The trouble with Ostarine: Jimmy Wallhead’s
16th March 2018
• Little is known about the workings of the Court of Arbitration for Sport. That applies to everything from the number of cases the CAS handles to the awards it makes, potential conflicts of interests between arbitrators and sports organisations, or how exactly panel presidents are appointed to cases. This article was originally published by Play The Game on 18 November 2021. Click here for the original.
What do we really know about the Court of Arbitration for Sport (CAS) – the ‘supreme court of world sport’, as it likes to call itself – and about its jurisprudence? Not nearly enough, if a figure from last year is anything to go by. In 2020, the CAS decided 948 cases, a new record that confirms the increasing power of this institution. The number also shows a whopping rise in the caseload compared to the last figures released in 2016, where the sports ‘court’ handled just under 600 arbitrations. In particular, the number of appeals, often filed by athletes against their federations, almost doubled since 2016 to 811.
These record figures came as belated news. Until Play the Game made a media request in April 2020, the CAS had not updated the relevant statistics for four years. However, not even 40 of these 2020 awards are accessible on the CAS database featured on its website. Over the last two decades, the CAS has published only about 30 per cent of its awards.
This alone could earn the judicial apex of the sporting conglomerate the reputation of being the most secretive pillar in the global governance of sport. The institution settles disputes for a multi-billion-dollar industry and prides itself on consolidating transnational sports law, but at the same time it keeps it largely a secret how the law is to be interpreted.
What looks like a conundrum is just one of the matters that the CAS feels free to decide at its own discretion. Not only is it located in an 18th century building in Lausanne, just a few kilometres from the headquarters of the International Olympic Committee (IOC), it also acts like a closed covenant from that era. Public accountability is a foreign concept, and criticism bounces off. The CAS has never provided a rational explanation for why some awards are published and so many others are not.
True enough, the sports ‘court’ is no court of law, but an arbitral tribunal and as such is not obliged to publish. Nevertheless, as its own Code states, it is ‘entitled’ to do so. This commitment was made for good reasons, as one particular feature distinguishes sports arbitration from all other arbitration courts: It is not legitimised by free consent of the disputing parties. Instead, it is accepted that a public interest in a globally harmonised regulation of sport exists. Public interest is the only reason why sports governing bodies are allowed to enact and enforce their own laws, with the CAS as the highest instance. At the same time, however, involuntary arbitration requires transparency towards the public. This is enshrined in European law and is widely ignored by the CAS.
1. #CAS is a crucial player in sports governance, it whitewashes legally speaking the decisions of international SGBs. Once a CAS award confirmed a decision of an SGB, the latter gains in authority and becomes extremely difficult to challenge elsewhere (see #Pechstein odyssey).
— Antoine Duval (@Ant1Duval) September 22, 2021
The question, then, is simple: What is the CAS trying to hide? An investigation by Play the Game suggests that, first of all, the CAS is protecting itself not only from public scrutiny of its jurisprudence, but rather from having its institutional make-up, decision making-processes and thus legitimacy further questioned by European courts.
As late as 2018 the CAS got off lightly, when its neutrality was challenged. The European Court of Human Rights (ECHR) backed the sports ‘court’ – albeit not unequivocally – and ruled that it met the requirements of ‘independence’ and ‘impartiality’ applicable to arbitration tribunals. The Court in Strasbourg thus confirmed the Olympic rulers’ view that they can be trusted to govern themselves, shielded from State courts.
However, this judgement is not set in stone and is only valid as long as the sports judiciary follows due process and fairness. Miguel Maduro for example, a former Advocate General at the European Court of Justice (ECJ), is convinced that both are lacking at the CAS.
“In sports arbitration”, he says, “they have the jurisdiction and the authority over a global order like a court has, but they do not meet the criteria you would expect. First of all, the way the CAS works does not comply with the right to a fair trial.”
Maduro targets the oversight body of the CAS, the International Council of Arbitration for Sport (ICAS). A majority of its 20 members are appointed by the IOC and other sports governing bodies, who then appoint the Arbitrators to the closed CAS list – a procedure that amounts to domination by sports officials over the composition of the CAS and potentially over its jurisprudence, as it compromises the independence and impartiality of the Arbitrators. In any case, this goes against everything that constitutes a true judiciary, which is precisely not bound to another body, let alone one of its most frequent litigants.
The state of affairs in sports arbitration might be even more alarming. ICAS is supposed to oversee funding and administration of the CAS, but what it actually does is largely a mystery. It publishes neither annual reports nor minutes of meetings, which are rare anyway.
The CAS Arbitrators we spoke to had no clue either. According to Play the Game’s research, this could be because the supervisory tasks of the ICAS seem to be mainly on paper. Rather, it looks like a power couple calls the shots at the sports ‘court’ – ICAS President John Coates, an IOC Vice President, and Matthieu Reeb, the Director General, who runs far more than his 41 staff in the Court Office.
From this perspective, the CAS appears less like a judicial body than an entity of the legislature, with the IOC overlords on top camouflaged under a judicial mantle. Conflicts of interest seem pre-programmed, and sometimes they become visible when there is a lot at stake for the sports system politically or financially.
Several such CAS awards have been criticised in recent years – the awards that softened the bans because of Russian State doping, or the one that allowed Manchester City to play in the Champions League despite being found to have breached UEFA’s financial fair play regulations. Doubts have arisen about individual Arbitrators, and there is no question that their background can affect not only how a CAS case is conducted, but also how it is decided.
The CAS, on its website, provides only rudimentary biographies of the currently 418 Arbitrators, let alone a proper register of interests. Play the Game therefore has taken an in-depth look at the Arbitrators. With just 13 per cent women in the family, the who is who list shows a surprising number of VIPs: Former Presidents of State, Ministers, Ambassadors, Presidents of European courts.
More importantly – and in addition to 44 sports officials – more than 200 Arbitrators hold other positions with sports governing bodies on various disciplinary commissions. Well over half of all Arbitrators have ties to the sporting conglomerate that is likely to oppose athletes before the CAS – and the question is how this might influence the outcome of cases?
Although guidelines for dealing with conflicts of interest in arbitration exist, they do not count for much at the CAS. It is also this deliberate ignorance that sometimes, according to our investigation, makes the sports ‘court’ a suitable instrument for ambiguous politics of the sports system.
There is another delicate problem: Not all Arbitrators on the CAS list get to decide cases. According to the CAS media department, 35 per cent were not appointed at all last year. Others, however – the so-called ‘super Arbitrators’ – are frequently appointed, even repeatedly by the same party. A similar imbalance exists with Presidents of Panels with three Arbitrators. In appeal proceedings they are selected by ICAS (but arguably by the Court Office). A way to tamper with CAS’ jurisprudence: The influence of Presidents cannot be overstated as they often cast the deciding vote.
These are highly questionable procedures even for an arbitral institution, and they make it difficult to sing the praises of the sports judiciary. However, their exact impact is not subject to public scrutiny, and one can assume that most awards are kept under wraps to keep it that way. The CAS, it would seem, has a lot to hide.
Proposals for reforms of sports arbitration – for more transparency and also for loosening the grip of the Olympic sovereigns on the CAS – have been discussed for years. That the CAS is not willing to consider them perhaps says the most about its lack of independence.
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