The court of arbitration for sport: provisional and conservatory measures.
Sport is now a global business worth more than 3% of world trade. In the enlarged European Union, now comprising 27 Member States, it accounts for more than 2% of their combined Gross National Product. It is hardly surprising, therefore, that sports disputes are on the increase. And, like other industries, the settlement of sports disputes by alternative dispute resolution (ADR) processes is also on the ascendancy, including mediation (1). In other words, without resort to the Courts.
This is not only because litigation is slow, expensive, arcane and unpredictable; but there are also special reasons peculiar to the sporting world. Sports persons and bodies prefer not 'to wash their dirty sports linen in public' but settle their disputes 'within the family of sport'. In other words, amongst others who understand the special characteristics and dynamics of sport, which require quick and informal settlement procedures. This is especially true of selection disputes. In general, parties involved in sports disputes cannot afford to wait months--or even years--to settle their disputes through the Courts, by the sporting and/or business opportunity lost! Traditional arbitration also now suffers from the same ills, having become procedurally complex, inflexible, costly and lengthy.
However, due to the foresight of the former President of the International Olympic Committee (IOC), Juan Antonio Samaranch, a special body for settling all kinds of sports-related disputes, called the Court of Arbitration for Sport (CAS) (2), was set up with the intention of making the CAS 'the supreme court of world sport'. That was in 1983. A year later, the CAS opened its doors for business. During the last twenty-five years, the CAS has lived up to the expectations of its founders and is proving to be a popular (3), fair, effective, relatively inexpensive, confidential and quick forum for the settlement of sports disputes.
The procedure to be followed in CAS Arbitration cases is set out in the Code of Sports-related Arbitration, the latest edition of which dates from January 2004. And the applicable law for determining the dispute is Swiss law, unless the parties agree on another law. The parties may also authorise the CAS to decide the dispute 'ex aequo et bono'.
The CAS handles a variety of sports-related disputes and is the 'final court of appeal' in doping cases under the World Anti Doping Code. It also offers mediation services and 'Advisory Opinions'--a species of 'expert determination' as used in international commerce, but with one important difference: CAS 'Advisory Opinions' are nonbinding. Despite this, however, they are a relatively quick and inexpensive way of clarifying legal issues and thus avoiding expensive and lengthy litigation in the ordinary Courts.
The CAS also offers so-called 'Provisional and Conservatory Measures', which are the subject of this article and a recent CAS Award in a leading football case, both of which will now be reviewed and examined.
CAS Provisional and Conservatory Measures
Article R37 of the CAS Code of Sports-related Arbitration (3rd edition, January 2004) empowers the CAS to offer the parties in dispute certain protective measures (known as 'provisional or conservatory measures') within a very short timeframe. However, no party may apply for such measures "before the request for arbitration or the statement of appeal, which implies the exhaustion of internal remedies, has been filed with the CAS."
If an application for provisional measures is filed, the opponent is given ten days in which to respond or within a shorter time limit where the circumstances of the case so require. In cases of 'utmost urgency', the CAS may issue an order on "mere presentation of the application, provided that the opponent is heard subsequently." (4)
Added to which, article R44.4 of the Code provides for expedited measures to be ordered by the CAS, with the consent of the parties. This is a measure which is very valuable in relation to sporting disputes, where deadlines and time pressures often apply. For example, a sports person or a team who has been denied eligibility to compete in a particular sporting event, which is soon to take place, need to have their dispute settled very quickly, if the possibility of competing is to remain open and not lost through any delay.
Again, article R48 of the Code also allows a party to obtain a 'stay of execution' of the decision appealed against, provided a request to that effect is made at the time of filing the statement of appeal with the CAS and also reasons are given in support of such request. This measure is particularly apposite in appeals against suspensions for doping offences. But it has also been invoked in a variety of other cases, including a decision to have a football match played on neutral territory to avoid a risk of terrorism in the host club's country. If the request is not made at the time of filing the appeal, it is lost; the assumption being that there is no urgency; otherwise this would have been pleaded at the outset.
Article R37 of the Code does not specify or limit the kinds of preliminary measures that the CAS Arbitrators can issue in a given case. But traditionally in arbitral proceedings, these measures tend to fall into three categories:
* measures to facilitate the proceedings, such as orders to safeguard vital evidence;
* measures aimed at preserving the status quo during the proceedings, such as those that preserve the object of the proceedings; and
* measures that safeguard the future enforceability of the decision, such as those concerning property.
For example, in the infamous so-called 'Skategate' case during the 2002 Salt Lake City Winter Games, an order was imposed on the judges not to leave the Olympic village before the CAS Ad Hoc Division had investigated the circumstances in which the disputed medal had been awarded. Again, orders have been made in doping cases to preserve samples taken during a disputed doping control.
However, preliminary measures can never exceed the object of the dispute. Thus, such measures cannot be issued against anyone who is not a party to the dispute; or anyone else who is not bound by the arbitration agreement signed by the applicant seeking the preliminary measures.
Furthermore, under the terms of article R37 of the Code, in appeal proceedings, the parties by agreeing to the CAS Procedural Rules "waive their rights to request such measures from state authorities." In other words from the local courts. However, such implied waiver does not apply to parties in cases under the CAS ordinary arbitration procedure (para. 2). Thus, in such proceedings, the parties can apply for similar measures from the competent local courts.
Again, under article R37, provisional and conservatory measures may be made conditional on the provision of security by the party seeking them (para. 4). Such security is often a financial guarantee to be given by the applicant seeking such measures against any possible loss suffered by the party subject to the restraining measures in case the applicant is not ultimately successful in the proceedings. This happens in civil litigation quite often when an interim injunction is awarded by the court.
The criteria for granting CAS preliminary measures are not stated in article R37 of the Code, but are spelled out in the equivalent article dealing with the granting of such measures by the CAS Ad Hoc Division operating at the Olympic Games. This is article 14 of the Arbitration Rules for the Olympic Games; and provides, in paragraph 2, that, when deciding whether to award any preliminary relief, the following considerations shall be taken into account:
* whether the relief is necessary to protect the applicant from irreparable harm;
* the likelihood of success on the merits of the claim; and
* whether the interest of the applicant outweigh those of the opponent or other members of the Olympic Community.
It is not clear whether these considerations are cumulative or alternative, but, in practice, CAS Arbitrators have wide powers in relation to procedural matters. Also, reference may be made to the following view, with which the writer would entirely agree, expressed by an Ad Hoc Panel sitting at the Salt Lake City Winter Olympics:
"... each of these considerations is relevant, but that any of them may be decisive on the facts of a particular case." (5)
In other words, CAS Arbitrators must take all the circumstances of the particular case into account, including the above criteria, when deciding whether or not to grant any preliminary relief. We will now take a look at a recent CAS case involving a request for provisional measures, which illustrates and applies the above general principles. The case involved a dispute between two leading Greek football clubs and the Greek Football Association, The Hellenic Football Federation ("HFF") (also referred to later in the article as "Respondent 2").
Apollon Kalamarias FC v/ HFF & Olympiacos FC Case6
The text of the CAS Award in this Case, which was rendered on 21 April, 2008, is set out in the Appendix to this article, and the facts of the case are as follows:
On 3 February 2008, Apollon played an official football match against Olympiacos, during which it fielded the player Roman Wallner ("the Player"). Following this match, Olympiacos filed a complaint, claiming that the Player was ineligible to play in the match, because he had already played in official matches for two other football clubs during the same season, namely for Falkirk FC (in Scotland's Premier League) and Hamilton Academical FC (in Scotland's First Division).
Following the complaint filed by Olympiacos, the Disciplinary Committee of the Super League decided that the Player had been indeed ineligible to play, armulled the result of the match, and ordered that the match be replayed.
Apollon and Olympiacos bath appealed the decision before the Appeal Committee of the HFF ("the Appeal Committee"). On 5 March 2008, the Appeal Committee issued a decision ("the Decision") whereby it dismissed Apollon's appeal, decided that the result of the match should be 3-0 in favour of Olympiacos and deducted one point from Apollon's standing. The Decision, without the reasons, was notified to the Appellant on 6 March 2008. On 20 March 2008, Apollon appealed this decision to the Court of Arbitration for Sport and also subsequently filed a request for provisional and conservatory measures. Its statement of appeal included the following prayer for relief:
"WE REQUEST FROM YOUR COURT To accept this recourse. To annul and reverse the number 57/5-3-2008 decision by the Hellenic Federation Appeal Committee. To reject the objection of the club of Olympiacos Piraeus against the validil), of the match played between our teams on 2-3-2008 for irregular participation of the player ROMAN WALLNER on the above grounds."
On 31 March 2008, the Appellant filed a request for provisional and conservatory measures (the "Request"). In the Request, the Appellant pointed out that the Decision was attracting media attention. It also stressed that the HFF had not yet provided the reasons for the Decision and submitted that such delay was a breach of established principles of natural justice and due process. According to the Appellant, the Decision is "erroneous or procedurally incorrect". In this respect, the Appellant contends that the HFF "failed to consider in an appropriate marmer the current regulatory frainework, with the result to misdirect itself and reach an erroneous and unfair result". In addition, the Appellant stated that information and documents were "missing from the investigation, or there was a blatant omission, on behalf of Respondent 2, to consider them".
The Appellant requested the Panel to order the disclosure of the following documents and information:
* The reason(s) for the Decision;
* The transcripts of the minutes of the proceedings before the Disciplinary Committee of the Super League and the Appeal Committee of the HFF;
* The document identifying receipt of the International Transfer Certificate ("ITC") of the Player;
* A written explanation by the HFF outlining the reasons for submitting the ITC late and allowing at the same time the Player to participate in the match which gave rise to this arbitration;
* The ITC and the Player' s passport.
The Appellant explained that these documents and this information are in the direct control of the HFF, or could become available to it. In addition, the Appellant contended that they are relevant to the issues in dispute.
The Appellant requested the Panel to grant the following Interim Measures:
The Appellant requested the Panel to "order Respondent 2 and the Organising Body of the Hellenic League, called "Super League", to restore the 4 point deficit back to the Appellant, and construe the Super League Standings Table accordingly and with immediate effect". In addition, the Appellant requested the Panel to order the HFF to comply with paragraph 20.3 of the Regulations of Professional Matches of the HFF and, as a consequence, to order the HFF and the Super League not to validate the Super League Standings Table pending the outcome of these proceedings.
The arguments of the Appellant and the counter-arguments of the Respondent are set out in the text of the Award which appears in the Appendix to this article.
The CAS dismissed the request for provisional measures and some comments on this ruling now follow.
Some Comments on the Apollon Case
As mentioned above, all such cases of provisional and conservatory measures depend upon the particular facts and circumstances of each case. And that is certainly true in the Apollon case. Likewise, each case requires a balancing of conflicting interests between the parties in deciding whether or not to grant the provisional and conservatory measures, which is a matter of fact; and this seems to be the determining factor in each case, and, again, was certainly true in the Apollon case.
The CAS Panel dealt with the balance of interests' principle in the Apollon case in paragraphs 76-79 of the Award, holding that more harm would be suffered by the Respondent and other Greek teams if the provisional measures were granted than by the Appellant if they were not granted:
"76. According to CAS jurisprudence, the potential harm to which the Appellant would be subject if the provisional measures are not granted must appear to outweigh the interest of the Respondents or third partjes to the status quo.
77. The Appellant did not specifically address this issue in its Request.
78. The Panel considers that the risk of harm caused to the Appellant if the measures are not granted is limited (see above. section 8(b)). On the contrary, ordering a modification of the Super League standings as a provisional and conservatory measure might harm Olympiacos, as well the HFF and other Greek teams, since this could directly affect their capacity to play in next years European competitions.
79. As a consequente, the interest of the Appellant in obtaining the measures (which, as already set out above, would not change the Appellant's position regarding relegation) does not outweigh the intererts of the Respondents."
Furthermore, the CAS Panel also took a very pragmatic approach by pointing out that, even if the provisional measures sought by the Appellant were granted, by restoring the points deducted, this would not make any difference to their actual relegation position in the Super League. The Panel expressed this point in paragraph 75 of the Award in the following terms:
"75. Based on elements of the matter, and in particular the undisputed fact that the Apollon would be relegated even if the measures requested were granted, the Panel considers that the Appellant has not brought prima facie evidence of a risk of irreparable harm."
This approach by the Panel, one of whose members is an English Solicitor, reflects the postion under 'the Law of Equity' under English Law, where all provisional and conservatory measures (so-called 'interlocutory' or 'preliminary' relief ) are within the discretion of the Court and not, therefore, automatically granted, but must be shown to be appropriate in all the circumstances of each case. For as one of the so-called 'Maxims of Equity' states: 'Equity does nothing in vain'!
It is also interesting and surprising to note that the Appellant's lawyer did not adduce any prima facie evidence of the risk of irreparable harm to the Appellant, which is a basic requirement under CAS jurisprudence in provisional and conservatory measures cases (see paragraphs 76 and 77 of the Award cited above).
In the view of the author of this article, the ruling in the Apollon case is in line with decisions in previous CAS preliminary measures' cases and seems to be fair and logical in the particular circumstances. It is understood that the main Appeal will go ahead and it will be interesting to see the outcome of it, in due course. However, I think the Appellant's lawyer may have an uphill battle in winning the case, because, in some respects, the ruling on preliminary measures may perhaps be viewed as a ruling on the merits of the main appeal case itself.
It is clear that the CAS during its twenty-five years of existence has been successful in being able to grant parties very valuable, relevant and generally effective kinds of final relief in a wide range of sports-related disputes, as well as interim protection and relief, where appropriate, at an early stage in the proceedings. Such preliminary measures are particularly apposite in relation to sport and its special characteristics and dynamics, where parties in dispute are often faced by sporting deadlines, particularly in eligibility and selection disputes. Such measures are extremely useful to the international sporting community as they ensure that fairness--an essential element in sport--and justice are not only done--but, as rulings in preliminary measures cases are published, also seen to be done--both on and off the field of play.
(1) See 'Mediating Sports Disputes National and International Perspectives' by Ian S. Blackshaw 2002 TMC Asser Press The Hague, The Netherlands (ISBN 90-6704-146-7). See also Chapter 6: 'Alternative Dispute Mechanisms in Sport' by Ian Blackshaw at pp. 229-268 in 'Sports Law' by Simon Gardiner, Mark James, John O'Leary, Roger Welch, Ian Blackshaw, Simon Boyes and Andrew Caiger, Third Edition 2006 Cavendish Publishing London, UK (ISBN 13: 978-1-859-41894-9)
(2) See 'The Court of Arbitration for Sport 1984-2004' Ian S Blackshaw, Robert C R Siekmann and Janwillem Soek (Editors), 2006 TMC Asser Press The Hague, The Netherlands (ISBN 90-6704-204-8).
(3) According to Matthieu Reeb, CAS Secretary General, writing in the 'CAS NewsLetter' of March 2005, "more and more people are taking their disputes to the Court of Arbitration for Sport without a second thought. It is true that the number of cases was expected to rise, especially since FIFA decided to allow appeals to the CAS in 2002. However, rather than a linear increase, the number of cases registered by the CAS has exploded....." The increase in the number of cases being referred to the CAS continues a phenomenal pace, particularly due to football related cases.
(4) Article R37, para. 3 of the Code of Sports-related Arbitration.
(5) CAS JO-SLC 02/004, COA v ISU, CAS
(6) CAS 2008/A/11525 21 April, 2008.