Articolo precedentemente pubblicato in Rivista dell’Arbitrato n. 3/2021.

“L’important c’est de participer[1]”

The aim of this paper is to analyse fair trial rights in the context of the Court of Arbitration for Sport (CAS), with a view to develop concrete proposals on participation in CAS governance as a key means to redress the power balance within the global system of transnational sports law in the direction of athletes, while ensuring adequate protection of their procedural human rights in the decision of cases. The paper is structured in five sections. The next one is focused on the Mutu and Pechstein v. Switzerland (2018) case before the European Court of Human Rights (ECtHR) and its implications on the nature and powers of the CAS as an institution within the galaxy of sports law and governance.
The third one is devoted, instead, to the right to a fair trial as such, situating it in the normative framework of international human rights law and then placing it in the particular context of the CAS. The right to a fair trial is composed of multiple elements and, in this case, it is necessary to break it down in order to identify and select which ones of them, in the post-Pechstein era, have more “potential” to be developed in the near future through debate and reform. The fourth section critically analyses independence and impartiality as fair trial rights in the context of the CAS, also in light of the groundbreaking dissenting opinion delivered on the matter by judges Keller and Serghides in Pechstein. Lastly, the fifth and concluding section contains a number of concise practical proposals, based on the findings of the preceding analysis, to address the question of independence and impartiality in the CAS.

In her autobiography, the speed skater Claudia Pechstein confessed of having considered suicide after being sentenced to a two-year ban for irregular blood readings. In 2009, the accuses of doping, the thoughts of losing her sporting career, her income and her purpose in life brought her on the brink of jumping off a highway bridge[2]. Since then, the German athlete, five-time Olympic champion, has been the protagonist of an eight-year long legal ordeal, of which the conclusion only arrived in 2018. After anti-doping tests, the International Skating Union (ISU)’s disciplinary board imposed a two-year suspension on her. In July 2009 she and the German speed skating association (DESG) appealed to the CAS against that decision. The hearing took place in private session, despite her request for a public procedure. In November 2009, the CAS upheld the suspension. In December 2009, Pechstein applied to the Swiss Federal Tribunal (SFT) to set aside the CAS award, arguing that the latter was not an “independent and impartial” tribunal on account of the appointment mechanisms of arbitrators to the CAS list. In February 2010, the SFT dismissed her application. During the same year, the case arrived before the ECtHR, together with the one of the Romanian footballer Adrian Mutu. Both applicants submitted that the CAS could not be regarded as an independent and impartial tribunal. Pechstein also complained that she had not had a public hearing before the ISU disciplinary board, the CAS or the SFT, despite her requests. The final judgment arrived in 2018. For what concerned public hearing, the ECtHR established that, in accepting the jurisdiction of the CAS, Pechstein had not waived “freely, lawfully and in an unequivocal manner” her fair trial rights under Article 6 (1) of the European Convention on Human Rights (ECHR). The Strasbourg Court considered that she had been left without alternatives. Refusing the arbitration clause would have obliged her to give up her career, depriving her of the possibility to earn her living by practicing her sport at professional level. With regard to independence and impartiality instead, the ECtHR concluded that the influence exerted by the organizations appointing arbitrators to the CAS list was not sufficient to establish that the list itself was composed of arbitrators who could not be regarded as independent and impartial in respect of those organisations. The applicants’ complaints regarding the independence and impartiality of the CAS were therefore dismissed, being there no violation of article 6 (1) rights in that respect[3]. In the end, Strasbourg granted just satisfaction to Pechstein following to the violation of Article 6 (1) on account of the non-public nature of CAS proceedings, holding that Switzerland had to pay her the sum of 8,000 euros in respect of non-pecuniary damage[4].

The ECtHR judgment has been widely regarded as a victory for athletes in general and, in 2018 (at age 45), Claudia Pechstein was still competing in the Pyeongchang Winter Olympics. Which is therefore the moral of her story? If there is any, it is that CAS arbitration wields a tremendous power on the lives of thousands of athletes worldwide. Through arbitration clauses present in statutes and contracts, the CAS acts as the appeal body for the Olympic movement and the near totality of international sporting federations, and it is no exaggeration to say that it holds power “of life and death” on the career of a professional athlete. Especially in disciplinary matters, where a ban for doping can take away years from careers that are usually much shorter than Pechstein’s at best, and brand a person for life at worst. Furthermore, the Pechstein case shows how costly can be to challenge and overturn a CAS award in terms of time and resources. What is the CAS then, exactly? Created by the International Olympic Committee (IOC) in 1983 and seated in Lausanne, the CAS is regulated by “Code of Sports-related Arbitration” (hereinafter “CAS Code”) [5] and, from 1994, placed administratively under the International Council of Arbitration for Sport (ICAS) [6], which is also responsible for the financing of and financial reporting by the CAS. From a normative standpoint, it is an independent and autonomous body with the mandate of resolving, through arbitration or mediation, “disputes arising within the field of sport”[7] which can be submitted to it either through an “arbitration clause inserted in a contract or regulations or of a later arbitration agreement”[8] or following to an “appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provides for an appeal to the CAS”[9]. Arbitrators and mediators are appointed to the CAS list[10] by the ICAS for renewable periods of four years[11] and the President of the ICAS is also the President of the CAS[12]. The CAS has been sometimes described as an “unidentified legal object”[13]. According to Černič, “it is not part of ordinary court systems”[14]. McLaren describes it as “a forum for the world’s athletes and sports federations to resolve their disputes through a single independent and accomplished sports adjudication body”[15]. Not a classical arbitral tribunal, nor an international court, a forum or a governing body. Casini, for instance, highlights the complexities of its hybrid institutional role at the gravitational centre of the lex sportiva galaxy. He identifies multiple “souls” at once within it: arbitral tribunal, court of appeals, criminal court, constitutional court, cour de cassation, harmonizer of global norms and legal principles[16].

Indeed, one can observe that the Statutes envisage a tripartite CAS structure, with an Ordinary Arbitration Division covering traditional arbitral functions, an Anti-Doping Division (with first and/or sole instance jurisdiction on anti-doping disputes) of which the proceedings and type of decisions de facto recall the ones of criminal courts and lastly, an Appeals Arbitration Division, which concentrates in itself various of the distinctively “public” features of appeals, cassation and constitutional courts[17]. The most convincing interpretation has been probably given by Duval. From a more nuanced perspective, he identifies the CAS as a “seamstress of transnational law”[18]. In other words, Duval emphasises the natural role of the CAS as a hub for integration between different (national, international, supranational and transnational) jurisdictions and legal systems. An “inter-legality hub”[19], a place in which principles, values, legal norms, standards and codes of conduct originating from both private entities and public institutions collide, producing a variety of hybrid normative outcomes in the form of arbitral awards. Finding ways to ensure fair trial rights in the CAS not only necessitates thorough understanding of CAS itself and of its unique nature as an institution, but also of what exactly is intended with “fair trial rights”. Just as the CAS represents an extremely peculiar normative and institutional context, “fair trial rights” also stands as an umbrella term representing a diversified range of rights, which differently adapt and apply to the context of the CAS in particular and to the one of the transnational system of lex sportiva in general. Within the framework of international and regional human rights law, fair trial rights are protected to varying degrees in multiple legal instruments. The most relevant provisions are represented by article 10 of the Universal Declaration of Human Rights (UDHR), articles 14 and 16 of the International Covenant on Civil and Political Rights (ICCPR); 3, 7 and 26 of the African Charter on Human and Peoples’ Rights (ACHP); 3, 8, 9 and 10 of the American Convention on Human Rights (ACHR); 5, 6 and 7 of the ECHR. International humanitarian law incorporates as well basic elements of fair trial rights within the Geneva Conventions and Additional Protocols[20]. The CAS is geographically grounded in the Swiss national legal order which is, in turn, part of the ECHR regional system of human rights law. It follows that the main normative references with regard to fair trial rights in the context of the CAS are article 190 (2) of the Swiss Federal Code on Private International Law and article 6 (1) of the ECHR[21].

In his study on the applicability of fair trial guarantees to CAS arbitration, Černič breaks down the right to a fair trial in a number of components which include: the right to a fair hearing[22], the right to an independent and impartial tribunal established by law, the right to a public hearing  and public pronouncement of judgments, the right to a fair trial within a reasonable time. Of course, it would greatly exceed both the scope and the objective of this paper to address all of them[23]. It could be more convenient, instead, to look at the aspect under which there is, in practice, more scope for improvement: the right to an independent and impartial tribunal. In the peculiar context of the CAS, that also represents the one element with potentially wider and deeper systemic implications not only on CAS arbitration itself, but on its influence on the global architecture of sports law and governance in general. Especially following to the ECtHR landmark decision in Mutu and Pechstein v. Switzerland, it has been definitely recognised that the CAS cannot be treated anymore as a traditional arbitral tribunal. Indeed, one could say that the final outcome of the Pechstein saga has been to confirm the existential doubts on the unique nature of the CAS as a still relatively unidentified legal object. By equating the CAS to a “tribunal established by law” and recognising that its jurisdiction is not based on free consent, but rather on a dense and intricate web of arbitration clauses present in contracts and regulations, the ECtHR subjected the CAS to full compliance with article 6 (1). More than that, it opened a sort of Pandora’s box, establishing that the benchmark against which CAS proceedings have to be assessed resembles much more the one applicable to public courts than the one of traditional arbitration. It is no mystery that the Pechstein decision and its far-reaching implications are a direct consequence of two interconnected phenomena: the monopoly of power exercised by international and national Sports Governing Bodies (SGBs) on the governance of sports at the global level and the power imbalance between SGBs and athletes leading to forms of non-consensual (post-consensual?)[24] arbitration.

For instance, Duval talks about a change of paradigm happening after Pechstein, with the ECtHR moving away from the private law/international commercial arbitration paradigm “in order to capture the fundamentally public function of the SGBs”, the public character of their power over athletes which, under many aspects, closely resembles the one of a “functional sovereign”[25]. Once established that the CAS must comply with article 6 (1) in terms of fair trial guarantees, it remains then to be seen how. For what concerns the “post-Pechstein era”, it can be said that the greater share of hopes had been placed on public hearing and pronouncement and therefore, on the enhancement of transparency in CAS proceedings[26]. These (well-founded) hopes were in line with the passages of Pechstein in  which the Strasbourg Court left its mark. In considering that Claudia Pechstein had the right to a public hearing, the ECtHR triggered an amendment of article R57 of the CAS Code, with the amended version providing for the possibility, upon request, of public hearings in matters of a disciplinary nature (which characterise most disputes decided on appeal)[27]. Furthermore, after Pechstein, the CAS is required to publish systematically its appeal awards in order to comply with article 6 (1)[28]. The push for transparency was not only based on the effects of Pechstein, but on the broader idea that the unique position of the CAS within the system of lex sportiva should be used to transform the CAS itself into a “true counter-power subjected to the critical scrutiny of a highly interested global public”[29], with a view to pushing the transnational governance of sports towards some form of democratization.

The enhanced degree of CAS transparency deriving from public hearings and public pronouncements has been described as the necessary “pre-condition for democratic procedures”[30] in the system of transnational sports governance and has been, in the wake of Pechstein, also the aspect on which more progress has been made. What has been called by Peters “compensatory transparency” is not however, the only necessary pre-condition to ensure fair trial rights in the CAS and, in turn, for any tentative “democratisation” of lex sportiva. The other necessary precondition would be represented by substantial guarantees of independence and impartiality. This aspect has also been touched upon by the ECtHR in Pechstein, with the majority holding that: “there are insufficient grounds for it to reject the settled case law of the [SFT] (Swiss Federal Tribunal) to the effect that the system of the list of arbitrators meets the constitutional requirements of independence and impartiality applicable to arbitral tribunals, and that the CAS, when operating as an appellate body external to international federations, is similar to a judicial authority independent of the parties”[31]. However, as emphasised by Star and Kelly[32], the dissenting opinion of judges Keller (from Switzerland) and Serghides (from Cyprus) leaves an extremely important door open for further developments. The two judges held that: “the structure and composition of the CAS do not meet the requirements of independence and impartiality prescribed in article 6 (1) of the Convention”[33]. With regard to the complaints concerning a lack of independence and impartiality raised by Claudia Pechstein, Keller and Serghides critiqued the majority for having failed to formulate an interpretation autonomous from the one of the SFT, which held that the 1994 reform establishing the ICAS was sufficient to make the CAS list of arbitrators satisfy the constitutional requirements of independence and impartiality applicable to arbitral tribunals. Most importantly, the dissenters drew different conclusions from three, fundamental, factual premises concerning the structure and composition of ICAS and CAS. Firstly, that the organisations having the power to appoint CAS arbitrators “all represent one party in the arbitration — the sports bodies and not the athletes”, organisations which might be involved in disputes with athletes themselves. Secondly, clearly stating that “the majority of the members of the ICAS and of the CAS are representatives of those organisations. As to the ICAS, twelve (i.e.three fifths) of its members are appointed by the organisations”, therefore recognising that said organisations retain a “not insignificant influence on the composition of the ICAS”[34].

At the relevant time for the dispute, the same organisations were the ones submitting the list based on which the ICAS appointed three fifths of CAS arbitrators, with another fifth chosen to “safeguard the interests of the athletes” and the remaining one filled with “independent experts”. The dissenters further remarked that the more general provision 35 substituting the “one fifths” appointment mechanisms (after its abolition in 2012) had not improved the situation, concluding that “… no rule currently provides that athletes must be represented, but for the one fifth  of members of the ICAS”[36], explicitly recognising that, in practice “… the majority of the members of the ICAS and of the CAS are representatives of those organisations”[37]. Thirdly, Keller and Serghides acknowledged that the system though which CAS arbitrators are selected grants to the organisations involved (the SGBs) a “disproportionate and unjustified “influence” over the procedure for choosing the arbitrators who are responsible for settling disputes between the organisations and the athletes”[38]. Recalling the terminology used by the Court twenty years before in Gautrin and Others v. France (1998), they famously defined the existing link between the ICAS and the organisations (SGBs) as “worrying”. The dissenters disputed the majority’s conclusion that undue influences on independence and impartiality have to be tested “on an individual basis” (e.g. for each arbitrator or majority in question), retaining instead that: “… it is not sufficient for the arbitrators to be impartial on an individual basis if the organisation’s general structure has no appearance of independence or impartiality”[39].

For instance, drawing an interesting parallel, the judges observed that, on the basis of the Court’s case law, if the Court itself was called upon to analyse the composition of an employment tribunal, “it would always make sure that the composition is balanced. It would not accept an employment tribunal made up (almost) exclusively of employers’ representatives, and this would be the case even if the representative in a given case were impartial”[40]. Further reasons include the fact that CAS arbitrators may be removed at any time by the ICAS on the basis of a decision with “brief reasons”[41], that the presidents of the divisions of the CAS are ICAS members, that the president of ICAS and CAS is the same person and that the CAS Secretary-General is also appointed by the ICAS. In addition to that, the system for the choice of arbitrators by the parties is closed, which means that athletes are de facto forced to choose their arbitrator from a closed list selected by the ICAS. One must also keep in mind that it is the ICAS itself which has the power to amend the Code[42]. For what concerns one of the most significant issues in the field of arbitration in general, namely the appointment of the third arbitrator, it is paradigmatic that, in case the parties fail to reach agreement, the presidents of CAS divisions (which are also ICAS members) are responsible for appointing the presidents of the panels. Finally, the dissenters’ reasoning also spilled over the recurrent theme of the nature of the CAS, pointing out its nature of arbitral institution without legal personality, itself part of the ICAS, another Swiss private-law foundation[43]. On these grounds, Keller and Serghides concluded that “the CAS presents no appearance of independence and that, more generally, does not offer the safeguards of Article 6 (1) of the Convention”[44], recalling several times that the lack of independence and impartiality represents a “fundamental problem” of CAS arbitration and, even more importantly, that the above-mentioned elements constitute “structural problems” of the CAS as an institution[45].

It is highly probable that, in a not too distant future, another Pechstein will come to shake the foundations of the Château de Béthusy. In that case, the view of the dissenters on independence and impartiality might well become the one of the majority. 5. Should the interpretation of Keller and Serghides become the dominant one in a future case before the ECtHR, satisfying the requirements of article 6 (1) would probably entail targeted, albeit radical, amendments to the CAS Code, involving both the Statutes and the procedural rules. It should be kept in mind, however, as noted by Rigozzi[46], that article 6 (1) is, indeed, self-executing, but that the extent to which the CAS  would apply its guarantees in practice will depend on how the SFT will exercise its review powers and sanction violations. To begin with, the composition of the ICAS should change in order to become balanced and representative of the interests involved in potential disputes. Its composition and appointment mechanisms should bemodified to limit the excessive influence of SGBs and introduce meaningful and substantial athlete participation. Apparently small, but potentially groundbreaking, amendments would be, for instance, the modification of the “chosen from within or from outside its membership” part of article S4 on the ICAS appointment mechanism, excluding the possibility for SGBs to appoint ICAS members from within their membership. For what concerns former membership, a significant cooling-off period could be introduced[47]. Further amendments could be made to re-equilibrate the proportion of ICAS members appointed by SGBs with respect to the one appointed “with a view to safeguarding the interests of the athletes”. One hypothetical appointment mechanism could consist in assigning five appointments to SGBs, other five to a body representative of athletes at the global level (e.g. the World Players Association, WPA [48]).

The remaining ten members could be jointly appointed by the ones listed above. All members appointed could, as stated above, be chosen from outside the memberships of the bodies appointing them and from personalities regarded as independent from them. With regard to that, one should remember that representativeness and independence are not mutually exclusive, but rather mutually reinforcing. Ensuring a balanced, representative appointment mechanism does not mean that the personalities appointed should not be subject to formal and substantial requirements of independence. It might be not sufficient, as proposed by Rigozzi, to ensure that a majority of ICAS members have “no links” with SGBs, if athletes have no possibility of participating, even if indirectly, in the appointment mechanisms[49]. Modifying the appointment mechanism and composition of the ICAS could trigger a domino effect on the composition of the CAS list of arbitrators and, in turn, place effective guarantees on the independence of key figures such as the president of CAS, the presidents and vice-presidents of CAS divisions, the CAS secretary-general and the presidents of single panels (in case agreements is not reached). With regard the to the CAS list itself, article S14 could be amended by inserting the WPA as one of the bodies with the power of “bringing names and qualifications to the attention of ICAS” together with SGBs and their athletes’ commissions. Additional measures aimed at increasing transparency could be introduced to complement the aforementioned ones on independence and impartiality[50]. Above all, making the minutes of ICAS meetings public, therefore making it cease to be a “black box”[51], as it has sometimes been labelled. The configuration of the CAS mirrors the politics which stand at the foundations of the global system of lex sportiva, the structural power balances and deep asymmetries which characterise the relationship between those who govern (national and international SGBs) and those who are governed (athletes), between those who decide the rules of the game and those who play it. With regard to that, Duval makes an extremely interesting point in the conclusion, affirming that: “… the age of entanglements calls for a relentless critique of the politics lurking behind the textual assemblages (…) if the CAS is in a position to assemble its awards relatively freely, in light of the extremely limited control exercised by the SFT and the high costs of challenging a CAS award elsewhere, then we must seriously consider those who are doing the assembling. Who are they? How is their legitimacy and authority justified? Are they sufficiently impartial and independent from the SGBs? How are they selected? What are the mechanisms in place to prevent the rise of conflicts of interests?”[52]. The answer to Duval’s pivotal questions lies in the ambitious undertaking of recreating a transnational democratic space in sports law. It follows from it that democracy is created with democratic participation. Without meaningful participation, it is hardly possible to qualify anything as “democratic”. Applying this reasoning to the context of sports law, whose participation is necessary to recreate all democratic guarantees within the transnational space? The participation of athletes. In a parallel with the democratic State, the “citizens” par excellence inhabiting the transnational space of lex sportiva are athletes themselves.

Therefore, the composition, structure and independence of the CAS in relation to athletes’ human rights are indicative of the level of democratic participation enjoyed by athletes in transnational sports law. If it is true that “Sports judicial mechanisms display many more similarities with public international law regimes than with private ones”[53], more attention should be devoted in the future to the meaningful participation of athletes in the power mechanisms of the CAS, given its double function of apex dispute-settlement body and maker/harmoniser of lex sportiva. The disproportionate influence of SGBs is not acceptable anymore in the context of an organism routinely taking far-reaching distributive decisions, which are extremely hard to challenge and overturn. Being subject to “global attention and intense scrutiny”[54] is not enough anymore, and neither are the possibility of using the SFT as the “closing gate of the system”[55] or directly weaving ECHR principles and jurisprudence into arbitral awards[56], as emphasized by Casini and Duval. Only a re-equilibration of power in ICAS/CAS governance through participation would ensure adequate protection of procedural and substantial human rights of athletes in the decision of cases, and therefore in the making, harmonisation and enforcement of lex sportiva at large. One should remember that the CAS is a brainchild of the IOC, and therefore of the Olympic movement. After all, the mainstay of the Olympic spirit is found in that famous, apocryphal motto: l’important c’est de participer.

References:

1. Erroneously attributed to Pierre de Coubertin. The phrase was first pronounced by Ethelbert Talbot, Anglican Bishop of Pennsylvania. (See: LeMonde.fr,         https://dicocitations.lemonde.fr/citations/citation-4707.php)

2. See: ‘Claudia Pechstein mulled suicide’, ESPN (8 November, 2010), available at https://www.espn.co.uk/olympics/news/story?id=5779730.
3. 3 For an in-depth commentary of the Pechstein case before the ECtHR and an exhaustive analysis of the requirement of independence and impartiality under article 6(1) in the context of the structural independence of the CAS see: A. RIGOZZI, ‘Sports Arbitration and the European Convention of Human Rights – Pechstein and beyond’, in C. MÜLLER, S. BESSON, A. RIGOZZI (eds) New Developments in International Commercial Arbitration (2020), 86-103.
4. For a summary of the case see: Mutu and Pechstein v. Switzerland, Press Release ECHR 324 (2018), available at https://www.echr.coe.int/Pages/home.aspx?p=home.
5. Code of Sports-related Arbitration, https://www.tascas.org/fileadmin/user_upload/CAS_Code_2021__EN_.pdf.
6. CAS Code, article S4.
7. CAS Code, article S12.
8. CAS Code, article R27.
9. CAS Code, Ibid.
10. The CAS list is publicly available and composed of at least 150 arbitrators and 50 mediators (article S13).
11. The matter is regulated in articles from article S13 to S19 (S14 in particular).
12. CAS Code, article S9.
13. Frydman’s objets juridiques non ou mal identifiés in B. FRYDMAN, ‘Comment penser le droit global?’, Working Papers du Centre Perelman de Philosophie du Droit (2012), 5; quoted in A. DUVAL, ‘Seamstress of Transnational Law: How the Court of Arbitration for Sport Weaves the Lex Sportiva’, in N. KRISCH (ed) Entangled Legalities Beyond the State (Cambridge University Press, forthcoming), 21.
14. ČERNIČ, ‘Emerging Fair Trial Guarantees before the Court of Arbitration for Sport’, 4 ESIL Conference Paper Series 9 (2014), 4.
15. R. MCLAREN, ‘Introducing the Court of Arbitration for Sport: The Ad Hoc Division at the Olympic Games’, 12 Marquette Sports Law Review 515 (2001) quoted in ČERNIČ, Fair Trial Guarantees, 4.
16. 6 L. CASINI, ‘The Making of a Lex Sportiva by the Court of Arbitration for Sport’, 12 German Law Journal 5 (2011), 1317-1340.
17. CAS Code, article S20. Interestingly, according with article S6, the ICAS also nominates the Presidents of the single Divisions.
18. DUVAL, Seamstress of Transnational Law, 21.
19. Y. SHANY, ‘International Courts as Inter-Legality Hubs’, in J. KLABBERS and G. PALOMBELLA (eds) The Challenge of Inter-Legality (Cambridge University Press, 2019), 319- 338; quoted in Duval, Seamstress of Transnational Law, 21.
20. See: N. BHUTA, ‘Joint Series on International Law and Armed Conflict: Fair Trial Guarantees in Armed Conflict’, EJIL:Talk! (September 22, 2016), https://www.ejiltalk.org/ joint-series-on-international-law-and-armed-conflict-fair-trial-guarantees-in-armed-conflict/
21. “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
22. Further articulated in other three elements: right of access, equality of arms, burden and standard of proof.
23. See ČERNIČ, Fair Trial Guarantees, 6-19 for an extensive analysis of each one of the components.
24. On the notion of “post-consensual” see: A. DUVAL, ‘Not in my Name! Claudia Pechstein and the Post-Consensual Foundations of the Court for Arbitration for Sport’, 1 MPIL Research Paper
25. A. DUVAL, ‘Time to go public? The need for transparency at the Court of Arbitration for Sport’, 7 Asser Research Paper (2020), 16.
26. For an in-depth analysis of transparency in CAS arbitration see DUVAL, Time to go public?
27. On the problematic issue of interpreting the “disciplinary nature” of disputes and on interpretation issues surrounding article R57 in general, see: DUVAL, Ibid., 9-11.
28. Article R59 regulates the publication of awards. On CAS’s record of award publication see also: DUVAL, Ibid., 12-14
29. DUVAL, Ibid., 17; DUVAL, Seamstress of Transnational Law, 21.
30. A. PETERS, ‘Towards Transparency as a Global Norm’, in A. BIANCHI, A. PETERS (eds) Transparency in International Law (Cambridge University Press, 2013), 556.
31. Mutu and Pechstein v. Switzerland, 2 October 2018, para. 157.
32. S. STAR and S. KELLY, ‘A level playing field in anti-doping disputes? The need to scrutinize procedural fairness at first instance hearings,’ International Sports Law Journal (2020).
33. Mutu and Pechstein v. Switzerland, 2 October 2018, Dissenting Opinion of Judges Keller and Serghides, para. 2.
34. Mutu and Pechstein v. Switzerland, Ibid., para. 8.
35. CAS Code, article S14.
36. Mutu and Pechstein v. Switzerland, Ibid., para. 10.
37. Mutu and Pechstein v. Switzerland, Ibid., para. 9.
38. Mutu and Pechstein v. Switzerland, Ibid., para. 11.
39. Mutu and Pechstein v. Switzerland, Ibid., para. 13.
40. Mutu and Pechstein v. Switzerland, Ibid., para. 13.
41. See: CAS Code, article R35 and para. 155 of the judgement
42. CAS Code, article S6 (1).
43. Mutu and Pechstein v. Switzerland, Dissenting Opinion, para. 22.
44. Mutu and Pechstein v. Switzerland, Ibid., para. 15.
45. Mutu and Pechstein v. Switzerland, Ibid., para. 30.
46. RIGOZZI, Sports Arbitration, 94.
47. The Code could envisage a symmetrical cooling-off period varying accordingly to the number of years of membership. For instance, a potential ICAS member which has been part of the IOC for seven years should wait seven years at least to result eligible for ICAS membership.
48. The WPA could be considered as the one body effectively representative of athletes at the global level. It currently brings together 85,000 players across professional sport through more than 100 player associations in over 60 countries. From: WPA official website, https:// www.uniglobalunion.org/sectors/world-players/about
49. For a similar set of proposals and an analysis of the role and composition of the new CAS Membership Commission within ICAS, see: RIGOZZI, Sports Arbitration, 94-103. However, in his analysis, Rigozzi does not take into consideration the question of balance, representativeness and participation with regard to athletes when formulating his proposals on the structural independence of the CAS.
50. Measures such as the proposed ones could significantly strengthen the guarantees offered by the already-existing challenge procedures on the grounds of legitimate doubts on independence (arts. S7 and S11) and by the formal undertakings of independence and impartiality envisaged for ICAS members in article S5, similarly for CAS arbitrators in recently amended article S18.
51. DUVAL, Time to go public?, 15.
52. DUVAL, Seamstress of Transnational Law, 21.
53. CASINI, The Making of a Lex Sportiva, 1340.
54. As remarked by Duval with regard to the role of global public opinion in the Semenya case, an illuminating example of how the human rights of athletes (including questions connected to gender and sexuality) are dealt with in the CAS. Notwithstanding the relevant external role of global public opinion, the Semenya case stands out as a clear indicator of both the lack of meaningful athlete participation and human rights-specific expertise in the tribunal. On the Semenya and the Dutee Chand cases and their wider implications see: L. HOLZER, ‘What Does It Mean to be a Woman in Sports? An Analysis of the Jurisprudence of the Court of Arbitration for Sport’, Human Rights Law Review (2020), 387-411 (especially the section on the systemic inequality of the “international sporting structure”, at 406-410).
55. CASINI, The Making of a Lex Sportiva, 1337.
56. DUVAL, Seamstress of Transnational Law, 21.