1 COURT OF ARBITRATION FOR SPORT by Michele Colucci – University of Illinois, Spring Semester 2008

2 LEGAL BACKGROUND Indipendent institution, Lausanne, Indipendent institution, Lausanne, Need to offer a quick and inexpensive procedure to settle sport related disputes. Need to offer a quick and inexpensive procedure to settle sport related disputes. 1994:Creation of The International Council of Arbitration for Sport (ICAS) 1994:Creation of The International Council of Arbitration for Sport (ICAS)

3 The Code of Sport-related Arbitration Established in 1994 and revised in 2003 Established in 1994 and revised in 2003 It governs the organisation and arbitration procedures of the CAS. It governs the organisation and arbitration procedures of the CAS. Finally, it also contains a set of mediation rules and ad hoc rules. Finally, it also contains a set of mediation rules and ad hoc rules.

4 Structure and functions 300 arbitrators from more 87 countries 300 arbitrators from more 87 countries Provides services for settlements of disputes: Provides services for settlements of disputes: –Arbitration –Mediation –Legal Opinions

5 Arbitration procedures of the CAS an advisory procedure: it is non-contentious and allows certain sport bodies to seek advisory opinions from the CAS an ordinary arbitration procedure an appeal arbitration procedure a mediation procedure: parties have the option of reaching an agreement with the help of a mediator

6 Written opinions provide answers to specific legal queries before a case is brought to court and are not legally binding. Written opinions provide answers to specific legal queries before a case is brought to court and are not legally binding. At the Court of Arbitration for Sport (CAS), Advisory Opinions may also examine sport issues that are not necessarily of a strict legal nature. At the Court of Arbitration for Sport (CAS), Advisory Opinions may also examine sport issues that are not necessarily of a strict legal nature. In general they are delivered by one person: the Attorney General in the USA judicial system, the Advocate General at the ECJ. In general they are delivered by one person: the Attorney General in the USA judicial system, the Advocate General at the ECJ. At the CAS, they are delivered either by a panel made up of a president and two members or a sole arbitrator. At the CAS, they are delivered either by a panel made up of a president and two members or a sole arbitrator. The function of Opinions in judicial discourse

7 When can an Opinion be requested? The request may only come from recognised institutions and associations and has to be approved by the CAS President (R61 of the Code). The request may only come from recognised institutions and associations and has to be approved by the CAS President (R61 of the Code). Opinions may only be published with the consent of the requesting parties. (R 62) Opinions may only be published with the consent of the requesting parties. (R 62)

8 Who are the participants issuing the Advisory Opinions? A single arbitrator or two arbitrators and a president, they are Barristers, Attorneys - at-law and/or Law Professors selected from all over the world; A single arbitrator or two arbitrators and a president, they are Barristers, Attorneys - at-law and/or Law Professors selected from all over the world; -They must be experts in Sports Law. -They must be experts in Sports Law.

9 The Panels Opinion 83. In the Panels opinion, therefore, for cases when there is no adverse analytical finding proving the presence of a prohibited substance or its metabolites or markers ……… …… the use or attempted use can be proved by any proof. CAS 2005/C/841 CONI CAS 2005/C/841 CONI The Panel expresses itself as a collective, authoritative subject. The Panel expresses itself as a collective, authoritative subject. Its members have to agree among themselves and then persuade the parties involved. Its members have to agree among themselves and then persuade the parties involved. It has to mediate within different legal cultures and languages. It has to mediate within different legal cultures and languages. It can thus be defined as a professional community engaged in collaborative practices (after Lave and Wenger :1991 in Bhatia:2004) It can thus be defined as a professional community engaged in collaborative practices (after Lave and Wenger :1991 in Bhatia:2004)

10 hybrid texts provisions obliging athletes (and the other subjects of the sporting system governed by FIGC) to adopt a condotta conforme ai principi sportivi della lealtà, della probità e della rettitudine nonché della correttezza morale e materiale in ogni rapporto di natura agonistica, economica e sociale (behaviour in accordance with the sports principles of loyalty, probity and rectitude as well as of moral and material correctness in any relation of competitive, economic and social nature, Panels translation). CAS 2005/C/841CONI provisions obliging athletes (and the other subjects of the sporting system governed by FIGC) to adopt a condotta conforme ai principi sportivi della lealtà, della probità e della rettitudine nonché della correttezza morale e materiale in ogni rapporto di natura agonistica, economica e sociale (behaviour in accordance with the sports principles of loyalty, probity and rectitude as well as of moral and material correctness in any relation of competitive, economic and social nature, Panels translation). CAS 2005/C/841CONI Trosborg (1997: ) defines hybrid texts as documents produced in a supranational multicultural discourse community where there is no linguistically neutral ground. In some cases they are translated or re-written. Trosborg (1997: ) defines hybrid texts as documents produced in a supranational multicultural discourse community where there is no linguistically neutral ground. In some cases they are translated or re-written.

11 CAS procedures Contractual relations or torts – (Ordinary arbitration or mediation) Contractual relations or torts – (Ordinary arbitration or mediation) Disputes resulting from decisions taken by the bodies of sports federations – (Appeals arbitration procedure) Disputes resulting from decisions taken by the bodies of sports federations – (Appeals arbitration procedure)

12 How long does CAS arbitration last? Ordinary procedure – between 6 and 12 months Ordinary procedure – between 6 and 12 months Appeals procedure – within 4 months Appeals procedure – within 4 months

13 MEDIATION Parties Make Decision To Settle Or Not Parties Make Decision To Settle Or Not Flexible (procedure and outcome) Flexible (procedure and outcome) Creative, Informal Creative, Informal Private, No Public Record Private, No Public Record Can Be Win-Win (both sides better off than before) Can Be Win-Win (both sides better off than before) Is not binding on the parties Is not binding on the parties Can End With No Resolution Can End With No Resolution No risk: a party can always say No deal No risk: a party can always say No deal

14 Under what conditions will the CAS Intervene? WRITTEN AGREEMENT BETWEEN PARTIES WRITTEN AGREEMENT BETWEEN PARTIES Such agreement could be: Such agreement could be: a) Appear in a contract b) Appear in the statutes or regulations of a sports organization.

15 ARBITRATION Third Party Neutral Makes a Decision Third Party Neutral Makes a Decision Adversary Process, Like a Debate or Court Adversary Process, Like a Debate or Court Parties and Counsel Prepare Like a Trial Parties and Counsel Prepare Like a Trial Could Be Binding Could Be Binding Neutral Listens To Evidence and Argument Neutral Listens To Evidence and Argument Generally a Winner and a Loser Generally a Winner and a Loser

16 FIFA DECISIONS APPEAL 11 th November 2002 : FIFA accepts jurisdiction of the CAS (circular nº 827) 11 th November 2002 : FIFA accepts jurisdiction of the CAS (circular nº 827)

17 Players Status Committee Decision: Players Status Committee Decision: Artº 23 nº 3 – Decisions reached by the single judge may be appealed before the Court of Arbitration for Sport (CAS) Artº 23 nº 3 – Decisions reached by the single judge may be appealed before the Court of Arbitration for Sport (CAS) - Dispute Resolution Chamber - Dispute Resolution Chamber Artº 24 nº 2 – Decisions reached by the Dispute Resolution Chamber may be appealed before the Court of Arbitration for Sport (CAS) Artº 24 nº 2 – Decisions reached by the Dispute Resolution Chamber may be appealed before the Court of Arbitration for Sport (CAS) In 3 years : 333 arbitrations concerning FIFA decisions FIFA Regulations for the Status and Transfer of Players

18 The different natures of arbitrations Disciplinary: Sanctions applied by FIFA to the Associations, Clubs and Players. Disciplinary: Sanctions applied by FIFA to the Associations, Clubs and Players. Non Disciplinary: financial fights between Associations, clubs, players and players agents. Non Disciplinary: financial fights between Associations, clubs, players and players agents.

19 MATTERS OF PROCEDURES PROVISIONAL AND CONSERVATORY MEASURES SUSPENSIVE EFFECT Artº R37 of Code of Sports Related Arbitration (Code) Principles Previous submission of the statements appeal or request for arbitration ; Previous submission of the statements appeal or request for arbitration ; Competence – President of the relevant division prior to the transfer of the file to the Panel or thereafter the Panel ; Competence – President of the relevant division prior to the transfer of the file to the Panel or thereafter the Panel ; Position of the opponent within ten days (in less time in exceptional cases) Position of the opponent within ten days (in less time in exceptional cases) Brief delay Brief delay Provisional Mesures in the case of utmost urgency : order by the President of the relevant divison and the opponent is heard subsequently Provisional Mesures in the case of utmost urgency : order by the President of the relevant divison and the opponent is heard subsequently

20 Cumulative Conditions according to the CAS Jurisprudence Periculum in mora – Risk of Irreparable damages Periculum in mora – Risk of Irreparable damages Fumus boni juris – Probability of success on the main case Fumus boni juris – Probability of success on the main case Balance of interests – suspensive effect (superdeas) is more important Balance of interests – suspensive effect (superdeas) is more important

21 CAS 2003/O/482 ORTEGA VS. FENERBAHCE FACTS 23rd May 2002: Ariel Ortega was transfered from River Plate to Fenerbahce – 4 years contract 23rd May 2002: Ariel Ortega was transfered from River Plate to Fenerbahce – 4 years contract Transfer indemnity – USD Transfer indemnity – USD Image Rights – USD Image Rights – USD Salary – USD per season Salary – USD per season Ortega was sad after six months Ortega was sad after six months

22 Did not return to Turkey despite Fenerbahce insistence Did not return to Turkey despite Fenerbahce insistence Fenerbahce presents a claim on FIFA Fenerbahce presents a claim on FIFA 6th June 2003: Dispute Resolution Chamber of FIFA Breach of contract without just cause Breach of contract without just cause Suspension of the player until December 2003 Suspension of the player until December 2003 Indemnity – USD Indemnity – USD CAS 2003/O/482 ORTEGA VS. FENERBAHCE FACTS

23 SUSPENSIVE EFFECT Disciplinary matter Cas 2003/O/482 Ortega v/ Fernerbahce & FIFA Irreparable Damages or Difficult to Repair in case of immediate effect of the decision; Irreparable Damages or Difficult to Repair in case of immediate effect of the decision; Probability of Success: If the case has an admissible ground (pas temeraire) Probability of Success: If the case has an admissible ground (pas temeraire) Balance of interests PLAYER: Play PLAYER: Play FIFA: Dissuasive effect and Protection of third Clubs FIFA: Dissuasive effect and Protection of third Clubs

24 LEGAL ISSUES CAS 2003/O/482 ORTEGA VS. FENERBBAHCE Arguments of the Player Arguments of the Player –Right to a Hearing (art. R57 of Code) – Just Cause for the abandonment of the employment – Wage not paid –No Medical Assistance

25 DISPUTE RESOLUTION CHAMBER Renunciation of employment Renunciation of employment – Breach of contract according to art. 21 RSTJ – Compensation = USD 11'000'000 – Suspension = 4 months from the beggining of the new season Conclusion: Conclusion: – Abandonment by the player without just cause – Breach of contract

26 Consequences: Consequences: – Suspension – Compensation Suspension: art. 23 RSTJ : Breach of the contract during the first and second year: 4 months suspension Breach of the contract during the first and second year: 4 months suspension Compensation: art. 22 RSTJ 1) Salary and other benefits in the contract in progress and/or in a new contract 1) Salary and other benefits in the contract in progress and/or in a new contract 2) Duration of the remaining period of the contract in progress (up to five years maximum) 2) Duration of the remaining period of the contract in progress (up to five years maximum) 3) Full amount paid by the previous club in proportion on the number of years of the contract left (Pro Rata) 3) Full amount paid by the previous club in proportion on the number of years of the contract left (Pro Rata)

27 Calculation of the damage: Calculation of the damage: – Investment of USD 12'350'000: USD transfer fee of the player USD transfer fee of the player USD AFA and Tax USD AFA and Tax USD image rights USD image rights USD players agent fee USD players agent fee USD wages per season USD wages per season Depreciation 9 months / 4 years Depreciation 9 months / 4 years ARBITRATION CAS PANEL ARBITRATION CAS PANEL –Calculation of the damage = according to the art. 21 et 22 of the Regulation 2001 –Suspension according to the art. 23 of the Regulation 2001

28 Power and statistics Legal discourse tends to be self-referential, all the more so at the CAS. Legal discourse tends to be self-referential, all the more so at the CAS. At the CAS, information about cases and opinions is never made fully available. At the CAS, information about cases and opinions is never made fully available. looking at the statistics (see handout) rather than a legitimate peripheral participation, the analyst has barely managed to put a foot in the door. looking at the statistics (see handout) rather than a legitimate peripheral participation, the analyst has barely managed to put a foot in the door. However, despite such variance, the sub-genre remains recognisable and realistically integral. However, despite such variance, the sub-genre remains recognisable and realistically integral.

29 Legal Cultures The legal background of CAS arbitrators basically stems from two legal traditions: common law and civil law. The legal background of CAS arbitrators basically stems from two legal traditions: common law and civil law. In the EU, the effort to harmonisation has led to merging elements of common law with civil law both in legislation and court procedures. In the EU, the effort to harmonisation has led to merging elements of common law with civil law both in legislation and court procedures. National legislation in EU countries has followed suit: National legislation in EU countries has followed suit: (British law incorporates elements of civil law and Italian law elements of common law such as precedent); (British law incorporates elements of civil law and Italian law elements of common law such as precedent); The CAS Code, initially based on Swiss Law, is made up of statutes and rules but incorporates case law as well. The CAS Code, initially based on Swiss Law, is made up of statutes and rules but incorporates case law as well. Could this be a case of hybridizing legal systems? Could this be a case of hybridizing legal systems?