Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2018/O/5830 International Surfing Association (ISA) v. International Canoe Federation (ICF), award of 5 August 2020 Panel: Mr Patrick Lafranchi (Switzerland), President; Mr Jeffrey Benz (USA); Mr Nicholas Stewart QC (United Kingdom) Surfing / canoeing (Stand-Up Paddleboard (SUP)) Governance of a sport by an International Federation (IF) Validity of the arbitration agreement Scope of the arbitration agreement Applicable law Legal basis to adjudicate a claim regarding the governance of a sport at world level CAS power to partially accept the parties’ claim Consequences of the inter partes effect of the award Recognition of the IF governing a sport at Olympic level according to the applicable criteria 1. Art. 178 of the Swiss Private International Law Act (PILA) establishes a number of prerequisites that any arbitration agreement shall meet in order to be valid. As to the form, under Art. 178.1, the arbitration agreement shall be made “in writing … by any means of communication that establishes the terms of the agreement by a text”. Thus, the parties’ will to arbitrate can be clearly evidenced in writing by a Memorandum of Understanding (MoU), confirmed by an extensive exchange of letters, e-mails, communications and drafts of documents. The absence of the parties’ signature on the document is not relevant since this is not strictly necessary for an arbitration agreement to be valid under Swiss law. As to the substance, under Art. 178.2, to be valid the arbitration agreement shall comply “with the requirements of the law chosen by the parties or the law governing the object of the dispute and, in particular, the law applicable to the principal contract, or with Swiss law”. Pursuant to the applicable Swiss law, a valid arbitration agreement exists if the parties have agreed on its essential elements (essentialia negotii). In this respect, a valid arbitration agreement exists within the meaning of Art. R27 of the CAS Code if the parties have carried out conclusive acts which undoubtedly confirm their acceptance of and commitment to a three-step dispute resolution process in which their failure to reach an agreement in any of the prior states would ultimately result in arbitration before CAS, with binding effect upon them, to the exclusion of the ordinary courts. 2. Once the existence of an arbitration agreement has been admitted, the objective scope of the arbitration agreement is to be interpreted broadly. It should be assumed, absent any limiting language between them or other contrary indication, that the parties wish to confer jurisdiction that is as broad as possible upon the arbitrators. Bearing in mind this principle of utility, the general rules for the interpretation of contracts (i.e. Art. 1 and 18 of the Swiss Code of Obligations - SCO -, and Art. 2 of the Swiss Civil Code - CAS 2018/O/5830 2 ISA v. ICF, award of 5 August 2020 SCC), ascertaining the true and common intention of the parties without dwelling on any inexact expressions or designations they may have used either in error or by way of disguising the true nature of the agreement, shall be applied. The original scope of the arbitration agreement cannot subsequently be altered, limited or have its framework reduced as it is against the principle of good faith established by Art. 2 of the SCC. 3. According to Art. R45 of the CAS Code, absent any agreement of the parties to authorize a CAS panel to decide the dispute ex aequo et bono, it is not possible to decide the dispute on this basis. Moreover, the references made by the parties in the correspondence exchanged and negociations held before entering into arbitration to the regulations of the IOC are not sufficient to ground a valid implicit choice of law made by the parties in favour of the latter to the exclusion of any other applicable law. 4. Swiss law does not provide for the adjudication of the governance and administration of a sport at world level to one IF. Indeed, Articles 60 et seq. of the SCC which regulate the rights of associations are intended to safeguard their independence and autonomy in connection with the administration of their sport but are irrelevant in the specific context of adjudicating the governance and administration of a sport at the world level. The principle of good faith enshrined in Article 2.1 of the SCC encompasses the interpretation of contracts, acts, and even the limitation of rights, and hence may refer to an existing legal relationship or situation, but it cannot create it. Hence, this fundamental legal principle does not encompass the adjudication of the governance of a sport at world level either. Finally, the same conclusion applies to Articles 2 and 5 of the Swiss Act on Unfair Competition (UWG) whose application is subjected to the proof that the Swiss market has been impacted by the conduct of an IF concerning the governance of a sport. 5. An arbitral tribunal can award less than is requested in an arbitration procedure without ruling ultra or extra petita, or impose conditions on its findings, without committing any procedural error. If both parties to the arbitration procedure are bound to the framework of the Olympic Movement (OM), a legal and contractual basis therefore exists for the adjudication of the parties’ dispute concerning the recognition of a sport at Olympic level. Thus, the CAS panel has the power to partially accept the parties’ claims (qui potest plus, potest minus) and may narrow the extent of the parties’ prayers for relief – i.e. limiting its adjudication to the governance and administration of SUP at Olympic level – without engaging in any procedural flaw. 6. Within the legal and contractual framework of the OM, a decision on the governance of a sport will bind the parties to the arbitration procedure with no binding effect on any third party including the IOC (inter partes effect). In particular, such decision will not imply any pronouncement with regard to the recognition of that sport at the Olympic level, its inclusion in the Olympic programme or any kind of official recognition within the OM, that are competences exclusively belonging to the IOC. For the sake of clarity, only the party that has been adjudicated with the governance of the sport at the Olympic level will be entitled to exercise any right or perform any CAS 2018/O/5830 3 ISA v. ICF, award of 5 August 2020 action inherent to such entitlement. Notwithstanding this, in order to avoid any misinterpretation, the party that has not been adjudicated with the governance and administration of the sport at the Olympic level will be free to develop the sport and organise its own sport events outside the IOC sphere. This falls in line with Swiss law. 7. In addition to the general formal criteria i.e. the statute of “Recognized International Federation”, Art. 2.2 of the Recognition Rules contains a list of evaluation criteria to be considered for the recognition of an IF in connection with each sport in accordance with the evidence available. The background of the parties in the sport should also be weighed, in particular, the work that each party has done, respectively, on the promotion, development, popularity, recognition and standardisation of that sport as an international sport. An IF being the first federation in organizing and governing de facto a sport at the international level, but also the only IF that has shown a real and genuine interest in the sport, having made great efforts and spending considerable time and money in its promotion, development and governance, not only at the professional level but also in developing it at the grassroots level, giving financial aid to athletes and high level competition opportunities, de facto fulfils the criteria required by Art. 2.1 of the Recognition Rules of being (i) “the only Federation governing the sport worldwide” and (ii) “Have existed in such capacity for at least five years”. I. PARTIES 1. The International Surfing Association (“ISA” or the “Claimant”), is the international sports federation governing surfing, recognized as such by the International Olympic Committee (the “IOC”). It is an American non-profit public benefit corporation with its headquarters in La Jolla (California, USA). 2. The International Canoe Federation (“ICF” or the “Respondent”), is the international sports federation governing canoeing, recognized as such by the IOC. It is an association incorporated under Swiss law with its headquarters in Lausanne (Switzerland) (individually, ISA and ICF shall be referred to as “Party” and collectively as “Parties”). 3. Both the ISA and the ICF are members of the following Swiss non-profit associations: (i) Global Association of International Sports Federations (the “GAISF”), which is composed of autonomous and independent international sports federations, and (ii) the Association of Summer Olympic International Federations (the “ASOIF”), whose members are international federations governing sports included in the Olympic Games programme. CAS 2018/O/5830 4 ISA v. ICF, award of 5 August 2020 II. FACTUAL BACKGROUND 4. A summary of the most relevant facts and the background giving rise to the present dispute will be developed below based on the Parties’ written submissions, the evidence filed with these submissions, and the statements made by the Parties and the evidence taken at the hearing held in the present case. Additional facts and allegations found in the Parties’ written submissions and the evidence adduced may be set out, where relevant, in connection with the legal discussion that follows. The Panel refers in its Award only to the submissions and evidence it considers necessary to explain its reasoning. The Panel, however, has considered all the factual allegations, legal arguments and evidence submitted by the Parties and deemed admissible in the present proceedings.