The making of a lex sportiva by the Court of Arbitration for Sport.

• Author: Casini, Lorenzo

Introduction

"Sports law is not just international; it is non-governmental as well, and this differentiates it from all other forms of law" (1). Sports rules are genuine "global law", because they are spread across the entire world, they involve both international and domestic levels, and they directly affect private actors: this happens, for instance, in the case of the Olympic Charter, a private act of a "constitutional nature" with which all States comply (2); or in the case of the World Anti-Doping Code, a document that provides the framework for the harmonization of anti-doping policies, rules, and regulations within sports organizations and among public authorities (3).

Therefore, the global dimension of sport is, in the first instance, normative. A "global sports law" has emerged, which embraces the whole complex of norms produced and implemented by regulatory sporting regimes (4). It includes not only transnational norms set by the International Olympic Committee (IOC) and by International Federations (IFs) - i.e. "the principles that emerge from the rules and regulations of international sporting federations as a private contractual order" (5) -, but also "hybrid" public-private norms approved by the World Anti-Doping Agency (WADA) and international law (such as the UNESCO Convention against doping in sport). Global sports law is made of norms provided by central sporting institutions (such as IOC, IFs and WADA) and by national sporting bodies (such as National Olympic Committees and National Anti-Doping Organizations).

Global sports law, therefore, is highly heterogeneous. It operates at different levels and it is produced by several law-makers. Amongst those, there is one very peculiar body, funded in the 1980s, which has become a key actor in the sport legal system: the Court of Arbitration for Sport (CAS) (6). In the last two decades, the activity of this institution has become extraordinarily important. The number of decisions released by CAS has increased to the point that a set of principles and rules have been created specifically to address sport: this "judge-made sport law" has been called the lex sportiva (7). This formula, which recalls well-known labels like lex mercatoria or lex electronica (8), has been readily adopted and, indeed, its meaning has been extended over time: it can be used, in fact, to refer more generally to the transnational law produced by sporting Institutions (9). In spite of this success, the existence of a lex sportiva is not universally accepted: in 2001, for instance, the Frankfurt Oberlandesgericht stated that "[E]ine von jedem staatlichen Recht unab-hangige lex sportiva gibt es nicht" (10).

In this paper, the term lex sportiva is used in a broad sense as synonym of "global sports law". The formula "global sports law" thus covers all definitions so far provided by legal scholarship (such as lex sportiva or "international sports law" (11)) in order to describe the principles and rules set by sporting institutions. This approach of course raises several problems concerning the very concept of such a kind of law and its binding force (12); other problems include those connected to wider themes such as the emergence of a "global private law" and the formation of "global private regimes" (13).

However, this analysis will not deal with those issues. Instead, it will focus on the actor that is probably most prominent in constructing global sports law: the Court of Arbitration for Sport (CAS).

The purpose of this paper is to examine the structure and functions of this institution, in order to highlight a number of problems concerning judicial activities at the global level more generally. Section 1 will outline CAS' organization and functions, from its inception to the present date. In particular, this section will show how the history of the CAS is reminiscent of a famous German novel based on a biblical saga, "Joseph and his brothers" by Thomas Mann (14). Put briefly, CAS was originally the "favourite son" of the Olympic movement's founding fathers; it subsequently became the target of its envious "brothers" - i.e. the International Federations and other sporting arbitration institutions - which viewed CAS as a dangerous enemy; ultimately, CAS defeated its opponents, gained independence and brought normative harmonization, thereby becoming "the Nourisher" (Der Ernahrer) of global sports law. Section 2 will focus on the role of CAS in making a lex sportiva, and it will take into account three different functions: the development of common legal principles; the interpretation of global norms and the influence on sports law-making; and the harmonization of global sports law. Section 3 will consider the relationships between the CAS and public authorities (both public administrations and domestic courts), in order to verify the extent to which the CAS and its judicial system are self-contained and autonomous from States. Lastly, section 4 will address the importance of creating bodies like CAS in the global arena, and it will identify the main challenges raised by this form of transnational judicial activity. The analysis of CAS and its role as law-maker, in fact, allows us to shed light on broader global governance trends affecting areas such as the institutional design of global regimes, with specific regard to separation of powers and the emergence of judicial activities.

1. The Court of Arbitration for Sport (CAS): A Novel

   The CAS plays a crucial role within the sport legal system (15). It was created in 1983, thanks in large part to the will of Juan Antonio Samaranch, at that time President of the International Olympic Committee (IOC), who planned to build a centralized mechanism of international judicial review in sport: the idea was to introduce a sort of "supreme court for world sport" (16). From this point view, Samaranch followed the path of the father of IOC, Pierre De Coubertin, who was the first to observe that a sporting institution should, first of all, "s'organiser judiciairement", because it must be "a la fois un Conseil d'Etat, une Cour d'appel et un Tribunal des conflits" (17).

   Nevertheless, the childhood of CAS was not easy. This was mainly due to three reasons. Firstly, activity at the beginning was not intensive, partially because there were few cases at that time: doping scandals, for instance, were not a major issue until the later years of the 1980s. To give an idea, in the 1980s the CAS issued few decisions per year; during the last decade, there have been over 800 rulings (18). Secondly, in those years the International Federations used to ignore the CAS, and some of them had their own judicial body. The most significant example is the International Association of Athletics Federations (IAAF), which had its own Arbitration Panel during the 1980s and the 1990s and only in 2001 did it decide to disband it in favour of CAS' jurisdiction (19).

   Thirdly, according to its original institutional design the CAS was a sort of judicial branch within the IOC, with the latter maintaining political and financial control over the former.

   After a decade, however, there was a turning point in the history of the CAS. In 1993, the Swiss Federal Court stated that the CAS did not meet all of the standards required for international arbitrations, namely the independence of the arbitral body (20): this issue would have come to a head had the IOC been a party in a CAS arbitration, for instance (21). The episode forced the IOC to reform the CAS, which was re-organized along the lines of the current model (with the so called 1994 Paris Agreement) (22).

   Nowadays the Court of Arbitration for Sport is a permanent arbitration structure, and its mission is to "settle sports-related disputes through arbitration and mediation" (23).

   It is made of two distinct bodies, both settled in Lausanne (Switzerland): the International Council of Arbitration for Sport (ICAS) and the CAS (24).

   The former was created in 1994 in order to provide the CAS with genuine independence from the IOC. It is a foundation regulated by Swiss civil law; its board is made of twenty members chosen to represent the Olympic movement and to ensure its autonomy (25). The task of the ICAS is to facilitate the settlement of sports-related disputes through arbitration or mediation and to safeguard the independence of the CAS and the rights of the parties. To this end, it looks after the administration and financing of the CAS (26). Moreover, the ICAS appoints the personalities who are to constitute the list of arbitrators and the list of CAS mediators and can remove them from those lists (27).

   There are at least 150 arbitrators and at least 50 mediators: the former provide "the arbitral resolution of disputes arising within the field of sport through the intermediary of arbitration provided by Panels composed of one or three arbitrators"; the latter provide "the resolution of sports-related disputes through mediation" (28).

   The CAS carries out several different activities (29). It provides mediation (30), and it also can render non-binding advisory opinions upon request of the IOC, the IFs, the NOCs, WADA and the organizations recognized by the IOC and the OCOGs, about any legal issue with respect to the practice or development of sport or any activity related to sport.

   Its main task, however, is to settle disputes. To this end, the CAS is composed of two divisions, the Ordinary Arbitration Division and the Appeals Arbitration Division (31).

   The Ordinary Arbitration Division constitutes Panels, whose task is to resolve disputes submitted to the ordinary procedure, and performs, through the intermediary of its President or his deputy, all other functions in relation to the smooth running of the proceedings conferred upon it by the CAS Procedural Rules (32). The Appeals Arbitration Division constitutes Panels, whose task is to resolve disputes concerning the decisions of federations, associations or...