An analysis of the new CAS Guidelines on examining vulnerable witnesses and testifying parties
In December 2023, the International Council of Arbitration for Sport (“ICAS”) issued new Guidelines for the hearing of vulnerable witnesses and testifying parties in procedures before the Court of Arbitration for Sport (“CAS”) (“Guidelines”)1.
The Guidelines are designed to enable vulnerable witnesses to deliver testimony in a safe manner and to incentivise reluctant witnesses to testify. They set out best practice recommendations for all CAS Divisions, especially in relation to CAS hearings, for the protection of vulnerable parties and witnesses, with CAS Panels having a broad discretion to tailor procedural safeguards as required. While CAS Panels are encouraged to take the Guidelines into account when in a situation involving vulnerable witnesses (bearing in mind their duty to comply with the parties’ right to a fair trial) – and no doubt CAS Panels will do so in appropriate cases - the Guidelines are not mandatory and cannot be used by parties seeking to challenge their application or non-application by any CAS Panel.
A witness or testifying party should be considered as being “vulnerable” for the purposes of the Guidelines when testifying may risk (re)traumatising them, present a threat to their personal safety (and possibly others) or create a significant risk to reputation or of retribution. Minors and those with a mental disability will also generally qualify as vulnerable witnesses.
This article summarises the Guidelines and considers their impact on CAS as a forum equipped to deal with vulnerable witnesses.
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- Tags: Arbitration | CAS Procedural Rules of the Code of Sports-related Arbitration (CAS Code) | Court of Arbitration for Sport (CAS) | Dispute Resolution | Football | Safeguarding | Switzerland | United Kingdom (UK) | United Nations | World Health Organization (WHO)
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Written by
Lereesa Easterbrook
Lereesa is a Senior Associate in Bird & Bird's Sports Group in London and Co-Lead of their Women's Sport practice. She acts primarily for national and international sports governing bodies, federations and sporting organisations in contentious and regulatory matters across a range of sports including motorsport, tennis, equestrianism, cricket, rugby and football. She is also a Board Member of England Korfball.
Magnus Wallsten
I am an Associate in the Sports Group at Bird & Bird in London. I advise national and international sports governing bodies, federations, and organisations in contentious and regulatory matters across a wide variety of sports.
My practice involves representing clients in relation to a range of issues such as disciplinary and commercial disputes, challenges to regulatory decisions, investigations, rule drafting, and advisory work. I have acted for clients in disputes before the Court of Arbitration for Sport, the IOC Disciplinary Commission, and several other disciplinary tribunals. I have also served as an ad hoc clerk to the Court of Arbitration for Sport on multiple cases.
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