by: Mickey Ingles (previously posted on Spin.ph)
WITH THE recent news that Patafa has filed a case against Olympic pole vaulter, EJ Obiena in the Court of Arbitration for Sport (CAS), many people are probably wondering — what is the CAS?
A court for sports, is there such a thing?
Yes, there is. Let me give some helpful legal FAQs about the Court of Arbitration for Sport.
What is CAS?
CAS is an arbitration tribunal that resolves sports-related disputes. Its seat is in Lausanne, Switzerland. Despite its name, It is not a state-created court as we normally understand it, that functions within the schema of the government (complete with presiding judges). Instead, it was created by the International Olympic Committee in 1984 and is currently run and operated by the International Council of Arbitration for Sport (ICAS).
Instead of judges, a roster of arbitrators decides disputes which find their way to CAS.
What’s a sport-related dispute?
According to CAS Rules, sports-related disputes involve the following matters:
1) Principles relating to sport;
2) Matters of pecuniary or other interests relating to the practice or the development of sport; and
3) Any activity or matter related or connected to sport.
Hence, CAS has decided on a wide net of issues, such as the doping case of Maria Sharapova, the liability for payment of training compensation for transferring players, national team selection, the interpretation of morality clauses in sports contracts, and participation in international events such as the Olympics.
My personal fave CAS case is the 2009 case of tennis player Richard Gasquet, who was able to wriggle out of a doping charge when he successfully argued that he had ingested cocaine after kissing a lady he met in a bar.
Are you saying we can bring a referee’s decision up to CAS for reversal? That’s a sports-related dispute, right?
Unfortunately, no. CAS has been consistent in refusing to rule on field-of-play decisions unless these were attended by bad faith or fraud. Hence, CAS rarely overturns botched or controversial calls by referees.
How can a case or issue be brought to CAS?
Stemming from its nature as an authority to resolve disputes by arbitration, the only way CAS comes into the picture is through an agreement by parties to refer a sports-related dispute to CAS. Disputes are referred to CAS via:
1) An arbitration clause in a contract or regulations;
2) A subsequent arbitration agreement;
3) An appeal against a decision by a sports organization, where the statutes or regulations of such organization (or a specific agreement between a party and sports-related body) explicitly provide for an appeal to CAS.
Without any clear provision or agreement referring the dispute to CAS, CAS will refuse to rule on an appeal.
Most, if not all, International Federations have inserted arbitration clauses that refer disputes to CAS arbitration into their respective rules and regulations. This is the main reason why a number of CAS cases originate from decisions of these federations. For example, World Athletics (the International Federation of Patafa) has a provision in its rules that allow referral to CAS for disputes and disciplinary proceedings.
CAS is usually thrust into the forefront during the Olympics, where it resolves sports-related disputes through ad hoc divisions. The referral of Olympics-related disputes to the CAS can be found in the Olympic Charter. Rule 61 of the Olympic Charter states, “any dispute arising on the occasion of, or in connection with, the Olympic Games shall be submitted exclusively to the Court of Arbitration of Sport, in accordance with the Code of Sports-Related Arbitration.”
You may remember that CAS was in the limelight recently, when it ruled in favor of Russian figure skater Kamila Valieva in the Beijing Winter Olympics.
So, who are these arbitrators? What do they do?
ICAS designates and chooses the CAS arbitrators who make up the CAS list.
CAS arbitrators must have legal training, with a “recognized competence with regard to sports law and/or international arbitration” and “a good knowledge of sport in general.” They must also be fluent in either French or English, the working languages of CAS.
Currently, the Philippines’ sole CAS representative is Atty. Enrico M. Ingles, the managing partner of the Law Firm of Ingles, Laurel, and Calderon. He has been a member of CAS since the early 2000s and has served in CAS ad hoc divisions in the Asian Games, the Asian Winter Games, and the Asian Indoor and Martial Arts Games. (Full disclosure: He is also my father.)
Parties to a dispute must choose from the closed list of CAS arbitrators on who among the arbitrators will resolve the particular dispute. Of course, the chosen arbitrators must be impartial and should have no interest in the issue.
Are CAS decisions or awards binding?
Yes, they are binding as any other court decision.
Is CAS efficient?
The popularity of the CAS speaks of its efficiency in resolving disputes. The proceedings brought to CAS have increased steadily since its birth in 1984.
While some have criticized the CAS for becoming too big for its own good, it still remains the best option for resolving international sports-related disputes. With the popularity of sports and the commercial stakes attached to it growing every year, it is undeniable that the power and influence of the CAS will grow with it.
Let’s see how CAS will handle this dicey situation of Patafa, EJ Obiena, and the POC.
Mickey Ingles is the editor-in-chief of Batas Sportiva.