The Court of Arbitration for Sport under intellectual and efficacious scrutiny

Jack Anderson
Professor and Director of Sports Law Studies, Melbourne Law School

Having worked, by then, in sports law for almost 20 years, a high point in my career was to be appointed as an arbitrator to the general list of the Court of Arbitration for Sport in 2016. Having been appointed to several cases mainly as sole arbitrator, one of which was (unsuccessfully) appealed to the Swiss Federal Tribunal, and on serving as the sole arbitrator to the Commonwealth games in 2018, I left CAS in 2019, much dispirited.

The personal reasons for my departure are not now relevant but the accompanying professional reasons resonate with the findings on CAS by Johan Lindholm, Professor of Law at Umeå University, Sweden in his excellent, scholarly work, The Court of Arbitration for Sport and Its Jurisprudence: An Empirical Inquiry into Lex Sportiva.

The essential premise of the book is straightforward – to describe and evaluate on CAS as an institution, its jurisprudence and the actors involved. The book relies heavily on empirical data and quantitative analysis and in particular a statistical methodology known as network analysis.

As explained succinctly by the author at section 1.6, network analysis is a derivation of a mathematical tool which involves mapping relations between individual components. The book uses two networks: the first, which can be described as the jurisprudential network, is based on an analysis of instances where CAS panels in  their decisions refer to other CAS decisions; the second, which can be described as a type of social network, is based on an analysis of the connection between arbitrators and litigants at CAS.

By and large, this network analysis provides an insightful and fresh perspective on CAS, its actors and its jurisprudence, though lawyers not immediately familiar with it may find chapters 3 and 6 – on respectively the “topography” and structure of CAS jurisprudence – not as accessible as other chapters.

This is a minor quibble and of much more importance is the point bluntly made in section 1.5 of the book: “In conducting empirically-based research, the quality of the research is dependent on the quality of the underlying data [in this case, CAS decisions].” Lindholm then explains that, for various reasons, primarily relating to the principle of confidentiality under the CAS Code, he has been able publicly to access (through the CAS’s website which hosts the most woefully inadequate of searchable archives) only 31% of all CAS decisions issued from CAS’s inception in the mid-1980s to the beginning of 2015 (830 CAS awards). Of these, he notes that less than 10% of CAS decisions made under its Ordinary (first instance) Procedure have been published.

Through various other searches and databases, Lindholm manages to access 295 unpublished CAS decisions, meaning that in total he gets access to almost 42% of all decisions issued by the CAS in the first three decades of its existence. This is impressive, exhaustive work by Lindholm though it also illustrates that nearly 3 out of every 5 CAS awards remain inaccessible to potential litigants.

Chapter two of the text covers territory familiar to most sports lawyers, giving an historical overview of CAS and (moving into chapter 3) noting that the 2002 FIFA-ICAS agreement and the entering into force of the World Anti-Doping Code significantly contributed to CAS’s case load and jurisprudence. Lindholm also notes that by 2013, CAS was receiving five times as many requests as 2001 and more requests in that year alone, than in the entire period from 1986-2001.

Lindholm rightly says that as an arbitral entity CAS is not subject to the principle of stare decisis but that individual CAS Panels have frequently shown what he calls a “habit of adherence”.

An interesting aspect of chapter 3 of the book is the focus on the length of time a CAS case takes. Lindholm holds that 90% of cases filed with CAS are decided within one year of the initial request and that CAS takes on average 224 days to decide a case brought under its Appeals Arbitration Procedures. This is more than twice as long as the obligations on CAS under its own Code, which state that the operative part of an award in the Appeals Arbitration Procedure must be communicated to the parties within three months.

Seven and a half months, not far off the length of a professional football season, appears at first quite a long time to complete an arbitral procedure – and particularly given that a fundamental principle of ADR is expediency – though Lindholm does say (at p71): “The fact that CAS has been able to maintain the same average procedure length while the number of requests filed and decisions issued has increased eight-fold speaks strongly to CAS’s ability to effectively scale to handle large amounts of cases.”

Chapter four is arguably the most important in the book and begins by paraphrasing Mitten and Opie’s question on the precedential value of CAS awards and impact on lex sportiva more generally. Lindholm rightly says that as an arbitral entity CAS is not subject to the principle of stare decisis but that individual CAS Panels have frequently shown what he calls a “habit of adherence”. Since 2007, CAS Panels have cited previous decisions in roughly 80% of is decisions. Lindholm cites CAS 2008/A/1545 Anderson, para 55 as illustrative of the contemporary view of CAS Panellists on the use of precedent:

Therefore, although a CAS panel in principle might end up deciding differently from a previous panel, it must accord to previous CAS awards a substantial precedential value and it is up to the party advocating a jurisprudential change to submit persuasive arguments and evidence to that effect.

All well and good but as noted earlier, given that a comfortable majority of CAS awards remain unpublished, the capacity of litigants to establish what that precedential value might be in the first place, is restricted. In further aggravation, Lindholm points out (at section 4.5) that CAS frequently cites previous CAS decisions that are not publicly available (roughly one in five refences within CAS decisions are to unpublished awards). This is astounding and the fundamental rule of law principles that it violates are succinctly summarised by Lindholm, citing Raz and others.

Chapter five, using the preferred statistical methodology, attempts to identify “landmark” CAS decisions – CAS 94/129 Quigley on the principle of strict liability and the right to a fair hearing emerges victorious.

Chapter seven is of the highest scholarly standard and invokes the work of Ken Foster to assess CAS’s normative contribution to the development of sports law generally.

Chapters eight and nine are, principally, devoted to an assessment of the arbitrators at CAS, while chapter 10 is on litigants. Chapter 10 reiterates a point made throughout the book: the most frequently litigated issues at CAS are doping and football, though not doping in football.

Returning to chapter 8 and 9, there is, Lindholm says (at p222), a “drastically inequitable distribution of appointments among CAS arbitrators: 28 percent of all unique arbitrators found to have participated in any of the studied decisions have participated in delivering only one decision and 42 percent [have] appeared in only one or two decisions.” In contrast, 7 per cent of the appointed arbitrators – who Lindholm refers to as super-arbitrators – have received more than 45 per cent of all appointments. Moreover, Swiss arbitrators are included in CAS panels almost three times as frequently as arbitrators of any other nationality.

In sum, in this intellectual, erudite work, Lindholm, relying on a network analysis, proves that in large part CAS retains the characteristics of the oldest network in sport – the old boys’ club, and an old Swiss boys’ club at that.

Copyright © Jack Anderson 2019