The Court of Arbitration for Sport (CAS), based in Lausanne, Switzerland, has recently published in English and French (July, 2009) a Digest of the Awards made by its Ad Hoc Division (AHD) - a kind of circuit court of the CAS - during the Beijing Olympic Games held from 8 - 24 August, 2008.
The CAS AHD has operated at all the Summer and Winter Games since and including those held in Atlanta in 1996; and will again be in session at the Winter and Summer Games in Vancouver and London in 2010 and 2012 respectively.
The jurisdiction of the CAS AHD is derived from the provisions of article 59 of the Olympic Charter, the latest version of which dates from 7 July, 2007, as follows:
"Any dispute arising on the occasion of, or in connection with, the
Olympic Games shall be submitted exclusively to the Court of
Arbitration for Sport, in accordance with the Code of
The kinds of disputes contemplated by this provision are as follows:
* eligibility disputes;
* doping test results; and
* event results or referee penalties.
Athletes who wish to compete in the Olympic Games are required, in their entry form, to submit all disputes to the CAS AHD whether they wish to do so or not; otherwise they will not be allowed to participate. Quaere: is this a valid and legally binding consent to arbitration? And what are the legal and practical consequences if an athlete steps out of line and refers a dispute to the ordinary courts instead of to the CAS AHD?
The Legal Issues
The basic legal issue here is whether, in these particular circumstances, the jurisdiction of the ordinary courts can be ousted? Or must the athlete first seek arbitration of the particular dispute with the CAS?
Arbitration is a form of alternative dispute resolution; in other words an extra judicial way of settling disputes. As such, the process is consensual; that is, based on the agreement of the parties. In fact, the UK Arbitration Act 1996 requires there to be a written arbitration agreement. In other words, there needs to be evidence of an agreement between the parties in dispute to submit to arbitration. The agreement to refer a dispute to arbitration is a contract in law; and like any other contract requires consent. Such consent must be the result of independent freewill. If a party is forced into a contract against his/her will, the lack of a real and genuine consent will vitiate the contract. In other words, there is no legally binding agreement and nothing to enforce. These are the basic rules of contract law and the essential concept of freewill is not only well known and established in England, but also, generally speaking, in the jurisprudence of the rest of Europe and elsewhere in the world.
If an athlete, in effect, is forced into agreeing to arbitration by the CAS AHD on pain of not being allowed to compete in the Olympic Games - the pinnacle of every athlete's ambitions and dreams - can his/her consent be said to be real and genuine? It is, I think, arguable that it cannot. And, therefore, under general principles of contract law, the athlete, I think, can 'renege' on the so-called written arbitration agreement with legal impunity.
To the best of my knowledge, no such case has been tried before the CAS or the ordinary courts with jurisdiction in the matter. What I can say, with some degree of certainty, is that, before the CAS will accept any case, it must be satisfied that it has actual jurisdiction. This is not a given in every case. The CAS does not have any inherent jurisdiction; only such jurisdiction as is expressly conferred on it. Under the procedural rules of CAS - the Code of Sports-related Arbitration - there must be an arbitration agreement in writing or written evidence of any other document providing for the parties to refer their dispute to the CAS (Art. …