Is CAS Confidentiality Being Eroded?

Article excerpt

One of the attractions of arbitration for settling disputes of various kinds is the confidentiality of the proceedings. This is particularly true of sports disputes, where the sporting community in general do not wish to 'wash their dirty sports linen in public'.

The Court of Arbitration for Sport (CAS), based in Lausanne, Switzerland, since its foundation in 1983, is establishing itself, as its founders intended, as 'the supreme court of world sport'. Its workload is increasing year on year, not only because sport is big business and spawning a wide range of disputes, but also as a result of FIFA becoming a member of the CAS in 2002 as the final court of appeal for football disputes, especially international transfer cases of which every year there are many.

In theory, CAS cases are subject to a general rule of confidentiality. Article R43 of the CAS Code of Sports-related Arbitration 2010 provides as follows:

  "Proceedings under these procedural rules are confidential. The
  parties, the arbitrators and the CAS undertake not to disclose to
  any third party any facts or other information relating to the
  dispute or the proceedings without the permission of the CAS."

However, the last sentence of this Article provides the following exceptions to the CAS general rule of confidentiality:

  "Awards shall not be made public unless all parties agree or
  the Division President so decides."

But, in practice, more and more CAS Awards are being published, (1) especially on the CAS official website. (2) This is particularly due to the fact that the CAS is interested in developing a 'Lex Sportiva' - a discrete and consistent body of sports law - as the following extract at page xxx from Volume II of the CAS Digest of Awards makes clear:

"The "Digest of CAS Awards 1986-1998 " recorded the emergence of a lex sportiva through the judicial decisions of the CAS. It is true that one of the interests of this court is to develop a jurisprudence that can be used as a reference by all the actors of world sport, thereby encouraging the harmonisation of the judicial rules and principles applied within the sports world."

The aim of developing a 'Lex Sportiva' is a noble one, but, in order to achieve it, the Awards of CAS need to be published and made available to a wider audience.

In fact, as the work of the CAS continues to expand and becomes more widely known and discussed, especially in the media and articles in learned journals, the need for such publicity also increases. …