Twenty Years On: An Evaluation of the Court of Arbitration for Sport
Kane, Darren, Melbourne Journal of International Law
[An examination of the history of world sport, particularly over the past 50 years, provides ample evidence of the broad range of disputes which can arise both on the field and off it. However, sport is unique because existing municipal and international tribunals are inadequate for dealing with, and adjudicating upon, sporting disputes. These disputes demand adjudication by a jurisdiction both knowledgeable in the subject area and capable of administering justice in a timely manner. Within this context, the Court of Arbitration for Sport was established two decades ago. This new, sport-specific jurisdiction has undergone much change and expansion since its creation. This commentary describes the Court and its structural changes since inception, and thereafter examines the jurisprudential trends in its decisions. Although the Court has developed significantly in the last 20 years, it has some way to go to achieve the goals of its founding architects.]
CONTENTS I Introduction II The Genesis of the CAS III The Early Evolution and Operation of CAS A From the Commencement of Its Jurisprudential Existence to Gundel B The Decision in Gundel: A Defining Moment in the History of CAS C The Paris Agreement and the Creation of the ICAS IV The Development and Performance of the CAS Subsequent to the Creation of the ICAS A The Creation of the Decentralised Offices and Ad Hoc Divisions of CAS 1 The Decentralised Offices of CAS 2 The Ad Hoc Divisions of CAS B The Jurisdiction of CAS and the Ad Hoc Division for the Olympic Games: The Development of a Sports-Specific Jurisprudence 1 The Jurisdiction of CAS and the Ad Hoe Division during the Olympic Games 2 Jurisprudential Trends in the Case Law of CAS and the Development of a Lex Sportiva 3 Enforceability of Awards of CAS by Municipal Courts V Conclusion
Over the past 50 years, international sport and its centrepiece, the Olympic Games, have undergone a metamorphosis of monumental proportions. While athletes were once required to maintain their amateur status so as to qualify for competition in the Games, some of the world's highest paid athletes now compete for gold. Athletes with multi-million dollar employment contracts and even larger commercial sponsorship agreements compete, not only for glory and their place in the history books, but also for extravagant financial gain. This increase in the financial benefit available to top athletes has prompted a rise in both the number and breadth of disputes that have emerged in the sporting arena, particularly over the past two decades. These disputes have created the need for an independent tribunal that is both competent to adjudicate such disputes authoritatively, and sufficiently experienced in the world of international sport. In the past two decades, and certainly since the Ben Johnson affair at the Seoul Olympics in 1988, (1) rules governing the use of performance-enhancing drugs in sport have become increasingly relevant, as athletes search for even the smallest competitive advantage. Today, it is also quite common for an athlete to challenge representative selection decisions and even rulings of officials in competition.
In 1983, the International Olympic Committee ('IOC') recognised the obvious need for a tribunal to determine both national and international sporting disputes, and commenced the constructive process of what would become known as the Court of Arbitration for Sport ('CAS'). The function and structure of this body have undergone many changes since its jurisprudential birth in 1986.
This commentary is divided into two parts. The first provides an overview of the CAS in terms of its necessity, function, constitution and independence, with conclusions drawn about its present structure and autonomy. …