18 October 2013 Marquette University Law School

Transcription

1 18 October 2013 Marquette University Law School 1

2 Michael Lenard President, CAS Ad-hoc Division Sochi Olympic Winter Games CAS Vice President 2

3 Court of Arbitration of Sport Structure of international sport is a series of overlapping competencies and responsibilities IOC, IFs, NOCs, NFs, Clubs, Leagues, Athletes, Organizing Committees, WADA, USADA, etc. The European Model of Sport: the Pyramid (and more) CAS/TAS is an integral component of this structure A tribunal used to resolve international and other disputes in sport Structured as an arbitration system so as to provide international coverage through the New York Convention CAS/TAS is based in, and more importantly its seat is, Lausanne, Switzerland Where is it used? IOC, IFs (FIFA), some NOCs, OCOG, WADA, by all those parties and by Athletes, Clubs, Referees, Agents, etc. 3

4 Key Events in the History and Evolution of TAS/CAS Formation: 1984 Gundel (1992) case: Swiss Federal Tribunal dictum on independence Formation of ICAS: 1994 What it does: arbitrators, finances, rules and staff Who it is: 20 members 4 members each selected by IOC, NOCs, IFs and 4 selected by those 12 with a view to safeguard the interests of athletes and the final 4 independent personalities selected by those 16 Members have spanned three important groups : Sport (e.g., IOC members and NOC and IF Presidents and officers) Internationally recognized personalities and leaders in commercial arbitration (e.g., ICC) High ranking governmental and judicial figures (e.g. Cabinet members and ambassadors, judges at the International Court of Justice at The Hague, other international tribunals and at the highest and appellate courts of various countries) Raducan (2000) case and appeal: Swiss Federal Tribunal denies without ruling on independence Lazutina/Danilova (2002) case and appeal: Swiss Federal Tribunal direct holding on independence 4

5 There is no viable alternative to this institution, which can resolve international sports-related disputes quickly and inexpensively. ( ) The CAS, with its current structure, can undoubtedly be improved. ( ) Having gradually built up the trust of the sporting world this institution remains one of the principal mainstays of organized sport. Swiss Federal Tribunal, Lazutina/Danilova Appeal, 27 May

6 The Procedures within CAS Ordinary Appeal [but not appellate] Mediation Consultation (discontinued) Ad-hoc Divisions[really an appeal] Where used? Two formats: Olympic Games, Olympic Winter Games Commonwealth Games, UEFA Euro, FIFA World Cup On the horizon: Paralympic Games, Asian Games 6

7 Creation of the Ad-hoc Tribunal for 1996 The lessons from the Barcelona 1992 Olympic Games Butch Reynolds case Delay as a tactic Two concerns for the Atlanta 1996 Olympic Games US Judicial interference in the Games Never leave an athlete knocking at the gate of the Olympic Village Many concerns over acceptance of an Ad-hoc process The centrality of agreement to arbitrate in the entry form or else the athletes are not bound But still the stealth initiative The acceptance process: Meet with athletes and athlete representatives Better process than the relying on the Blue Blazers or losing in court All disputes are athlete vs. athlete Arbitration was a cornerstone of the athletes rights movement in the US Meet with Judiciary The outcome 7

8 Hallmarks of an Ad-hoc Tribunal Fair, fast and free Determination within 24 hours Provisional relief available Exhaustion of remedies Evolution of pro bono counsel And a jailhouse lawyer here or there 8

9 Types of Olympic Ad-Hoc Cases Heard Doping Nationality Team Selection Re-allocation of slots Qualification Disciplinary /Exclusion Field of Play Advertising Match Fixing And more 9

10 Evolution of Various Ad-hoc Processes and Rules Who is Bound, Who is a Party? Role of the President Decisions and Reasons Dispensing with the Hearing Single Arbitrators Medical Expertise Jurisdiction of the Ad-hoc Division The pendulum swings 10

11 The Jurisdictional Pendulum Salt Lake City Bassani-Antivari/Troy Billington Prior focus on the signed entry form with arbitration clause Both also went on to discuss the substance and rendered a decision Legislative History What happened to Never leave an athlete knocking at the gate of the Olympic Village? The conceptual problem: Form over Substance Should IFs be treated substantively different than NOCs or IOC due to entrance procedure? Does this only hurt athletes? Solution: clarify the Rule to permit the possibility 11

12 Clarify the Rule Ad-hoc Rules Article 1: marked to show changes from current to 2002 (Changed in 2003) Application of the Present Rules and Jurisdiction of the Court of Arbitration for Sport (CAS) The purpose of the present Rules is to provide, in the interests of the athletes and of sport, for the resolution by arbitration of any disputes covered by Rule [61] of the Olympic Charter and by the arbitration clause inserted in the entry form for the Olympic Games (the "OG"), insofar as they arise in the host country of the OG between 1 February 2002, and 24 February 2002, insofar as they arise during the Olympic Games or during a period of ten days preceding the Opening Ceremony of the Olympic Games. In the case of a request for arbitration against a decision pronounced by the IOC, an NOC, an International Federation or an Organising Committee for the Olympic Games, the claimant must, before filing such request, have exhausted all the internal remedies available to him/her pursuant to the statutes or regulations of the sports body concerned, unless the time needed to exhaust the internal remedies would make the appeal to the CAS Ad Hoc Division ineffective. 12

13 IOC Charter (In force as from 9 September 2013) 61 Dispute Resolution. 2. Any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration for Sport (CAS), in accordance with the Code of Sports- Related Arbitration. 13

14 The Jurisdictional Game Every structure has its strengths and weaknesses Parties hold claims until Ad-hoc for the Fair, Fast and Free Ad-hoc Division has heard cases that it would not have before 2003 But even after rejecting the early cases the Panels went on to discuss the substance and rendered a decision Examples: Team Selection Qualification And the problem is? Time Money Process Going forward: protection from the onslaught Knowledge of the history, ferret out the gaming and use judgment Tools: Claims arise during Exhaust remedies, trumped if necessary by provisional relief 14

15 Cases to Watch in Sochi Continuation of interesting past trends: Allocation of Slots & Qualification But lessons (hopefully) were learned Nationality Issues and instances only getting harder Team Selection Can/should we stem the tide? Advertising, blogs, tweets Always will play catch-up with social media and advertising Sui generis in Sochi Propaganda and Demonstrations But its nothing new And probably won t reach CAS 15

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