Printer Friendly

The making of a lex sportiva by the Court of Arbitration for Sport.

Introduction

"Sports law is not just international; it is non-governmental as well, and this differentiates it from all other forms of law" (1). Sports rules are genuine "global law", because they are spread across the entire world, they involve both international and domestic levels, and they directly affect private actors: this happens, for instance, in the case of the Olympic Charter, a private act of a "constitutional nature" with which all States comply (2); or in the case of the World Anti-Doping Code, a document that provides the framework for the harmonization of anti-doping policies, rules, and regulations within sports organizations and among public authorities (3).

Therefore, the global dimension of sport is, in the first instance, normative. A "global sports law" has emerged, which embraces the whole complex of norms produced and implemented by regulatory sporting regimes (4). It includes not only transnational norms set by the International Olympic Committee (IOC) and by International Federations (IFs) - i.e. "the principles that emerge from the rules and regulations of international sporting federations as a private contractual order" (5) -, but also "hybrid" public-private norms approved by the World Anti-Doping Agency (WADA) and international law (such as the UNESCO Convention against doping in sport). Global sports law is made of norms provided by central sporting institutions (such as IOC, IFs and WADA) and by national sporting bodies (such as National Olympic Committees and National Anti-Doping Organizations).

Global sports law, therefore, is highly heterogeneous. It operates at different levels and it is produced by several law-makers. Amongst those, there is one very peculiar body, funded in the 1980s, which has become a key actor in the sport legal system: the Court of Arbitration for Sport (CAS) (6). In the last two decades, the activity of this institution has become extraordinarily important. The number of decisions released by CAS has increased to the point that a set of principles and rules have been created specifically to address sport: this "judge-made sport law" has been called the lex sportiva (7). This formula, which recalls well-known labels like lex mercatoria or lex electronica (8), has been readily adopted and, indeed, its meaning has been extended over time: it can be used, in fact, to refer more generally to the transnational law produced by sporting Institutions (9). In spite of this success, the existence of a lex sportiva is not universally accepted: in 2001, for instance, the Frankfurt Oberlandesgericht stated that "[E]ine von jedem staatlichen Recht unab-hangige lex sportiva gibt es nicht" (10).

In this paper, the term lex sportiva is used in a broad sense as synonym of "global sports law". The formula "global sports law" thus covers all definitions so far provided by legal scholarship (such as lex sportiva or "international sports law" (11)) in order to describe the principles and rules set by sporting institutions. This approach of course raises several problems concerning the very concept of such a kind of law and its binding force (12); other problems include those connected to wider themes such as the emergence of a "global private law" and the formation of "global private regimes" (13).

However, this analysis will not deal with those issues. Instead, it will focus on the actor that is probably most prominent in constructing global sports law: the Court of Arbitration for Sport (CAS).

The purpose of this paper is to examine the structure and functions of this institution, in order to highlight a number of problems concerning judicial activities at the global level more generally. Section 1 will outline CAS' organization and functions, from its inception to the present date. In particular, this section will show how the history of the CAS is reminiscent of a famous German novel based on a biblical saga, "Joseph and his brothers" by Thomas Mann (14). Put briefly, CAS was originally the "favourite son" of the Olympic movement's founding fathers; it subsequently became the target of its envious "brothers" - i.e. the International Federations and other sporting arbitration institutions - which viewed CAS as a dangerous enemy; ultimately, CAS defeated its opponents, gained independence and brought normative harmonization, thereby becoming "the Nourisher" (Der Ernahrer) of global sports law. Section 2 will focus on the role of CAS in making a lex sportiva, and it will take into account three different functions: the development of common legal principles; the interpretation of global norms and the influence on sports law-making; and the harmonization of global sports law. Section 3 will consider the relationships between the CAS and public authorities (both public administrations and domestic courts), in order to verify the extent to which the CAS and its judicial system are self-contained and autonomous from States. Lastly, section 4 will address the importance of creating bodies like CAS in the global arena, and it will identify the main challenges raised by this form of transnational judicial activity. The analysis of CAS and its role as law-maker, in fact, allows us to shed light on broader global governance trends affecting areas such as the institutional design of global regimes, with specific regard to separation of powers and the emergence of judicial activities.

1. The Court of Arbitration for Sport (CAS): A Novel

The CAS plays a crucial role within the sport legal system (15). It was created in 1983, thanks in large part to the will of Juan Antonio Samaranch, at that time President of the International Olympic Committee (IOC), who planned to build a centralized mechanism of international judicial review in sport: the idea was to introduce a sort of "supreme court for world sport" (16). From this point view, Samaranch followed the path of the father of IOC, Pierre De Coubertin, who was the first to observe that a sporting institution should, first of all, "s'organiser judiciairement", because it must be "a la fois un Conseil d'Etat, une Cour d'appel et un Tribunal des conflits" (17).

Nevertheless, the childhood of CAS was not easy. This was mainly due to three reasons. Firstly, activity at the beginning was not intensive, partially because there were few cases at that time: doping scandals, for instance, were not a major issue until the later years of the 1980s. To give an idea, in the 1980s the CAS issued few decisions per year; during the last decade, there have been over 800 rulings (18). Secondly, in those years the International Federations used to ignore the CAS, and some of them had their own judicial body. The most significant example is the International Association of Athletics Federations (IAAF), which had its own Arbitration Panel during the 1980s and the 1990s and only in 2001 did it decide to disband it in favour of CAS' jurisdiction (19).

Thirdly, according to its original institutional design the CAS was a sort of judicial branch within the IOC, with the latter maintaining political and financial control over the former.

After a decade, however, there was a turning point in the history of the CAS. In 1993, the Swiss Federal Court stated that the CAS did not meet all of the standards required for international arbitrations, namely the independence of the arbitral body (20): this issue would have come to a head had the IOC been a party in a CAS arbitration, for instance (21). The episode forced the IOC to reform the CAS, which was re-organized along the lines of the current model (with the so called 1994 Paris Agreement) (22).

Nowadays the Court of Arbitration for Sport is a permanent arbitration structure, and its mission is to "settle sports-related disputes through arbitration and mediation" (23).

It is made of two distinct bodies, both settled in Lausanne (Switzerland): the International Council of Arbitration for Sport (ICAS) and the CAS (24).

The former was created in 1994 in order to provide the CAS with genuine independence from the IOC. It is a foundation regulated by Swiss civil law; its board is made of twenty members chosen to represent the Olympic movement and to ensure its autonomy (25). The task of the ICAS is to facilitate the settlement of sports-related disputes through arbitration or mediation and to safeguard the independence of the CAS and the rights of the parties. To this end, it looks after the administration and financing of the CAS (26). Moreover, the ICAS appoints the personalities who are to constitute the list of arbitrators and the list of CAS mediators and can remove them from those lists (27).

There are at least 150 arbitrators and at least 50 mediators: the former provide "the arbitral resolution of disputes arising within the field of sport through the intermediary of arbitration provided by Panels composed of one or three arbitrators"; the latter provide "the resolution of sports-related disputes through mediation" (28).

The CAS carries out several different activities (29). It provides mediation (30), and it also can render non-binding advisory opinions upon request of the IOC, the IFs, the NOCs, WADA and the organizations recognized by the IOC and the OCOGs, about any legal issue with respect to the practice or development of sport or any activity related to sport.

Its main task, however, is to settle disputes. To this end, the CAS is composed of two divisions, the Ordinary Arbitration Division and the Appeals Arbitration Division (31).

The Ordinary Arbitration Division constitutes Panels, whose task is to resolve disputes submitted to the ordinary procedure, and performs, through the intermediary of its President or his deputy, all other functions in relation to the smooth running of the proceedings conferred upon it by the CAS Procedural Rules (32). The Appeals Arbitration Division constitutes Panels, whose task is to resolve disputes concerning the decisions of federations, associations or other sports-related bodies insofar as the statutes or regulations of the said sports-related bodies or a specific agreement so provide (33).

Arbitration proceedings submitted to the CAS are assigned by the CAS Court Office to one of these two divisions according to their nature (34). In addition to these two divisions, there are ad hoc chambers created for the Olympic Games (from 1996) and for other sports events such as the FIFA World Cup (35).

This variety of tasks thus produce different models of judicial activities within the CAS. It resembles a civil law court when it deals with commercial law cases (such as players transfers), an administrative law court when it has to decide claims against sporting institutions' decisions, a criminal law court when it has to balance evidences in doping violations, and even a constitutional court when it must resolve conflicts between different institutions of the Olympic movement (36). As a matter of fact, the coexistence of different jurisdictional models is common in international courts or tribunals: take, for instance, the WTO Dispute Settlement Body (DSB), in which there are both constitutional features (concerning the interpretation of Treaties or the protection of fundamental rights) and administrative law and civil law ones (relating to the review exercised by DSB over decisions and proceedings) (37).

Lastly, the activities of CAS have increasingly expanded in the last fifteen years, so that the growing number of its decisions has led to the formation and the consolidation of a set of principles and rules (38). This complex of norms stems from both the interpretation of sports law and the creation of new principles specific to sport (such as principle of "fair play", or that of "strict liability" in doping cases). This set of principles and rules has been labelled lex sportiva, and it is often relied upon by CAS panels as well as by other institutions: even the World Anti-Doping Code refers to CAS awards.

This result is mainly due to the necessity of harmonizing sports regulations (especially anti-doping rules, which were particularly different from each other before the adoption of the World Anti-Doping Code) and to the need for protecting fundamental rights of the athletes within the sport legal system (so that they do not have to file a case before domestic courts). In order to ensure CAS' supremacy, all of the basic legal documents of the sports system set out ad hoc clauses. The Olympic Charter has established CAS jurisdiction over IOC decisions and regarding any disputes arising during - and in connection with - the Olympic Games (39). IFs Statutes and Regulations have introduced specific clauses in which they devolve disputes to the CAS (40). The World Anti-Doping Code points the CAS as a judge of last instance in doping cases (41).

The CAS Novel thus comes to a happy end. Born as the favourite son of the IOC, after an initial period of difficulty, it has constantly widened its jurisdiction, and has finally come to be viewed as a supreme court for sport by all sporting institutions: IOC, WADA, and even IFs. Through its decisions, CAS has made a crucial contribution to the emergence of global sports law. It develops common legal principles among sporting bodies; it interprets and harmonizes sports law; it reviews sporting institutions' decisions; it helps affirm the separation of powers within the sport legal system. The CAS is no longer a child sitting there by the well ("an der Tiefe"): it has become "the Nourisher" (Der Ernahrer) of global sports law (42).

2. The role of the CAS in making a lex sportiva

Among the different activities carried out by the CAS, some are especially relevant to the formation of the global sports law. In particular, we can distinguish at least three different functions. First, the CAS has been applying general principles of law to sporting institutions, and it has been also creating specific "principia sportiva".

Secondly, the CAS plays a significant role in interpreting sports law, thus influencing and conditioning rulemaking activity by sporting institutions. Thirdly, the CAS greatly contributes to the harmonization of global sports law, also because it represents a supreme court, the apex of a complex set of review mechanisms spread across the world: for instance, doping case decisions issued by national anti-doping panels can be appealed to the CAS.

2.1. Development of common legal principles

The first issue relates to the adoption of legal principles by the CAS. From this perspective, one can consider, on the one hand, when awards apply or refer to general principles of law, and, on the other, when awards develop new principles specifically conceived for sport.

As to the first hypothesis, it is worth noting that CAS often refers to public international law principles. In the Dodo case, for instance, the Brazilian national soccer federation (Confederacao Brasileira de Futebol) was held responsible for decisions issued by the Superior Tribunal de Justica Desportiva do Futebol (STJD), a body partially independent from the national federation, because of the principle which states that "States are internationally liable for judgments rendered by their courts, even if under their constitutional law the judiciary is wholly independent of the executive branch" (43). An other example comes directly from the Arbitration rules for the Olympic Games, which establish that the CAS "shall rule on the dispute pursuant to the Olympic Charter, the applicable regulations, general principles of law and the rules of law, the application of which it deems appropriate" (44).

Furthermore, the CAS largely adopts public law principles, such as due process, fairness, duty to give reasons. Therefore, a relevant difference emerges between other forms of global law or transnational law, such as the lex mercatoria, and the lex sportiva: while the former adopt principles that are mostly - if not exclusively - based on private law, lex sportiva, and in particular CAS awards, have mostly developed using and in accordance with public law principles, particularly those drawn from criminal law and administrative law (45).

The CAS itself, in fact, highlighted that there is "an evident analogy between sports-governing bodies and governmental bodies with respect to their role and functions as regulatory, administrative and sanctioning entities" (46). This is why the CAS often reviews sporting institutions' action by comparing them to public administration: in the Pistorius v. IAAF case, for instance, the CAS evaluated the decision making process followed by the IAAF in order to verify whether the decision challenged by the athlete was "procedurally unsound" (47).

The most important example of such principles is probably the principle of due process. In this regard, the CAS has issued several decisions that have allowed this principle to be introduced as a fundamental right in global sports law.

In 1995, for instance, the CAS stated that "The fight against doping is arduous, and it may require strict rules. But the rule-makers and the rule-appliers must begin by being strict with themselves. Regulations that may affect the careers of dedicated athletes must be predictable. They must emanate from duly authorised bodies. They must be adopted in constitutionally proper ways. They should not be the product of an obscure process of accretion" (48). Some years later, the CAS observed that it "has always considered the right to be heard as a general legal principle which has to be respected also during internal proceedings of the federations [...] Federations have the obligation to respect the right to be heard as one of the fundamental principles of due process" (49). In 2004, the CAS stated that it "will always have jurisdiction to overrule the Rules of any sport federation if its decision making bodies conduct themselves with a lack of good faith or not in accordance with due process" (50).

The importance of this jurisprudence is crucial if we consider that the World Anti-Doping Code - which recognizes the right of athletes to a fair hearing in anti-doping proceedings - entered into force only in 2003 (51). From this perspective, CAS acted as a law-maker, in so far as it brought in the sports legal system the principle of (procedural) due process (52). The CAS, in fact, has always affirmed its role in "curing" procedural defects: meaning that such defects can be cured before the CAS, without necessarily upheld sporting institutions' decisions (53). However, it is worth noting that the only case - to date - in which a CAS award has been successfully challenged before the Swiss Federal Court was because of a due process violation (54).

A different hypothesis is when CAS does not apply a principle of general law, but creates a "new" principle. This happens, for instance, whenever CAS refers to the so called "principia sportiva", i.e. principles conceived of for sport only, such as "fair play" or the principle of "strict liability" applied to doping cases (55). This example provides us with an interesting case of judge-made law at the international level and highlights some relevant trends in global regimes. In particular, the emergence of global regulatory regimes and global courts leads to the constitution of autonomous sets of norms, principles and procedures. In this process, two distinct phenomena take place: first, these regimes imitate the machinery of the State, selecting principles and mechanisms that can be adapted to their own contexts; and second, they try to develop their own legal principles, which are binding within the regime that created them. The first phenomenon contributes to the development of principles of public law and administrative law at the global level, through a mimetic process. The second is an attempt to build autonomous and complete legal orders. This phenomenon, however, encounters many obstacles; mainly because these regimes often remain in some ways connected to the State (e.g. the Swiss Federal Court can review CAS awards according to the 1958 New York Convention (56)).

2.2. Interpreting sports law and influencing rulemaking

The second function carried out by the CAS in making a lex sportiva is the influence it has on sporting institutions' regulatory activities. This function is connected with the role played by the CAS in interpreting sports law and it leads directly to one key question: what is the weight of CAS jurisprudence? Is there any rule of binding precedent?

Formally, there is no rule of this kind for CAS awards, meaning that no panel is bound by preceding decisions issued by other panels. However, while reading through all the awards, panels demonstrate a consistent deference to CAS jurisprudence, which is often referred to by arbitrators. There is an analogy here between the CAS and other international courts or tribunals, such as the WTO Dispute Settlement Body: although there is no formal principle of stare decisis in the decisions of the WTO Appelate Body, it does tend to follow its own "jurisprudence" (57).

Thanks to this informal but consistent rule of precedent, the CAS exercises a strong influence on sports law-making. The clearest example comes from anti-doping rules. In this case, during the formation process of the World Anti-Doping Code (both the first and the revised versions), CAS decisions were taken in due account; and the Code itself, in comments pertaining to specific articles refers to the CAS jurisprudence (58).

Finally, another activity which illustrates the law-making role played by the CAS is the production of advisory opinions in response to requests from IOC, IFs, WADA or other sporting institutions. Although these opinions are not binding, they have the power of moral suasion and can influence the choices of sporting entities. In this case, the CAS acts like the French Conseil d'Etat or the Italian Consiglio di Stato, which do not operate only as judges, but are also called to advise the legislature. This is a fundamental function of such tribunals, which to date remains underdeveloped within sporting institutions.

2.3. Harmonizing global norms through the appeals procedure

Lastly, the third function of the CAS to be considered is that of normative harmonization. This kind of "law-making" is effected through the appeals procedure. CAS, in fact, represents the apex of a very complex judicial system, made up of two or even three levels. At the first two levels there are either national sporting tribunals or international sporting federation tribunals or both; while at the top level, as the court of last instance, there is the CAS. This kind of system creates a centralized mechanism of review that seems to be very effective: it has been working very well, for instance, in doping matters, where CAS can now intervene after the other two bodies have already reached a decision concerning a particular case. Thanks to the appeals procedure, therefore, CAS - that acts like a supreme court - plays a significant role in harmonizing global sports law.

In any event, an appeal against the decision (59) of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the appellant has exhausted the legal remedies available to him prior to the appeal, in accordance with the statutes or regulations of the said sports-related body (60).

The need for an arbitration agreement represents the legal basis for a CAS intervention, which is legitimated through mutual agreements, i.e. the same kind of legitimacy of the entire sports legal system and of private law more generally (although it can be argued that professional athletes are free to decide about this once they are affiliated to a sport federation) (61).

The CAS has "full power to review the facts and the law" (62), so that it "may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance" (63): the CAS, therefore, can be either an appeal judge or a "Cour de Cassation". The appeals procedure - based on a review of a decision issued by a sporting body - is another peculiarity of the CAS, in comparison with other forms of international arbitrations, where contracts are usually at stake (64). Within the sports legal system, this kind of procedure is essential for ensuring the equal treatment of athletes and for avoiding excessive influence of national sporting institutions over cases regarding domestic athletes (65). Moreover, the appeals procedure may be the first time that a case is brought before a truly impartial body (66), because it often happens that sporting tribunals are not completely separated from their own federations (67).

In any event, the appeals procedure is an arbitration. It implies that the Panel "shall decide the dispute according to the applicable regulations and the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law, the application of which the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision" (68). Moreover, the parties have to accept CAS jurisdiction, that is why sporting institutions' statutes and regulations establish an ad hoc clause (69). This confirms that the most significant form of legitimacy of sport judicial activity is based upon consensus.

Through the appeals procedure, the CAS connects and harmonizes both transnational and national sports law. This function is thus closely connected to the development of common legal principles (70), such as legality, fairness and good faith (71), as well as "general principles of law drawn from a comparative or common denominator reading of various domestic legal systems and, in particular, the prohibition of arbitrary r unreasonable rules and measures" (72). Therefore, the CAS, like an international or "mercatique" judge, is "amene a deduire d'une comparaison des different systemes juridiques nationaux l'existence de regles de droit positif applicables a l'activite dont il est le juge" (73).

3. The relationships between the CAS and public authorities

The CAS is an example of a centralized review mechanism over sporting institutions' activities. It is one of the most experienced among international tribunals, which are continually growing in numbers (74). The creation of the CAS is also attributable to the necessity of limiting the intervention of domestic courts in sporting matters, of which there have been increasing instances since the end of the 1980s (largely due to the rise in doping cases and to the commercialization of sports, such as in the well-known cases of Reynolds and Krabbe (75)). National courts' intervention was perceived as posing a threat to the autonomy of sporting institutions (76). As a consequence, in order to strengthen the role of CAS, most of IFs have dismissed their own arbitrations bodies (e.g. the IAAF), although some of them have retained jurisdiction over specific matters (for instance, FIFA has not devolved to CAS disputes concerning violations of the rules of the game of football (77)). The role of domestic courts within the sports system, however, brings to the fore another crucial issue: the relationships between the CAS and public authorities.

It may happen that some of the domestic decisions appealed to the CAS were taken by public bodies, or even domestic courts. In these cases, CAS can be called upon to judge the decisions of public authorities.

Sometimes States themselves leave the last word to the CAS: in Italy, for instance, a specific provision establishes that doping sanctions issued by the national anti-doping tribunal (a public body) can be appealed to the CAS. In other circumstances, the CAS itself has resolved the matter, by simply ignoring the domestic decision (78). In particular, the CAS stated that "the coexistence of national and international authority [...] is a familiar feature, and it is well established that the national regime does not neutralise the international regime" (79). Therefore, national sovereignty - i.e. in this case the power to sanction athletes - "n'a, en principe, vocation a s'appliquer que sur le seul territoire national" and "la decision nationale peut toutefois etre remplace par une decision de l'autorite internationale - le TAS - pour que soit assuree la necessaire uniformite du droit" (80). In conclusion, it would be possible in theory that one State impose its own decisions, during sports events held in its own territory, against the will of the "autorite internationale", such as IFs or the CAS; however, were this to happen, that State would not be allowed to host any international sport competition (81).

It is worth noting, however, that domestic courts have intervened mostly in doping cases. From this perspective, the creation of the World Anti-Doping Agency (WADA) and the formation of a public-private anti-doping regime, followed by the adoption of the World Anti-Doping Code and the signature of the UNESCO Convention against doping in sport, have minimized the risk of actions being brought before national judges (82). Furthermore, while looking at the process of "nationalization" that accompanied the formation of the anti-doping regime, some scholars have found a relationship of "international delegation" between States and the CAS (83). This would offer a further explanation of the high effectiveness of CAS procedures, which during the Olympic games are also extremely fast (cases are solved within 24 hours) (84). Lastly, CAS decisions - such as disqualifying an athlete or changing a result - are often very easily executed (85).

Thus conflicts between public authorities and CAS are not frequent. Evidence of this can be found in the low number of claims against CAS awards before the Swiss Federal Court (86). In 25 years, with around 1000 awards decided, only 30 such claims (87) were made against CAS awards, and of those, only one resulted in annulment of the award in question (88). From this point of view, the Swiss Federal Court is the "closing gate" of the whole system, and it may be called upon to decide on an award issued in any part of the world (89), according to the Swiss Federal Act on Private International Law (90).

In conclusion, the case of sport shows some divergences in comparison with the general trends of international law. Some scholars observe that globalization and the rise of international institutions and their activities produce reactions from national courts. The latter, due to a lack of review mechanisms at the global level, have begun to act like review bodies over international organizations (91). The sport legal system does not fit this paradigm, but, in a certain way, it confirms the hypothesis. In the past, in fact, national judges sought to fill the gaps in global sports law, particularly in doping matters. Once both a global anti-doping regime and a complex judicial system had been created, the role of domestic courts diminishes. Yet there are still dark zones in the sports judicial system. It has reached a high level of maturity in doping cases, but not in other fields: such as for instance the selection process for the Olympic games or the review over IOC decisions more generally (92). In addition, in some States, particularly developing countries, national judicial bodies might be influenced by the most powerful IFs (93).

In any event, the sports legal system is equipped with judicial machinery that is more advanced than in any other private regime, including that of the internet (94). Yet this system is even more effective than other public international law mechanisms (and the CAS has been likened to the ECJ) (95), because States do not easily accept the delegation of powers to an international court (96): no such risk exists in sport, however, given that States are not parties to the disputes (97).

4. Towards a sporting "judicial branch"?

Judicial activity plays a crucial role in sport and exhibits peculiar features in this field, as can be seen from the formation of the complex system governed by the CAS.

Firstly, this system has both review and dispute settlement functions, which can be carried out by the same institution (i.e. the CAS). Secondly, the high degree of effectiveness of CAS proceedings and decisions confirms the importance of granting independence to tribunals and courts as well as the usefulness of creating a multi-level judicial systems. Thirdly, the sport judicial system illustrates the integration between supranational and national levels, often realized by involving public administrations instead of domestic courts. This blurs the dividing line between the judiciary and the administration; similarly, the adoption of arbitration proceedings by public bodies blurs the distinctions between public law and private law (98). Fourthly, the formation of a sports "judicial branch" provides evidence of the strategic role played by courts and tribunals in global law-making (99).

The case of CAS and its system, therefore, allows us to draw some comparisons between sport and other international regimes.

A first analogy concerns the functions carried out by these kinds of bodies. In the sports system, as in other international contexts, courts are created both to settle disputes and to review and control the exercise of powers by international organizations (100): this happens in traditional treaty-based institutions (e.g. the ILO (101)) and in private regimes (e.g. the internet (102)). At the same time there is an increasing need to ensure the observance of minimum standards and to protect fundamental rights (such as in the anti-doping regime) (103). A second analogy comes from the strategic role played by courts at the global level. In many regulatory regimes, judges, panels or tribunals contribute, as does the CAS, to the development of common rules and principles: take, for instance, the case of WTO Dispute Settlement Body, which has been conceived of by some scholars as an example of global "constitutionalism" (104). Furthermore, international courts and tribunals increase connections between regimes (105). From this perspective, CAS has certainly developed many links between different sports regimes (such as the Olympic, the Anti-Doping regimes, and those of the several International Federations), although - at least to date - it does not "dialogue" very much with other international courts and tribunals (106).

Global sports law shows that the effectiveness of an international judicial system also depends on the variety of judicial models that it adopts and the variety of remedies that it can offer. However, decisions issued by international courts or tribunals are often to be executed or might be reviewed by domestic courts: this happens with the CAS, whose awards can be challenged before the Swiss Federal Court. Nevertheless, once the sports legal system has developed a complex and formalized global judiciary, independent from the executive, it has reduced the number of cases reviewed by domestic courts. In other words, the more global regulatory regimes imitate State systems, the less they will require States' intervention. A peculiarity of global sports law emerges here, in comparison with other private or hybrid regimes: sports judicial mechanisms display many more similarities with public international law regimes than with private ones. This is a further confirmation of the theory that the more complex private regimes become, the more they will come to resemble public law regimes (107).

The Asser International Sports Law Centre is accepting articles for its worldwide publication, The International Sports Law Journal (ISLJ). The spring 2012 special issue will focus on the upcoming 2012 Olympic Games in London. For more information, contact Managing Editor, Karen L. Jones, at k.jones@asser.nl or +31 (0)70 342 0349.

* Previously published in: German Law Journal (GLJ) 2011 Vol. 12 No. 05, pp. 1317-1340.

(1.) M. Beloff, T. Kerr e M. Demetriou, Sports Law, Hart, Oxford, 1999, p. 5. These authors also note that "the public's limitless enthusiasm for sport and its importance to our cultural heritage makes sports law more than mere private law" (ibidem, p. 4 et seq.).

(2.) See J.-L. Chappelet e B. Kubler-Mabbott, The International Olympic Committee and the Olympic System: The governance of sport, Routledge, Abingdon, 2008, and A.M. Mestre, The Law of the Olympic Games, T.M.C. Asser, The Hague, 2009.

(3.) P. David, A Guide to the World Anti-Doping Code. A Fight for the Spirit of Sport, Cambridge, Cambridge University Press, 2008.

(4.) An overview is in F. Latty, La lex sportiva. Recherche sur le droit transnational, Brill, Leiden-Boston, 2007, and in L. Casini, Il diritto globale dello sport, Giuffre, Milano, 2010.

(5.) K. Foster, "Is There a Global Sports Law?", 2 Entertainment Law, vol. 2, n. 1, spring 2003, p. 1 et seq., at 4, who describes "global sports law" as a "transnational autonomous legal order created by the private global institutions that govern international sport", "a contractual order, with its binding force coming from agreements to submit to the authority and jurisdiction of international sporting federation" and not "governed by national legal systems" (ibidem, p. 2): put otherwise, this author considers "global sports law" a significant example of spontaneous global law without a State, according to the definition provided by Global Law Without a State, ed. by G. Teubner, Aldershot, Dartmouth, 1997, and G. Teubner, "Un droit spontane dans la societe mondiale", in Le droit saisi par la mondialisation, sous la direction de C.-A. Morand, Bruylant, Bruxelles, 2001, p. 197 ss.

(6.) The Court of Arbitration for Sport 1984-2004, ed. by I.S. Blackshaw, R.C.R. Siekmann, J. Soek, T.M.C. Asser, The Hague, 2006, A. Rigozzi, L'arbitrage international en matiere de sport, LGDJ/Bruylant, Bale, 2005, p. 132 et seq., and A. Merone, Il Tribunale arbitrale dello sport, Giappichelli, Torino, 2009,

(7.) J.A.R. Nafziger, "Lex Sportiva and CAS" (2004), in The Court of Arbitration for Sport 1984-2004, above, p. 409 et seq. A. Rigozzi, L'arbitrage internationale en matiere de sport, above, p. 628 ss., and M. Coccia, "Fenomenologia della controversia sportiva e dei suoi modi di risoluzione", in Riv. dir. sport., 1997, p. 605 et seq., at p. 621, adopt instead a wider definition of the lex sportiva, i.e. the incredibly large amount of customary private norms "che si sono ormai formate in campo sportivo grazie all'interazione, concretizzantesi soprattutto negli arbitrati sportivi tra le norme degli ordinamenti sportivi e i principi generali dei diritti statali". See also M. Beloff, "Is there a lex sportiva?", International Sports Law Review (2005), 3, p. 49 ss., and D.P. Panagiotopoulos, Sports law (Lex sportiva) in the World. Regulations and Implementation, Ant.N. Sakkoulas, Athens, 2004.

(8.) See S.M. Carbone, "Il contributo della lex mercatoria alla precisazione della lex sportiva", in Diritto internazionale dello sport, a cura di E. Greppi e M. Vellano, Giappichelli, Torino, 2006, p. 227 et seq., A. Rothel, "Lex mercatoria, lex sportiva, lex technica - Private rechtsetzung jenseits des Nationalstaats?", 62 Juristen Zeitung (2007), p. 755 et seq., and C.H. Witt et al. (eds.), Die Privatisierung des Privatrechts - rechtliche Gestaltung ohne staatlichen Zwang, Boorberg, Stuttgart, 2003, in particular essays by H.-P. Schroeder, "Die lex mercatoria - Rechtsordnungsqualitat und demokratische Legitimation", p. 57 et seq., and by J. Adolphsen, "Eine lex sportiva fur den internationalen Sport?", p. 281 et seq. See also, on lex mercatoria, B. Druzin, "Law Without The State: The Theory of High Engagement and The Emergence of Spontaneous Legal Order Within Commercial Systems", 42 Georgetown Journal of International Law (2010) (forthcoming), and, on lex electronica, P. Trudel, "La lex electronica", in Le droit saisi par la mondialisation, above, p. 221 et seq.

(9.) F. Latty, La lex sportiva. Recherche sur le droit transnational, above, p. 31 ss., links the concept of lex sportiva to "les regles transnationales operant dans le domaine du sport" e alla "maniere dont elles s'agencent les unes par rapport aux autres", so that it reveals "la presence d'un ordre juridique transnational sportif unitaire" (p. 39). On sports law as "transnational law", see also B. Simma, "The Court of Arbitration for Sport" (1988), in The Court of Arbitration for Sport 1984-2004, above, p. 21 et seq.

(10.) Frankfurt Oberlandesgericht, 18 April 2001, D. Baumann / D.L.V., Sport und Recht, 2001, p. 161; on these aspects see A. Wax, Internationales Sportrecht. Unter besonderer Berucksichtigung des Sportvolkerrechts, above, p. 173 et seq., who deals with the concept of a lex sportiva internationalis.

(11.) According to J.A.R. Nafziger, International Sports Law2, Transnational Publishers, New York, 2004, p. 1 et seq., "international sports law" means a process that includes "a more or less distinctive body of rules, principles, institutions and procedures to govern important consequences of transnational sports activity". For K. Foster, Is There a Global Sports Law?, above, p. 4, international sports law embraces "general principles of law that are automatically applicable to sport". According to O.O. Olatawura, "Fundamental Doctrines of International Sport Law", in International Sports Journal, 2008, n. 3-4, p. 130 ss., "international sport law" is "the specialized branch of transnational law that globally regulates private and public participants conduct and claims in sport". In French legal scholarship, see A. Borras, "Existe-il un droit international du sport?", in Noveaux itineraires en droit. Hommage a Francois Rigaux, Bruylant, Bruxelles, 1993, p. 187 ss., and J.-P. Karaquillo, Droit international du sport, in Recueil des Cours - Collected courses of the Hague Academy of International Law 2004, Tome 309, Brill, Leiden, 2006. In Germany, A. Wax, Internationales Sportrecht. Unter besonderer Berucksichtigung des Sportvolkerrechts, Duncker & Humblot, Berlin, 2009. In Italy, Diritto internazionale dello sport, above; formerly, M.S. Giannini, Ancora sugli ordinamenti giuridici sportivi (1996), in Id., Scritti. Volume Nono. 1991-1996, Giuffre, Milano, 2006, p. 441 ss., who wrote that in sport the term "international" refers to a "diritto superstatale", so that it does not mean the "diritto proprio di un ordinamento giuridico a se", but "una normativa interstato e superstato" (p. 444).

(12.) These issues are widely analyzed by F. Latty, La lex sportiva. Recherche sur le droit transnational, above, p. 416 et seq., and L. Casini, Il diritto globale dello sport, above, p. 226 et seq.

(13.) See G. Teubner, "Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sector?", in Public Governance of the Age of Globalization, ed. by. K.H. Ladeur, Aldershot, Ashgate, 2004, p. 71 et seq., and H. Schepel, The Constitution of Private Governance. Product Standards in the Regulation of Integrating Markets, Oxford and Portland, Hart, 2005.

(14.) T. Mann, Joseph und seine bruder, a four-part novel by Thomas Mann, written from 1926 to 1943: I. Die Geschichten Jaakobs (1926-1930); II. Der junge Joseph (1931-1932); III. Joseph in Agypten (1932-1936); IV. Joseph der Ernahrer (1940-1943).

(15.) The history of CAS is illustrated by The Court of Arbitration for Sport 1984-2004, above, e and there especially in K. Mbaye, "Une nouvelle institution d'arbitrage: le Tribunal Arbitral du Sport (TAS)" (1984), p. 6 et seq., B. Simma, "The Court of Arbitration for Sport" (1988), p. 21 et seq., and M. Reeb, "The Role and Functions of the Court of Arbitration for Sport" (2002), p. 31 et seq.; see also D.H. Yi, "Turning Medals Into Medal: Evaluating The Court Of Arbitration of Sport As An International Tribunal", 6 Asper Review of International Trade & Business Law (2006), p. 289 et seq., A. Rigozzi, L'arbitrage international en matiere de sport, above, p. 132 et seq., and A. Wax, Internationales Sportrecht. Unter beson-derer Berucksichtigung des Sportvolkerrechts, above, p. 137 ss.

(16.) According to K. Mbaye, this formula comes directly from Juan Antonio Samaranch, and it is reported in the Swiss Federal Court decision A. et B. contre Comite International Olympique, Federation Internationale de Ski et Tribunal Arbitral du Sport, 4P.267/2002, 27 May 2003, in BGE 129 III 445 S. 462. That was the famous case Lazutina/Danilova, in which Swiss Court aknwoledged that CAS has gained its own independence from IOC after rhe 1993-94 reform.

(17.) F. Latty, La lex sportiva. Recherche sur le droit transnational, above, p. 65, citing F. Alaphilippe, "Legitimite et legalite des structures internationales du sport: une toile de fond", in Revue juridique et economique du sport, 1993, n. 3, p. 15.

(18.) For these data, see http://www.tas-cas.org/statistics.

(19.) L. Tarasti, Legal Solutions in the International Doping Cases - Awards by the IAAF Arbitration Panel 1985-1999, Sep, Milano, 2000.

(20.) Swiss Federal Court, 15 March 1993, Gundel v. Federation Equestre Internationale, in BGE 119 II S. 271 ss.

(21.) The Court in fact observed that the IOC "est competent pour modifier le Statut du TAS; il supporte en outre les frais de fonctionnement de ce tribunal et joue un role considerable dans la designation de ses membres. Il reste que, etant donne, d'une part, la possibilite qui subsiste d'assurer, par la voie de la recusation, l'independance de la Formation appelee a connaitre d'une cause determinee, et, d'autre part, la declaration solennelle d'independance souscrite par chaque membre du TAS avant son entree en fonction, de telles objections ne permettent pas a elles seules de denier au TAS la qualite de veritable tribunal arbitral [...], quand bien meme il serait souhaitable que l'on assurat une independance accrue du TAS a l'egard du CIO" (BGE 119 II S. 280).

(22.) See D. Kane, "Twenty Years On: An Evaluation of the Court of Arbitration for Sport" (2003), in The Court of Arbitration for Sport 1984-2004, above, p. 455 et seq., especially p. 458 ss.

(23.) Articolo S1, Statutes of the Bodies Working for the Settlement of Sports-related Disputes. Therefore CAS can be likened to institutions such as the International Court of Arbitration (ICC), the International Centre for the Settlement of the Investment Disputes (ICSID) or, for the USA, the American Association of Arbitration (AAA).

(24.) There are also two field offices, one in New York and the other in Sydney.

(25.) See article S4, Statutes of the Bodies Working for the Settlement of Sports-related Disputes: The ICAS is composed of twenty members, namely high-level jurists appointed in the following manner: a. four members are appointed by the International Sports Federations (the "IFs"), viz. three by the Summer Olympic IFs ("ASOIF") and one by the Winter Olympic IFs ("AIWF"), chosen from within or from outside their membership; b. four members are appointed by the Association of the National Olympic Committees ("ANOC"), chosen from within or from outside its membership; c. four members are appointed by the International Olympic Committee ("IOC"), chosen from within or from outside its membership; d. four members are appointed by the twelve members of the ICAS listed above, after appropriate consultation with a view to safeguarding the interests of the athletes; e. four members are appointed by the sixteen members of the ICAS listed above and chosen from among personalities independent of the bodies designating the other members of the ICAS. Some say, however, that these mechanisms would give to the Olympic movement even more influence on CAS than before: on these aspects, D.H. Yi, "Turning Medals Into Medal: Evaluating The Court Of Arbitration of Sport As An International Tribunal", above, p. 316 ss.

(26.) According to the article S6, Statutes of the Bodies Working for the Settlement of Sports-related Disputes, ICAS adopts and amends its Statute and the Statute of CAS; it looks after the financing of the CAS; it supervises the activities of the CAS Court Office; if it deems such action appropriate, it sets up regional or local, permanent or ad hoc arbitration structures; it may create a legal aid fund to facilitate access to CAS arbitration for natural persons without sufficient financial means; it may take any other action which it deems likely to protect the rights of the parties and, in particular, to best guarantee the total independence of the arbitrators and to promote the settlement of sports-related disputes through arbitration.

(27.) Before the 1994 reform, the list included only 60 personalities. The personalities designated by the ICAS appear on the CAS list for a renewable period of four years. The ICAS reviews the complete list every four years; the new list enters into force on 1 January of the following year. In establishing the list of CAS arbitrators, the ICAS shall call upon personalities with full legal training, recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language. In addition, the ICAS shall respect, in principle, the following distribution: 1/5th of the arbitrators selected from among the persons proposed by the IOC, chosen from within its membership or from outside; 1/5th of the arbitrators selected from among the persons proposed by the IFs, chosen from within their membership or outside; 1/5th of the arbitrators selected from among the persons proposed by the NOCs, chosen from within their membership or outside; 1/5th of the arbitrators chosen, after appropriate consultations, with a view to safeguarding the interests of the athletes; 1/5th of the arbitrators chosen from among persons independent of the bodies responsible for proposing arbitrators in conformity with the present article. In appointing the personalities who appear on the list of arbitrators, the ICAS shall, wherever possible, ensure fair representation of the continents and of the different juridical cultures. (Articles S13 et seq., Statutes of the Bodies Working for the Settlement of Sports-related Disputes). In 2009, the list of arbitrators included around 300 personalities; some of them appeared also in a special list regarding soccer www.tascas.org/arbitrators-genlist).

(28.) Article S3, Statutes of the Bodies Working for the Settlement of Sports-related Disputes.

(29.) The CAS includes a Court Office composed of a Secretary General and one or more Counsel, who replace the Secretary General when required (article S22, Statutes of the Bodies Working for the Settlement of Sports-related Disputes). The activities of the CAS Court Office are supervised by the ICAS, which appoint the CAS Secretary general.

(30.) See I.S. Blackshaw, Mediating Sports Disputes: National and International Perspectives, T.M.C. Asser, The Hague, 2009.

(31.) Article S20, Statutes of the Bodies Working for the Settlement of Sports-related Disputes. Articles R27-R37 of the CAS Procedural Rules establish provisions as to Application of Rules, Seat, Language, Representation and Assistance, Notifications and Communications, Time limits, Independence and Qualifications of Arbitrators, Challenge, Removal, Replacement, Provisional and Conservatory Measures.

(32.) See articles R27-R37 and R38-46, CAS Procedural Rules.

(33.) See articles R27-R37 and R47-59, CAS Procedural Rules.

(34.) Such assignment may not be contested by the parties or raised by them as a cause of irregularity. See The Proceedings before the Court of Arbitration for Sport, CAS & FSA/SAV Conference Lausanne 2006, ed. by A. Rigozzi and M. Bernasconi, Weblaw, Berne, 2007, and A. Merone, Il Tribunale arbitrale dello sport, above, p. 105 et seq.

(35.) The early experiences of the CAS Olympic games Ad Hoc division are analyzed by G. Kaufmann-Kohler, Arbitration at the Olympics - Issues of fast-track dispute resolution and sports law, Springer, The Hague-London-New York, 2001.

(36.) F. Latty, La lex sportiva. Recherche sur le droit transnational, above, p. 296.

(37.) B. Marchetti, "Il sistema di risoluzione delle dispute del WTO: amministrazione, corte o tertium genus?", in Riv. trim. dir. pubbl., 2008, p. 933 et seq.

(38.) J.A.R. Nafziger, Lex Sportiva and CAS (2004), above, p. 409 et seq.

(39.) See articles 15.4, 45.6 e 59 of the Olympic Charter.

(40.) See, for instance, articles 62 et seq. of FIFA Statutes, article 36 of FIBA General Statutes or articles 74 et seq. of UCI Constitution.

(41.) See, for instance, article 13 of the World Anti-Doping Code.

(42.) Both expressions are from T. Mann, Joseph and his brothers, above.

(43.) CAS 2007/A/1370, FIFA v/Superior Tribunal de Justica Desportiva do Futebol & Confederacao Brasileira de Futebol & Mr Ricardo Lucas Dodo, CAS 2007/A/1376, WADA v/Superior Tribunal de Justica Desportiva do Futebol & Confederacao Brasileira de Futebol & Mr Ricardo Lucas Dodo, para. 88.

(44.) See http://www.tascas.org/d2wfiles/document/422/5048/0/rules%20English%20(2008.07.04).pdf.

(45.) See F. Latty, La lex sportiva. Recherche sur le droit transnational, above, p. 320 s. In CAS-JO[-TUR] 06/008, Isabella Dal Balcon v. Comitato Olimpico Nazionale Italiano (CONI) & Federazione Italian National Skiing Federation, which have excluded an athlete from the Olympic team, was judged "arbitrary" and "unfair".

(46.) CAS 98/2000, AEK Atene & S.K. Slavia Praga v. UEFA, award of 20 August 1999, para. 58.

(47.) CAS 2008/A/1480, especially para. 56 ss.

(48.) CAS 94/129 USA Shooting & Q. / Union Internationale de Tir (UIT), 23 May 1995, para. 34. See also, ex plurimis, CAS ad hoc Division (O.G. Atlanta) 96/005 A., W. and L. v. NOC Cape Verde (NOC CV), 1 August 1996: "Any person at risk of withdrawal of accreditation should be notified in advance of the case against him and given the opportunity to dispute it, in accordance with the elementary rules of natural justice and due process".

(49.) CAS 2001/A/317 A. / Federation Internationale de Luttes Associees (FILA), 9 July 2001, citing CAS 91/53 G. v/ FEI, award of January 15, 1992, Digest, p. 79, 86 f.

(50.) CAS OG 04/009, H.O.C. & N. Kaklamanakis / I.S.A.F., 24 August 2004.

(51.) On these aspects, M.S. Straubel, "Doping Due Process: A Critique of the Doping Control Process in International Sport", 106 Dickinson Law Review (2002) p. 523 et seq., and D. Panagiotopoulos, "International Sports Rules' Implementation-Decisions' Executability: The Bliamou Case", 15 Marquette Sports Law Review (2004) p. 1 et seq.

(52.) See J. Lever, "Why Procedure Is More Important than Substantive Law", 48 International and Comparative Law Quarterly (1999), p. 285 et seq., and J.L. Mashaw, Due Process in the Administrative State, Yale University Press, New Haven, 1986. On substantive due process, C.R. Sunstein, "Due Process Traditionalism", 106 Michigan Law Review (2008), p. 1543 et seq.

(53.) "According to the constant jurisprudence of the CAS, a procedural violation is not enough in and by itself to set aside an appealed decision (see CAS 2001/A/345, in Digest of CAS Awards III, 240 and the references quoted therein); it must be ascertained that the procedural violation had a bearing on the outcome of the case. Whenever a procedural defect or unfairness in the internal procedure of a sporting body could be cured through the due process accorded by the CAS, and the appealed decision's ruling on the merits was the correct one, CAS panels had no hesitation in confirming the appealed decision" (CAS 2004/A/777 ARcycling AG v. Union Cycliste Internationale (UCI), 31 January 2005, para. 56). See also CAS 2006/A/1175, D. v. International Dance Sport Federation, award of 26 June 2007, para. 18: "the virtue of an appeal system which allows for a full rehearing before an appellate body is that issues relating to the fairness of the hearing before the tribunal of first instance "fade to the periphery" (CAS 98/211, B. v/Federation Internationale de Natation, CAS Digest II, p. 255 at 264, citing Swiss doctrine and case law)". See articles R44.2 and R57, CAS Procedural Rules, which establish provisions regarding Hearing.

(54.) Arret of 22 March 2007, that annulled CAS 2005/A/951 Canas v/ATP, award of 23 May, because "le droit d'etre entendu du recourant a ete meconnu par le TAS. Etant donne la nature formelle de ce droit [...], la sentence attaquee doit etre annulee, sans egard au sort qui sera reserve aux arguments subsidiaires avances par le recourant". Following this decision, CAS has anyhow confirmed its precedent award: CAS 2005/A/951 Canas v/ATP, 23 May 2007, Revised award).

(55.) "Principles of sports law" or "Principia sportiva" are often referred to by the CAS (see, ex plurimis, CAS 98/200 AEK Athens and SK Slavia Prague / Union of European Football Associations (UEFA), above, para. 158). The most famous ones are probably the "fairness and integrity of international competitions" and the "fair play". On the "strict liability" principle, see J. Soek, The Strict Liability Principle and The Human Rights of Athletes in Doping Cases, T.M.C. Asser, The Hague, 2007. A complete list of such principles is in F. Latty, La lex sportiva. Recherche sur le droit transnational, above, p. 305 et seq.; see also E. Loquin, "L'utilisation par les arbitres du TAS des principes generaux du droit et le developpement d'une Lex sportiva", in The Proceedings before the Court of Arbitration for Sport, above, p. 85 et seq., at p. 101 et seq., and A. Merone, Il Tribunale arbitrale dello sport, above, p. 233 et seq.

(56.) See L. Fumagalli, "La circolazione internazionale dei lodi sportivi: il caso del Tribunale arbitrale dello sport", in Riv. dir. sport., 1994, p. 364 et seq., and F. Oschutz, Die Schiedsverfahren des Tribunal Arbitral du Sport vor dem Hintergrund des schweizerischen und deutschen Schiedsverfahrensrecht, Duncker & Humblot, Berlin, 2005.

(57.) On these aspects, see the trilogy written by R. Bhala: "The Myth about Stare Decisis and International Trade Law", 14 Am. U. International L. Rev. (1999), p. 845 et seq., "The Precedent Setters: De Facto Stare Decisis in WTO Adjudication", 9 J. Transnational L. & Policy (1999), p. 1 et seq., and "Power of the Past: Towards De Jure Stare Decisis in WTO Adjudication", 33 George Washington International L. Rev. (2001), p. 873 et seq. See also I. Venzke's Paper, p. 32 et seq., and more generally Mark Jacob's Paper.

(58.) See Comments to articles 3.1 (Burdens and Standards of Proofs), 3.2.4 (as to drawing an inference adverse to the Athlete or other Person who is asserted to have committed an anti-doping rule violation), and 4.2.2 (Specific substances).

(59.) See CAS 2004/A/748: "in order to determine whether there exists a decision or not, the form of a communication has no relevance. In particular, the fact that the communication is made in the form of a letter does not rule out the possibility that it constitute a decision subject to appeal. What is decisive is whether there is a ruling - or, in the case of a denial of justice, an absence of ruling where there should have been a ruling - in the communication".

(60.) R47, Cas Procedural Rules. See, ex multis, CAS 2008/A/1583, Sporting Lisboa e Benfica Futebol SAD v/ UEFA, & FC Porto Futebol SAD; CAS 2008/A/1584, Vitoria Sport Clube de Guimaraes v/ UEFA, & FC Porto Futebol SAD, award of 15 September 2008, para. 5.1: "there must be a "decision" of a federation, association or another sports-related body; "the (internal) legal remedies available" must have been exhausted prior to appealing to the CAS; the parties must have agreed to the competence of the CAS"; on these aspects, M. Bernasconi, "When is a "decision" an appealable decision?", in The Proceedings before the Court of Arbitration for Sport, above, p. 261 et seq.

(61.) 61 Here there is a different international judiciary legitimacy compared with those addressed in A. von Bogdandy and I. Venzke Paper. This is due to the pecualiar nature of the CAS, that is neither a Court or a pure Arbitration body.

(62.) J.-P. Karaquillo, "Le role du Tribunal du sport en tant qu'instance d'appel externe aux federations sportives", in The Proceedings before the Court of Arbitration for Sport, above, p. 33 et seq.

(63.) R57, Cas Procedural Rules. An in-depth analysis of these issues is in A. Rigozzi, L'arbitrage international en matiere de sport, above, p. 552 et seq.

(64.) See R.H. McLaren, "Sports Law Arbitration by CAS: is it the Same as International Arbitration?", 29 Pepperdine L. Rev. (2001) p. 101 et seq.

(65.) See CAS 96/156, F. v. FINA, award of 10 November 1997, in which the need of ensuring an international review of national federations' decisions is underlined.

(66.) This point is raised by A. Rigozzi, L'arbitrage international en matiere de sport, above, p. 552 et seq., who observed that CAS appeal procedure is not a "procedure appellatoire a proprement parler".

(67.) CAS 2007/A/1370, FIFA v/Superior Tribunal de Justica Desportiva do Futebol & Confederacao Brasileira de Futebol & Mr Ricardo Lucas Dodo, CAS 2007/A/1376, WADA v/Superior Tribunal de Justica Desportiva do Futebol & Confederacao Brasileira de Futebol & Mr Ricardo Lucas Dodo, para. 71 ss.

(68.) R58, CAS Procedural Rules.

(69.) And this is what almost all federations did. An exception is in CAS 2006/A/1190, WADA v/ Pakistan Cricket Board & Akhtar & Asif, award of 28 June 2006, regarding cricket.

(70.) Above section 2.1.

(71.) Several cases are reported by A. Rigozzi, L'arbitrage international en matiere de sport, above, p. 644 ss.

(72.) CAS 98/200 AEK Athens and SK Slavia Prague / Union of European Football Associations (UEFA), above.

(73.) F. Latty, La lex sportiva. Recherche sur le droit transnational, above, p. 308.

(74.) See K.J. Alter, "Delegating to International Courts: Self-Binding vs. Other-Binding Delegation", 71 Law & Contemporary Problems (2008), p. 37 et seq; for some data, see the Project on International Courts and Tribunals (http://www.pict-pcti.org/). See also B. Kingsbury's Paper.

(75.) P. David, A Guide to the World Anti-Doping Code. A Fight for the Spirit of Sport, above, p. 36 et seq.

(76.) J. Anderson, "'Taking Sports Out Of The Courts': Alternative Dispute Resolution and the International Court of Arbitration for Sport", 10 Journal of Legal Aspects of Sport (2000), p. 123 et seq.

(77.) See article 63 FIFA Statutes, which establish that disputes regarding the following do not fall under CAS jurisdiction: "a) violations of the Laws of the Game; b) suspensions of up to four matches or up to three months (with the exception of doping decisions); c) decisions against which an appeal to an independent and duly constituted arbitration tribunal recognised under the rules of an Association or Confederation may be made".

(78.) CAS/A/1149 e CAS/A/1211, World Anti-Doping Agency (WADA) v. Federacion Mexicana de Futbol (FMF) and Mr. Jose Salvador-Carmona Alvarez, award of 16 May 2007, citing CAS 96/156, F. v. FINA, award of 10 November 1997, TAS 98/214, B. / Federation Internazionale de Judo (FIJ), sentence du 17 mars 1999, CAS 2005/A/872, UCI v. Munoz and Federacion Colombiana de Ciclismo, TAS 2006/A/1119, Union Cycliste Intertationale (UCI) c. L. & Real Federacion Espanola de Ciclismo (RFEC), sentence du 19 decembre 2006, e TAS 2006/A/1120, Union Cycliste Intertationale (UCI) c. G. & Real Federacion Espanola de Ciclismo (RFEC), sentence du 19 decembre 2006.

(79.) CAS/A/1149 e CAS/A/1211, World Anti-Doping Agency (WADA) vs. Federacion Mexicana de Futbol (FMF) and Mr. Jose Salvador-Carmona Alvarez, cit., para. 26.

(80.) TAS 2006/A/1119, Union Cycliste Intertationale (UCI) c. L. & Real Federacion Espanola de Ciclismo (RFEC), sentence du 19 decembre 2006, para. 30: "l'autorite des Etats et l'autorite sportive internationale ne sont pas en concurrence; au contraire, leurs roles sont complementaires" (par. 29).

(81.) TAS 2006/A/1119, Union Cycliste Intertationale (UCI) c. L. & Real Federacion Espanola de Ciclismo (RFEC), sentence du 19 decembre 2006, par. 30, cited by CAS/A/1149 and CAS/A/1211, World Anti-Doping Agency (WADA) vs. Federacion Mexicana de Futbol (FMF) and Mr. Jose Salvador-Carmona Alvarez, award of 16 May 2007.

(82.) L. Casini, "Global Hybrid Public-Private Bodies: The World Anti-Doping Agency (Wada)", in 6 International Organizations Law Review (2009), p. 411 et seq.

(83.) See A. Ravjani, "The Court of Arbitration for Sport: A Subtle Form of International Delegation", 2 J. Int'l Media & Entertainment Law (2002), p. 241 et seq. On the notion of "international delegation", see 71 Law & Contemporary Problems (2008), n. 1, and there C.A. Bradley and J.G. Kelley, "The Concept of International Delegation", p. 1 et seq.

(84.) Article 18, Arbitration rules for the Olympic Games.

(85.) Whilst the effects of such decisions might be particularly devastating in terms of money and reputation. See G. Mannucci, "La natura dei lodi del Tribunale arbitrale dello sport tra fenomenologia sportiva e ordinamento generale", Dir. amm. (2010), p. 229 et seq.

(86.) See M.J. Mitten, "Judicial Review of Olympic and International Sports Arbitration Awards: Trends and Observations", 9 Pepperdine Dispute Resolution L.J. (2009), and A. Rigozzi, L'arbitrage international en matiere de sport, above, p. 655 et seq. As to the USA, M.A. Weston, "Simply a Dress Rehearsal? U.S. Olympic Sports Arbitration and De Novo Review at the Court of Arbitration for Sport", 38 Georgia Journal of International & Comparative Law (2009), p. 99 et seq.

(87.) M.J. Mitten, Judicial Review of Olympic and International Sports Arbitration Awards: Trends and Observations, above, p. 5.

(88.) Decision of 22 March 2007, Canas v. ATP Tour, above.

(89.) This is why the New South Wales Court of Appeal, Raguz v Sullivan [2000] NSWCA 240, dismissed an appeal filed against a CAS award issued in Sydney, observing that this CAS arbitration rules are "transnational, universal, global", and their application "is not dependent on a territorial nexus, nor is restricted territorially", so that "this global substantive law is matched by a uniform procedural law thanks to the choice of a sole seat for all CAS arbitrations" (see D. Sturzaker an K. Godhard, "The Olympic Legal Legacy", 2 Melbourne Journal of International Law (2001).

(90.) Article 190, ann. 2, Loi federale du 18 decembre 1987 sur le droit international prive. See A. Rigozzi, L'arbitrage international en matiere de sport, above, p. 684 et seq., and A. Merone, Il Tribunale arbitrale dello sport, above, p. 155 et seq.

(91.) See E. Benvenisti and G. Downs, "National Courts, Domestic Democracy, and the Evolution of International Law", 20 European Journal of International Law (2009), p. 59 et seq., and B. Kingsbury, "Weighing Global Regulatory Decisions in National Courts", in Acta Juridica (2009). More generally, as to the relationships between courts, R.B. Ahdieh, "Between Dialogue and Decreee: International Review of National Courts", 79 N.Y.U.L. Rev. (2004), p. 2029 et seq., Y. Shany, The competing jurisdictions of international courts and tribunals, Oxford University Press, Oxford, 2003, and Regulating jurisdictional relations between national and international courts, Oxford University Press, Oxford, 2007, and S. Cassese, I tribunali di Babele. I giudici alla ricerca di un nuovo ordine globale, Donzelli, Roma, 2009.

(92.) Lastly, see the 2009 decisions issued in Canada, by the Supreme Court of British Columbia and the British Columbia Court of Appeal, regarding the Vancouver Organizing Committee.

(93.) See v. M. Akech, "The Maurice Odumbe Investigation and Judicial Review of the Power of International Sports Organizations", in Entertainment and Sports Law Journal, January 2008, (http://go.warwick.ac.uk/eslj/issues/volume6/number2/akech).

(94.) The Uniform Domain Name Dispute Resolution Policy (UDRP) adopted by ICANN, for instance, refers to different arbitration body, such as the WIPO Arbitration and Mediation Center), but does not exclude the right to bring the dispute "to a court of competent jurisdiction for independent resolution" (article 4, lett. k, UDRP): see D. Lindsay, International Domain Name Law. ICANN and the UDRP, Hart, Oxford and Portland, p. 95 et seq.

(95.) F. Latty, La lex sportiva. Recherche sur le droit transnational, above, p. 308.

(96.) K.J. Alter, "Delegating to International Courts: Self-Binding vs. Other-Binding Delegation", above, p. 38, Y. Shany, "No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary", 20 European Journal of International Law (2009) p. 73 et seq., and C. Brown, A Common Law of International Adjudication, Oxford University Press, Oxford, 2007.

(97.) A. Ravjani, "The Court of Arbitration for Sport: A Subtle Form of International Delegation", above, p. 244 et seq., who refers to a "low visibility delegation" made by States.

(98.) This point emerges in several CAS decisions, and it is more generally discussed by G. Van Harten, "The Public-Private Distinction in the International Arbitration of Individual Claims Against the State", 56 International Comparative Law Quarterly (2007), p. 371 et seq.

(99.) See S. Cassese, "La funzione costituzionale dei giudici non statali. Dallo spazio giuridico globale all'ordine giuridico globale", in Il diritto globale, Einaudi, Torino, p. 137 et seq.

(100.) In this way, a universal value of "judicial review" emerges: see J. Jowell, "The Universality of Administrative Justice?", in The Transformation of Administrative Law in Europe / La mutation du droit administratif en Europe, ed. by M. Ruffert, European Law Publishesr, Munic, 2007, p. 55 et seq., at p. 62 et seq.; and E. Garcia de Enterria, Democrazia, Jueces y Control de la Administracion, Madrid, 2000.

(101.) Ilo Constitution, articles 26, 27, 28 e 33. See S. Charnovitz, "The International Labour Organization in its Second Century", in Max Planck UNYB 4 (2000), p. 147 ss., at p. 175 ss.

(102.) Icann Bylaws, Article IV, on "Accountability and Review".

(103.) See M. Cappelletti, Dimensioni della giustizia nelle societa contemporanee: studi di diritto giudiziario comparato, il Mulino, Bologna, 1994, p. 39 et seq., who observed an extraordinary expansion of constitutional and transnational justice, due to the need for controlling political power and for protecting fundamental rights.

(104.) D.Z. Cass, "The 'constitutionalization' of international trade law: judicial norm-generation as the engine of constitutional development in international trade", 12 European Journal of International Law (2001), p. 39 et seq.; more recently J.L. Goldstein and R.H. Steinberg, "Regulatory Shift: The Rise of Judicial Liberalization at the Wto", in The Politics of Global Regulation, ed. by W. Mattli e N. Woods, Princeton University Press, Princeton, 2009, p. 211 et seq., who refers to the "emergence of Judicial Lawmaking" (p. 227 et seq.). See also R.B. Stewart's Paper.

(105.) S. Cassese, La funzione costituzionale dei giudici non statali. Dallo spazio giuridico globale all'ordine giuridico globale, above.

(106.) This is mostly due to the "specificity" of sport. However, it is most likely that there will be soon a more intensive dialogue between the CAS and other courts, such as the European Court of Justice or the European Court for Human Rights: sports cases that may affect antitrust regulation or fundamental rights of the athletes, in fact, have been increasing their numbers.

(107.) A. Riles, "The Anti-Network: Private Global Governance, Legal Knowledge, and the Legitimacy of the State", 56 Am. J. Comp. L. (2008), p 605 et seq., at p. 629, and E. Meidinger, "Competitive Supragovernmental Regulation: How Could It Be Democratic?", 8 Chicago Journal of International Law (2008), p. 513 et seq., at p. 516 et seq.

by Lorenzo Casini **

** Professor of Administrative Law, Faculty of Architecture "L. Quaroni", University of Rome "La Sapienza"; Research Fellow, Institute for International Law and Justice (IILJ), New York University School of Law.
COPYRIGHT 2011 ASSER International Sports Law Centre
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2011 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Casini, Lorenzo
Publication:The International Sports Law Journal
Date:Jul 1, 2011
Words:11623
Previous Article:Defining the scope and structure of international sports law: four conceptual issues.
Next Article:Does the outsourcing of a sports league affect its evaluation under EU competition law?
Topics:

Terms of use | Copyright © 2017 Farlex, Inc. | Feedback | For webmasters