The Making of a Lex Sportiva by the Court of Arbitration for Sport

Article excerpt

Introduction

"Sports law is not just international; it is non-governmental as well, and this differentiates it from all other forms of law" (1). Sports rules are genuine "global law", because they are spread across the entire world, they involve both international and domestic levels, and they directly affect private actors: this happens, for instance, in the case of the Olympic Charter, a private act of a "constitutional nature" with which all States comply (2); or in the case of the World Anti-Doping Code, a document that provides the framework for the harmonization of anti-doping policies, rules, and regulations within sports organizations and among public authorities (3).

Therefore, the global dimension of sport is, in the first instance, normative. A "global sports law" has emerged, which embraces the whole complex of norms produced and implemented by regulatory sporting regimes (4). It includes not only transnational norms set by the International Olympic Committee (IOC) and by International Federations (IFs) - i.e. "the principles that emerge from the rules and regulations of international sporting federations as a private contractual order" (5) -, but also "hybrid" public-private norms approved by the World Anti-Doping Agency (WADA) and international law (such as the UNESCO Convention against doping in sport). Global sports law is made of norms provided by central sporting institutions (such as IOC, IFs and WADA) and by national sporting bodies (such as National Olympic Committees and National Anti-Doping Organizations).

Global sports law, therefore, is highly heterogeneous. It operates at different levels and it is produced by several law-makers. Amongst those, there is one very peculiar body, funded in the 1980s, which has become a key actor in the sport legal system: the Court of Arbitration for Sport (CAS) (6). In the last two decades, the activity of this institution has become extraordinarily important. The number of decisions released by CAS has increased to the point that a set of principles and rules have been created specifically to address sport: this "judge-made sport law" has been called the lex sportiva (7). This formula, which recalls well-known labels like lex mercatoria or lex electronica (8), has been readily adopted and, indeed, its meaning has been extended over time: it can be used, in fact, to refer more generally to the transnational law produced by sporting Institutions (9). In spite of this success, the existence of a lex sportiva is not universally accepted: in 2001, for instance, the Frankfurt Oberlandesgericht stated that "[E]ine von jedem staatlichen Recht unab-hangige lex sportiva gibt es nicht" (10).

In this paper, the term lex sportiva is used in a broad sense as synonym of "global sports law". The formula "global sports law" thus covers all definitions so far provided by legal scholarship (such as lex sportiva or "international sports law" (11)) in order to describe the principles and rules set by sporting institutions. This approach of course raises several problems concerning the very concept of such a kind of law and its binding force (12); other problems include those connected to wider themes such as the emergence of a "global private law" and the formation of "global private regimes" (13).

However, this analysis will not deal with those issues. Instead, it will focus on the actor that is probably most prominent in constructing global sports law: the Court of Arbitration for Sport (CAS).

The purpose of this paper is to examine the structure and functions of this institution, in order to highlight a number of problems concerning judicial activities at the global level more generally. Section 1 will outline CAS' organization and functions, from its inception to the present date. In particular, this section will show how the history of the CAS is reminiscent of a famous German novel based on a biblical saga, "Joseph and his brothers" by Thomas Mann (14). …

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