What is CAS?
With the development and exploration of sports activities, various disputes and differences also cropped up, in the wake of various allied interests involved in such sports activities. This gave rise to the need for dispute resolution mechanisms arising in relation to sports activities. In this regard, presently, the final or the apex body for the resolution of a sporting dispute is known as the Court of Arbitration for Sports (CAS) based in Lausanne, Switzerland. The CAS is essentially an arbitration body that also provides consulting and mediation services to its stakeholders, notably the International Olympic Committee (IOC), International Federations (IF), National Olympic Bodies, National Sports Bodies, and the World Anti-Doping Agency. This article endeavors to highlight the dispute resolution mechanism adopted at CAS and the enforceability of the award passed in proceedings of CAS in India.
Ways of resolving disputes in Sports
Sports dispute resolution doesn't necessarily have a fixed hierarchy or method. Parties involved in sports disputes have chiefly three ways of resolving their disagreements - firstly, by complaining to the internal authorities available within the sporting federations - both national and international, secondly, by instituting a writ petition or civil or criminal case in a court of law, and, thirdly, through alternative dispute resolution (ADR).
Generally, a dispute may be submitted to the CAS only if an arbitration agreement between the parties stipulates the recourse to the CAS. However, according to rule 61 of the Olympic Charter1, all disputes in connection with the Olympic Games can only be submitted to CAS, and all IF's have recognised the jurisdiction of CAS for at least some disputes.2
When was CAS established? Where does it derive its authority from?
In 1981, IOC's President, H.E. Juan Antonio Samaranch had initialed the idea of creating a sports-specific jurisdiction. The following year at the IOC Session held in Rome, IOC member H.E. Judge Kéba Mbaye, then judge at the ICJ, The Hague, chaired a working group tasked with preparing the statutes of what would quickly become the "Court of Arbitration for Sport".3
The authority of the CAS was established through the Swiss Equestrian Case4, where CAS was given the authority to give arbitral awards which avoids the normal court procedures for sports disputes. The aftermath of this decision led to CAS being more independent of IOC both organizationally and financially. The biggest change was the creation of "The International Council of Arbitration for Sports" (ICAS) to look after the running and financing of the CAS, thereby taking the place of the IOC in the Paris Agreement in 1994.5
Enforcement of CAS awards in India
Sports bodies have been known to comply with awards achieved through ADR techniques. The New York Convention6 provides a necessary legal pathway for the enforcement of an arbitral award. The domestic laws of various countries concerning arbitration, modeled on UNCITRAL law7, tend to facilitate this process.
The process for enforcement of the CAS Award in India is similar to any other Foreign Award. The enforcement of a CAS award is a novel concept in India. This is primarily due to the fact that Indian disputes that have been referred to CAS have been anti-doping matters or disputes around the recognition of an NSF ("National Sports Federation") or a similar rule violation.
CAS awards are essentially Switzerland-seated arbitral awards enforceable under the New York Convention. India is a signatory to the convention and has notified Switzerland as a reciprocating territory.
Prior to the amendment of 2015, the Supreme Court of India in the cases of BALCO v. Kaiser Aluminium8 and World Sport Group (Mauritius) Ltd. v. MSM Satellite (Singapore) Pte. Ltd.9 observed that the Indian Courts are tending to respect the foreign seated arbitration and have ruled out the application of part I of the Arbitration and Conciliation Act, 1996 with respect to such internationally seated arbitral awards. In the case of Shri Lal Mahal Ltd. v. Progetto Grano SPA,10 it was decided that grounds of public policy as applicable to the challenge made to domestic awards, cannot be applied to the challenge to enforcement of foreign awards.
After the amendment in 2015, the Act has restricted the ambit of violation of public policy for international commercial arbitration to only include those awards that are: (i) affected by fraud or corruption, (ii) in contravention with the fundamental policy of Indian law, or (iii) in conflict with the notions of morality or justice.
Thus, the collective reading of the aforestated judgments shows that institutional arbitration awards such as those emanating from the CAS are to be enforceable in India with due procedure.
However, since CAS is in relatively new form of the dispute resolution process, some of the major reforms that CAS needs are independence, transparency, and increased accessibility to ensure it functions better. In respect of the enforceability of foreign awards (which includes CAS awards) and the application of public policy, India has had a paradigm shift from one end of the spectrum to its opposite end in the space of a decade. With an increase in the number of CAS cases in the sports industry, it will be interesting to see how CAS reforms its existing functioning and the impact it has on the Indian Arbitration regime.
CAS awards are not commercial (in common parlance) and deal with disciplinary and administrative aspects of the sport. Their enforcement presents unique challenges in India as they are not awards arising out of a relationship that is considered purely commercial. Having said that, CAS arbitrations follow the usual stages of commercial arbitration, and awards are enforced in the same manner as a commercial arbitral award.
Challenging a CAS Award: An uphill task
There have also been instances where Indian athletes/federations have approached CAS in its appellate jurisdiction (which is also Switzerland-seated) after being unhappy with the decision of CAS in the first instance. However, the appellate authority of CAS does not hear the appeal on merits. In the case of Amar Muralidharan v. NADA & Ors,11 an appeal made by an athlete against the award passed by CAS was dismissed by the appellate authority of CAS, on the ground that it did not have jurisdiction to examine the merits of the case.
An appeal made to the decision of CAS in the first instance may be a ground for challenging enforcement of the award passed by CAS (i.e., a foreign award) in India under Section 48 of the Arbitration and Conciliation Act, 1996. However, under Article 190(2) of the Swiss Federal Code on Private International Law 1987, a decision of the CAS is treated as an arbitral award under the Swiss Law and a final CAS Award can be challenged in the following circumstances only:12
- If a sole arbitrator was designated irregularly or the arbitral tribunal was constituted irregularly.
- If the arbitral tribunal erroneously held that it had or did not have jurisdiction.
- If the arbitral tribunal ruled on matters beyond the claims submitted to it or failed to rule on one of the claims.
- If the equality of the parties or their right to be heard in an adversarial proceeding was not respected.
- If the award is incompatible with Swiss Public Policy.
Therefore, given the limited circumstances under which a CAS award can be challenged under the Swiss Federal Code on Private International Law, enforcement of a CAS award is more likely to be challenged under the other provisions of Section 48 of the Arbitration and Conciliation Act, 1996.
Conclusion
The growth of the sports sector has been exponential over the last few years. The growth of the industry has led to a large number of disputes that have been referred to arbitration for resolution. The bulk of the commercial disputes in the sports industry results in commercial arbitrations.
It is important to highlight that CAS has gained more recognition in recent times. An award pronounced by the CAS is final and binding on the parties, from the moment it is communicated. It may in particular be enforced in accordance with the New York Convention on the recognition and enforcement of arbitral awards, which more than 167 countries have signed.13
Although it can be said that the procedure for enforcing foreign awards in India is applicable for enforcing CAS awards, if a more certain and separate procedure for enforcing CAS Awards in India is formulated, it would help in the growth of dispute resolution of sporting matters in India.
Footnotes
1 The Olympic Charter, 2020.
2 Richard H. McLaren, Twenty-Five Years of the Court of Arbitration for Sport: A Look in the Rear-View Mirror, 20 Marq. Sports L. Rev. 305 (2010).
3 TAS-CAS, General History of the CAS, Available at: https://www.tas-cas.org/en/general-information/history-of-the-cas.html#c22
4 Gundel v. International Equestrian Federation (FEI)/CAS [1993] 1 Civil Court, Swiss Fed. Tribunal.
5 Supra, Note 1.
6 United Nations Conference on International Commercial Arbitration, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, United Nations 1958, Available at: http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/XXII_1_e.pdf
7 UNCITRAL Model Law on International Commercial Arbitration, 1958, Available at: http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf
8 Bharat Aluminium Company and Ors. v. Kaiser Aluminium 2012 (3) ArbLR 515 (SC)
9 World Sport Group (Mauritius) Ltd. v. MSM Satellite (Singapore) Pte. Ltd. AIR2014SC968
10 Shri Lal Mahal Ltd. v. Progetto Grano SPA 2013 (8) SCALE 489
11 Amar Muralidharan v. NADA, National Dope Testing Laboratory, Ministry of Youth Affairs & Sports, CAS/2014/A/3639.
12 Michael Beloff QC & Dr. Stephan Netzle, The Court of Arbitration for Sport, Sport: Law and Practice, (eds. Adam Lewis and Jonathan Taylor), Tottel Publishing.
13 Scope of an award pronounced by the CAS Available at: https://www.tas-cas.org/en/general information/frequently-asked-questions.html
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