London Branch: Dispute resolution in sport
5 March 2020
An insight into the high-profile world of sports arbitration
Front L to R: Nicholas Stewart QC, Jonathan Taylor QC, Paul Rose; Back L to R: Dr Martin Schimke, Gareth Farrelly, Dr Leanne O’Leary
Paul Rose, Chair of the London Branch, thanked the host, Bird & Bird, and welcomed attendees.
Nicholas Stewart QC, barrister, Deputy High Court Judge and arbitrator at the Court of Arbitration for Sport (CAS), moderated the discussion. He explained that CAS is the “World Supreme Court for sport” (see www.tas-cas.org). It was established in 1984 and hears around 1000 cases a year, 75% of which are football-related. It sits in Lausanne, Switzerland, and Swiss law is the arbitral law, with limited appeals to the Swiss Federal Tribunal. It has a panel of 300 arbitrators, who generally sit as a tribunal of three. Types of dispute include disciplinary matters (e.g. behaviour), doping allegations, regulatory infringements and contractual disputes. Most of the CAS cases are on appeal from decisions of sports bodies and federations, jurisdiction deriving from their rules.
Gareth Farrelly is a former Premier League and Republic of Ireland footballer who is now a solicitor with Bermans. He is a CAS arbitrator who has sat on more than 100 Football Association disciplinary panels. He has a unique perspective, because during his time as a footballer was the subject of a case before CAS. (CAS 2007/A/1271 Cork City FC v FIFA (Farrelly). His debut with Cork City FC was delayed to the season following signing due to a FIFA rule governing the number of clubs a player can sign for within 12 months. Cork City’s challenge to the rules was not successful, but the case resulted in a change to the FIFA regulations.
Dr Leanne O’Leary of Edge Hill University’s Centre for Sports Research is an arbitrator at CAS and Sports Resolution UK and sits on panels or committees in relation to boxing, canoeing and netball. Dr O’Leary spoke about the typical structure of sport tribunals, and issues that have arisen on independence and impartiality. Sports governing bodies developed historically as members-only organisations, with one governing body for each sport. They operated with significant autonomy and without reference to the law. They can choose their own disciplinary and ADR procedures, and arbitration is more common than mediation. There have been questions raised over the independence and impartiality of this common model e.g. the ECHR case of Ali Riza and others v Turkey, 30226/10, regarding the Turkish Football Federation. It was held that the uniqueness of football did not mean that the right to a fair trial under Article 6(1) of the European Convention on Human Rights could be ignored, and that a tribunal appointed by a preponderance of clubs was not independent and impartial.
Dr Martin Schimke is a former professional and German national team basketball player who is now “of counsel” at Bird & Bird in Düsseldorf, and a CAS arbitrator, including in relation to the London 2012 Olympics and 2018 South Korea Winter Olympics. Dr Schimke considered the case of Pechstein 67474/10, which involved a skater accused of blood doping. Similarly, she alleged that CAS was not independent, because the body which makes appointments to the court (ICAS) was structurally dominated by sports organisations. She did not succeed in that argument before the European Court of Human Rights, but the case continues in some respects in the German courts.
Jonathan Taylor QC is a partner with Bird & Bird in London and a co-author of the leading text Sport: Law and Practice. He has represented many parties at CAS. He acted for the International Association of Athletics Federations (IAAF) in their successful defence at CAS of the case brought by athlete Caster Semenya regarding new IAAF rules for female athletes with differences of sex development. He gave his reflections on that case, which is still being considered by the Swiss courts. He noted that the competence of CAS to consider human rights issues has been questioned by some commentators, but was of the view that given the depth of the examination of the Semenya case, involving both scientists and human rights specialists, it was appropriate for it to do so.
There followed a lively Q&A Session, and a drinks reception was kindly provided by hosts Bird & Bird.