Yearbook of International Sports Arbitration 2017

The Yearbook of International Sports Arbitration is the first academic publication aiming to offer comprehensive coverage, on a yearly basis, of the most recent and salient developments regarding international sports arbitration, through a combination of general articles and case notes. The present volume covers decisions rendered by the Court of Arbitration for Sport (CAS) and national courts in 2017. It is a must have for sports lawyers and arbitrators, as well as researchers engaged in this field. It provides in-depth articles on current issues raised by international sports arbitration, and commentaries by esteemed academics and experienced practitioners on the most important decisions of the year by the CAS and national courts.
Dr. Antoine Duval is Senior Researcher at the T.M.C. Asser Instituut in The Hague and heads the Asser International Sports Law Centre. 
Prof. Antonio Rigozzi teaches international arbitration and sports law at the University of Neuchâtel, Switzerland, and is the partner in charge of the sports arbitration practice at Lévy Kaufmann-Kohler, a Geneva-based law firm specializing in international arbitration.

• Language: English
• Publisher: T.M.C. Asser Press
• Release date: Sep 26, 2020
• ISBN: 9789462653191

Book preview

Part IGeneral Articles

© T.M.C. ASSER PRESS and the authors 2019

A. Duval, A. Rigozzi (eds.)Yearbook of International Sports Arbitration 2017Yearbook of International Sports Arbitrationhttps://doi.org/10.1007/15757_2019_29

Time to Go Public? The Need for Transparency at the Court of Arbitration for Sport

Antoine Duval¹  

(1)

T.M.C. Asser Instituut, The Hague, The Netherlands

Antoine Duval

Email: [e-mail]

Abstract

Has the time come for the Court of Arbitration for Sport to go public? This article argues that after the Pechstein decision of the European Court of Human Rights, CAS appeal arbitration must be understood as forced arbitration and therefore must fully comply with the due process guarantees enshrined in Article 6(1) ECHR. In particular, this entails a strong duty of transparency with regard to the hearings at the CAS and the publication of its awards. This duty is of particular importance since the rationale for supporting the validity of CAS arbitration, if not grounded in the consent of the parties, must be traced back to the public interest in providing for the equality before the (sports) law of international athletes. Thus, the legitimacy and existence of the CAS is linked to its public function, which ought to be matched with the procedural strings usually attached to judicial institutions. In short, if it is to avoid lengthy and costly challenges to its awards, going public is an urgent necessity for the CAS.

Keywords

TransparencyCourt of Arbitration for SportPechsteinPublic hearingEuropean Convention on Human RightsLex sportiva

1 Introduction

Without publicity all other checks are insufficient: in comparison with publicity, all other checks are of small account.¹

The CAS has become what it was originally designed to be: a ‘Supreme Court of World Sport’.² There are very few high profile international sporting disputes that escape its jurisdiction.³ As sports gained in prominence in the second half of the twentieth century, so did its economic impact and social prestige, and with societal relevance came also an increasing juridification of traditionally informal processes of decision-making and dispute resolution.⁴ The rapidly growing popularity of the CAS is a direct institutional consequence of this evolution. It is nowadays the beating judicial heart of a transnational regime governing international sports.⁵ Nowhere is this more evident than in the anti-doping context, as Article 13.2.1 of the WADA Code endows the CAS with the ultimate competence to review anti-doping decisions involving international-level athletes.

As its name betrays, the CAS is originally rooted in arbitration law. It was conceived as an arbitral tribunal and was recognized as such by the SFT in its famous Gundel decision back in 1993.⁶ Yet, as we will discuss further below, it is also a very unusual one. The CAS panels take decisions affecting the whole range of sporting actors and in particular professional athletes. Arbitrators decide on sporting life or death and can by the stroke of a pen end a career through a doping ban or saddle a football player (or her club) with a considerable debt. The CAS acts also as an administrative and constitutional court that adjudicates on who is to govern the SGBs and how. These decisions have distributive effects for the individuals and institutions involved and directly influence the policies of the SGBs. Such transnational judicial power raises necessarily the acute question of the legitimacy of the CAS.⁷ If the CAS is taking distributive decisions affecting people and institutions, often without them having the choice to consent to its jurisdiction, then it needs to do so in a way that secures fundamental procedural guarantees.⁸ This issue was at the heart of the recent decision of the ECtHR in the joint Pechstein and Mutu ruling (hereinafter referred to as the Pechstein ruling).⁹ The present article reflects in particular on its important push for more transparency in CAS proceedings.¹⁰ Indeed, if the CAS is functionally comparable to a court then it must also be equally accountable to the general public. While transparency is rarely deemed a sufficient condition for accountability and democratic legitimacy,¹¹ it is almost always considered a necessary step towards it.¹²

As will be touched upon in the first section of this article, this call for transparency at the CAS is part of a wider shift away from the entrenched confidentiality of arbitration. This shift is premised on the recognition that arbitral bodies are not only affecting the disputing parties but are exercising a form of judicial governance and impacting on the public interest. I will then show in the second section that the emphasis of the ECtHR on transparency and publicity is linked to the recognition of the non-consensual foundation of the jurisdiction of the CAS in appeal cases, before highlighting, in the third section, the various transparency deficits plaguing the CAS and suggesting pragmatic fixes to tackle them.

2 The Context: The Public Backlash Against Confidentiality in Arbitration

The academic and public debates on transparency and/or publicity in arbitration are not limited to the context of the CAS. While the attractiveness of arbitration is often premised on its reliance on confidentiality and its reputation as behind-closed-door justice, there have been strong calls for greater transparency in particular in investment arbitration but also in international commercial arbitration.

2.1 Confidentiality as a Hallmark of Arbitration

The baseline of international (commercial or investment) arbitration is confidentiality. It is also one of its main selling points.¹³ The essence of arbitration is to allow for the resolution of a specific dispute between two parties who consent to taking their case out of the courts. Consequently, corporations can avoid the potential costs, in terms of reputation, of washing their dirty laundry in public and can preserve the possibility of future cooperation. In investment arbitration, states (and in particular their governments) are also interested in keeping the details of a particular instance out of the public eye, in order to limit the political consequences of a particular decision, which might translate into a heavy load on the public purse. The privacy of arbitration is thus very much entrenched in its private raison d’être and reflected in its operation.

In fact, the overwhelming majority of arbitral proceedings are unfolding in private, and the existence of many of them will never even be known to the public. During the proceedings interventions by interested third parties are also seldom tolerated. Furthermore, arbitral awards are in general not publicly available. Nonetheless, some arbitral institutions are providing summaries of a limited amount of carefully edited awards,¹⁴ and others, in particular in the context of investment arbitration, are publishing awards more systematically.¹⁵ In general, it is therefore extremely difficult for the public, journalists or academics to assist to arbitral proceedings and access their outcomes. This lack of publicity is in recent years, especially with regard to investment arbitration, at the heart of a public backlash that has led to a progressive opening of arbitration.

2.2 Heeding the Call for Transparency in International Arbitration

The idea of arbitrators deciding of the financial fate of a country (and its people) in a closed hotel meeting room dominates the critical imaginary of the public backlash against trade agreements (in particular the infamous Transatlantic Trade and Investment Partnership and the Comprehensive Economic and Trade Agreement) and has led to a noticeable improvement in the transparency of investment arbitration in recent years.¹⁶ Furthermore, this trend towards transparency has not been without effects on international commercial arbitration.

2.2.1 The Slow Turn to Transparency in International Commercial Arbitration

In most instances, international commercial arbitration involves two relatively big private companies doing business on a transnational scale. Accordingly, it can be difficult to argue that there is a compelling public interest for the case to be resolved publicly and the final award to be made accessible beyond the parties to a particular dispute. And yet, some have argued precisely that there is a strong case in favour of making international commercial arbitration more accessible to the wider public.¹⁷ It might be true that it remains the mainstream view that ICA cannot do without [confidentiality]¹⁸ or that States and arbitral institutions are reluctant to require greater publication of awards for fear that parties will take their business elsewhere,¹⁹ yet heterodox voices are advocating greater transparency for an ensemble of complementary reasons. First, publishing awards would be a way to ensure the emergence of a relatively stable jurisprudence on which businesses could rely to increase the predictability of their commercial activities.²⁰ Second, publishing information on arbitrators and their awards is likely to reinforce their legitimacy.²¹ Third, greater transparency in international commercial arbitration can incentivize arbitrators to render better awards, more likely to survive a potential public policy challenge in national courts.²²

This relatively moderate push for transparency in international commercial arbitration has had some concrete effects. An increasing number of arbitral institutions have started to publish, in redacted forms, a sample of their awards.²³ However, this limited transparency comes at a steep price and is primarily aimed at the primary consumers of arbitration (corporations and their legal counsels); it hardly matches the publicity given to decisions of national courts. The urge for transparency was, however, much more pressing and transformative in the context of investment arbitration.

2.2.2 The Pressing Urge for Transparency in Investment Arbitration

Investment arbitration has been in the eye of the cyclone lately. Civil society organizations have mounted successful public campaigns to challenge the use of arbitration in investor-state disputes. They have vehemently denounced the lack of publicity of arbitral panels despite the fact that the cases handled raise strong public interests, insofar as they involve the public purse and the regulatory capacity of states. This so-called backlash against investment arbitration is perceived as a threat to its legitimacy and led to intense academic soul-searching and the disbursement of considerable reformist energy in the past few years.²⁴ In this context, substantial criticism has been directed at the confidential nature of investment arbitration, which triggered numerous procedural reforms and institutional innovations aimed at enhancing the transparency of the arbitral process.²⁵ In fact, confidentiality in investment arbitration is virtually no longer defended.²⁶

Most prominently, in 2014, the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (UNCITRAL Transparency Rules) entered into force and were complemented by the Mauritius Convention on Transparency.²⁷ The UNCITRAL Transparency Rules were previously endorsed by a Resolution of the United Nations General Assembly in 2013.²⁸ They apply to investor-state arbitration ‘initiated under the UNCITRAL Arbitration Rules pursuant to a treaty providing for the protection of investments or investors (treaty) concluded on or after 1 April 2014 unless the Parties to the treaty have agreed otherwise’.²⁹ Amongst others, they provide for the following transparency requirements:

The publication of information at the commencement of arbitral proceedings, including the name of the disputing parties, the economic sector involved and the treaty under which the claim is being made (Article 2)

The publication of a number of documents (Article 3), including:

The notice of arbitration, the response to the notice, the statement of claim, the statement of defence and any further written statements or submissions by the parties;

A table listing all exhibits to the submissions and to expert reports and witness statements;

Written submissions by non-disputing parties;

The orders, decisions and awards of the arbitral tribunal;

If requested, the expert reports and witness statements.

The participation under strict conditions of third parties to the proceedings (Article 4)

The publicity of hearings and their facilitation through specific logistical arrangements, such as video links (Article 6)

The introduction of a publicly accessible repository of published information (Article 8)

The UNCITRAL Transparency Rules are touted as the ‘dawn of a new era’ of greater transparency in investment arbitration.³⁰ Such a change would have been difficult to imagine a few decades ago and is most likely reflecting the intense mobilization of civil society on this question. Nonetheless, it is important to relativize its immediate effects, given that as of this day only a limited number of investment treaties have integrated the UNCITRAL Transparency Rules.³¹ In other words, while the rules might have deep structural effects in the future, they do not impact on-going cases and disputes subjected to pre-existing investment treaties. Yet, their relevance has been reinforced by the reference to the UNCITRAL Transparency Rules in Article 8.36 of the Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA), which provides for their application in disputes based on the ISDS chapter of the CETA. Similarly, the EU negotiating directives³² for a Convention establishing a multilateral court for the settlement of investment disputes provide at paragraph 13 that: ‘Proceedings before the multilateral court should be conducted in a transparent manner, including the possibility of submitting third party interventions, similar to or utilising the rules and standards provided for within the UNCITRAL Rules on Transparency for treaty-based investor-state arbitration.’

These examples illustrate that the longing for transparency in CAS arbitration is part of a more general public concern with the confidential nature of international arbitration. In this regard, the specificity of CAS arbitration lies in its forced nature, which as recognized by the ECtHR in its Pechstein ruling calls in any event for a stricter standard of publicity.

3 Acknowledging the Publicness of Forced CAS Arbitration: Taking Stock of the Pechstein Decision of the ECtHR

Confidentiality of arbitration is certainly easier to justify when private parties freely consent to taking their disputes out of courts. In fact, it is the consensual nature of arbitration that has led the ECtHR to recognize a partial waiver of the application of the due process requirements enshrined in Article 6(1) ECHR.³³ However, when arbitration is primarily of public interest (as when it affects directly the public purse) or when it is imposed to one of the parties (through monopoly power or public regulations), a lack of publicity becomes unsurprisingly more difficult to tolerate. Thus, the ECtHR’s decision to recognize in its Pechstein decision that CAS arbitration, at least in its appeal format, is forced arbitration, logically leads to the imposition of the strict publicity requirements enshrined in Article 6(1) ECHR.

3.1 CAS (Appeal) Arbitration as Forced Arbitration

Claudia Pechstein is a speed-skater embroiled in a longstanding dispute with the CAS due to its decision to confirm a doping sanction issued by the International Skating Union (ISU) against her.³⁴ Pechstein unsuccessfully appealed in 2010 the CAS award to the Swiss Federal Tribunal and then attacked Switzerland before the ECtHR for failing to comply with Article 6(1) ECHR.³⁵ At the same time, she initiated proceedings against the ISU in front of the German courts, leading to an unfavourable decision of the German Bundesgerichtshof (BGH) and a pending recourse at the Bundesverfassungsgericht.³⁶ As argued elsewhere, the case has proven a fruitful entry point to discuss the foundations of CAS arbitration.³⁷ Indeed, Pechstein directly questioned the legitimacy of the CAS as she denied having freely consented to arbitration and targeted its lack of structural independence. While the BGH sided with the CAS in recognizing the validity of her consent to arbitration (though it did acknowledge that this consent was guided by a third party, e.g. ‘fremdbestimmt’),³⁸ the ECtHR provided a different, arguably more realistic,³⁹ assessment.

In its judgment, the ECtHR recognized that Pechstein’s only choice […] was between accepting the arbitration clause and thus earning her living by practising her sport professionally, or not accepting it and being obliged to refrain completely from earning a living from her sport at that level.⁴⁰ Thus, [h]aving regard to the restriction that non-acceptance of the arbitration clause would have entailed for her professional life, it cannot be asserted that she had accepted that clause freely and unequivocally.⁴¹ This inference reflects accurately the limited choice faced by professional athletes when they are asked to sign licenses or entry forms that include or refer to a CAS arbitration clause. In most sporting contexts, if they wish to practice their sport professionally, and not in their ‘garden’ as acknowledged by the SFT,⁴² they will have to submit to the contractual exigencies of the SGBs and therefore accept to be subjected to CAS arbitration. Since the SFT itself had recognized in 2007 that it is obvious that the waiver of appeal, signed by an athlete, will in general not be grounded in free consent,⁴³ it is difficult to understand how it could be otherwise with the arbitration clause.⁴⁴ Hence, the ECtHR’s conclusion that the acceptance of CAS jurisdiction by [Pechstein] must be regarded as compulsory arbitration within the meaning of its case-law⁴⁵ seems well founded in inferring from the imbalance of power between SGBs and athletes the lack of freedom of the latter in choosing to submit to arbitration.

This conclusion problematizes the issue of the foundation of the judicial power of the CAS. If CAS jurisdiction is not grounded on the consent of the parties or a direct delegation of power by states, what legitimizes its right to authoritatively decide sporting disputes? Based on a review of the literature and case law, I have suggested elsewhere that three alternative foundations are often advanced to justify the authority of the CAS: efficiency, proximity and equality.⁴⁶ I believe the most attractive source of legitimation for its jurisdiction is the necessity to preserve equality between participants to international sporting competitions. In a transnational social context, equality before the law cannot be achieved through the parallel jurisdictions of national courts. Instead, there is a true need for a designated transnational judicial institution to exercise an exclusive competence over transnational sporting disputes in order to provide a level legal playing field for athletes involved in international competitions. However, such a post-consensual foundation for CAS arbitration remains doctrinally problematic. Indeed, it constitutes a break with the dogma that one can renounce her access to national courts only voluntarily. Yet, this doctrinal hurdle has not stopped national courts from being pragmatic enough to tolerate a privately mandated arbitration on the basis that it is necessary to secure such a level playing field.⁴⁷ While the Swiss and German courts had done so by denying against all evidence the lack of valid consensual basis for the CAS, the ECtHR decided to simply bypass the question of the alternative foundations of the CAS and simply assumed that the CAS had the appearance of a tribunal established by law within the meaning of Article 6 § 1.⁴⁸ However, for the ECtHR, tolerance of post-consensual arbitration in the sporting context comes with strict procedural strings attached. Mainly, the CAS has to fully comply (e.g. like any national court) with the due process guarantees enshrined in Article 6(1) ECHR.

3.2 CAS Arbitration and Compliance with Article 6(1) ECHR

The ECtHR in its decision was unwavering, [t]he arbitration proceedings therefore had to afford the safeguards secured by Article 6 § 1 of the Convention.⁴⁹ This is a critical finding with potentially far-reaching consequences for the way CAS operates. The ECtHR has developed a rich case law interpreting Article 6(1) ECHR.⁵⁰ In particular, it has stringently scrutinized the independence and impartiality of judicial institutions. While this could be seen as a problematic matter with regard to the CAS, the ECtHR decided that there are insufficient grounds for it to reject the settled case-law of the [SFT] to the effect that the system of the list of arbitrators meets the constitutional requirements of independence and impartiality applicable to arbitral tribunals, and that the CAS, when operating as an appellate body external to international federations, is similar to a judicial authority independent of the parties.⁵¹ Critically unpacking this finding is beyond the scope of the present article, but one can refer to the comprehensively argued dissent by two ECtHR judges (including the Swiss judge) to safely conclude that this part of the decision seems bound to be revisited in a not so distant future.⁵²

More importantly in the context of the present argument, Article 6(1) ECHR entails also a strong publicity duty, which in the eyes of the ECtHR was not complied with by the CAS in the Pechstein proceedings.⁵³ The Court determined that the CAS should have organized a public hearing as Pechstein had expressly requested one. Indeed, the ruling pointed out that the questions arising in the impugned proceedings—as to whether it was justified for [Pechstein] to have been penalised for doping, and for the resolution of which the CAS heard testimony from numerous experts—rendered it necessary to hold a hearing under public scrutiny.⁵⁴ In addition, the Court noted in support of its finding that the facts were disputed and the sanction imposed on the applicant carried a degree of stigma and was likely to adversely affect her professional honour and reputation.⁵⁵ The ECtHR concluded that the CAS infringed Article 6(1) ECHR by denying Pechstein a public hearing and that Switzerland was therefore in contravention with the ECHR and liable to pay compensation to Pechstein.

This ruling opens the door to a multiplicity of challenges based on the ECHR against the CAS in national courts and potentially at a later stage at the ECtHR. With regard to transparency, it is only a first step as other transparency deficits of the CAS will necessarily also come under critical scrutiny in the near future.

4 Time to Go Public: Tackling the Transparency Deficits of the CAS

While the CAS has sometimes been portrayed as a relatively transparent arbitral institution, especially measured against commercial arbitration,⁵⁶ it remains quite opaque when compared to public courts. In particular, this lack of publicity affects the way CAS is administered, the way CAS arbitrations are conducted and the accessibility of CAS decisions.

4.1 ‘Hear, Hear’…the ECtHR: The Duty to Open CAS Hearings to the Public

By rendering the administration of justice visible, a public hearing contributes to the achievement of the aim of Article 6 §1, namely a fair trial.⁵⁷

Publicity is the very soul of justice […] It keeps the judge himself, while trying, under trial.⁵⁸

The Pechstein decision has unambiguously concluded that Article 6(1) ECHR calls for public hearings at the CAS.⁵⁹ This is certainly true in appeal procedures involving disciplinary cases, which come almost always with hotly disputed factual issues as well as professional stigma. Yet, until very recently CAS hearings, even in disciplinary cases, were held behind closed doors with no possibility for the general public or even interested parties to participate unless both parties to the dispute had consented to it.⁶⁰ This state of play was not compatible with the ECtHR’s case law on the publicity of hearings, and the CAS has introduced some changes coming closer to complying with the ECHR.

4.1.1 The ECtHR’s Jurisprudence on the Publicity of Hearings

In general, the publicity of judicial hearings is a principle that is consistently and strictly upheld