COURT OF ARBITRATION FOR SPORT

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COURT OF ARBITRATION FOR SPORT

• by Michele Colucci
• www.colucci.eu info_at_colucci.eu

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LEGAL BACKGROUND

• Indipendent institution, Lausanne, 1984.
  
• Need to offer a quick and inexpensive procedure
  to settle sport related disputes.
• 1994Creation of The International Council of
  Arbitration for Sport (ICAS)

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The Code of Sport-related Arbitration

• Established in 1994 and revised in 2003
• It governs the organisation and arbitration
  procedures of the CAS.
• Finally, it also contains a set of mediation
  rules and ad hoc rules.

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Structure and functions

• 300 arbitrators from more 87 countries
• Provides services for settlements of disputes
• Arbitration
• Mediation
• Legal Opinions

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The function of Opinions in judicial discourse

• Written opinions provide answers to specific
  legal queries before a case is brought to court
  and are not legally binding.
• At the Court of Arbitration for Sport (CAS),
  Advisory Opinions may also examine sport issues
  that are not necessarily of a strict legal
  nature.
• In general they are delivered by one person the
  Attorney General in the USA judicial system, the
  Advocate General at the ECJ.
• At the CAS, they are delivered either by a panel
  made up of a president and two members or a sole
  arbitrator.

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When can an Opinion be requested?

• The request may only come from recognised
  institutions and associations and has to be
  approved by the CAS President (R61 of the Code).
• Opinions may only be published with the consent
  of the requesting parties. (R 62)

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Who are the participants issuing the Advisory
Opinions?

• A single arbitrator or two arbitrators and a
  president, they are Barristers, Attorneys
  -at-law and/or Law Professors selected from all
  over the world
• -They must be experts in Sports Law.

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The Panels Opinion

• 83. In the Panels opinion, therefore, for cases
  when there is no adverse analytical finding
  proving the presence of a prohibited substance
  or its metabolites or markers the use or
  attempted use can be proved by any proof.
• 
  CAS 2005/C/841 CONI
• The Panel expresses itself as a collective,
  authoritative subject.
• Its members have to agree among themselves and
  then persuade the parties involved.
• It has to mediate within different legal cultures
  and languages.
• It can thus be defined as a professional
  community engaged in collaborative practices
  (after Lave and Wenger 1991 in Bhatia2004)

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hybrid texts

• provisions obliging athletes (and the other
  subjects of the sporting system governed by FIGC)
  to adopt a condotta conforme ai principi
  sportivi della lealtà, della probità e della
  rettitudine nonché della correttezza morale e
  materiale in ogni rapporto di natura agonistica,
  economica e sociale (behaviour in accordance
  with the sports principles of loyalty, probity
  and rectitude as well as of moral and material
  correctness in any relation of competitive,
  economic and social nature, Panels
  translation). CAS 2005/C/841CONI
• Trosborg (1997 145-146) defines hybrid texts as
  documents produced in a supranational
  multicultural discourse community where there is
  no linguistically neutral ground. In some cases
  they are translated or re-written.

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CAS procedures

• Contractual relations or torts (Ordinary
  arbitration or mediation)
• Disputes resulting from decisions taken by the
  bodies of sports federations (Appeals
  arbitration procedure)

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How long does CAS arbitration last?

• Ordinary procedure between 6 and 12 months
• Appeals procedure within 4 months

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MEDIATION

• Parties Make Decision To Settle Or Not
• Flexible (procedure and outcome)
• Creative, Informal
• Private, No Public Record
• Can Be Win-Win (both sides better off than
  before)
• Is not binding on the parties
• Can End With No Resolution
• No risk a party can always say No deal

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Under what conditions will the CAS Intervene?

• WRITTEN AGREEMENT BETWEEN PARTIES
• Such agreement could be
• a) Appear in a contract
• b) Appear in the statutes or regulations of a
  sports organization.

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ARBITRATION

• Third Party Neutral Makes a Decision
• Adversary Process, Like a Debate or Court
• Parties and Counsel Prepare Like a Trial
• Could Be Binding
• Neutral Listens To Evidence and Argument
• Generally a Winner and a Loser

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FIFA DECISIONS APPEAL

• 11th November 2002 FIFA accepts jurisdiction of
  the CAS (circular nº 827)

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FIFA Regulations for the Status and Transfer of
Players

• Players Status Committee Decision
• Decisions reached by the single judge may be
  appealed before the Court of Arbitration for
  Sport (CAS)
• - Dispute Resolution Chamber
• Decisions reached by the Dispute Resolution
  Chamber may be appealed before the Court of
  Arbitration for Sport (CAS)
• In 3 years 333 arbitrations concerning FIFA
  decisions

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The different natures of arbitrations

• Disciplinary Sanctions applied by FIFA to the
  Associations, Clubs and Players.
• Non Disciplinary financial fights between
  Associations, clubs, players and players agents.

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MATTERS OF PROCEDURES PROVISIONAL AND
CONSERVATORY MEASURES SUSPENSIVE EFFECT

• Artº R37 of Code of Sports Related Arbitration
  (Code)
• Principles
• Previous submission of the statements appeal or
  request for arbitration 
• Competence President of the relevant division
  prior to the transfer of the file to the Panel
  or thereafter the Panel 
• Position of the opponent within ten days (in less
  time in exceptional cases)
• Brief delay
• Provisional Mesures in the case of utmost
  urgency  order by the President of the relevant
  divison and the opponent is heard subsequently

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Cumulative Conditions according to the CAS
Jurisprudence

• Periculum in mora Risk of Irreparable damages
• Fumus boni juris Probability of success on the
  main case
• Balance of interests suspensive effect
  (superdeas) is more important

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CAS 2003/O/482ORTEGA VS. FENERBAHCEFACTS

• 23rd May 2002 Ariel Ortega was transfered from
  River Plate to Fenerbahce 4 years contract
• Transfer indemnity USD 7.500.000
• Image Rights USD 2.000.000
• Salary USD 1.000.000 per season
• Ortega was sad after six months

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CAS 2003/O/482ORTEGA VS. FENERBAHCEFACTS

• Did not return to Turkey despite Fenerbahce
  insistence
• Fenerbahce presents a claim on FIFA
• 6th June 2003 Dispute Resolution Chamber of FIFA
• Breach of contract without just cause
• Suspension of the player until December 2003
• Indemnity USD 11.000.000

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SUSPENSIVE EFFECT

• Disciplinary matter
• Cas 2003/O/482 Ortega v/ Fernerbahce FIFA
• Irreparable Damages or Difficult to Repair in
  case of immediate effect of the decision
• Probability of Success If the case has an
  admissible ground (pas temeraire)
• Balance of interests
• PLAYER Play
• FIFA Dissuasive effect and Protection of third
  Clubs

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LEGAL ISSUES CAS 2003/O/482 ORTEGA VS.
FENERBBAHCE

• Arguments of the Player
• Right to a Hearing (art. R57 of Code)
• Just Cause for the abandonment of the
  employment
• Wage not paid
• No Medical Assistance

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DISPUTE RESOLUTION CHAMBER

• Renunciation of employment
• Breach of contract according to art. 21 RSTJ
• Compensation USD 11'000'000
• Suspension 4 months from the beggining of the
  new season
• Conclusion
• Abandonment by the player without just cause
• Breach of contract

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• Consequences
• Suspension
• Compensation
• Suspension art. 17
• Breach of the contract during the first and
  second year 4 months suspension
• Compensation art. 17
• 1) Salary and other benefits in the contract
  in progress and/or in a new contract
• 2) Duration of the remaining period of the
  contract in progress (up to five years maximum)
• 3) Full amount paid by the previous club in
  proportion on the number of years of the contract
  left (Pro Rata)

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• Calculation of the damage
• Investment of USD 12'350'000
• USD 7500000 transfer fee of the player
• USD 1350000 AFA and Tax
• USD 2000000 image rights
• USD 1500000 players agent fee
• USD 1000000 wages per season
• Depreciation 9 months / 4 years
• ARBITRATION CAS PANEL
• Calculation of the damage according to the art.
  21 et 22 of the Regulation 2001
• Suspension according to the art. 23 of the
  Regulation 2001

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Power and statistics

• Legal discourse tends to be self-referential, all
  the more so at the CAS.
• At the CAS, information about cases and opinions
  is never made fully available.
• looking at the statistics (see handout) rather
  than a legitimate peripheral participation, the
  analyst has barely managed to put a foot in the
  door.
• However, despite such variance, the sub-genre
  remains recognisable and realistically integral.

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Legal Cultures

• The legal background of CAS arbitrators basically
  stems from two legal traditions common law and
  civil law.
• In the EU, the effort to harmonisation has led to
  merging elements of common law with civil law
  both in legislation and court procedures.
• National legislation in EU countries has followed
  suit
• (British law incorporates elements of civil
  law and Italian law elements of common law such
  as precedent)
• The CAS Code, initially based on Swiss Law, is
  made up of statutes and rules but incorporates
  case law as well.
• Could this be a case of hybridizing legal
  systems?