By signing up for elite sport, athletes are entering into arbitration agreements with their governing bodies that are designed to keep sport out of the courts...The British Broadcasting Corporation’s Matt Slater succinctly captures here the heart and spirit of sports arbitration. Yet, when considering the full spectrum of arbitration law and practice, it is perhaps tempting to pay more attention to the contents of the arbitration agreement, the validity of the award or its enforceability pursuant to the New York Convention.
Within recent times, the issue gaining prominence in the sports sector was the question of the arbitrators’ independence, a matter which straddled the legal systems of Switzerland and Germany.
The case involved an appeal by German speed-skater Claudia Pechstein, who challenged the two-year ban imposed on her by the International Skating Union (ISU) for an anti-doping rule violation committed in 2009.
She lost her appeal to the Court of Arbitration for Sport (CAS) and proceeded to lodge further appeals with the Swiss Federal Supreme Court and the Munich Higher Regional Court, where she claimed £3 million in damages against the ISU.
Although the German Federal Tribunal (BGH) ruled against Pechstein earlier in 2016, she was able to bring the spotlight on the way that arbitrators were appointed to CAS panels, through its administrative body, the International Council for Arbitration for Sport (ICAS).
The Composition of the Arbitration Panel
There are sufficient guarantees in the CAS rules to protect the rights of athletes, notwithstanding the closed list of arbitrators or the fact that the arbitrators are appointed by the [I]nternational Council of Arbitration for Sport (ICAS).Mavromati’s summary of the BGH’s ruling of June 7, 2016 was met with relief by the CAS family.
Usually, in arbitration proceedings before the CAS, the parties choose arbitrators from a closed list appointed by the ICAS, which itself is made up of twenty persons, twelve of whom are appointed by the International Olympic Committee (4), International Federations (4) and the Association of National Olympic Committees (4).
These twelve then select another four, “after appropriate consultation with a view to safeguarding the interests of the athletes”. The final four are appointed by the above sixteen, “chosen from among personalities independent of the bodies designating the other members of the ICAS.”
Pechstein’s argument, therefore, was that the ICAS was controlled by sporting federations with the implication that the arbitrators they appointed were partial towards sports associations. The BGH disagreed, noting that the CAS Rules provided the opportunity to challenge an arbitrator if there were circumstances giving rise to “legitimate doubts over her/his independence or over her/his impartiality.
The ICAS appears to have taken to heart the concerns of the German courts and in late 2015, reached out to Athletes’ Commissions globally with a view to soliciting greater input from athletes. This was a welcome development which has helped to allay the legitimate concerns of apparent bias in favour of sporting federations.