Revising The Arbitration of Sport System Sports Law

November 7, 2015


By Mario Checchia – Thompson Rivers University 3L JD Student

It is submitted that the structure of the arbitration system for professional sport and the standard of review by the Court of Arbitration for Sport (CAS) requires reform. The conclusion that regulation plays an important role in sport is not a difficult one to arrive at. Simply put, a sport is played as a means to determine superiority in that specific competition. A lack of regulation means the potential for unfair advantages and in turn a result which does not properly reflect the true superior competitor may exist.

It is for this reason that correct field of play decisions are important. The significance of getting the call right is why the NHL added a second referee to make it a four official system in the late 1990’s and started experimenting with goal judges in 2006. Fans would sooner see the right call be made, even after the fact – assuming it is the right call in fact – before they endure the suffering of an incorrect call. However, what recourse is available if the call or a final result stemming from an Olympic Marathon event, for example, is believed to be incorrect?

In the situation of an Olympic Marathon runner the individual would have to raise their concern within 30 minutes of the official announcement of the result of the race. This would need to be made orally to the referee by either the athlete himself or by someone permitted to act on the athlete’s behalf. The referee has the choice to make the call himself/herself or refer it to a Jury of Appeal. Subsequently, if the athlete is not pleased with the referee’s or the Jury of Appeal’s decision they can further appeal it to the CAS.

It is argued that below the CAS and above the referee and initial appeal body there should be sport specific review panels. Richard H. McLaren in his article The Court of Arbitration for Sport: An Independent Arena for The World’s Sports Disputes, argues that sport specific panels would fail because they do not have as much experience as the CAS so in turn would be more prone to erroneous conclusions. One can argue that hearings regarding contention over a referee’s on field call can properly be decided by those with expertise of the sport. The arbitrators appointed to the CAS, and in turn hearing the appeals, are not specifically trained in the expertise of every sport, hence why it would be favourable to have the sport specific review bodies. The cost to have sports play related decisions reviewed by the CAS would be higher than it would be to have a lower level arbitrator hear the matter as less arbitrators hearing each matter would be needed.

It is also argued that the standard of review for all field of competition decisions appealed to the CAS should be correctness. Currently, where there is a relevant procedure in place to resolve field of competition decisions, the CAS holds the decision reached by that procedure as final except where it can be shown that there has been arbitrariness or bad faith in arriving at this decision. This is too high of a standard that is rarely met. The justification is that this approach is in line with the doctrine that rules of the game should not be subject to the control of judges. It sounds as though it is feared that outside judges with no horse in the race, so to speak, would be making decisions. This justification is erroneous as the individuals hearing the appeals are arbitrators, and in the opinion of this author, are no different in their capacity than the initial review body for the purposes of hearing field of play appeals. Arbitrator selection is overseen by the International Council of Arbitration for Sport (ICAS). Arbitrators are chosen from within the sport circles and therefore the concern that decisions are being made by judges from an unconnected legal system is unreasonable.

As stated above, the purpose of a sporting competition is to determine the true victor through the rules of the sport. This is first and foremost the reason the standard of review of the CAS should be correctness, even when a procedure is in place. If the right call is made, regardless of whether it was on field or through an arbitrator at the CAS level, the primary reason we have competition – to determine the superior athlete or team – is protected.


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