The dichotomy and future of sports arbitration - Appointment of arbitrators

This four part series of articles by Nick De Marco¹ reflects on the recent Pechstein case, a case that placed the Court of Arbitration for Sport (“the CAS”) and the sports arbitration system under great scrutiny, and consider:

• The issue of consent and compulsion in sports arbitration (Part 1);
• The appointment of arbitrators (Part 2);
• The use and accessibility of legal aid/assistance for players/athletes and the publications of decisions (Part 3); and,
• The structure of domestic sports arbitration, with a focus on The Football Association (Part 4).

Throughout this series of articles the author makes a number of recommendations to change the procedure of both the CAS and domestic sports arbitral bodies in order to promote fairness and impartiality and protect players.

Part 2 Reform

In response to the Pechstein decision the CAS itself issued a press release.² Despite the BGH having found the CAS procedure to be fair, that press release confirmed that the CAS was considering reform and was willing to “listen and analyse the requests and suggestions of its users, as well as of judges and legal experts in order to continue its development, to improve and evolve with changes in international sport and best practices in international arbitration law with appropriate reforms”.³ This article suggests where and how those reforms could be made.

Appointment of arbitrators

The 2016 Code of Sports-related Arbitration (“the 2016 Code”)⁴ provides that in choosing an arbitrator, parties before the CAS are limited to those appointed by the International Council of Arbitration for Sport (“the ICAS”).⁵ The ICAS itself is composed of twenty members, which are appointed as follows, and in this order: first, four members are appointed by the International Sports Federations (“IFs”); then four by the Association of National Olympic Committees (“ANOC”); then four by the International Olympic Committee (“IOC”); then four chosen by those twelve members already so appointed “after appropriate consultation with a view to safeguarding the interests of athletes”; finally four chosen by those sixteen members already so appointed and “chosen from among personalities independent of the bodies designating the other members of ICAS”.⁶ Only four members (one fifth) of the ICAS, therefore, are required to be independent from global sports governing bodies; and only one fifth is appointed to represent the interest of players – and even then, that fifth are themselves appointed by those appointed by the governing bodies. In choosing arbitrators, the ICAS “shall appoint personalities … whose names and qualifications are brought to the attention of ICAS, including by the IOC, the IFs, the NOCs and by the athletes’ commissions of the IOC, IFs and NOCs.”⁷

The President of the ICAS also serves as the President of the CAS.⁸ That President is elected from the members of the ICAS, after those members have consulted with the IOC, the IFs and the ANOC.⁹ The President is, therefore, likely to reflect the interests of sports governing bodies. The current President, for example, is also the Vice President of the IOC, Chair of the IOC Tokyo 2020 Coordination and Legal Affairs Commissions, Member of the IOC Rio 2016 Coordination Commission and President of the Australian Olympic Committee (since 1990).¹⁰ The Presidents of the CAS Divisions are also elected from the members of the ICAS.¹¹

As well as appointing the CAS arbitrators to the list from which the parties can appoint their arbitrator, the ICAS resolves challenges to and removals of arbitrators;¹² and the Presidents of the Divisions can appoint a sole arbitrator (where the Claimant so requests and the Respondent does not pay its share of the advance of costs),¹³ and decide who the President of each panel of three is where the parties do not agree, or select the arbitrator for the Respondent where it has failed to do so.¹⁴

Such a system, unsurprisingly, does not inspire confidence in players. Although parties are free to chose an arbitrator, that freedom is curtailed by the fact that:

(i) the parties can only choose from a limited list of arbitrators; and,

(ii) those arbitrators are appointed by a council that is dominated by representatives of sports governing bodies.

There is no route by which a player can challenge the impartiality of the ICAS itself, a body that is clearly weighted against players. In any event, even if the ICAS and the CAS are truly independent and impartial, this organisational structure does not give that appearance. It would therefore be in the CAS’s own long term interests to reform it.

To guard against this (at the very least) appearance of bias, the CAS could adopt the following procedures:

• First, the membership of the ICAS should be reformed. Bodies representing players should be able to appoint members directly, as sports governing bodies and Olympic committees are currently able to. For example, eight members could be appointed by bodies representing players’ interests; eight by bodies representing the sports governing bodies; and the remaining four appointed by agreement between those sixteen.

• Second, the President of the ICAS and the Presidents of the CAS Divisions should be independent both of all regulators and Olympic committees and of those bodies representing the interests of players. Alternatively, at the very least, those Presidents could be elected from the ICAS (constituted as recommended in the preceding paragraph), with no parties permitted to make recommendations or suggestions for the posts. The independence of the Presidents of the CAS Divisions is particularly important given that those persons have a power to decide a number of case management matters, including whether a dispute should be resolved by a sole arbitrator or three arbitrators if the arbitration agreement does not specify the number,¹⁵ who (in the absence of agreement between the parties) the sole arbitrator shall be,¹⁶ and who (in the absence of agreement between the two arbitrators nominated by the parties) the president of the arbitral panel shall be.¹⁷

• Third, parties should not necessarily be limited to a closed list of arbitrators. In the arbitration procedure set out at Rule K of The FA’s Rules of the Association 2015-2016, for example, the parties can either agree an arbitrator or nominate their own arbitrators, chosen from any arbitrator willing and able to accept the appointment.¹⁸ The CAS could recommend arbitrators by promoting its list, but if a party is not satisfied with those on the list it should arguably have the right to appoint someone of its own choice (subject to safeguards guaranteeing independence and some minimum level of expertise). Alternatively, the ICAS could appoint more arbitrators—with these arbitrators offering a wide range of expertise in different sports and from different international regions—to offer parties a genuine choice. If the ICAS were reformed as suggested above then the appointment of arbitrators to the CAS would be less likely to favour sports governing bodies and regulators. Nonetheless, it would benefit both parties to an arbitration and the CAS itself (by way of improving its perception and reputation) if parties were able to choose from as wide a pool of arbitrators as possible, and were not limited to choosing an arbitrator from the 352 currently on the ICAS approved list.¹⁹

Click here to continue reading Part 3 on legal aid and publications of decisions.

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This four part series is taken from the author's original paper which can be found here.²⁰ For those who wish to read more about the Pechstein case and sports arbitrations the following articles will also be of interest:

• The Legality of the Arbitration Agreements in favour of CAS (Pechstein) Part 1 by Despina Mavromati
• The Legality of the Arbitration Agreements in favour of CAS (Pechstein) Part 2 by Despina Mavromat
• The Pechstein judgment: CAS’s reaction & potential ramifications by Andrew Smith
• A guide to the Higher Regional Court’s decision in the Pechstein case by Christian Keidel
• Another round in favour of sports arbitration: Court confirms boxing disciplinary appeal panel is an Arbitration by Nick De Marco
• 10 key considerations arising from Kaneria by Nick De Marco
• Civil liability for sports injuries and why courts compete with arbitration in Belgium by  Sven Demeulemeester and Grégory Ernes
• Interview with Matthieu Reeb, Secretary General of the Court of Arbitration for Sport by Sean Cottrell

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