To the growing despair of many amateurs, the many sporting Corinthians among amongst us, sports lovers, sport is now, predominantly and professionally, a commercial pursuit. Within this philistine atmosphere has grown a new type of athlete, sport one : an elite who must be seen to be as much a business person as an athlete.
It follows that such high-level figures athletes are no longer willing to be subject to decisions and sanctions by sports bodies without being able to enjoy the that kind of protection one is accustomed to that is normal in ordinary, commercial life.
With this increased intrusion of law into sport, the International Olympics Committee (IOC) rightly became concerned that rather than being settled on the field of play, sport could regrettably and expensively spend most of its time in laboratories and the courts. Thus in 1983 it the IOC established set up the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland.
Arbitration and alternative dispute resolution is are generally regarded as (ADR) is seen in general to have many advantages over traditional litigation. It is quicker, less informal and less expensive than the courtroom, offering, greater flexibility in procedure and outcome.
The Court of Arbitration for Sport CAS has more than 150 now has over one hundred and fifty personalities people with legal training and acknowledged competence in sport appointed to its board of arbitrators, including Supreme Court justices of various countries, former members of the International Court of Justice and past Olympians. According to its founding statute, the court CAS is authorised to arbitrate private disputes of a private nature arising in the field of sport if the settlement is not otherwise provided for in the Olympic Charter.
Thus it the CAS has no jurisdiction either over cases involving the IOC itself or over cases pertaining to the Olympic Charter. The court CAS could not, for example resolve strictly technical questions such as the particular rules of a game or the scheduling of a competition.
Its The CAS's competency primarily covers two main types of dispute. First, contractual disputes, that is i.e. disputes arising from legal relations between parties, such as sponsorship agreements and management relationships. In this type of dispute, The court can CAS is able to hear commercial disputes concerning sport, such as one a dispute between a television company and a national sporting organisation for the television rights to national championships.
The second type of dispute usually arises from a decision of a sports administration body to discipline internally or otherwise question an athlete's eligibility. The most prevalent example of this category of dispute is that concerning the adequacy of protections for individual athletes during drug testing.
The first type of dispute goes to ordinary arbitration proceedings within the court CAS and the second type goes to appeal arbitration proceedings (the court being is divided into two legal divisions). The court can hear ordinary arbitration proceedings can be heard by the CAS where the contract between the parties contains a clause stating that it will decide disputes. All contracts that the IOC now enters into contain a clause that disputes will be referred to the court CAS for final decision. For example, the Host City Contract for the 2000 Olympic Games, between the IOC, the City of Sydney and the various organising committees, includes such a clause.
Access to the appeal arbitration division requires that the rules of the sports body in question - for example e.g. FINA, IAAF - etc., provide that appeals from its internal disciplinary procedures can be petitioned ultimately to the court. These agreements are vital of vital importance as they establish the basis for enforcing the court's awards against individual athletes.
Since it began its work in 1984, the Court of Arbitration for Sport CAS has gradually become more accepted and respected among the various strands of by the Olympic movement and has had more than 170 cases referred to it.
But some doubts have lingered, particularly regarding as regards its the impartiality of the CAS and the judicial acceptance of its decisions in national courts.
Certain precedence in England has suggested that if an arbitral award was seen to deprive an athlete of his/her livelihood, the award's reasonableness of the award may be reviewable by the domestic courts. To this effect, many of the court's recent decisions of the CAS have seen it significantly reduce suspensions imposed by individual federations on athletes. FINA's recent doubts regarding the legal standing of its mandatory four-year ban for banned substance abuses relate being directly related to this trend.
Moreover, in 1993, significant and successful doubt was raised over the court's fairness and independence of the CAS and its procedures regarding its parent body, the IOC. To be fair, the IOC, together with the international federations moved quickly to distance itself from the court CAS and created the International Council of Arbitration for Sport to administer the court.
But However, given that since the IOC retains a role in the court's appointment procedure to the court that and it continues to provide the ICAS's funding continues to be provided by the IOC and given the Byzantine nature of IOC politics in general, questions remain as to the sustainable independence of the Court of Arbitration for Sport.
Nevertheless, the growing independence of this arbitration system has been clearly demonstrated by the "ad-hoc" appointment of arbitrators under the court's CAS charter to deal with disputes as they arose at the Olympic games of Atlanta in 1996 and the winter version at Nagano in 1998. Thanks to this on-the- spot structure, the court could pronounce final and enforceable decisions within 24 hours of receiving of a request for arbitration.
At Nagona Nagano this ad-hoc division of the court CAS heard the case of Canadian showboarder Ross Rebagliati, who was stripped of his gold medal by the IOC executive after testing positive for marijuana. To the IOC's embarrassment, the ad-hoc committee held that as "social" drugs such as marijuana, crack, heroine and ecstasy were not on the IOC's officially banned list of performance-enhancing drugs, Rebagliati should never have been tested for the drug.
The court's general secretary, J.P. Rochat, took taking the opportunity to remind the IOC that ". . . if you want to take sanctions you should have a legal basis clarified in the rules". Subsequently, in April of this year, the IOC moved in April to ban such "social" drugs from the Sydney Olympics.
This episode has strengthened the court's credibility inside the Olympic movement, in the national courts and most importantly of all among the athletes themselves. Indeed, one of the first athletes to use the court's special ad-hoc committee at the Atlanta Olympics was a certain Irish swimmer, Michelle Smith.
During the games the US, United States as backed by the German and Dutch federations, sought to prohibit her entry into the 400 metres freestyle. They complained The basis for their complaint was that Smith's application form was submitted out of time. The CAS court rejected the challenge, noting that regardless of the rules, irrespective of the strict letter of the rules, switching between events for competitors who had already been entered for the games was "current practice".
Indeed, Michael Beloff QC, a member of the court's panel during the Atlanta games, has noted that if anything the only prejudice in the case was the obvious motive behind it, to eliminate a rival of the celebrated if fading American swimmer Janet Evans. As Beloff has somewhat cheekily concluded, the US challenge to Smith failed both "before the panel and in the pool".
Jack Anderson, a part-time assistant lecturer in law at the University of Limerick, is undertaking a research masters at UL entitled Mens Sano Mens Corpora?: Violence, Sport and the Law.