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Arbitration in Switzerland The Practitioner’s Guide Arbitration in Switzerland The Practitioner’s Guide Second edition Volume II Edited by Dr. Manuel Arroyo, Attorney-at-Law, LL.M. Published by: Kluwer Law International B.V. PO Box 316 2400 AH Alphen aan den Rijn The Netherlands E-mail: [email protected] Website: lrus.wolterskluwer.com Sold and distributed in North, Central and South America by: Wolters Kluwer Legal & Regulatory U.S. 7201 McKinney Circle Frederick, MD 21704 United States of America Email: [email protected] Sold and distributed in all other countries by: Air Business Subscriptions Rockwood House Haywards Heath West Sussex RH16 3DH United Kingdom Email: [email protected] Printed on acid-free paper. ISBN 978-90-411-9237-0 (Vol. I 978-90-411-9238-7, Vol. II 978-90-411-9239-4 – not sold separately) e-Book: ISBN 978-90-411-9274-5 web-PDF: ISBN 978-90-411-9307-0 © 2018 Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. More information can be found at: lrus.wolterskluwer.com/policies/permissions-reprints-and-licensing Printed in the United Kingdom. Chapter 15 The CAS Procedural Rules © Court of Arbitration for Sport (CAS). The CAS Procedural Rules are available online: <http://www.tas-cas.org/en/arbitration/code-procedural-rules.html>. The text reproduced here is valid at the time of reproduction [June 2018]. As amendments may be made from time to time, please consult the CAS website <http://www.tas-cas.org/en/index.html> for the latest version. 1419 Part I: Introduction to the CAS Code1 I HISTORY, STRUCTURE AND FUNCTIONING OF THE CAS On the eve of the 1980 Winter Olympic Games in Lake Placid, the International 1 Olympic Committee (IOC) was sued before the US courts in relation to a conflict regarding the flag under which the Taiwanese athletes were going to compete. This premiere in Olympic history led the IOC to envisage the creation of a specialized arbitral tribunal, which would have jurisdiction to hear sports disputes and could render awards having the same binding force as the decisions of state courts. Around the same time, athletes in various countries began to challenge their doping suspensions before the national courts. The damages claimed were so high that, had they been awarded, they could have meant the bankruptcy of the sports-governing bodies which had issued the challenged decisions. It is against this background that the statutes creating the Court of Arbitration for Sport (CAS) were ratified, in 1983.2 The CAS’s primary aim was to avoid the intervention of State courts, by resolving sports disputes through a specialized tribunal within the family of sport. Today, sports arbitration is a seemingly ever-growing industry,3 and the CAS as an 2 institution has become known worldwide, in particular because of the highly visible activity of its Ad Hoc Divisions at the Olympic Games4 and its rulings in several important cases involving top athletes or clubs. Under the supervision of the Swiss Federal Supreme Court, the CAS has evolved, over the years, in both its structure and functioning. It now truly stands, on a global level, as the most effective forum to protect athletes’ rights. Indeed, in its well-known Lazutina decision of 2003 the Swiss Supreme Court defined 3 the CAS as “one of the main pillars of organized sport” and emphasized the fact that there is “no viable alternative to this institution, which can resolve international sports-related disputes expeditiously and inexpensively”. 5 In the same decision, the Court described the history, structure and basic functioning of the CAS as follows: “The CAS was officially created on 30 June 1984, when its Statute came into force. Its function was to resolve sports-related disputes and its headquarters were established in Lausanne. An independent arbitral institution without legal personality, it was originally composed of 60 members, 15 appointed by the [International Olympic Committee] IOC, 15 by the [International Federations] IFs, 15 by the [National Olympic 1 The authors would like to acknowledge the invaluable contributions of William McAuliffe and Brianna Quinn, senior associates, and Juliette Platania, paralegal (all of Lévy Kaufmann-Kohler), Lauren Pagé, Charlotte Perret, Fanny Hostettler and Eléonore Gallopin (all previously with Lévy Kaufmann-Kohler), and Barbara Abegg (previously with TIMES Attorneys) and Simone Huser, associate (of TIMES Attorneys). 2 The CAS became operational when its statutes entered into force, in June 1984. Cf., e.g., M’Baye, Une nouvelle institution d’arbitrage, le Tribunal Arbitral du Sport, Annuaire Français de Droit International, 1984, pp. 409–424; Reeb, The Court of Arbitration for Sport: History and Operation, CAS Digest III, pp. xxvii-xxxv; Rigozzi, paras. 230–250. 3 Nafziger, Arbitration of Rights and Obligations in the International Sports Arena, Valparaiso University Law Review 2001, pp. 357–359. 4 For a comprehensive analysis of the Ad Hoc Division’s work, see Kaufmann-Kohler, Arbitration at the Olympics, The Hague, Kluwer Law International, 2001. 5 BGE 129 III 445 para. 3.3.3.3; Yearbook Comm. Arbitration XXIX (2004), p. 207. 1420 Arbitration in Switzerland – The Practitioner’s Guide Committees] NOCs and 15 by the IOC President. The operating costs of the CAS were borne by the IOC, which was entitled to modify the CAS Statute. In a judgment issued in 1993, the Federal Supreme Court expressed reservations concerning the CAS’ in- dependence vis-à-vis the IOC on account of the organizational and financial links between the two bodies. It thought that the CAS needed to become more independent of the IOC. This judgment led to a major reform of the CAS. The main developments were the creation of the International Council of Arbitration for Sport (ICAS) in Paris on 22 June 1994 and the drafting of the Code of Sports-related Arbitration (hereinafter the Code), which entered into force on 22 November 1994. A private-law foundation subject to Swiss law (Art. 80 et seq. CC), the ICAS, whose seat is established in Lausanne (Art. S1 of the Code), is composed of 20 members, namely high-level jurists appointed in the following manner (Art. S4 of the Code): four members by the Summer Olympic IFs (3) and Winter Olympic IFs (1), chosen from within or from outside their membership; four members by the Association of the NOCs (ANOC), chosen from within or from outside its membership, four members by the IOC, chosen from within or from outside its membership, four members by the twelve members listed above, after appropriate consultation with a view to safeguarding the interests of the athletes; four members by the sixteen members listed above and chosen from among personalities independent of the bodies designating the other members of the ICAS. The members of the ICAS are appointed for a renewable period of four years. Upon their appointment, they must sign a formal declaration of their independence (Art. S5 of the Code). The ICAS members may not appear on the list of arbitrators of the CAS nor act as counsel to one of the parties in proceedings before the CAS; under certain circumstances, they must spontaneously disqualify themselves or [they] may be challenged (Art. S5 and S11 of the Code). According to Art. 3 of the Agreement related to the constitution of the ICAS, the foundation is funded through deductions made by the IOC from the sums allocated to the following bodies as part of the IOC’s revenue from the television rights for the Olympic Games: 4/12 by the IOC, 3/12 by the Summer Olympic IFs, 1/12 by the Winter Olympic IFs and 4/12 by the ANOC. The tasks of the ICAS include to safeguard the independence of the CAS and the rights of the parties (Art. S2 of the Code). Its various functions include adopting and amending the Code, managing and financing the CAS, drawing up the list of CAS arbitrators who may be chosen by the parties, deciding on the challenge and removal of arbitrators and appointing the Secretary General of the CAS (Art. S6 of the Code). The CAS sets in operation panels which have the task of resolving disputes arising within the field of sport. It is composed of two divisions, each headed by a president who takes charge of the first arbitration operations before the panel of arbitrators is appointed: the Ordinary Arbitration Division and the Appeals Arbitration Division (Art. S12 of the Code). The former deals with cases submitted to the CAS as the sole instance (execution of contracts, civil liability, etc.), while the latter hears appeals against final-instance disciplinary decisions taken by sports bodies such as federations (e.g., suspension of an athlete for doping, violence on the field of play or abuse of a referee). The CAS has at least 150 arbitrators, who are not assigned to one particular division (Art. S13 and S18 of the Code). The ICAS draws up the list of arbitrators, which is updated and published (Art. S15 of the Code). It calls upon personalities with legal training and who possess recognized competence with regard to sport, while respecting the following distribution (Art. S14 of the Code) and ensuring, wherever possible, fair representation of the different continents (Art. S16 of the Code): one-fifth are selected from among the persons proposed by the IOC, the IFs and the NOCs respectively, chosen from within its/their membership or from outside; Introduction to the CAS Code – Rigozzi/Hasler/Noth 1421 one-fifth are chosen from among persons independent of these bodies; and, finally, one-fifth are chosen after appropriate consultations with a view to safeguarding the interests of the athletes.