pátek 6. března 2015

Matthieu Reeb: Nowadays, the presumption that CAS is governed by the Olympic Movement has disappeared.

Lausanne is not only a beautiful city. It is also the centre of many Olympic and other sports institutions. One of them, the Court of Arbitration for Sport, is of particular interest for lawyers. I am personally very grateful to Mr Mathieu Reeb who kindly agreed to meet with me and discuss CAS structures and procedures as well as some recent issues regarding CAS and highest European courts. The interview was conducted in English, the latter being also the language of this article.

Thank you very much for finding a gap in your busy schedule for meeting with me. In the beginning, could you please briefly describe what CAS is as well as its structures and procedures?

The Court of Arbitration for Sport (CAS) was created in 1984. The President of the International Olympic Committee (IOC) Juan Antonio Samaranch came up with the idea of creating an international tribunal specialized in sports related issues within the Olympic Movement, but also outside of it.

In 1993, we had our first case before the Swiss Federal Tribunal, which is the Supreme court of Switzerland. It was the famous Gundel appeal (Elmar Gundel vs/ FEI, CAS 96/A/63) which was dismissed by the Federal tribunal, which said that CAS was independent from the International Equestrian Federation (FEI) but that its structural relation with the IOC could be problematic. It was a warning saying that one day CAS might have a problem if the IOC would become a party to a dispute before CAS.

This led to the creation of ICAS (International Council of Arbitration for Sport) in 1994 that has the mission of administering the Court. As a result, the former existing relations with IOC could be definitively cut. The ICAS is composed of 20 persons. Four of them are nominated by IOC, four by international sports federations (IFs) and four by national Olympic committees (NOCs). There are also four former athletes and four people coming from outside of the Olympic Movement. These people govern the administration and the financing of CAS but they do not play any role in the management of the arbitration cases. Regarding the arbitral procedures, they are divided into two groups: We have an ordinary division where CAS acts as a sole instance and an appeal division where CAS is the last instance.

CAS itself is the name of the court. It is an arbitration system that we offer to the parties. So we have ICAS, which is a foundation of Swiss law, CAS and the Court office with 25 employees who are in charge of the administration of the Court and of the management of the arbitration procedures. Approximately half of them have a legal background.

What is the profile and the role of CAS arbitrator?

CAS has now more than 300 arbitrators from 90 countries all around the World who are professional lawyers, judges or law professors with skills both in sports law and international arbitration.

The arbitrators appear on a list that is mandatory for the parties. They have to appoint arbitrators from such list, which is quite particular in international arbitration. It is done so in order to keep a group of specialists in sports law. Each party chooses one arbitrator and the third one is selected upon the agreement between the two arbitrators or appointed by the relevant Division president.

The arbitrators must be independent from the parties. Before accepting an appointment, they sign a special declaration and describe all potential connections with the parties. We always recommend that the arbitrators disclose more facts than less in order to reduce any possible doubts regarding their independence.

What is your position of the Secretary General of CAS about?

My task is the management of the CAS Court office. I also deal with some financial issues and I am in charge of public relations and of the organisation of the CAS ad hoc divisions. In my capacity, I do not have the right to decide cases. My task is to ensure that the arbitrators follow the CAS rules and comply with time limits..

One of my duties is to ensure that the arbitral awards are issued within the time limits prescribed – for appeals procedure three months from the moment when the arbitrators receive the file. We can also be quicker. Based on the parties’ request, we can organise hearings on short notice and decide the case within a few weeks. An example is the case of the Uruguayan footballer Luis Suárez whose case was decided within one month. The record is seven days.

That’s for the classic procedure. What the about the ad hoc one?

At the Olympic Games, we have special ad hoc divisions that can render decisions within 24 hours. It is a very specific procedure with limited paperwork and without exchange of written submissions. We have arbitrators present at the venue of the Games and we organise hearings with parties, lawyers and experts where all arguments end evidence are presented. It is important to render a quick decision as you may have only one day between two competitions and also when an athlete is suspended, you need a quick decision to be issued to know if such athlete can participate in the next competition or not.

Talking about CAS procedures and its arbitrators, the question of independence is an interesting one for lawyers. So is it for the European Court of Human Rights (ECHR). In two pending cases (Mutu v. Switzerland - 40575/10, Pechstein v. Switzerland - 67474/10), the applicants claim the lack of independence and impartiality of CAS and its arbitrators. What are, in your opinion, the strongest arguments against this claim?  

Regarding this question, we should first deal with the institution itself and then with its arbitrators. Concerning the independence of CAS as an institution, the answer was in my opinion given by our supreme court, the Swiss Federal Tribunal, that decided in 2003 that CAS could be considered as a real arbitral tribunal that is impartial and independent in the light of the Swiss Constitution. We expect the ECHR’s decision this year or next year. We still believe that CAS is an institution independent from any external influence.

There are arguments related to the issue of the financing of CAS. It is true that CAS is financed by the Olympic Movement for approximately two thirds of its budget. The remaining third is provided by its users. We submit that these resources serve mostly to facilitate the access to CAS for athletes who do not have sufficient financial resources. If ECHR determines that we should not have this external funding, we would have to ask the parties to cover all costs of the procedure. This would prevent many athletes from coming to CAS.

Regarding the composition of ICAS, for example, the four persons nominated by IOC are not representatives of IOC. They are persons who understand sports and sports law. Moreover, from the four people recently nominated by IOC, three are or used to be judges. One of them is a Chinese judge at the International Court of Justice in Hague with no relation whatsoever with IOC or the Chinese Olympic Committee. The second one is a judge at the Constitutional Court in South Africa without any connection to sports entities and the third one is a former member of ECHR. The goal is to give to the organisation more credibility through people respected by the lawyers, the arbitrators and the parties. The same applies to IFs and NOCs. We also have former athletes. In general, it is a good combination of people who know arbitration, sports law and sports.

What about the arbitrators’ independence and impartiality?

In every case, we are very strict about arbitrators’ independence. in particular, upon their appointment, they have to fill a special form and disclose any information connecting them to the parties. Consequently, the parties can challenge their independence and in the end, it is ICAS that decides whether that arbitrator shall be replaced or not. The composition of the panel can also be challenged before the Swiss Federal Tribunal.

At this point, it is interesting to see the recent decision of the Munich Appeals Court in the Pechstein case. The court said that sports arbitration was not a problem as such. Not even the mandatory list of arbitrators was a problem. The court also decided that it was better to have one special tribunal deciding sports related issues than the states courts.

What was then the problem for the court?

The problem described by the court was that, according to the German judges, ICAS is dominated or composed by people coming from sports entities rather than by athletes. The ratio is twelve to four. However, this case is based on facts from 2009. Since then, the rules regarding the nomination of ICAS members and the arbitrators have changed. In my opinion, the presumption that ICAS is governed by twelve people coming from the Olympic Movement is nowadays simply wrong.

The second problematic issue for the Munich court of appeal is the fact that the president of each panel is, in some cases, appointed by the president of the CAS Appeals Division. As I mentioned before, we have ordinary and appeal procedure and each of them is presided over by a division president. The president’s role is to solve the preliminary procedural issues at the beginning of each case – e. g. the language of the procedure, the number of arbitrators in the panel. He has also the right to appoint the president of each appeals panel. This power was criticised by the court on the presumption that ICAS was dominated by the federations and IOC. This fact was seen as contrary to German public order.

In 2009, the president of the appeals division and his deputy had functions within an IF and the IOC. Today, the president of the appeal division is a former athlete – Corinne Schmidhauser. As a consequence, the answer might be different today.

Continuing with the European level, how, in your opinion, do the system of the European Convention on Human Rights (the Convention) and European Union (EU) law influence CAS and its decision-making process?

Of course, we don’t know yet the decision of ECHR but we can make some general comments anyway. Switzerland is a signatory of the Convention and its principles apply to Swiss law and consequently to CAS procedures. Therefore, they should be applied by our arbitrators. There are some authors saying for example that the article 6 does not apply to arbitration as such. On the other hand, the right to a fair trial is a general principle of any law that should also govern the arbitration process.

Regarding the EU, we are in a very particular situation. CAS is not only a European but also an international tribunal. Moreover, Switzerland is not a Member State thus we are not obliged to apply EU law as such. Our cases also concern parties from outside Europe and we cannot apply EU law to them. Of course, if parties ask for it, we apply EU law but we cannot do this automatically in all CAS cases.

Do you see the control of CAS decisions by the European courts as a good thing or do you rather consider that the sport should enjoy broader autonomy from this kind of outer control?

As far as CAS is concerned, I think it is good to have the final control by the Swiss Federal Tribunal. It forces our arbitrators to work well and to deliver well-founded decisions since they know it can be annulled by the Federal tribunal.

Regarding the additional control at the European level, I would say “Why not?” I think this is not really a problem. What I see from some decisions of the Court of Justice of the European Union (CJEU), for example the Meca-Medina case (C-519/04), is that the Court can examine the sports-related cases but does so in a very limited way. The door is really narrow in my opinion. In other words, the autonomy is not granted forever, and we can expect a limited scope of review of the Court regarding sports cases. So I think that this outer control limited to procedural issues, as for example the compliance with due process rights, is not a problem.

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