Academic journal article The International Sports Law Journal

The Court of Arbitration for Sport: Provisional and Conservatory Measures

Academic journal article The International Sports Law Journal

The Court of Arbitration for Sport: Provisional and Conservatory Measures

Article excerpt

Introductory Remarks

Sport is now a global business worth more than 3% of world trade. In the enlarged European Union, now comprising 27 Member States, it accounts for more than 2% of their combined Gross National Product. It is hardly surprising, therefore, that sports disputes are on the increase. And, like other industries, the settlement of sports disputes by alternative dispute resolution (ADR) processes is also on the ascendancy, including mediation (1). In other words, without resort to the Courts.

This is not only because litigation is slow, expensive, arcane and unpredictable; but there are also special reasons peculiar to the sporting world. Sports persons and bodies prefer not 'to wash their dirty sports linen in public' but settle their disputes 'within the family of sport'. In other words, amongst others who understand the special characteristics and dynamics of sport, which require quick and informal settlement procedures. This is especially true of selection disputes. In general, parties involved in sports disputes cannot afford to wait months--or even years--to settle their disputes through the Courts, by the sporting and/or business opportunity lost! Traditional arbitration also now suffers from the same ills, having become procedurally complex, inflexible, costly and lengthy.

However, due to the foresight of the former President of the International Olympic Committee (IOC), Juan Antonio Samaranch, a special body for settling all kinds of sports-related disputes, called the Court of Arbitration for Sport (CAS) (2), was set up with the intention of making the CAS 'the supreme court of world sport'. That was in 1983. A year later, the CAS opened its doors for business. During the last twenty-five years, the CAS has lived up to the expectations of its founders and is proving to be a popular (3), fair, effective, relatively inexpensive, confidential and quick forum for the settlement of sports disputes.

The procedure to be followed in CAS Arbitration cases is set out in the Code of Sports-related Arbitration, the latest edition of which dates from January 2004. And the applicable law for determining the dispute is Swiss law, unless the parties agree on another law. The parties may also authorise the CAS to decide the dispute 'ex aequo et bono'.

The CAS handles a variety of sports-related disputes and is the 'final court of appeal' in doping cases under the World Anti Doping Code. It also offers mediation services and 'Advisory Opinions'--a species of 'expert determination' as used in international commerce, but with one important difference: CAS 'Advisory Opinions' are nonbinding. Despite this, however, they are a relatively quick and inexpensive way of clarifying legal issues and thus avoiding expensive and lengthy litigation in the ordinary Courts.

The CAS also offers so-called 'Provisional and Conservatory Measures', which are the subject of this article and a recent CAS Award in a leading football case, both of which will now be reviewed and examined.

CAS Provisional and Conservatory Measures

Article R37 of the CAS Code of Sports-related Arbitration (3rd edition, January 2004) empowers the CAS to offer the parties in dispute certain protective measures (known as 'provisional or conservatory measures') within a very short timeframe. However, no party may apply for such measures "before the request for arbitration or the statement of appeal, which implies the exhaustion of internal remedies, has been filed with the CAS."

If an application for provisional measures is filed, the opponent is given ten days in which to respond or within a shorter time limit where the circumstances of the case so require. In cases of 'utmost urgency', the CAS may issue an order on "mere presentation of the application, provided that the opponent is heard subsequently." (4)

Added to which, article R44. …

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