The finality of CAS awards.

AuthorGlienke, Tobias
  1. INTRODUCTION

    The Court of Arbitration for Sport (CAS) has enjoyed a remarkable story of success since its foundation in 1984. Today, it really has become what the former President of the IOC, Juan Antonio Samaranch, had in mind - the 'supreme court of world sport'. (1) The Olympic Charter refers disputes to this court, and so do almost all international federations, National Olympic Committees and other sport bodies. Nowadays, the CAS is almost universally accepted as the highest court for all sports matters. One of the reasons for that success is the expectation to get a quick and final decision by experts. But no matter how fast the first decision is rendered, if the parties can appeal the arbitral award, the proceedings will be delayed and potentially decided by State judges that are anything but experts in sports law. To that end, Art. R59 of The Code of Sports-related Arbitration (CAS-Code) provides for 'final and binding' awards. But the question is: how final is final?

    This article will explore how final CAS awards really are and to which appeal procedures they are subject. Then, it will set out the different grounds of appeal before the Swiss Federal Tribunal and provide an overview of the case law in regard to challenges of CAS awards. Lastly, it shows the (rare) possibility to completely exclude any appeal under Swiss Law and point out why this is not advisable in most cases.

  2. THE JURISDICTION OF THE CAS

    Although it is called a 'Court', the CAS is a private arbitral institution that derives its jurisdiction from an agreement of the parties. In theory, such an agreement can also be concluded after a dispute has arisen, in practice, however, this rarely happens. (2) Almost every one of the inter-locking statutes that form the international body of sports organisations contains an agreement to exclude the jurisdiction of State courts in favour of CAS arbitration. (3) The Olympic Charter and the FIFA Rules are only the two most prominent of numerous regulations of national and international sports governing bodies that refer their disputes exclusively to the CAS. Some of these international bodies refer all disputes directly to the CAS, others have their own dispute resolution bodies and only allow for an appeal to it. (4) But ultimately, and that is what matters, all disputes end up at the Court of Arbitration for Sports to be finally decided. Today, it can be truly said that this institution has almost universal jurisdiction in sports matters and is globally embraced as the 'supreme court of world sport'.

    The reasons for this success are twofold: Firstly, it is of utmost importance for the international system of professional sports that the 'rules of the game' are the same - everywhere and for everybody. It is not enough to have uniform rules for a particular sport, e.g. that a football match lasts 90 minutes all over the world. A uniform legal standard is as necessary to ensure a fair and equitable competition. (5) Whether or not to impose and enforce a doping sanction, for example, cannot depend on the location of the event where the positive sample was taken or on the nationality of the athlete. The only way to provide for such equality is to exclude State court jurisdiction and domestic law in the area of international sports and refer all disputes to one dispute resolution body that will apply the same rules in every case. Secondly, the general advantages that are brought forward for arbitration are equally true in the sports context. Parties choose arbitration because they expect a fast and final resolution of their dispute by experts. Athletes' professional careers are usually limited to a few years in which they can compete at the highest level and some of the biggest sport events, like the Olympic Games or the FIFA World Cup, only take place once every four years. If a dispute arises about whether or not an athlete who competed in the Olympic semi-finals is eligible to participate in the finals the next day, it has to be decided before the final run begins. A system that takes years to decide a dispute and that provides for several different appeal and revision procedures is inadequate to cater the needs of the sports community. The goal of a quick decision can only be achieved if awards are final and not subject to endless reviews by different appeal tribunals or courts. To this end, the CAS Code stipulates that awards shall be 'final and binding'. (6)

  3. THE SWISS ARBITRATION LAW

    But even though the CAS is generally considered to be the 'supreme court of world sport', one has to keep in mind that the proceedings are still 'only' arbitrations. As a consequence, they are subject to the same rules as all other arbitral proceedings - to the lex loci arbitri, the underlying national law that governs the arbitration. Because of its sovereignty, every State has jurisdiction over whatever happens within its territory - including arbitrations. By choosing the arbitral seat, the parties submit themselves to the law of that country and make it the legal foundation of their proceedings. (7) One of the most important functions of the lex arbitri is the possibility to empower local courts to set aside arbitral awards. (8) No matter how expressly arbitral rules state that their awards shall be final and binding, these rules cannot override the mandatory laws of the seat if they provide for review by State courts. (9)

    Unlike other arbitration rules, the CAS Code does not leave it to the parties to determine a seat, but stipulates that it always is in Lausanne. (10) This contributes to the goal of harmonising decisions in order to achieve a level playing field in international sports because Swiss law is the lex arbitri of all CAS arbitrations. (11) That is also true for cases that are administered by the two decentralized offices in New York and Sydney. The New South Wales Court of Appeal confirmed this principle in Raguz v Sullivan (12) when it refused to entertain an action to set aside although both parties were Australian, the whole panel was composed of Australians and the hearing was held in Sydney, because it acknowledged that the arbitral seat was Lausanne. Even the arbitrations that are conducted by the CAS Ad-hoc panels at the Olympic Games have their juridical seat in Switzerland. (13) Ultimately, although the CAS Rules provide for a 'final and binding' award, the finality of every CAS award depends on Swiss arbitration law.

    Switzerland has two different sets of arbitration rules, one for inter-national and one for domestic proceedings. If at least one party was neither domiciled nor habitually resident in Switzerland at the time the arbitration agreement was concluded, the arbitration is deemed to be international and subject to the Federal Code on Private International Law 1987 (PIL). (14) If both parties are domiciled in Switzerland, the rules on domestic arbitrations will apply. Until the Swiss Civil Procedure Code (CPC) entered into force in 2008, this differentiation was mandatory. Accordingly, the cantonal rules on domestic arbitrations had to be applied to the appeal proceedings in Danilo Hondo v WADA (15) and bestowed on Hondo not only two instances of appeal - the Cantonal Court and the Swiss Federal Supreme Court - but also broader grounds for a request to annul the award. In order to avoid different legal standards in sports cases, Art. 353 CPC now allows parties to opt-out of the CPC and subject their arbitration to the PIL. The Ad-hoc Rules make use of this possibility, leading to the application of Chapter 12 PIL to all arbitrations under these rules. (16) Although neither the CAS Code nor the CAS Standard Arbitration Clause does include such a choice yet, cases that fall under domestic arbitration rules are very rare in CAS proceedings. Due to the limited relevance of domestic arbitrations in CAS practice, this article will focus on the situation that the arbitration is governed by the PIL.

  4. RECOURSE AGAINST ARBITRAL AWARDS

    With party autonomy being the pivotal principle, few international arbitration laws are as liberal as the Swiss PIL. It is not based on the UNCITRAL Model Law and rather short in comparison, consisting of only 19 articles that just focus on the most important aspects. The award is regarded as final from the moment of its communication. (17) An unsatisfied party has only one remedy and only one level of judicial review - the appeal to the Swiss Federal Supreme Court. (18) The procedure is subject to Art. 77 of the Federal Supreme Court Act 2005 (SCA). A request for vacation of the award has to be lodged with the Court within 30 days from the notification of the Award. (19) There is no hearing and generally only one round of submissions, both contributing to the expeditious treatment of the appeal and resulting in an average time of less than four months from filing of the challenge till the decision. (20) The Supreme Court cannot substitute the tribunal's decision by its own, it has to either dismiss the appeal or annul the award and refer the case back to the tribunal for reconsideration. Only in cases where a party contests the jurisdiction of the panel can the Supreme Court substitute the tribunal's decision by its own, thus ruling whether or not the tribunal has jurisdiction. (21) In deciding the case, the Court is generally bound by the facts that were established in the arbitral award, (22) while it is free in their interpretation and not bound by the tribunal's conclusions. Nevertheless, it usually invites the arbitral tribunal to comment on the challenge. It can only reassess the facts that were established by the tribunal if a permissible appeal under Art. 190 II PIL is directed against the factual findings or if, in exceptional cases, the consideration of new evidence is justified. (23)

  5. GROUNDS FOR REVIEW UNDER ART. 190 II PIL

    The PIL clearly favours the goal of finality over procedural and material accuracy of arbitral awards...

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