Turkey: A General Overview On Court Of Arbitration Sports’ Rules

Introduction

The Court of Arbitration for Sports ("CAS") is an independent institution established to provide dispute settlement through mediation or arbitration for any sports-related disputes. The Statutes of Bodies Working for the Settlement of Sports-Related Disputes ("Statutes") foresees two bodies in Article S1, the International Council of Arbitration for Sports ("ICAS") and the CAS - both bodies are seated in Lausanne, Switzerland. The CAS is administered and financed by the ICAS.

The CAS adapted its own Procedural Rules ("Rules")1 to address specific the character of sports disputes. Pursuant to Article S12 of the Statutes, the CAS resolves sports-related disputes by constituting panels. These panels are responsible to resolve disputes at hand in accordance with the Rules. The three main responsibilities of these panels are to resolve disputes that are addressed through ordinary arbitration in cases where the federation, associations, sports-related bodies statutes, or an agreement, provide resolution through appeals of arbitration procedure disputes, which are related to such decisions of federations, associations or other sports-related bodies, and to resolve disputes addressed through mediation2.

Organization of CAS

The CAS is divided into two divisions: the Ordinary Arbitration Division, and the Appeals Arbitration Division. The organization and distinction between these two divisions are provided in the Statutes, Article S20. Pursuant to Article S20, the Ordinary Arbitration Division is entitled to settle disputes submitted through ordinary procedure, and the Appeals Arbitration Division is authorized to resolve decisions of federations, associations or sports-related bodies on appeal. Pursuant to Article R47 of the Rules, the CAS Court Office is responsible to refer disputes to the competent division.

Ordinary Arbitration Division

In order for a dispute to be settled by the Ordinary Arbitration Division, Article R27 of the Rules provides that the dispute should be related to sports, and parties who wish to resolve disputes through the CAS should come to an agreement in this regard. This agreement can be achieved through an arbitration clause or a provision of a statute with reference to the CAS.

Content of the Dispute

The leading qualification to submit a dispute to the CAS is that it be a sports-related dispute. This condition is referred to in several Articles of the Statute as S1, S3, and S12.

R27 of the Rules provides that "such disputes may involve matters of principles relating to sports, or pecuniary matters, or other interests relating to the practice or the development of sports, and may include, more generally, any activity or matter related to, or connected to, sports." The CAS, in none of its decisions, recused itself by claiming that the disputes are unrelated to sports3. The role or titles of the parties, whether the party is a federation or sportsman, do not play a role in determining whether the dispute is sports related.

Arbitration Agreement

The conditions for an arbitration agreement are subject to the law of the seat of the arbitration. As previously stated, Article R28 of the Rules clearly regulates the seat of the CAS as Lausanne, Switzerland, which will mean that lex arbitri, the law governing the arbitration, is Swiss Law. In order to have a valid arbitration agreement, parties must comply with Swiss Law. Arbitration is regulated under two codes; the Swiss Private International Law Act of 1987 ("PILA"), which will come into enforce when the parties are not domiciled or habitual residents in Switzerland, and in other cases, the Swiss Civil Procedure Code ("CPC") will prevail.

Pursuant to Article 178 III of the PILA, "The arbitration agreement must be made in writing, by telegram, telex, telecopy, or any other means of communication, which permits it to be evidenced by text." CPC Article 358 reads, "The arbitration agreement must be made in writing, or in any other form allowing it to be evidenced by text." It is clearly derived from the regulations of Swiss Law that arbitration agreements must be in writing, or evidenced by text.

Applicable Law

The general rule regulated under Article R45 of the Rules states that the parties are free to choose the law that will be applied to the merits of the case; if the parties fail to make such decision, Swiss law apply. The Panel can decide ex aequo et bono upon the parties' authorization. In most cases where a dispute is related to football, the parties will most likely have previously determined the application of the FIFA Rules in their agreements. In these cases, the Panel primarily applies FIFA Rules and subsidiary Swiss law4.

Language

Article R29 of the Rules provides, in detail, the working language of the CAS as either French or English. Pursuant to R29, the parties are free to choose between English or French. In cases where the parties lack this determination, the President of the Panel or the President of the Division will make the decision. If the Panel or the CAS Court Office agree, the parties may request to conduct the proceedings in another language.

Arbitrators

The independence and qualifications of arbitrators are regulated under R33 of the Rules. The crucial point to be considered while appointing an arbitrator is the list drawn up by the ICAS. The parties can only decide amongst the arbitrators who are qualified to serve as arbitrators, and who are included in the list. With the amendment made in 2012 to the Rules, the parties are now obliged to use free will to appoint arbitrators from the abovementioned list in accordance with Article R40.2 of the Rules. There are pro and con views regarding this closed list regulation. Pro-view scholars claim that this list strengthens confidence that the parties will have regarding the expertise of the arbitrator in sports and in the CAS's jurisprudence. To the contrary, some scholars are of the view that these parties are capable to choose an arbitrator who has expertise and knowledge in the related sports field and with the CAS, without the need of a closed list5.

The arbitrators may be challenged, and if not so challenged, confirmed by the Division. Once the Panel is formed, the file will be transferred to the arbitrators.

Request of Arbitration and Answer

In order to conduct an arbitration, the claimant is obliged to prepare a request of arbitration regulated under Article R38 of the Rules. This request is submitted to the CAS Court Office, and in general terms, contain; information regarding the respondents, a brief explanation of the facts and claims, request for relief, the arbitration agreement, information on arbitrators, including the determination of the arbitration, whether a sole arbitrator is to be appointed, or whether a tribunal of three arbitrators is preferred. In the request, the claimant mostly includes matters related to the competence of the CAS; detailed information regarding the dispute is not necessarily included.

Following the request, the CAS Court Office will obtain from the parties their views on the applicable law, and will set a time limit within which the respondent is to submit its answer. The answer that is to be submitted by the respondent is regulated under R39 of the Rules, and must include the statement of defense, the defense regarding lack of jurisdiction, and any counterclaims.

R39 of the Rules also provides that in cases where the request for arbitration is similar to a pending arbitration case in terms of the facts, the President of the Panel, or the President of the Division, may consolidate the two cases after consulting with the parties.

Procedure

Pursuant to Article of R44 of the Rules, there is a written procedure phase before the Panel, as well as an oral phase. In terms of Article R44, the parties are allowed to exchange one statement of claim, one response and, if necessary for the case at hand, provide one reply and one second response ("Written Submissions"). This provision further provides that the parties can include claims that were not raised previously in their statements of claim and responses. After this step of the procedure, the parties are not allowed to raise additional new claims.

In their written submissions, it is important for the parties to gather their evidence. This evidence will be included in the statement of claim and response. The parties can only produce evidence following the written submission phase through mutual agreement, or with the permission of the Panel.

If the parties wish to call a witness or expert, each party must include the names and summaries of the testimonies of the witnesses into the written submissions.

The oral phase of the CAS procedure, which is the actual hearing, is not obligatory. Pursuant to Article 44.2, if the Panel decides that the information submitted is satisfactory, upon confirmation from the parties, the Panel can decide not to hold a hearing. The rule stipulated under Article 44.2 is to hold a single hearing where the Panel hears all of the oral arguments, witness and expert statements, and the respondent's arguments are heard last. Article 44.2 allows the President of the Panel to conduct a hearing via teleconference or video conference subject to his/her decision. After the hearing is concluded, the parties are permitted to produce any other written pleadings, and the Panel has the discretion to decide otherwise.

The proceedings under the Rules are confidential and will not be disclosed by the parties, arbitrators, or the CAS to any third parties.

Expedited Procedure

It is important to note that parties may wish to proceed with an expedited procedure; the Division or the Panel can decide to expedite the procedure upon confirming the same with the parties. Due to the nature of the sport, the parties, in most cases, prefer to choose the expedited procedure, and even state in their arbitration agreement that the disputes will be resolved through an expedited procedure. The Rules do not provide any guidance as to how the expedited procedure will be conducted. The Division will first fix the stages of the procedure, and if objected to by the parties, this decision will be left to the Panel. In most cases, the expedited procedure is conducted with short deadlines, and with a single round of written submissions. However, the nature of the case may justify a different approach.

Award

The award shall be made by the majority of the Panel, and in the absence of a majority, the decision will be made by the president of the Panel, alone. The award shall be written, dated, signed and, unless otherwise agreed to by the parties, and must state the reasons. The award is subject to the scrutiny of the CAS as to its form. Dissenting opinions are not recognized by the CAS and are not notified.

The award is final and binding upon the parties. However, under Article R47, an appeal against a CAS award rendered by CAS where it acts as a first instance tribunal, is regulated.

Awards will not be made public, unless agreed to by the parties or decided by the Division.

Conclusion

The Rules regulate specific provisions to address sports related disputes through the CAS where the parties execute a written arbitration agreement with a reference to the CAS. In terms of the CAS regulation, it is important to resolve sports-related matters in expedited manners. Specific importance to the experience and expertise of the arbitrators are given through the closed rule system where the parties are obliged to choose the arbitrator. As a result of the expedited nature of the CAS, it provides that the parties submit one round of written submissions and, in cases where it is considered necessary, a final round of replies and second responses, as well as one hearing. It should be emphasized that the lex arbitri is Swiss law, and in terms of applicable law, the parties are free to make a distinction, and in cases where the parties fail to determine the applicable law, the Panel will apply Swiss Law. The parties may appeal the decisions of the CAS, acting as a first instance tribunal.

Footnotes

1. See: http://www.tas-cas.org/en/arbitration/code-procedural-rules.html.

2. See: http://www.tas-cas.org/en/icas/code-statutes-of-icas-and-cas.html.

3. Reeb Matthieu, Le role du Tribunal Arbitral du Sport (TAS), in, Sports und Recht, Zürich, Basel, Schulthess, 2004, p. 134; Sternheimer William/Le Lay Herve, Arbitrages ordinaires pouvant être soumis au Tribunal Arbitral du Sport, Bulletin, 2012/I, p. 49.

4. See: http://jurisprudence.tas-cas.org/sites/CaseLaw/Shared%20Documents/1192.pdf

5. Kocasakal Özdemir Hatice, Sportif Uyuşmazlıkların Tahkim Yoluyla Çözümü ve Spor Tahkim Mahkemesi, İstanbul, 2013, p. 248 vd.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions