United States: Advocacy In International Sport Arbitration

Last Updated: November 17 2017
Article by James H. Carter

International sport arbitration has special characteristics that make it similar to yet also unlike most commercial arbitration, and good advocacy must begin by taking this into account. The skills and techniques described in other chapters of this book are applicable in sport arbitration, but the context typically is significantly different and requires additional knowledge.

Often the arbitration involves a dispute between an international sports federation and an individual athlete. At the dawn of the modern sports law era, a scholar-practitioner described such a case thus:

Typically the exclusive jurisdiction of sporting authorities is set down in the by-laws of federations which grant licences to compete in the course of a season or admission to participate in specific events. The federation in question has generally existed for decades if not generations, and has, without any outside influence, developed a more or less complex and entirely inbred procedure for resolving disputes. The accused participant, on the other hand, often faces the proceedings much as a tourist would experience a hurricane in Fiji: a frightening and isolated event in his life, and for which he is utterly unprepared. The same may of course be said for most litigants in ordinary court proceedings. The difference is that whereas in the latter context the accused may be represented by experienced practitioners who appear as equals before the court, the procedures devised by most sports federations seem to be so connected to the organisation that no outsider has the remotest chance of standing on an equal footing with his adversary – which is of course the federation itself.2

The situation of the accused athlete today is not always so dire, but sport arbitration often does involve one side that is familiar with the rules of the dispute and is represented by experienced sports law counsel and another side that begins the fight with much catching up to do. If you are the inexperienced sports lawyer in such an arbitration, good advocacy begins with bringing yourself up to speed with the 'lex sportiva'.

The Lex Sportiva

Over the past quarter of a century, international sport law institutions gradually have constructed a framework to resolve these disputes. It is capped by the Court of Arbitration for Sport (CAS) based in Lausanne, Switzerland, which together with the Swiss Federal Tribunal has created a substantial body of both procedural and substantive international sports law, the lex sportiva.

International sport is organised primarily in a series of vertical silos, one for each sport. There are national governing boards or federations for each sport (gymnastics, swimming, archery, etc.), and each sport has an international federation sitting above the national federations. At the same time, there is a horizontal structure composed of National Olympic Committees (NOCs), which play a part with international federations in regulating access to national Olympic teams and related matters across all of the sports that are eligible for Olympic competition in each country and answer to the International Olympic Committee (IOC). Each of these federations and committees has its own set of by-laws and various types of internal disciplinary and review bodies. They are far from uniform.

As a further complication, the international sport anti-doping regime exists side by side with these organisations but under a different roof. The World Anti-Doping Agency (WADA), based in Montreal, Canada, is responsible for establishing annually a list of prohibited substances that are considered either potentially performance enhancing or dangerous to athletes and since 2003 has published the World Anti-Doping Code (the WADA Code).3 Today, the national federations, international federations, NOCs and the IOC virtually all adopt some version of the WADA Code to govern doping offences within their jurisdictions, many of which give WADA or the national anti-doping authority power to bring disciplinary proceedings in its own name against athletes. Some countries have national bodies equivalent to WADA, such as the US Anti-Doping Agency (USADA),4 which may publish their own protocols or codes based on the WADA Code. These national anti-doping codes sometimes contain differing procedural and other provisions.

In spite of this organisational semi-chaos, fortunately there is a substantial degree of uniformity in one respect: most international sport disputes arising from the activities of athletes and organisations involved in all of these contexts, prominently including alleged doping offences, ultimately are subject to resolution by CAS arbitration. This occurs as a result of agreements in several forms: federations and committees specify CAS jurisdiction in their by-laws; the anti-doping codes adopted by the organisations typically do the same; and individual athletes agree to CAS jurisdiction either as a condition of membership in a governing body or by agreements when participating in events.5

This does not mean that all international sport disputes are heard by the CAS. Many are dealt with, at least initially, by disciplinary bodies established under by-laws of national federations, international federations or NOCs, each with their own membership and procedures. Navigating such a process remains a challenge to the newly minted sports advocate. However, there generally is a right of appeal from the decisions of those bodies to the CAS, where uniform rules of advocacy apply and are available for study. The majority of the CAS's caseload consists of such appeals, mainly from decisions of federations.

International professional sport is also an important part of this picture. The most prominent feature in the case of professional sport is the web of agreements by which FIFA and other components of professional football commit resolution of their disputes, including disagreements over matters such as contracts, player transfers and discipline, to CAS resolution. A variety of commercial agreements both in football and in other sports involving professional sport organisations, managers and athletes include contract language agreeing to CAS jurisdiction for disputes, as well.

The lex sportiva thus consists of the rules and precedents established by all of these organisations, plus the national law of relevant jurisdictions. This is primarily Swiss procedural arbitration law, because all CAS arbitrations are sited in Lausanne (although arbitral procedures may take place at other physical locations, all CAS awards are issued from Lausanne) and because Switzerland is the home of a number of international federations. The law applicable to the merits in CAS appeals is made up of any relevant organisation by-laws, rules of law chosen by the parties or, in the absence of such a choice, the law of the jurisdiction where the organisation exists.6 For ordinary disputes, the law applicable is that chosen by the parties or, as a default, Swiss law.7 The Swiss Federal Tribunal exercises a limited scope of review authority over CAS awards, as is the case with its role under Swiss arbitration law generally, but it does consider appeals on the basis of grounds found in Swiss law, such as lack of impartiality of arbitrators, absence of jurisdiction and violation of public policy. Courts of other nations may play a role, too, for example when an international federation is located in a nation other than Switzerland or non-arbitrable employee rights are involved.

Finding the Lex Sportiva

An advocate entering a new jurisdiction is well advised to become acquainted with governing law, and in the case of the lex sportiva that can be challenging. Organisational rules typically are available electronically, as are the arbitration rules contained in the CAS Code of Arbitration for Sport.8 The CAS publishes awards rendered in its appellate capacity, unless the parties agree otherwise, and a few awards made in its ordinary jurisdiction (but only if parties agree). These are available electronically and in some CAS print publications, and the Swiss Arbitration Association reports regularly in its Bulletin9 on Swiss court decisions involving CAS awards and other international sport arbitration matters involving Switzerland. Some anti-doping organisations, such as USADA, publish all arbitral awards to which they are parties in which doping violations are established. Although prior awards generally are not considered binding on an arbitral tribunal, such awards may be and typically are cited to any international sport tribunal by advocates as potentially persuasive.

A quasi-official CAS book entitled The Code of the Court of Arbitration for Sport: Commentary, Cases and Materials, authored by CAS Counsel Despina Mavromati and CAS Secretary General Matthieu Reeb,10 is essential reading for the advocate. It discusses procedures under the CAS Code in detail, with extensive advice on unpublished or otherwise little-known practices in CAS arbitrations and examples of CAS documents.

Types of international sport disputes

International sport arbitrations deal largely with three types of disputes: disciplinary issues (including but not limited to doping violations), disputes involving contested eligibility or qualification for competitions, and commercial or other contractual or intra- and inter-federation disputes. Disputes involving 'field of play' errors or disagreements are generally considered best resolved by umpires on the field and are treated as inappropriate for arbitral resolution.11

Doping and other disciplinary disputes receive the greatest prominence in the press and make up the largest part of the CAS's docket.12 They usually are heard by the CAS under its appeal procedures, typically following one or more rounds of proceedings within the governing national federation or international federation. The CAS appeal procedures empower CAS arbitral tribunals to make de novo determinations of issues of both law and fact in such cases.13

In the case of some countries, notably the United States and Australia, national laws make CAS arbitration in that country the first-instance procedure for doping cases brought by the country's anti-doping agencies, after (or instead of) which either party make seek what is normally an appellate review before a second CAS panel seated in Lausanne.

Eligibility issues often arise shortly before national or international championship contests, including the Olympics, when federation rules must be interpreted to determine which athletes or teams will be admitted to compete.

Contractual disputes involve the full range of issues that may arise in international commercial arbitrations, distinguished only by the additional fact that the parties are involved in some aspect of sport and have selected CAS arbitration for dispute resolution.

To read this article in full, please click here.

Originally published by Global Arbitration Review, The Guide to Advocacy.


1. James H Carter is a senior counsel at Wilmer Cutler Pickering Hale and Dorr LLP.

2. Jan Paulsson, Arbitration of Sports Law Disputes, 9(4) ARB INT'L 359, 361 (1993).

3. See www.wada-ama.org.

4. See www.usada.org.

5. In 2016 the German Federal Tribunal held that an athlete's signed agreement with an international federation referring disputes to the CAS was valid and did not violate German competition law or public policy. See Despina Mavromati, The Legality of the Arbitration Agreement in Favour of the CAS Under German Civil and Competition Law: the Pechstein Ruling of the German Federal Tribunal (BGH) of 7 June 2016, 2016(1) CAS Bull. 27.

6. CAS Code, Art. R58.

7. Id. Art. R45.

8. Available at www.tas-cas.org.

9. ASA BULLETIN; see also Massimo Coccia, The Jurisprudence of the Swiss Federal Tribunal on Challenges Against CAS Awards, 2013(2) CAS BULL 2. Some Swiss cases also are reported in the semi-annual electronic CAS Bulletin.

10. Published by Wolters Kluwer Law & Business, 2015 (hereafter, 'Mavromati & Reeb').

11. Mavromati & Reeb at 56-57.

12. Id. at 401.

13. Art. R57.

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.

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