Does the Court of Arbitration for Sport need a “Grand Chamber”?

The Court of Arbitration for Sport (“CAS”) is designed to offer a flexible, swift, expert and relatively inexpensive means of settling disputes in the sporting field.  During the thirty years or so of its existence, the role of the law in sport has changed dramatically.  As the CAS Panel in AEK Athens v UEFA (CAS 98/200) observed (§156):

“Sports law has developed and consolidated along the years, particularly through the arbitral settlement of disputes, a set of unwritten legal principles – a sort of lex mercatoria for sports or, so to speak, a lex ludica – to which national and international sports federations must conform, regardless of the presence of such principles within their own statutes and regulations …“

The development of autonomous legal principles applicable to sport has been greatly spurred on by the adoption of the machinery of the World Anti-Doping Code (“WADC”).  The WADC is applicable specifically to sport.  There is now a considerable body of CAS case law on various provisions of the WADC.

It is of the very essence of any system of law, of course, that its rules are consistent, accessible and predictable.  Lawyers must be able to advise their clients with a degree of confidence as to what those rules actually are.  It is only with such predictability that the core objectives of swift and inexpensive justice can be achieved.  Without legal certainty, every case, no matter how small and apparently straightforward, will descend into an expensive legal debate.

In this regard, CAS is seriously and obviously failing.  There are now a whole series of important issues in the “lex ludica” which are the subject of diverging strands of CAS case law, which can never be authoritatively resolved because each CAS Panel has full jurisdiction to review the “facts and the law”.  Two examples will suffice.

• The first is proportionality.  One line of cases says that there is a general principle of proportionality which can be applied by CAS so as to reduce even mandatory fixed sanctions if they are      disproportionate and thus contrary to overriding principles of law: Squizzato v FINA (CAS 2005/A/830) at §§10.19-10.26; Puerta v ITF      (CAS 2006/A/1025) at §§11.7.1-11.7.34; FINA v Mellouli      (CAS 2007/A/1252) at §§36-40.  In the high-profile case of UCI v Alberto Contador      (CAS 2011/A/2384), however, a CAS Panel simply ignored that case law and asserted baldly that because a particular penalty was fixed, “…there is no discretion for the hearing body to reduce the period of ineligibility due to reasons of proportionality” (§339).  It is impossible to know where the law currently stands on this issue.

• The second is the issue of intention “…to enhance … sport performance” within the meaning of Article 10(4) of the WADC.  An athlete can secure a reduction in the period of ineligibility for the presence of a specified substance in a sample if he can establish how it entered his or her body and that the      ingestion was not intended “…to      enhance … sport performance”.  It is legal to take a specified substance out of competition.  One line of CAS cases says that taking a specified substance out of competition with the “indirect” intention of enhancing performance in competition is okay: Oliveira v USADA (CAS 2010/A/2107); Qerimaj v IWF (CAS 2012/A/2822).  Another line of cases says the precise opposite: Foggo v NRL (CAS A2/2011); ITF v Kutrovsky (CAS 2012/A/2804).  The same two strands of case law also diverge on whether an athlete has to know that he is taking a particular      specified substance at all.  The result is a state of utter confusion on which sports lawyers have spilt      much ink, and which caused the UK National Anti-Doping Panel in UKAD v Llewellyn to venture the view that the Oliveira line of cases “…should not in future be followed”.  That statement was of course in itself entirely non-binding and so the debate will sadly continue.

These examples, and many others which could be cited if space allowed, show clearly that with a “lex ludica” must surely come some sort of system for resolving the key issues in that body of law definitively.

CAS needs, in my view, a “Grand Chamber”.  When a case is lodged with CAS which raises a point of general importance – the identification of which would be a matter for the President – then the case would be relinquished to a five-arbitrator Grand Chamber for a binding decision on the point.  The rules of CAS would be amended so that future panels were obliged to follow decisions of the Grand Chamber unless satisfied that a ruling was clearly and obviously wrong.

Lawyers would then be able to advise their clients with some clarity as to what the relevant law actually is.  That might well mean less work for ingenious counsel but it would be a good thing for sport in general.