01 Jun The Court of Arbitration for Sport
01.06.06
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I spent the day yesterday in Lausanne listening to a presentation on the Court of Arbitration for Sport (CAS) and visiting the remarkable Olympic Museum. I will spare you the details, as it really is not fair to our readers to describe in any detail the breathtaking beauty of this splendid place in this idyllic town along the placid waters of Lake Geneva. As others have noted, a visit to Lausanne will inspire hyperbole. So I will reserve comment on Lausanne and the Olympic museum and offer you just a few words about CAS, the premier tribunal in the world for resolving sporting disputes. I have previously discussed the role of CAS in resolving Olympic disputes, and I hope to discuss the role of CAS in the FIFA World Cup competition later in June.
Following my time there yesterday I walked away impressed at how far CAS has come in becoming a major player in international sport in a very short period of time. A little over twenty years ago this organization was only a glimmer in the eye of Juan Antonio Samaranch. But year by year it is growing in importance. If you just look at the statistics, there is little doubt that CAS is quickly maturing into a significant player in international dispute resolution. More important, the major international sporting associations are adopting CAS clauses in their player participation agreements. By embedding CAS arbitration clauses in these contracts, there is every indication that future athletic disputes in international competitions will be resolved through this arbitral body.
While this organization has made little headway in penetrating the American sporting scene, if you are at all interested in international sport, you can no longer ignore the role of CAS. Mandatory arbitration of athletic disputes in connection with international sporting competitions soon may become the norm. (This means that any athlete participating in international competitions that use CAS will be subject to their jurisdiction with or without their consent). But in addition to individual doping appeals, CAS also resolves sponsorship contract disputes, renders advisory opinions on sporting association’s compliance with WADA, and resolves traditional commercial contract disputes that have a sporting angle. The future of CAS appears as bright as its Alpine venue is beautiful.
The CAS nicely illustrates what Neil MacCormick describes in Questioning Sovereignty: Law, State, and Practical Reason (1999) as an ‘institutional normative order.’ The systemic character of this order possesses, after Teubner and Luhmann, a ‘self-referential quality’ (‘competent judgement in it is conclusive within its own order, except to the extent that there is co-ordinated cross-recognition of different orders’). Of course in the case of the CAS it is not unlikely that as it grows in stature and influence its jurisdiction and/or judgements may conflict with other institutional normative orders. Such institutions raise interesting questions about legal pluralism, some of which are addressed, if I’m not mistaken, in Brian Tamanaha’s elaboration of his ‘social theory of law and the methodology of socio-legal positivism.’