Against the backdrop of the Russian doping scandal, Rio can already claim one dubious honour: it will be the most litigious Olympics ever, with 18 cases referred to the Court of Arbitration for Sport (CAS) before the first beat of the opening ceremony.
Whilst the International Olympic Committee (IOC) has its own process for resolving disputes, athletes will typically seek a decision from CAS, which acts swiftly and may be perceived as more independent. With the speed and efficiency of commercial arbitration often questioned, CAS is an example of how flexible procedures can be used to deliver swift, impartial dispute resolution.
What is CAS?
CAS is an independent arbitral institution, which is mandated to resolve legal disputes in the field of sport through arbitration. As with commercial arbitration institutions such as the ICC or LCIA, its arbitral awards are enforceable in the same way as judgments of ordinary courts.
CAS was established in 1984 and presently has some 300 arbitrators drawn from 87 countries. Whilst headquartered in Lausanne it also has a presence in both New York and Sydney.
CAS can deal with any dispute directly or indirectly related to sport ranging from, for example, a disagreement concerning a sponsorship contract to a doping issue or other disciplinary matters.
Any individual or legal entity with capacity can refer a case to CAS. This includes sports federations, organisers of sports events, sponsors and TV companies. However, a feature of any arbitration is that it is a consensual process, and the parties must have agreed in writing for the arbitration to be conducted by CAS. This may be, for example, through a contractual arbitration clause, or under the terms of membership of a sports federation.
How are disputes resolved?
Ordinarily, CAS proceedings will be conducted in French or English although other languages may be used in certain conditions.
For contractual or tortious disputes, CAS will follow a similar arbitration or mediation procedure to any other commercial dispute. In contrast, in relation to decisions taken by internal bodies of sports organisations the CAS Appeals arbitration procedure is followed. A party can be represented before a CAS tribunal, but that representation does not have to be legal.
Generally speaking, the case is heard by a panel of three arbitrators, with each party choosing one arbitrator from the CAS list, who then select a President for the panel. For the Appeals process which will be used in the Olympics, each party again selects one arbitrator, but the President is selected by the President of the Appeals Arbitration Division.
Alternatively, if the parties agree or CAS deems it to be appropriate, a sole arbitrator can hear a matter rather than a three person panel.
As speed is of the essence during the Olympics, the Appeals procedure will principally be adopted, as it results in a decision on the day of the hearing. The procedure requires the CAS panel to apply the regulations of the body concerned by the appeal, which will most often be the IOC regulations or the World Anti-Doping Agency Code. The arbitration proceedings are confidential but the award pronounced by CAS is final and binding from the moment it is communicated.
It is possible to appeal against a CAS award to the Swiss Federal Tribunal, but only on a very limited number of grounds. As such, an athlete who is disqualified from competing at the Olympics by a CAS award is unlikely to have any further recourse and will be sent home with immediate effect.
A model for commercial disputes?
The speed of the Appeals process used during the Olympics (and other high profile international sporting events) is a necessary function of the limited time available. Olympic events take place in a compressed timetable and it is imperative that decisions are given before scheduled events take place. Parties in commercial disputes are not normally in such a hurry. That said, there are examples of relatively high value / high stakes disputes being settled by arbitration in as little as two or three weeks to final award. Those (generally ad hoc) arbitrations are rare and a sprint to the line. But they do occur from time to time where both parties have an interest in getting a decision in a short time.
The often high-profile decisions that CAS makes during the upcoming Games will serve as a reminder that dispute resolution can take a number of different forms. Contracting parties have the ability to design a process at the outset that will best serve their objectives. While everyone wants a clean contest, in business as in sport, there will be times when one side cries foul. Preparing for that in advance can make all the difference.