The development of a uniform lex sportiva through the Court of Arbitration for Sport
Jacob C. Jørgensen FCIArb and Dr Phillip Landolt FCIArb
Over the last few decades, sport has developed into a significant industry. The estimated global annual turnover of sport-related activities exceeds 500 billion USD[1]. There is an annual growth rate of 9-10% generated by transfers and remuneration of professional athletes, sports betting, TV broadcasting rights, sponsorship agreements, ticket sales, and merchandise.
Both because of sport's intrinsic worth, and because of the economic stakes, the same rules must apply everywhere, not just the rules of the game, but also the rules and principles - often referred to as lex sportiva - that govern sports-related matters, including how sports competitions are administered. From drawings on Pharaonic monuments we can see that, several thousand years ago, the ancient Egyptians had laid down basic rules for different types of sports such as field hockey, wrestling and weightlifting, regulating inter alia the use of neutral referees, uniforms for players, and a means of announcing the winners by awarding them different collars[2].
[1] https://www.researchandmarkets.com/reports/5939106/sports-global-market-report
[2] Mohammed A. El-Gammal, “The ancient Egyptian Sports during the Pharaoh dynasties and its relation to the ancient Greek Sports”, article published on Researchgate.net.
CAS
Established in 1984, the Court of Arbitration (CAS) is headquartered in Lausanne, Switzerland. Its remit is the settlement of “sports-related disputes”[3] through arbitration and mediation. It has become a substantial institution, employing more than 50 highly-qualified, career legal counsel, and administrative staff members. Currently, the CAS list of arbitrators comprises around 400 individuals from 87 countries.
The International Council for Arbitration for Sport (the ICAS) is the supreme supervisory organ of CAS. ICAS’ main task is to safeguard the independence of CAS and the rights of the parties involved in CAS arbitrations. ICAS attends to the administration and financing of CAS and is responsible for overseeing the application of the CAS Code, the appointment of arbitrators from the CAS list of approved arbitrators, and the challenge and removal of arbitrators.
Almost all international sports federations choose and indeed impose CAS arbitration on persons with continuing relationships with them, such as teams and athletes. The choice of CAS arbitration, as with all arbitration, excludes the jurisdiction of other avenues of binding adjudication on the merits of a dispute, in particular national courts. But perhaps unique amongst arbitration rules, the Procedural Rules even exclude the jurisdiction of national courts for interim measures, as explained in further detail below.
In 2023, some 900 new cases were received by CAS. The majority of the cases are appeal proceedings arising out of FIFA rulings, but CAS arbitrators also act in inter alia disputes concerning sponsorship contracts, transfer agreements, memberships of sports associations, and disciplinary decisions - for example in relation to doping cases, which are dealt with by a small selection of CAS arbitrators with particular expertise in this field.
Currently, the CAS list of arbitrators comprises around 400 individuals from 87 countries
Lex Sportiva
Whereas rules governing how individual sports are to be played (sometimes referred to as lex ludica) have been around since the beginning of time, the same does not apply to lex sportiva - the idea of a transnational body of rules and principles creating a level playing field for international sporting competitions and their stakeholders.
Even though there is debate[4] whether lex sportiva is truly a universally applicable, independent body of rules and legal principles (or perhaps rather a pastiche of elements from different legal sources such as EU law[5], international human rights law, and the national laws of associations, contract law, employment, etc.), there is consensus as to the benefit of having a uniform assembly of rules, namely the establishment of an international level playing field for athletes, sports clubs and other stakeholders.
[3] See section R27 of the Procedural Rules (the ”Procedural Rules” of the CAS Code of Sports-related Arbitration (the ”CAS Code”).
[4] See Antoine Duval et al., “The European Rules of the Lex Sportiva – how Europe rules global sports”, Hart Publishing, 2024, p. 4 ff. (The book is available online here: https://umu.diva-portal.org/smash/get/diva2:1841327/FULLTEXT01.pdf See also Leonardo V. P. de Oliveira, “Lex Sportiva as the contractual governing law”, Intl. Sports Law Journal, 2017, available here: https://link.springer.com/article/10.1007/s40318-017-0116-5
Some significant principles of lex sportiva are:
i. Doping prohibition: The World Anti-Doping Code harmonises anti-doping policies, rules and regulations within sport organisations and among public authorities the world over. The World Anti-Doping Agency[6] (WADA) monitors and ensures effective implementation of anti-doping rules, which are of paramount importance in ensuring that athletes compete on fair and equal terms.
There is consensus as to the benefit of having a uniform assembly of rules, namely the establishment of an international level playing field for athletes, sports clubs and other stakeholders.
ii. Transfers: FIFA’s Regulations on the Status and Transfer of Players[7] constitute an important example of how sports law has developed under the influence of EU law (for example as determined in the Bosman[8] and the Lassana Diarra cases). The FIFA rules regulate how football players may be transferred between clubs[9] and serve to uphold contractual stability in the world of professional football thereby motivating clubs to invest in and train talented football players.
iii. Match decisions are unchallengeable: An important feature of lex sportiva is that decisions made by referees during matches as a rule cannot be subsequently overturned. This fundamental principle serves to maintain sporting integrity. In recent years, Video Assisted Referees (VAR) has been introduced in, for example, international football tournaments to help referees make correct decisions during a game.
iv. Teams can be punished for individual infractions: The general prohibition on collective punishment[10] does not apply in relation to disciplinary sports law sanctions, which may be imposed on an entire team on account of one player’s infractions.
v. Sporting nationality: Athletes have a sporting nationality that determines which country they are allowed to represent in international competitions[11]. The sporting nationality of an athlete is usually the same as the athlete’s legal nationality[12]. However, athletes with multiple legal nationalities must choose which one of their passports they wish to rely on for participation in competitions[13].
The CAS finds itself at the centre of this developing legal area – as a custodian of the lex sportiva some might say. It fulfils this role by virtue of the Procedure Rules and by ensuring that the principles of lex sportiva which are established in the case law of the CAS are applied consistently by its arbitrators, and supported by its legal counsel. In the following, we have highlighted some of the particular features of CAS proceedings to illustrate how cases are handled and adjudicated in practice.
[5] The most famous example is probably the “Bosman case” (Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93), rendered by the European Court of Justice). This case concerned freedom of movement for workers under what is now article 45 of the Treaty on the Functioning of the European Union of the Treaty of Rome. The decision, which banned restrictions on foreign EU players within national leagues and allowed players in the EU to move to another club at the end of a contract without a transfer fee being paid, had a profound impact on the transfers of footballers within the European Union (EU). A more recent example is the “Super League” case (C-333/21) concerning the question of whether FIFA and UEFA could prohibit clubs and players from playing in a seasonal football competition in Europe.
[6] https://www.wada-ama.org/en
[7] The most recent edition of the FIFA regulation with comments is available here: https://digitalhub.fifa.com/m/40da0f707efdd011/original/FIFA-Commentary-on-the-FIFA-Regulations-for-the-Status-and-Transfer-of-Players-2023-edition.pdf
[8] For Bosman, see footnote 5; The Lassana Diarra case is referenced as C‑650/22 Fédération internationale de football association (FIFA) v. BZ, et al., 4 October 2024 (https://curia.europa.eu/juris/document/document.jsf?text=&docid=290690&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=1122281 )
[9] An interesting feature of these rules is the codification of the doctrine of tortious interference in Article 17(4).
[10] The prohibition is expressed in Article 33 of the Fourth Geneva Convention and in Article 4 of the Additional Protocol II to that convention.
[11] See with respect to the Olympic Games Rule 41 of the Olympic Charter available here: https://stillmed.olympics.com/media/Document%20Library/OlympicOrg/General/EN-Olympic-Charter.pdf?_ga=2.133664907.429086385.1624882475-1558707000.1619703220
[12] ISLJ 2006-1-2Def
[13] Sometimes athletes change their sporting nationality prior to a large competition, such as the Olympic Games. There are also several examples of top athletes who have been offered a citizenship of a certain nation in order to be able to represent that nation in international competitions, see in this regard in relation to the 2024 Olympic Games: https://olympics.com/ioc/news/ioc-executive-board-approves-11-athletes-changes-of-sporting-nationality-for-the-olympic-games-paris-2024
Photo by Todd Trapani on Unsplash
Photo by Todd Trapani on Unsplash
Photo by Nicolas Hoizey on Unsplash
Photo by Nicolas Hoizey on Unsplash
Photo by Alev Takil on Unsplash
Photo by Alev Takil on Unsplash
Particular features of CAS proceedings
Photo by Despina Galani on Unsplash
Photo by Despina Galani on Unsplash
Photo by Austrian National Library on Unsplash
Photo by Austrian National Library on Unsplash
Photo by Alex Perez on Unsplash
Photo by Alex Perez on Unsplash
The role of the ICAS and the CAS Secretariat
The CAS Code is divided into two main sections. The first part sets out the statutes of the ICAS and CAS (Articles S1–S26) and the second part contains the Procedural Rules (Articles R27–R70). ICAS controls the case before the arbitral tribunal is constituted. For example, the President of ICAS has the power to order interim relief during this early stage.
The CAS Secretariat for its part is composed of highly experienced personnel knowledgeable about the lex sportiva and CAS arbitration. Unlike with the International Court of Arbitration (ICC) and most other arbitral institutions, their appointments have no durational limits. Section 46 of the CAS Code provides for power in the Director General to review proposed arbitral awards for matters of form, but also for fundamental matters of legal principle: “Before the award is signed, it shall be transmitted to the CAS Director General who may make rectifications of pure form and may also draw the attention of the Panel to fundamental issues of principle.” Whereas the review of awards by other institutions narrowly concerns threats to the enforceability of the award, this broader involvement of the CAS Director General serves to encourage the award’s conformity with lex sportiva.
Unlike with the ICC and most other arbitral institutions, [CAS] appointments have no durational limits
The seat of CAS tribunals
The law governing the arbitration (the lex arbitri) will usually be that of the seat of the arbitration. The arbitration law sets important, but not all, aspects of the arbitration such as when and how the national courts can intervene to help the arbitration along (for example by constituting the arbitral tribunal and with respect to the gathering of evidence), and under which circumstances the award can be challenged before becoming res judicata at the place of arbitration and, usually, prima facie enforceable almost everywhere around the world.
Section R28 of the CAS Code provides that the seat of the arbitration is Lausanne, Switzerland. Accordingly, in CAS proceedings the lex arbitri is Swiss arbitration law by default[14]. This feature significantly contributes to the uniformity of CAS awards.
Prominence of Swiss substantive law
Section R45 of the CAS Code lays down the sources of the rules applicable to the merits of the dispute. It provides first that the parties are free to choose those rules and that they may even choose non-legal rules, referred to as “bonum et aequum”. Secondly, it provides that if they make no valid choice, then it is Swiss law that applies.
In practice, the parties will often choose the legal rules that apply in the form of a whole legal system, and they very rarely choose to let the arbitral tribunal decide ex aequo et bono, which is rather a leap of faith.
Moreover, many international sporting federations are headquartered in Switzerland, including the International Olympic Committee, the Union of European Football Association, FIFA, the International Handball Federation, the International Basketball Federation, the International Volleyball Federation, and the International Golf Federation. Either by general private international law principles or by express choice of law, their statutes will therefore generally be subject to Swiss law[15].
Since Swiss law will therefore frequently be the applicable law, a body of decisions applying Swiss law in sports-related matters has built up, and comprises an element of the coherent core of the lex sportiva.
Publication of CAS awards and the role of CAS case law
The usual position in international arbitration is that arbitration awards are confidential to the parties unless they agree otherwise. Section R43 of the CAS Code reflects this position, but allows it to be overridden where the parties agree or the ICAS Division President so decides. However, where the subject of the CAS arbitration is an appeal of, for example, a FIFA ruling, pursuant to section R59 of the CAS Code the CAS will publish the award, along with a summary and/or a press release setting forth the results of the appeal proceedings, unless both parties agree that they should remain confidential. In any event, the other elements of the case record shall remain confidential. In practice of course it will be rare for the winning party to agree to confidentiality.
Much of CAS arbitration in fact concerns appeals of rulings made by sports federations. Points of legal principle will be identified in the appeals process. The publication[16] of these cases that are important to the lex sportiva allows parties and arbitrators to refer to them in later CAS arbitrations.
Appointment of arbitrators
Pursuant to section S 3 of the CAS Statutes, CAS arbitrators must be included in a list maintained by the CAS. By section S 4-6 of the CAS Statutes, it is the ICAS who appoints the arbitrators to the list. These arbitrators are highly qualified, international arbitration experts with particular experience in resolving sports-related disputes. Section S 14 of the CAS Statutes requires them to disclose “[…] appropriate legal training, recognised competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language, […]”[17].
Such arbitrators experienced in sports law and arbitration will naturally converge in their approach to these matters.
The doctrine “iura novit arbiter”
In any binding dispute resolution there is a question as to the relative roles of the parties (through their counsel) and the adjudicator in determining the law. Of course, the arbitrator has the final word. But the law must be identified and analysed. Different adjudication systems do this differently.
The Swiss Supreme Court has ruled that the judicial principle of “iura novit curia” (“it is the court that is responsible for the law”) also applies in arbitrations seated in Switzerland[18].
Accordingly, the principle of “iura novit arbiter” will apply in the great majority of CAS arbitrations. This principle entails that in applying the law, in particular the law the parties have chosen, the arbitrator is not bound by the sources of law or the particular rules within that legal system that are identified by the parties. It is the arbitrator’s right and duty to decide in accordance with what they consider the right legal principles and to arrive at the right decision in accordance with the law. The only limit is that the arbitrator needs to allow the parties to comment on anything that they themselves have not invoked, and which they may not objectively anticipate that the arbitrator will consider and decide upon[19].
This approach to the ascertainment of the law also contributes to the uniformity of the lex sportiva in CAS arbitration as it allows CAS arbitrators to direct the decision towards a correct outcome, irrespective of how counsel have presented their client's case.
Centralisation of interim measures and stipulation of the legal requirements for them
In sports-related matters, for example the transfer of players, the right of an athlete to compete, or disciplinary sanctions, time will usually be of the essence.
It is provisional measures that supply immediate relief albeit subject to later, more thorough review. The rule generally found in arbitration law systems and sets of arbitration rules is that a submission to arbitration does not exclude the jurisdiction of others, like state courts, to order provisional measures. But Section R37 of the Procedural Code provides that, “[…] In agreeing to submit any dispute subject to the ordinary arbitration procedure or to the appeal arbitration procedure to these Procedural Rules, the parties expressly waive their rights to request any such measures from state authorities or tribunals.” Accordingly, where a dispute is subject to CAS arbitration, it is only the CAS arbitrators who can grant provisional measures.
In addition, perhaps uniquely amongst arbitration rules, the CAS Code lays down a specific, detailed legal standard for granting provisional measures in Section R37 which provides: “When deciding whether to award preliminary relief, the President of the Division or the Panel, as the case may be, shall consider whether the relief is necessary to protect the applicant from irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the Applicant outweigh those of the Respondent(s).”
Since provisional measures are crucial in many sports related disputes, and can only be issued by CAS arbitrators in accordance with an express test, uniformity is favoured. In this respect too, the CAS Code helps form a crucially important part of lex sportiva.
[14] Parties may derogate from this default mode. In a decision of 21 December 2023 in Case C-124/21 P, International Skating Union v. European Commission the European Court of Justice held that in certain narrow circumstances involving the eligibility of athletes it may be contrary to EU competition law for the seat of a CAS arbitration to be outside the EU. Nonetheless, the seat of the vast majority of CAS arbitrations will continue to be Lausanne, Switzerland. One significant exception following upon the aforementioned decision of the ECJ is Art. 16(3) of the UEFA Authorisation Rules governing International Club Competitions - Edition 2024:
CAS shall primarily apply the UEFA Statutes, rules and regulations and subsidiarily Swiss law. The party filing the statement of appeal and/or a request for provisional measures, whichever is filed first with CAS, shall indicate in its first written submission to CAS whether the party accepts Lausanne, Switzerland, as seat of the arbitration or if the seat of the arbitration shall be in Dublin, Ireland, in derogation of Article R28 of the CAS Code. In the latter case, UEFA is bound by the choice of Dublin, Ireland, as seat of the arbitration and UEFA shall confirm its agreement to such seat in its first written reply to CAS. In case no seat is indicated in the first written submission to CAS, Article R28 of the CAS Code shall apply.
[15] IOC Olympic Charter, Art. 1 (EN-Olympic-Charter.pdf); UEFA Statutes, Art. 1 (UEFA Statutes - Edition 2024 • Viewer • UEFA Documents); FIFA Statutes, Art. 1.1 (FIFA-Statutes-2024.pdf); International Handball Association Statutes, Art. 1(6) (01 - Statutes_E.pdf); FIBA General Statutes, Art. 2.2 (https://www.fiba.basketball/documents/fiba-general-statutes.pdf); the International Volleyball Federation Constitution, Art. 1.2.2, Constitution of the International Golf Federation, Art. 17.1 (https://www.igfgolf.org/pdf/official-documents/igf-constitution.pdf)
[16] The CAS regularly hosts events and continuing professional development seminars to ensure that its listed arbitrators are informed of legal developments in the field of sports law.
[17] See for example 130 III 35, consid. 5 (http://relevancy.bger.ch/php/clir/http/index.php?highlight_docid=atf%3A%2F%2F130-III-35%3Ade&lang=de&type=show_document )
[18] See decision of the Swiss Supreme Court 4A_56/2017 of January 11, 2018 (https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza%3A%2F%2F11-01-2018-4A_56-2017&lang=de&type=show_document&zoom=YES& )
Built with Shorthand