Appeals before the Court of Arbitration for Sport

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Practitioners often receive instructions from clients who wish to appeal before the Court of Arbitration for Sport. In the majority of these cases, clients are motivated by a sense of injustice, which is usually well-justified. A practitioner, obviously, needs to remain independent of sentimental considerations and keep an open mind at all times. An Appeal before the Court of Arbitration for Sport could be an expensive process and one that will cause additional stress and anxiety to the client. Above all, it is an Appeal that very much depends on very specific procedural considerations.

Such procedural considerations should usually form the first and primary course of action for any adviser. The client may feel that he or she has a good case and the adviser may feel confident that he or she could be successful. It is important, however, that the adviser ensures that the dispute in question could be heard by CAS. It is not uncommon for CAS to dismiss an appeal for lack of jurisdiction or because the Appellant was 'manifestly' late in submitting the Appeal. 

Advisers, therefore, must ensure that the Appeal is filed within the 21-day time limit provided for by the procedural rules of CAS. Most importantly, they must ensure that CAS has jurisdiction to hear the Appeal. Such jurisdiction usually derives from the regulatory framework of the sporting governing body in question. A specific clause would normally indicate a route to Appeal, although close attention must be paid to the actual wording of the relevant provision. This is an important point that requires further analysis.

Rules of national governing bodies are usually in line with the rules of international governing bodies, or have been drafted in the same spirit. It may be the case that certain provisions require members to recognise the jurisdiction of CAS, regarding disputes of national dimension. However, the purpose of these provisions may not be to compel CAS to admit in all types of disputes that the national governing body has jurisdiction to hear. In this instance, confusion may be created by the provision which specifically 'recognises' the jurisdiction of CAS. Although such provision may 'recognise' the jurisdiction of CAS, this does not mean that the provision also 'grants' such jurisdiction to CAS. In other words, CAS jurisdiction will be operative only when such jurisdiction is specifically granted by the provisions of the national governing body. This was evident in four football Appeals I was involved in before CAS, in the last three years.

It follows that advisers need to ensure that a specific arbitration agreement is in place, which grants jurisdiction to CAS. Without it and in the absence of another agreement between the parties, it is highly likely that CAS would dismiss the Appeal for lack of jurisdiction. In addition, the 21-time limit for submitting the Appeal must be observed.

These are the primary procedural considerations for those advising clients in relation to Appeals before CAS.

Dr Gregory Ioannidis
26 March 2013




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