Preliminary (Provisional) & Conservatory Measures before the Court of Arbitration for Sport (CAS): Procedure & Practice.

 

An important aspect of procedure and practice before the CAS, relates to the ability of applicants to seek urgent protective measures, in the form of an application for a Stay of execution of the appealed decision. The legal basis for such application can be identified in Article 183 of Swiss Private International Law and R37 of the CAS Code. The latter, provides that the CAS may, upon request of a party, order preliminary or protective measures.

According to CAS practice and jurisprudence (See CAS 2003/O/486; CAS 2013/A/3324; CAS 2013/A/3199; CAS 2010/A/2071. CAS 2001/A/329; CAS 2001/A/324), there is a three-stage test that needs to be satisfied for a successful application on such protective measures (provided that the issue of jurisdiction has been settled):

1. The requested measures must be necessary to protect the Applicant from irreparable harm;
2. There must be a likelihood of success on the merits of the claim;
3. The interests of the Applicant in the requested measures must outweigh those of the opposite party.

The above stated criteria are cumulative (CAS 2013/A/3199; CAS 2010/A/2071; 2007/A/1403) and are also clearly set forth in Article R37 (5) of the CAS Code.

In terms of the first criterion and in accordance with CAS jurisprudence (and as a general rule), when deciding whether to grant a request for a Stay, CAS considers whether the measure sought is useful to protect the Applicant from substantial damage that would be difficult to remedy at a later stage. This is the so called 'irreparable harm' criterion: "The Appellant must demonstrate that the requested measures are necessary in order to protect his position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage." (CAS 2007/A/1370-1376; CAS 2008/A/1630).

The first criterion cannot be satisfied with submission of financial and reputational arguments. The reason for this is that such arguments relate to the award of damages that cannot constitute irreparable harm, as they can always be compensated/remedied at a later stage. In addition, while, according to CAS case law (CAS 2008/A/1569), it is not in itself sufficient a participant is prevented from competing in sport events to justify a Stay in itself, the CAS has consistently recognised that a suspension from participating in a major sport event, such as the Olympic Games, which subsequently found to be unjustified, can cause irreparable harm (CAS 2008/A/1453; CAS 2014/A3571; CAS 2016/A/4710).

In relation to the second criterion, when deciding to grant provisional measures, the Applicant "must make at least a plausible case case that the facts relied upon by him/her and the rights which he/she seeks to enforce exist and that the material criteria for a cause of action are fulfilled" (CAS 2000/A/274; CAS 2004/A/578; CAS 2014/A/3751).

The second criterion gives rise to a fact/evidence based exercise, although the general rule is that each case shall be reviewed on its own merits. Whether an Applicant's arguments will prevail can only be addressed in the final award, it is important for the Applicant that, at the time of the Application for a Stay, his/her arguments must be sufficient to satisfy the second criterion.

Finally, the third criterion is the most difficult for the Applicant to satisfy, and from experience, many Applicants fail solely on this final criterion. In accordance with CAS jurisprudence, when deciding whether to grant protective measures, the President of the Division (or the Panel if it has been constituted), must consider whether the interest of the Applicant outweigh those of the opposite party and of third parties ('balance of convenience' test): "It is then necessary to compare the disadvantages to the Applicant of immediate execution of the decision with the disadvantages for the Respondent of being deprived such execution." (CAS 2008/A/1453; CAS 2008/A/1630; CAS 2008/A/1677).

This final criterion is extremely subjective and in general terms it can be viewed under a different light where different Panels are concerned. This is because, when examining a request for a Stay, it is important for Panels to compare the risks incurred by the Applicant in the event of immediate execution of the application, with the disadvantage for the other party from the non-immediate execution. Thus, the interest of the Applicant to obtain the protective measure must be assessed in comparison to the interest of the other party, or other persons, who may be affected by the measure (CAS 2015/A/4259).

In summary, it is worth noting that advisers must be very careful in the preparation of an Application for protective measures. The analysis above clearly demonstrates the difficulty in persuading a Panel that the three cumulative criteria for a successful application have been met and that a plausible case has been made. The outcome of such Application tends to determine, to a very great extent, the final conclusion of the matter in question, and, therefore, caution must be applied in the preparation of the Application.

It is also important for us to remember that provisional measures do not qualify as arbitral awards and they, therefore, cannot be appealed to the Swiss Federal Tribunal. Although parties usually tend to respect and follow CAS decisions on applications for protective measures, it is submitted that CAS does not have the power to enforce such measures against the parties, nor does it have the power to sanction non-compliance.

Dr Gregory Ioannidis

* Gregory Ioannidis is a sports lawyer and an anti-doping litigation expert. He has represented over 100 athletes on allegations of anti-doping rule violations. He is also a former The FA registered lawyer and has acted for and represented many players and clubs around Europe, Africa and Asia on matters of football law. He is currently the Course Leader of the Master's Programme LLM International Sports Law in Practice at Sheffield Hallam University and an academic associate at Kings Chambers in Manchester.

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