The World Cup Bite and the Court of Arbitration for Sport

 

Luis Suarez’s bite on player Giorgio Chiellini – seen around the World during the 2014 FIFA World Cup – will likely come to the docket of the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland. The connection between a spiteful bite in Rio de Janeiro and CAS in Switzerland is an example of the international sports law system known as lex sportiva. The idea is to use arbitration by experts in sports in a quick, and low cost, dispute resolution system with globally enforceable decisions. The jurisdiction of the CAS is founded on the consensus of the parties to a dispute through private international law and contract principles.

Luis Suarez challenges a FIFA ban on all football-related activities for four months, a nine-match ban from international football and $111,000 USD fine for the bite during the 2014 World Cup. The legal consequences for Suarez are the prohibition on practicing with his new club in Barcelona and working with the Uruguay team again. Suarez eventually admitted to the bite and apologized.  An appeal to the CAS must be filed within 21 days to be effective.

In 1983 CAS was created by the International Olympic Committee (IOC) with the first President of the CAS being H.E. Judge Keba Mbaye of the World Court. CAS has powers to rule on active disputes as well as originally to issue advisory opinions.  Of the disputes both commercial and disciplinary types are arbitrated. For example, CAS logged 339 requests for arbitration or advisory opinions from 1986 to 2000. Approximately 65% of the cases were disciplinary cases. The CAS has never been busier, especially since the Anti-Doping Code gave CAS jurisdiction in the mid-2000s to those numerous and notorious cases. CAS operates in both French and English; the arbitral reports are bilingual, reflecting the Swiss roots. In French CAS is known as Tribunal Arbitral du Sport (TAS).

Jurisdiction for CAS is limited to sports-related conflicts as well as from statutes, contracts, and league Charters and Constitutions granting appeal to CAS.  For example, the Olympic Charter section 61(2) states all disputes from the Olympic Games are routed to the CAS, and ad hoc tribunals are set up for each Olympic event cycle for this purpose. Many sports federations adopted CAS principles and requests for arbitration came from those sources too. Should Luis Suarez file an appeal with the CAS it will be from a FIFA decision that may be appealed under the rules of FIFA to CAS.

CAS is growing in importance but still is not the forum of choice for some of the sports federations such as the Federation Internationale de Basketball (“FIBA”) that maintains their own Basketball Arbitral Tribunal (operating 99% online) in Geneva, Switzerland. The CAS 1994 Code of Sports-related Arbitration is very influential and is adopted in part or full in many international sports contracts. FIFA accepts CAS review in Article 74 of the FIFA Disciplinary Code and thus CAS has the power to quash or modify the FIFA judgment against Luis Suarez. CAS had established an ad hoc panel for the 2014 World Cup but Suarez did not file an appeal with that panel, rather apparently waiting to file with the standing CAS arbitrators in Switzerland. CAS also has the ability to suspend the FIFA penalty until the appeal is heard in which case Suarez could practice and play in matches at the beginning of Barcelona’s new season.

Two of the key strengths of the CAS are the mandated speed of decisions and the expertise of the arbitrators with knowledge in all areas of sports. The matter of the World Cup bite by Luis Suarez is a good example of the need for speedy resolution as the FIFA penalty will keep him from practicing and playing without some reversal quickly by CAS. The CAS rules set a three month limit for a decision which is much faster than a court of law. Today, CAS is the center of much sport law dispute resolution and CAS decisions carry highly persuasive authority in courts and arbitral bodes. CAS also has a mediation division. The comparatively low cost of the CAS process is assured by funds available for athletes who cannot afford the legal fees of arbitration in Switzerland.

Criticism of CAS relates to the quasi-independence of the arbitration from IOC influence. The Olympic founders may have originally been too close to CAS for impartiality by both funding CAS and ratifying CAS administration, and the politics of the IOC might have interfered. Until 1994 the criticisms had some merit but a first appeal to the Swiss Federal Tribunal that year led to the creation of an independent CAS including autonomous financing and administration from the IOC.  CAS is located in Switzerland and recognized now by the Swiss Federal Tribunal and CAS decisions may be appealed to the Swiss Federal Tribunal on mainly procedural grounds.  CAS in 2011 even showed such independence from the IOC as to invalidate part of the Olympic Charter relating to doping.  CAS has opened up additional sites in places such as Australia and the USA to meet demand as the process is now widely seen as fair and independent.  There are over 250 arbitrators representing more than 70 countries and they sit in panels of one or three for appeals.

National Courts are recognizing the authority of CAS in sports matters and upholding their arbitral decisions in their own countries. For example, in 2000 an Australian Court of Appeals in New South Wales rejected an appeal from a CAS decision by an Australian national finding the arbitration agreement binding, effective and fair.  In the United States, Courts may uphold CAS decisions using United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention. US Courts have been reluctant to intervene in international sport disputes subject to CAS. Unlike many world arbitration centers, CAS publishes most decisions and makes the terms publically available and transparent. CAS and National Courts are adding to the common law of the growingly important lex sportiva.

Luis Suarez must move quickly if he opts to use the sport dispute resolution system of CAS or the FIFA penalties will be final. CAS is sports’ Supreme Court.

 

 

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