An athlete’s career is about fleeting moments of greatness and if you lose one of these you cannot get it back, the executive director of the World Players Association told delegates during a session on Court of Arbitration for Sport at the first GAR Live Zurich.
At the event held at the home of football’s governing bodies, Brendan Schwab argued that the brevity of sporting careers makes it important to have a dispute resolution system in place that is just, fair, expeditious and provides a remedy, during a panel moderated by Christian Keidel, a partner at Martens in Munich.
“At a global level, CAS has succeeded in establishing a single global system of law that is transnational and puts the rules of sport, in a practical perspective, above national law. That’s a pretty incredible outcome,” Schwab said.
He gave the example of Indian sprinter Dutee Chand, who was subjected to a controversial gender test in India in light of new regulations introduced by the International Association of Athletics Federation (IAAF) that say females with high levels of testosterone levels cannot compete in women’s athletic events.
Chand was provisionally suspended from representing India until a CAS tribunal decided that under the rules of the International Olympic Committee and IAAF she should retain her right to compete. Under the Olympic Charter the practice of sport is a human right and both it and the IAAF Constitution prohibit discrimination based on gender, the CAS tribunal said.
Schwab asked what would have happened if the rules of these organisations did not prohibit discrimination based on gender?
“The hyperandrogenism regulations of the IAAF could have prevailed, and the question of human rights would not have been taken into account.”
The substantive law is at issue here and the rules of sports bodies need to be in line with the United Nations Guiding Principles on Business and Human Rights, he argued.
Schwab also referred to a 2016 study by John Ruggie, a professor at Harvard University and author of the UN guiding principles, which recommended that FIFA embed human rights law across its global operations.
Michele Bernasconi, partner at Bär & Karrer in Zurich, considered what the alternative to CAS would be. He remembered a time before FIFA had recognised the jurisdiction of CAS, when it suspended a Swiss player from several matches of the national team.
It took the player four months to receive a hearing date before the competent Zurich court, but by that time most of the matches had already been played without the player on the field.
“Is this justice? Is this fair?” Bernasconi asked delegates. “Or is it fairer to go to CAS, where a decision will be made within 24 hours? If I were the player I would prefer the second option."
Bernasconi said there are many stories like this. “All of a sudden, the player doesn’t receive a salary any more, the apartment is not being paid for, just because someone very high up decided, ‘we don’t like you anymore’.”
"If the players did not have a system like CAS, they would be alone”, he said, adding that "CAS is not perfect, but I believe it's a good institution."
Xavier Favre-Bulle, partner at Lenz & Staehlin in Geneva, told delegates that one problem with CAS is that disciplinary cases are approached in a very similar way to criminal cases by those suspected of a trangression.
“Most athletes feel they are a victim of the system, because they were sanctioned improperly in their view, and they are appealing with limited trust in the process,” he said.
They present like indicted individuals and this puts CAS arbitrators under pressure to demonstrate clearly they are not in favour of the sports world, in particular the international federation that imposed the sanction, he said.
Others agreed that the CAS system has an image problem, with senior associate at Norton Rose Fulbright, Matthew Buckle, noting that the fleeting moments so important to athletes’ careers are also important to fans.
Buckle noted that CAS arbitrators do not have to have a background in sport and said that, as a fan, “there is nothing worse than feeling a decision critical for those fleeting moments is being decided by some suits in Switzerland, ‘who have no clue about sport’.”
Overall, Favre-Bulle said he was happy with the CAS system, telling delegates not to “throw out the baby with the bathwater.”
“We can criticise, we can identify flaws, but all in all, it is a good system and one we need and should keep,” he said.
Favre-Bulle added that the speed at which CAS and other sports arbitration tribunals act when needed is admirable, as has even been recognised by national courts. He pointed by way of example to a decision of a Paris court during the 2009 Tour de France, that a cyclist's urgent application against a decision of the organising committee was better heard by the French national arbitral tribunal for sports, Chambre arbitrale du sport, and the court accordingly had no jurisdiction to deal with it.
Favre-Bulle admitted that access to CAS is difficult at times because you must exhaust the remedies provided by the international sports federation in question before you ever get to the arbitration stage, which can take time.
He also called for more diversity within the arbitrator pool and questioned whether the list should be closed, as it is currently. He surmised that the International Council of Arbitration for Sport (ICAS), which looks after the running and financing of CAS, is aware of these criticisms and is addressing them.
Bernasconi said that the arbitrators he has come across at CAS are passionately committed to neutrality and independence. In fact, he said that in the hundreds of cases he has decided for the court, he has never felt pressure from any side as to how to decide.
"Nobody ever asked me to change a decision or reconsider my position," he said. And he added that the formal review of awards by the CAS court office is comparable to scrutiny provided by other arbitral institutions such as the ICC International Court of Arbitration.
Bernasconi added that he would welcome the swifter and more frequent publication of CAS awards to foster the development of a lex sportiva and increase transparency.
Emilio Garcia, who is the managing director of integrity at UEFA, noted that the federation publishes all decisions relating to it, including CAS decisions.
“For us it is a matter of common sense. If I am a practitioner, I need to know the jurisprudence,” he said.
His view of CAS was positive, although he said “of course, it is not perfect; life is not perfect.”
He also warned against letting wins or losses before cloud your view.
“I lost my first CAS case in 2006, it was a personal and professional catastrophe but I learned a lot from this case. Now I win some cases, I lose some. That is part of life, but I think the system works well.”
GAR Live Zurich took place on 26 April and was chaired by by Patricia Nacimiento of Herbert Smith Freehills in Frankfurt and Laurent Killias of Pestalozzi in Zurich. The first panel of the day was moderated by Thomas Legler of Pestalozzi in Geneva and looked at arbitration in the digital age. The deputy secretary general of the German Arbitration Institute James Menz, Paul Salzaar of Siemens, Alesch Staehelin in-house counsel for IBM, Johannes Willheim of Jones Day in Frankfurt and London and Heike Wollgast of WIPO raised an interesting question as to how the confidentiality surrounding arbitration will mean predictive data sets that could inform practitioners on arbitrators and decisions will not show a full picture.
A symposium session saw moderators Diana Akikol of ABR Avocats in Geneva, Urs Weber-Stecher of Wenger & Vieli in Zurich and Javier de Carvajal of Herbert Smith Freehills in Madrid ask questions about pressing issues, with an interesting discussion on when an arbitrator should cut ties with the party that nominates it to a tribunal.
The final session of the day was moderated by Bernd Ehle of Lalive in Geneva and discussed whether international arbitration allows deceit, corruption, fraud and money laundering to go unnoticed. Delegates heard from panellists including Ulrike Gantenberg of Heuking Kühn Lüer Wojtek in Düsseldorf, chief commercial officer of offshore pipeline Nord Stream 2 Reinhard Ontyd, Andreas Reiner of ARP in Vienna and Mattias Wolkweitz of German-based crude oil producer Wintershall.
GAR Live Zurich took place at the Metropol in Zurich and was supported by Herbert Smith Freehills, Pestalozzi, Bär & Karrer and Konrad & Partners. A speakers’ dinner the previous evening was hosted by Herbert Smith Freehills.