Thread by @Ant1Duval

I really enjoyed talking to Noah about the #CAS.

It’s not the first time I’m coming out publicly to challenge the status quo at the CAS (see dailymail.co.uk/sport/sportsne…) and I’d like to explain a bit why.

[Thread] 👇👇👇

#Sportslaw #Arbitration #Transparency #Independence

https://twitter.com/GlobalAthleteHQ/status/1440332601802125322

1. #CAS is a crucial player in sports governance, it whitewashes legally speaking the decisions of international SGBs. Once a CAS award confirmed a decision of an SGB, the latter gains in authority and becomes extremely difficult to challenge elsewhere (see #Pechstein odyssey).

2. #CAS is not an arbitral tribunal, I repeat #CAS is not an arbitral tribunal! As I have argued elsewhere (nomos-elibrary.de/10.5771/978374…), CAS jurisdiction in appeal cases cannot be grounded on consent, it needs post-consensual foundations (such as the famous ‘level playing field’).

3. This has basically been recognised by the #ECtHR in Mutu/Pechstein. In short, we might tolerate the #CAS even though it’s jurisdiction is not grounded on consent, but then it needs to comply fully with Article 6(1) ECHR.

4. Yet, #CAS is barely supervised by the Swiss Federal Tribunal, which is open about its « bienveillance » and « liberalism » vis-à-vis the CAS. Switzerland has given up any pretense of controlling the quality of justice delivered by the CAS on its soil.

5. My starting point is simple, if people (athletes, clubs, administrators) are forced to go to #CAS to challenge decisions which affect them profoundly economically or socially, then they need to be provided a day in court before an independent and transparent tribunal.

6. This is hardly the case. The CAS is controlled through ICAS by the Olympic Movement (the exact same organisations supposed to be checked by it), whose members are nominating 12 out of 20 ICAS members. Accordingly, the President of ICAS is obviously an IOC heavyweight...

7. For those who are not acquainted with the structure of CAS, ICAS decides every four years who gets to be added or removed from the CAS list of arbitrators (only people on the list can be nominated), it nominates the SG of CAS, & decides challenges against CAS arbitrators...

8... it also nominates the President of the Appeal Chamber, who in turn has the power to nominate the President of the Panel (or the single arbitrator) in appeal cases, thus having a decisive influence on the outcome of such cases (around 90% of the cases lodged at CAS).

9. Unlike judges at national/international level, #CAS arbitrators have businesses on the side, they are inherently conflicted through their many different economic interests. That’s exactly why judges are usually subjected to a strict regime of incompatibilities.

10. The #CAS has also a transparency problem. Again, if the benchmark is arbitration it is probably more transparent than the average arbitral tribunal dealing with commercial matters. But remember, this is not arbitration!

11. We have never seen a proper annual report of #CAS. Nobody knows how many cases it decides per year, nobody knows how its finances look like, nobody knows what the ICAS discusses during its meetings, nobody knows how many people work for the CAS. Nobody knows...

12. If forced #CAS arbitration is justified because it fulfils a public interest in providing a level playing field, then it would only be right that the public gets to see how it actually fulfils that interest in practice = Hearings in appeal cases should in principle be public.

13. Similarly, #CAS appeal awards should be systematically publicly released when they are rendered. We shouldn’t have to wait weeks for the decision in the #Semenya case, it should be provided directly for the public to engage with.

14. Often when you criticise #CAS, you’ll be answered what’s your alternative, Russian courts? It’s a caricature, CAS can be reformed, ICAS can be rebalanced, CAS can systematically publish its awards and its accounts, there is no need to throw away the baby with the bathwater.

15. I’ve made concrete proposals (see playthegame.org/news/comments/…), but the most important in my eyes is to ensure that ICAS becomes a tripartite (states, athletes, SGBs) body more accountable to the many people it affects and that arbitrators become permanent judges with tenure.

16. For non-sport people, #CAS is a good example of private justice gone rogue and the difficulty faced by states in controlling it. We need to be extremely careful before turning to private bodies to deliver transnational justice in the public interest (facebook).

Ps: #CAS has also a problem with regard to the gender/geographic diversity of its arbitrators, which is very well highlighted in a recent blog by @MorganSportsLaw at morgansl.com/en/latest/arbi…

They show that only 4,5% of all #CAS arbitrators are female, 4,5%!!! And this body is deciding who counts as a women for the purpose of sporting competitions. This proportion is even smaller if you look only at the presidents...

Similarly, their data indicates that CAS arbitrators, who are supposed to determine the global level playing, are overwhelmingly white. Only 6,2% of the appointed arbitrators are non-white and whopping 0,2% are black.

When I look at these numbers I’m just wondering why in a time of #MeToo and #BlackLivesMatter we leave this institution operate like this, as a close club of oldish white male, deciding for the rest of us what international sports should look like.