Court of Arbitration for Sport:- Winter 2016/2017- Case Round Up

This article looks at a number of the decisions made by the Court of Arbitration for Sport (“CAS”) between December 2016 and February 2017. For details of all the decisions made by CAS in this period, please consult their website. A video version of this article can be found via this link :- Youtube:- SportsLawin5

1. An appeal by a Turkish weightlifter was dismissed on 8 December 2016, illustrating the Court’s strict approach to an anti-doping rule violation.

Sibel Ozkan Konak, was originally found guilty by the IOC Disciplinary Committee on 21 July 2016 for an anti-doping rule violation. A substance called Stanozolol (a steroid) had been found in a urine sample taken whilst she was competing in the Beijing Olympics. Konak had her competition results declared void and was ordered to return her silver medal. She subsequently filed an appeal at CAS against the ruling.

The appeal was given short shift by the sole arbitrator Hon. Michael J Beloff QC who described the case as ‘straightforward’. Beloff stated that any arguments about the degrees of fault of the athlete were irrelevant. The presence of Stanozolol in the body is prohibited by the Olympic anti-doping rules, and this drug was discovered in Konak’s sample. As a result there was no other option but to impose a sanction, and the appeal was dismissed.

2. In contrast to the weightlifter case, on 23 January 2017 the Belarus Canoe Association managed to get a ban for an anti-doping rule violation overturned on appeal.

On 15 July 2016, the International Canoe Federation imposed a one-year competition ban on the whole Belarusian men’s canoe/kayak team including coaches, staff and athletes, due to a number of alleged doping violations. The allegations were made after French police raided the Belarusian training camp in April 2016. At the raid a number of doping substances and equipment were confiscated and after the raid five of the athletes subsequently tested positive. After appealing to CAS a panel of arbitrators found there was not enough evidence to justify banning the whole Belarusian canoe team and overturned the ban.

3. On appeal, CAS reduced the sanctions imposed on Real Madrid CF for breaching FIFA rules on the transfer of minors.(20 December 2016)

The FIFA Appeal Committee originally found that Real Madrid had breached a number of articles in FIFA’s regulations on the Status and Transfer of Players. Primarily the breach concerned Article 19, which prohibits the international transfer and first registration of foreign players under the age of 18, except in limited circumstances. After a FIFA appeal, Real Madrid appealed to CAS who amended FIFA’s decision as follows:-

1. Real Madrid were banned from registering any new players (international or national) for one transfer period (previously two); and

2. Real Madrid had to pay a fine of 240,000 Swiss francs (previously 360,000).

The arbitrator explained that Real Madrid’s infractions were less serious than was being argued by FIFA’s judiciary bodies, and as such while the ruling was upheld, the sanctions would be reduced.

While Real Madrid welcomed the sanction reduction they argued CAS should have revoked the ruling entirely. On the other hand, many Catalan commentators argued Madrid received favourable treatment. They point to the fact that Barcelona had an appeal for similar violations dismissed in 2014. Either way, with many top European football clubs increasingly looking to recruit young talent in order to gain a competitive advantage, CAS will inevitably deal with this issue again.

4. On 2 February 2017, CAS decided on an employment law dispute between Turkish footballer Hakan Calhanoglu (the “Player”) and Trabzonspor FC (the “Club”).

In April 2013 the club filed a complaint with the FIFA Dispute Resolution Chamber (“FIFA DRA”) claiming the Player had breached the terms of his employment contract without just cause when he signed for another football team in Germany. In January 2016 the FIFA DRA imposed on four-month period of ineligibility on the player. The Player and the Club appealed, with the Player asking for a stay of the four-month ban pending the outcome of the CAS hearing whilst the Club sought compensation.

The panel of arbitrators found the Player had breach the FIFA regulations on the Status and Transfer of Players and dismissed the Player’s appeal. However CAS allowed the Club’s appeal and ordered the Player to pay 100,00 euros in compensation to the Club.

5. CAS usually acts as a final court of appeal, however in the below case, due to suspension of the All Russia Athletics Federation, it acted as a court of first instance.

The case, decided on 23 December 2016, involved a Russian athlete, Anastasiya Bazdyrera (“Athlete”) and Russian coach Vladimir Mokhnev (“Coach”). The Player was found to have breached Article 32.2 (b) of the IAAF competition rules on use of a prohibited substances/methods and was given a two year ban. The coach was found guilty of violating IAAF rules on the possession, trafficking and administration of banned substances and was banned for 10 years.

 

 

 

 

The Court of Arbitration for Sport

The Court of Arbitration for Sport (“CAS”) has been in existence for over 30 years, with the first case being submitted in 1986. In this time sport has increasingly become a multi billion-dollar industry and the number of parties using the CAS is growing every year. This is illustrated by the fact that since 1986 over 3,000 requests for arbitration have been filed and 407 of these were filed in 2013 alone.

This article will briefly outline what the CAS does, from where it derives its authority and provide an overview of how it works.

What is the CAS?

The CAS was the brainchild of the International Olympic committee (“IOC”) and its statute came into force on 30 June 1984. Despite it links to the IOC, the CAS is not connected to any other sporting bodies, particularly following reforms in the early 1990’s. It is an independent institution, and the ‘awards’ that it makes have the same authority as a Court decision.

How does it work?

Arbitration is a form of alternative dispute resolution where parties submit a dispute to the arbitrator(s) and agree to be bound by the ‘award’. For a dispute to be heard in the CAS it needs to be sports related, directly or indirectly and the parties must agree in writing that the case is to be submitted, which can either happen prior to the dispute has arisen or afterwards. Most often it is agreed in a commercial contract or contained in a sporting bodies regulations that the CAS will apply when a dispute arises. Once the CAS makes an award, there are very limited avenues for further appeal.

Broadly speaking there are three different types of arbitration at the CAS:-

1. Ordinary Arbitration Procedure

This procedure applies to first instance disputes (ie: those not appealed) and parties wishing to submit a dispute to the CAS must send a request for arbitration to the CAS Court office. This type of arbitration applies to around 10% of the caseload and usually takes around 6 – 12 months. Each party chooses one arbitrator from a list provided by the CAS and these two arbitrators agree on who will be president of the panel of arbitrators (“Panel”). If they can’t agree, then the President of the Ordinary Arbitration Division makes this selection. The parties involved in the dispute agree on what national law applies, and if no agreement is reached then Swiss law will apply (The CAS head office is based Lausanne, Switzerland).

2. Appeal Arbitration Procedure

This procedure accounts for around 90% of the CAS caseload, and the CAS is called to rule disputes where a decision has already been made by a sports organisation, regulatory body or disciplinary panel (provided there is a provision for recourse to the CAS within the charter/rules of the sporting body in question).

A party (once it has exhausted all internal appeals avenues) can submit a statement of appeal and each party chooses one arbitrator with the President of the panel being chosen by the President of the Appeals Arbitration Division (in some instances a sole arbitrator can be appointed). Once the appeal file is transferred to the panel an award must be made within 3 months. The arbitrators make their award based on the relevant code or regulations of the sporting bodies.

A good example of this procedure is the recent appeal by the Russian Paralympic committee, which appealed against the decision by the International Paralympic committee to exclude Russian athletes from the Paralympic games. This appeal was dismissed.

3. The Ad Hoc Arbitration Procedure

As the name alludes too, Ad Hoc divisions of the CAS are set up for winter and summer Olympic games. It then has jurisdiction over disputes that arise during the games or in the ten days preceding the opening ceremony (Article 1 CAS Ad Hoc Rules). It works in a similar way to the appeals procedure above but it is designed to provide a resolution in a swift manner to reflect the time scale of the competition in question. For instance a ruling on whether an athlete can compete will be made prior to their event starting.

An example of this during the Rio Olympics, was when on 3 August 2016 the ad hoc division dismissed the appeal of the Russian Weightlifting federation, against its suspension for doping in accordance with the rules of the International Weightlifting Federation.

For more information the Court of Arbitration for Sport visit the website:-

http://www.tas-cas.org/en/index.html