,
given the contractual relationship between the parties involved, the English courts have long
preferred to bring in in private law proceedings for deciding sporting disputes upon which effective
11 (2005) 6SCC 657.
actions for a declaration, an injunction or damages can be based without resorting to judicial
review. Secondly, the approach of judicial review is somewhat limited in the scope it can have
over the sports governing bodies.
This view has prevailed over the years, by creating enormous exclusions and limitations to
challenges, particularly against decisions of disciplinary and other decision making bodies
belonging to sports governing bodies. This view, however, is no longer absolute. The apparent
firmness of the English courts on this point is at odds with a number of other comparable
jurisdictions. Moreover, and in line with recent developments in the general area of public law,
consideration is given as to whether the decisions of sports bodies might be exposed to judicial
review on the basis that it is sufficiently within the ‘public interest’ that they are held accountable
in this fashion.
Since 2005, no more attempts have been made to persuade the courts that sporting governance is
an aspect of state governance more generally. But that does not mean that public law has no role
to play in sporting governance. Rather, public law principles play a significant role in the judicial
supervision of sports governing bodies, but this role is an indirect one. The court sidestepped the
great divide between public and private law, by injecting into contractual or other relationships by
which governance is established in these bodies based on common law principles.
The Court of Appeal has confirmed on several occasions such as the case of Bradley v. Jockey
Club12, Flaherty v. National Greyhound Racing Club13, and R (Mullins) v. Appeal Board of the
Jockey Club14 that sports governing bodies are not public bodies for the purposes of judicial
review. Their actions or decision may, nevertheless, be subject to judicial control, in the same form
of review for public bodies.
R (Mullins) v. Appeal Board of the Jockey Club is the most recent case, and it focused upon the
November 2002 edition of the Hennessy Gold Cup at Newbury when Irish jockey David Casey
rode the Willie Mullins trained ‘Be My Royal’ to victory at odds of 33-1. Subsequently, a urine
sample taken from the horse was found to contain morphine. However, although the Disciplinary
12  EWHC 2164 (QB).
13  ISLR, SLR-8.
14  EWHC 2197 (Admin).
Committee of the Jockey Club acknowledged morphine might be found in a horse entirely
innocently, applying a strict liability construction, the Disciplinary Committee found there had
been a breach of Rule 53 of the Orders and Rules of Racing and disqualified the horse. Therefore,
Mr. Mullins appealed to the Appeal Board of the Jockey Club, which upheld the decision of the
Disciplinary Committee, so Mullins then sought judicial review confining his claim to a
declaration that the disqualification of ‘Be My Royal’ was unlawful under the Civil Procedure
Rules at rule 54.1. However, the Administrative Court answered in the negative, holding that the
Court of Appeal’s decision in R v. Disciplinary Committee of the Jockey Club, was binding and
determinative of the inapplicability of the judicial review jurisdiction of the Administrative Court.
Moreover, in the decision in R (Mullins) v. Appeal Board of the Jockey Club, the claimant
suggested the Court of Appeal in R v. Disciplinary Committee of the Jockey Club had overlooked
a relevant factor because the Jockey Club receives substantial sums from the government derived
from the betting levy, and this went towards demonstrating that sport occupies a more substantial,
and necessarily public, place in society
Arguably the most important authority in this field is now R v. Jockey Club ex p Aga Khan.15
Effectively the Court of Appeal in Aga Khan refined the ratio in Law to a single question: Whether
the domestic tribunals in question are ‘sufficiently governmental in operation and nature to be
susceptible to judicial review.’ There was ample debate on the matter by the judges in the
case. The judgements of Lord Hoffmann in R v. Disciplinary Committee of the Jockey Club, ex p.
Aga Khan and Justice Burton in R (Mullins) v. Appeal Board of the Jockey Club also betray a
frustration with the academic criticism that accompanies the reluctance to view the decisions of
sports bodies as amenable to judicial review. Typical of that criticism is Beloff’s view that, if there
is an ‘organic link’ between decisions of public bodies and those of private tribunals, the
justification for separate procedural treatment ‘appears to vanish’.
One final consideration also relates to the distinction between a decision reached by a sporting
governing body itself, as opposed to one reached by a disciplinary body, which has been
constituted by the sporting body, but it is independent from it. Although the former situation may
not create a problem in terms of the contractual claim, the latter situation is not so clear. Clients
15 (1993) 1 WLR 909
seeking advice, may need to focus on this distinction, as the final claim may be affected in terms
of jurisdictional and remedial considerations. Basically, this area of regulation and governance
continues to develop rapidly and it emphasises the importance of the dichotomy of public/private
law and its connection with sports law.
III. PREFERENCE FOR THE RESOLUTION OF DISPUTES THROUGH
ALTERNATE DISPUTE RESOLUTION
For centuries, the standard avenue for resolving a civil dispute has been to file a lawsuit in the
public court system. Even lawyers, however, realize that lawsuits are not always the most practical
method for reaching a settlement. Alternative dispute resolution (ADR), sometimes called
arbitration or mediation, is a widely-accepted alternative to civil actions in public courts.
Alternative dispute resolution effectively sidesteps most or all of the institutional uncertainty that
An increasing number of sports organizations are including mediation and arbitration as the
primary means for resolving disputes that arise on the field of play as well as commercial business
matters. As courts become more and more crowded and access become increasingly tougher, the
various participants in the sports industry will realise that arbitration and mediation can be the
easier way out in this situation, rather than engaging in the long haul.
The advantages of adopting ADR for sports disputes16 are –
1. A UNITARY SYSTEM OF DISPUTE RESOLUTION –
Having a designated Sports Tribunal, e.g., Court of Arbitration for Sports (CAS), has
helped in maintaining uniformity and consistency of decisions worldwide. CAS has clearly
laid down rules and procedures to which it abides by. Similarly, CAS also has well
documented Mediation rules and procedures.
2. SPEED –
Litigation in India can be ardous and lengthy process and at times takes years to achieve
finality. Settling disputes through ADR insures alternative and speedy resolution. Swift
16 Mukul Mudgal and Vidushpat Singhania, “Law and Sports in India”, (2016), [367-370].
resolution of sports disputes are necessary because the careers of sports persons are
generally short, so lengthy periods of litigation could have a very significant detrimental
impact on the sports persons career. Time is likely to be of essence, especially for a person
or a team seeking to take part in an upcoming event. Some of the speedy techniques adopted
by ADR in sports are -
3. CAS AD HOC DIVISION –
It is an arbitration and conciliation body that is active only for the duration of a specific
event like the Olympics, FIFA World Cups, and the Commonwealth Games. A panel of
arbitrators is appointed by International Council for Arbitration in Sports (ICAS) which is
readily available throughout the course of the event for the resolution of any legal issue
with may arise. However, certain untoward stipulations stating that an arbitrator, to be
eligible for an arbitration in Europe, needs to be present in Europe during FIFA World Cup
in Germany 2010, whereas for CAS Ad hoc Arbitration in other continents particular
arbitrators are appointed irrespective of their lack of objectivity.
At first, these proceedings were conducted only for Olympic games (every two-year) and
more recently for other international competitions. However, the caseload of the ad-hoc
tribunals remains modest, the peak was reached at the Sydney Olympic in 2000 with 15
cases, since then Ad-hoc tribunals have been in the shadow of the prominent place taken
by the Appeal Procedure. According to the Ad hoc rules for the Olympics and
Commonwealth games, arbitral award should be issued within 24 hours of lodging of the
application for arbitration and equivalent time limit for football's European championships
and the World Cup is 48 hours.
4. EXPEDITED PROCEEDINGS –
Onus is enjoined upon CAS to have a speedy arbitration process due to the fact that event
organisers and sports federations usually wish to safeguard the integrity of a sports
competition's final results, quite often all parties are willing to agree to highly expedited
arbitration procedure in order to conclude on legal issues in advance of the competition. In
such instances the usual time limit or shortened and disputes maybe arbitrated in a matter
of days if not hours.
5. PROVISIONAL MEASURES –
Another characteristic of sports arbitration which facilitates the speedy resolution of sports
dispute is effective provisional and conservatory measures, prior to commencement of the
substantive arbitration and arbitral tribunal's constitution. When considering an application
for provisional measures, sports arbitration tribunals generally consider -
a. Whether the relief is necessary to protect the applicant from a irreparable harm.
b. The likelihood of success on the merits.
c. Whether the interests of the applicant outweigh those of the other parties (whose
interest in the dispute tend to be larger than other commercial arbitrations).
6. TIME LIMITS –
In sports arbitration, procedural rules are generally stringent and relatively short periods
are prescribed. For example, under CAS Appeals Arbitration, according to the Code of
Sports-related Arbitration (prescribed by CAS) a statement of appeal must be filed with
the CAS within 21 days from the communication of the decisions under appeal. Unless the
applicable regulations provide for a different time limit (either shorter or longer), this time
limit cannot be extended and any delay leads to the dismissal of the appeal. Once the
statement of appeal has been filed, the appellant has a further 10 days to file an appeal brief
stating the facts and legal arguments giving rise to the appeal and to produce the evidence
been relied upon. The respondent must then file his complete answer within a time limit of
20 days. Finally, the arbitration panel must issue its final award within 3 months of having
received the case file.
Even the Indian Super League's Rules, though not defining a time period recognise the
intent behind speedy disposal of sports disputes and prescribe a summary procedure as well
as a procedure for quick resolution of disputes. The National Anti-Doping Agency of
India's Code of 2015 in conformity with the earlier code, also prescribes a period of 3
months for adjudication of an anti-doping infraction. Even the Indian Premier League
operational rules set up a disciplinary committee and prescribe procedures, which has
speedy disposal as an intent, for preliminary and final hearings.
7. EXPERTISE –
Resolving sports dispute assumes an essential characteristic when the dispute is contingent
on interpretation of the rules and conventions associated with the game. A person who has
been associated with this sport and commands respect from his colleagues, is better suited
to resolve the sporting dispute, that a judge in an ordinary Court of law who will probably
not have the same level of expertise. Having a sports industry expert also provides an
opportunity to the parties to concentrate on the key factors rather than spending time and
money on the preliminary issues, which are avoidable in the case of judges/panel heads
who are not well versed with sporting laws like anti-doping.
8. COST –
Methods of ADR like Mediation involve significantly lesser cost than litigation. Even
comparative ADR techniques like arbitration are less costly than litigation in court. More
than often one party to a sports dispute is a federation or club which is financially a giant,
whereas the other party is an individual athlete who struggles to meet the expenses or afford
a costly resolution process. Thus, reasonableness of cost involved in ADR is also a
Rule 64 of the CAS Code states that the panel has discretion to grant the prevailing party
a contribution towards its legal fees and other expenses. In cases where parties come
forward in appeal against decisions issued by international federations, in disciplinary
matters and doping issues, Rule 65 of the CAS code provides that no arbitration cost shall
be paid by the parties. Even for cases wherein the parties are required to pay the arbitration
cost, CAS arbitrators work on an hourly rate that is generally lesser than the usual
Also, there exists a provision within the CAS Code according to which the ICAS may
create a legal aid fund to facilitate access to its arbitration for individuals without sufficient
financial means. CAS has drafted legal aid guidelines for the operation of the fund and
CAS has established a list of Pro Bono counsels to assist parties before the CAS. Indian
athletes like Nirupama Devi have been beneficiaries of this legal aid granted by CAS in
their appeal before it.
9. FINALITY –
Finality is an important factor in some ADR techniques. Both traditional litigation
decisions and arbitration awards can be challenged - however other ADR techniques like
Mediation in Reconciliation effectively provide a final outcome in the first instance itself.
10. ENFORCEABILITY –
Sports bodies have been known to comply with awards achieved through ADR techniques.
The New York Convention provides for necessary legal pathway for enforcement of an
arbitral award. The domestic laws of various countries, modeled on the UNCITRAL law,
help facilitate this process.
11. CONFEDENTIALITY –
Confidentiality is a key tenet of ADR techniques. Sports disputes often contain elements
which can hamper large commercial prospects, for example, if a multinational brand or an
athlete with global recognition is involved - remarks made during the proceedings or
judgement in public, might hamper their brand value. The CAS Code provides that the
CAS arbitrators are bound by a duty of confidentiality and are barred from disclosing to a
third party any fact or information relating to the proceedings before CAS.
Under R43 of the 2013 edition of the CAS Code, in ordinary chambers, the awards are not
made public unless all parties agree or the Division President so decides. In the appeals
chamber, the award/summary/press release setting forth the results of the proceedings can
be made public by CAS unless both parties agree that they should remain confidential.
Preservation of goodwill - Sports disputes involve preservation of goodwill as the
conflicting parties may have to continue in a subsisting relationship for mutual benefit.
Litigation can turn rather nasty, whereas conciliation and mediation ensure that all the
disputing parties leave on a common consensus and everyone is satisfied.
Consistency and Transparency - The emergence of CAS for sports dispute resolution has
provided greater consistency in decisions around the world and that has led to the creation
of Lex Sportiva, or a body of case laws. Awards issued by CAS are regarded as
authoritative precedents, by subsequent arbitral tribunals if facts are similar. Otherwise
previous awards are regarded as being of highly persuasive value even if they are not
considered fully binding legal precedents.
IV. STANDARDS OF ARBITRATION PROCEEDINGS
TYPES OF CASES
Although any disputes directly or indirectly linked to sport may be submitted to the Court of
Arbitration for Sports, there are generally two kinds which are referred. These may be disputes of
a commercial nature relating to the execution of contracts e.g. a sponsorship contract, TV rights,
transfer of players from one club to another, etc. Disputes relating to civil liability issues also come
under this category (e.g. an accident to an athlete during a sports competition). These so-called
commercial disputes are handled by the CAS acting as a court of sole instance.
Or, they can be of a disciplinary nature following a decision by a sports organisation e.g. a doping
case, violence on field, match fixing and so on. Such disciplinary cases are generally dealt with in
the first instance by the competent sports authorities, and subsequently become the subject of an
appeal to the CAS, which then acts as a court of last instance.
To set the dispute in motion, the party wishing to submit a dispute to the CAS must send the CAS
Court Office a request for arbitration (ordinary procedure) or a statement of appeal (appeals
procedure), the contents of which are specified by the Code of Sports-related Arbitration. In the
case of the appeals procedure, a party may lodge an appeal only if it has exhausted all the internal
remedies of the sports organisation concerned. The parties may appear alone or be represented or
assisted at CAS hearings by a person of their choice, not necessarily a lawyer.
When it comes to choosing an arbitrator, the arbitration is submitted to a panel of three arbitrators.
Under the ordinary procedure, each party chooses one arbitrator from the CAS list, then the two
designated arbitrators agree on who will be the president of the panel. Failing such agreement, the
President of the Ordinary Arbitration Division makes this selection instead of the two arbitrators.
Under the appeals procedure, each party chooses an arbitrator, and the president of the panel is
selected by the President of the Appeals Arbitration Division.
If the parties agree, or if the CAS deems this appropriate, a sole arbitrator may be appointed,
depending on the nature and importance of the case. The arbitrators must be independent, that is
to say have no particular connection with any of the parties, and must not have played any role in
the case in question.
Once the arbitration request or statement of appeal is filed, the respondent submits a reply to the
CAS. After any additional exchange of statements of case, the parties are summoned to a hearing
to be heard, produce evidence and argue their case. The final award is communicated to the parties
some weeks later, unless it is pronounced the same day (under the appeals procedure).
With regard to confidentiality, the ordinary arbitration procedure is confidential. The parties,
arbitrators and CAS staff are obliged not to disclose any information connected with the dispute.
In principle, awards are not published.
The appeals arbitration procedure does not specify particular rules of confidentiality, but the
arbitrators and CAS staff have a similar duty of confidentiality during the proceedings. Generally
speaking, unless the parties agree otherwise, the award may be published by the CAS.
The need for speed is no more evident than in resolving sports disputes. As mentioned above,
Panels sitting at the ad hoc Division during the Olympic Games or other major sports event have
24 hours from the time an appeal is filed to render its decision. For cases administered by the CAS
Appeals Arbitration Division, time is also often of the essence and the CAS Code contains
relatively short time limits for the filing of written submissions and the conduct of the procedure.
As a general rule, a prospective Appellant has 21 days from receipt of the decision he wishes to
challenge to file a statement of appeal at the CAS. The Appellant has a further 10 days to file his
appeal brief, and the Respondent gets 20 days for his reply to the appeal brief.
The ordinary procedure lasts between 6 and 12 months. For the appeals procedure, an award must
be pronounced within three months after the transfer of the file to the Panel. In urgent cases and
upon request, the CAS may, within a very short time, order interim measures or suspend the
execution of a decision appealed against.
The time limits fixed in the CAS Code may be shortened if the parties so agree. One example of
an expedited procedure was the case of Ryan Napoleon, an Australian swimmer, who on 20 August
2010, was sanctioned with a three-month period of ineligibility for an anti-doping rule violation.
The Panel deliberated by video-conference and issued the operative part of its award on 13
September 2010 - 11 days after the appeal was filed.
As for the cost, one of the purposes of the CAS is to provide access to justice for athletes who
might not otherwise have the financial means to pursue a claim. Although the media regularly
carry reports detailing multi-million dollar contracts and lucrative endorsement deals entered into
by high-profile athletes, the reality is that for every David Beckham or Tiger Woods there are
hundreds of professional athletes who barely earn enough to subsist. In recognition of this, the
ICAS President may decide to grant legal aid to natural persons without sufficient financial means,
which will cover the costs of arbitration and may include a contribution towards legal fees.
Therefore, the ordinary procedure involves paying the relatively modest costs and fees of the
arbitrators, calculated on the basis of a fixed scale of charges, plus a share of the costs of the CAS.
The disciplinary cases of an international nature ruled in appeal are free, except for an initial Court
Office fee of CHF 1000.
The arbitral seat for all CAS procedures is Lausanne, Switzerland, regardless of where the Panel
holds hearings or meetings. The same provision applies to CAS cases heard by an ad hoc Division
during the Olympic Games or any other sports event for which an ad hoc Division is set up. CAS
arbitrations are governed by Chapter 12 of the Swiss Act on Private International Law (PILA) if,
at the time of the conclusion of the arbitration agreement, at least one of the parties had neither its
domicile nor its habitual residence in Switzerland. The application of PILA to CAS cases helps to
ensure procedural consistency and predictability. The most significant source of substantive law
applicable to the merits of the parties' dispute for appeal cases is the rules and regulations of the
relevant sport organization which issued the challenged decision.
In the context of ordinary arbitration, the parties are free to agree on the law applicable to the
merits of the dispute. Failing such agreement, Swiss law applies.
In the context of the appeals procedure, the arbitrators rule on the basis of the regulations of the
body concerned by the appeal and, subsidiarily, the law of the country in which the body is
domiciled. The procedure itself is governed by the Code of Sports-related Arbitration.
ENFORCEMENT OF CAS AWARDS
As a result of the transnational nature of international sports organizations, sports law has
developed and consolidated over the years a lex sportiva or general principles to be applied to
sporting disputes. CAS publishes its awards issued in appeal proceedings and these decisions are
available on the CAS website. The public availability of CAS jurisprudence adds to the
development of a lex sportiva and although CAS awards are not binding on subsequent Panels,
they are of persuasive authority and Panels will take care to distinguish earlier cases if their
decision is going in a different direction.
A CAS award is final and binding on the parties from the moment it is communicated. It may be
enforced in accordance with the New York Convention on the recognition and enforcement of
arbitral awards, which more than 125 countries have signed. It is very difficult to appeal
successfully against a CAS ruling. Under Article 190(2) of the Swiss Federal Code on Private
International Law, a decision of the CAS is treated as an arbitral award under the Swiss Law and
can be challenged only in the following circumstances –
1. If a sole arbitrator was designated irregularly or the arbitral tribunal was constituted
2. If the arbitral tribunal erroneously held that it had or did not have jurisdiction;
3. If the arbitral tribunal ruled on matters beyond the claims submitted to it or if it failed to
rule on one of the claims;
4. If the equality of the parties or their right to be heard in an adversarial proceeding was not
5. If the award is incompatible with Swiss public policy (ordre public).
V. THE COURT OF ARBITRATION FOR SPORT - THE WORLD’S
PREMIER INSTITUTE FOR SPORTS ARBITRATION
The Court of Arbitration for Sports (CAS), also known as Tribunal arbitral du sport (TAS) in
French, is an international quasi-judicial body established for the resolution of disputes related to
sport through the process of arbitration. To make it simpler, it can be thought of as the Supreme
Court of Sports. The CAS head office is in Lausanne, Switzerland and two decentralized offices
are also available to the parties: one in Sydney, Australia, the other in New York, United States. It
was established in the year 1984, with the ratification of the statutes by the IOC in 1983.
Till the 1980s, there was no mechanism for sports dispute resolution. The intricacies involved in
settling sports disputes coupled with the lack of an autonomous authority to produce binding
decisions on the plethora of sports problems led organisations to consider the establishment of a
forum for that specific purpose. Therefore, in the year 1981, the newly elected president of the
IOC, H.E. Juan Antonio Samaranch, conceptualized the idea of a jurisdiction created specifically
for sports. The very next year, at the IOC Session held in Rome, he in conjunction with IOC
member H.E. Judge Kéba Mbaye, who was then a judge at the International Court of Justice in
The Hague, created the first draft of the statutes of what was soon to become the “Court of
Arbitration for Sport”.
In the beginning, CAS was not supposed to impose its jurisdiction on athletes and federations.
Although CAS is essentially an arbitration body, it does provide consultation and mediation
services to its stakeholders, majorly the IOC, International Federations, National Olympic Bodies,
National Sports Bodies and the World Anti-Doping Agency. This advisory procedure open to
sports bodies as well as individuals allows CAS to give an opinion on a legal question with
reference to any sports activity.
THE GUNDEL CASE
The 1993 case of Gundel v. FEI17, or the Gundel case as it is popularly known, changed the course
of sports dispute history and CAS, as it is today is the result of this very ruling. Prior to the 1994
reforms, the CAS was financially and administratively dependent on the IOC, whereby the IOC
was responsible for the appointment of CAS arbitrators. Elmar Gundel, a German Equestrian
competitor filed an appeal with CAS challenging a decision of the International Equestrian
Federation (FEI), based on an arbitration clause in
the FEI statute which allowed him to challenge
the decision of the FEI. The decision was DID YOU KNOW?
disciplinary in nature and involved the imposition Gundel was a horse-rider. He won Grand Prixs in
of a suspension and fine on the competitor as a The Netherlands and Germany
result of his horse testing positive for a prohibited
17 CAS 92/A/63.
Challenging the FEI’s decision, the CAS held that based on the evidence, it was ‘irrefutable’ that
the banned substance, isoxusprine, was present in the horse. Despite the presence of the drug, the
Gundel’s argument saying that the mere presence of the banned substance did not establish that
Gundel deliberately intended to obtain an unlawful advantage. CAS marginally reduced the fine
and brought down the suspension from three months to one, however it also dismissed the
substance of the appeal.
Not satisfied with this ruling by CAS, Gundel challenged the CAS decision and filed a public law
appeal at the First Civil Division of the Swiss Federal Tribunal on the grounds that CAS lacked
the impartiality and independence required by Swiss law. In a nutshell, the appellant primarily
disputed the validity of the award, which he claimed was rendered by a court which did not meet
the conditions of impartiality and independence needed to be considered as a proper arbitration
court. Rejecting Gundel’s claim, the Swiss Supreme Court held that the CAS was a true
independent arbitral tribunal. The Supreme Court noted, inter alia, that the CAS was not an organ
of the FEI and that it did not receive instructions from this federation and retained sufficient
personal autonomy with regard to it, in that it placed at the disposal of the CAS only three
arbitrators out of the maximum of 60 members of which the CAS was composed.
The Court did draw attention to the the numerous links between the CAS and the IOC, and
questioned the independence of CAS with reference to IOC being a party to its proceedings. The
Court’s message was thus perfectly clear: the CAS had to be made more independent of the IOC
both organisationally and financially. Hence, the decision of the SFST in Gundel v. FEI in its day
had a considerable impact upon the future organisation and governance of the CAS and
repercussions of the decision, which concerns the legal status of the CAS as an independent arbitral
tribunal under Swiss Law, are still being felt today.
THE PARIS AGREEMENT
The aftermath of the Gundel case was that that were a drastic change of structure – resulting in the
creation of the International Council of Arbitration (ICAS). On 22 June 1994, the creation of the
ICAS and the modifications to the governance of the CAS were approved by the signing of the
Agreement Related to the Constitution of the International Council of Arbitration for Sport (‘Paris
Agreement’). This was signed by the highest authorities representing the sports world, viz. the
presidents of the IOC, the Association of Summer Olympic International Federations (ASOIF),
the Association of International Winter Sports Federations (AIWF) and the Association of
National Olympic Committees (ANOC).
ICAS was established as an independent body, and it assumes full control over the administration
and financing of the CAS to make it independent from IOC (IOC had sponsored CAS since its
inception). Today, the rules governing arbitrator selection play an important role in the assessment
of the CAS’s independence. According to Section 16 of the CAS Code, there must be
representation from all continents and judicial cultures whenever possible, in the matter of
appointment of arbitrators. There are a few pre-requisites for arbitrators, before appointment, ICAS
takes into consideration their legal training recognized competence in sports law and/or
international arbitration, knowledge of sports and general, and good command over at least one of
the CAS languages (English and French).
It comprises of a group of twenty high-level jurists appointed for a renewable four-year term in
the following manner (as given in Section 4 of the CAS Statute) –
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.
This list is reviewed by the ICAS every 4 years, and a new list is delivered on1st January every
year. Further, the CAS Code requires that when selecting arbitrators, ICAS must respect, in
principle, the following distribution –
1. one-fifth from persons proposed by the IOC;
2. one-fifth from persons proposed by the IFs;
3. one-fifth from persons proposed by the NOCs;
4. one-fifth chosen after consultation, with a view to safeguarding the interests of the athletes;
5. one-fifth from persons independent of the bodies responsible for proposing arbitrators in
conformity with the above requirements.
Since the Paris Agreement was signed, all Olympic International Federations and many National
Olympic Committees have recognised the jurisdiction of the Court of Arbitration for Sport and
included in their statutes an arbitration clause referring disputes to the CAS.
STRUCTURE AND ORGANISATION
The Code of Sports-related Arbitration governs the CAS, since November 22, 1994. The Code is
divide in two parts – the first part deals with the Statutes of bodies working for the settlement of
sports-related disputes (articles S1 to S26), whereas the second part contains the Procedural Rules
(articles R27 to R70). It thus establishes rules for four distinct procedures:
• the ordinary arbitration procedure;
• the appeals arbitration procedure;
• the advisory procedure, which is non-contentious and allows certain sports bodies to seek
advisory opinions from the CAS;
• the mediation procedure.
Although CAS was set up as an independent arbitral institution, in the early 1990's there was some
concern that CAS might not be seen as truly independent vis a’ vis the IOC in light of the
organizational and financial links between the two bodies. These concerns were voiced obiter in a
judgment of the Swiss Federal Tribunal (the Swiss Supreme Court) in a case involving a German
horse rider and the International Equestrian Federation, which was discussed previously. As a
result of the case, the ICAS came into existence. The ICAS is the supreme organ of the CAS and
was set up to provide independence to CAS from the IOC pursuant the Paris Agreement and to
safeguard the rights of the parties. To this end, it looks after the administration and financing of
the CAS. It comprises of 20 high level jurists well-versed with the issues of arbitration and sports
law. Once appointed, CAS arbitrators must provide a written declaration that they will ‘exercise
their functions personally with total objectivity and independence and in conformity with the
provisions of the Code’. Basically, in no circumstances can a member play a part in proceedings
before the CAS, either as an arbitrator or as counsel to a party.
On the other hand, CAS consists of an intermediary of arbitrators¸ at least 150 in number. The
formation of ICAS also led to a diversification in terms of jurisdiction of the CAS with the
conception of an Original Arbitration Division that deals with disputes submitted to CAS directly
and an Appeals Arbitration Division for appeals arising out of decisions taken by sports
organisations. Each division has its own president, and the role of the division presidents is to take
charge of the first arbitration operations once the procedure is under way and before the panels of
arbitrators are appointed. The presidents are often called upon to issue orders on requests for
interim relief or for suspensive effect, and intervene in the framework of constituting the panels of
arbitrators. Once nominated, the arbitrators subsequently take charge of the procedure.