GENERAL INFORMATIN AND HISTORY OF CAS——国际体育仲裁院（GAS）概览（英文版）

GENERAL INFORMATIN AND HISTORY OF CAS Origins At the beginning of the 1980s, the regular increase in the number of international sports-related disputes and the absence of any independent authority specialising in sports-related problems and authorised to pronounce binding decisions led the top sports organisations to reflect on the question of sports dispute resolution. In 1981, soon after his election as IOC President, H.E. Juan Antonio Samaranch had the idea of creating a sports-specific jurisdiction. The following year at the IOC Session held in Rome, IOC member H.E. Judge Kéba Mbaye, who was then a judge at the International Court of Justice in The Hague, chaired a working group tasked with preparing the statutes of what would quickly become the “Court of Arbitration for Sport”. The idea of creating an arbitral jurisdiction devoted to resolving disputes directly or indirectly related to sport had thus firmly been launched. Another reason for setting up such an arbitral institution was the need to create a specialised authority capable of settling international disputes and offering a flexible, quick and inexpensive procedure. The initial outlines for the concept contained provision for the arbitration procedure to include an attempt to reach a settlement beforehand. It was also intended that the IOC should bear all the operating costs of the court. Right from the outset, it was established that the jurisdiction of the CAS should in no way be imposed on athletes or federations, but remain freely available to the parties. In 1983, the IOC officially ratified the statutes of the CAS, which came into force on 30 June 1984. The Court of Arbitration for Sport became operational as of that time, under the leadership of President Mbaye and the Secretary General, Mr Gilbert Schwaar. ​ Organisation of the CAS from its creation until 1994 The CAS Statute of 1984 was accompanied by a set of procedural Regulations. Both were modified slightly in 1990. Under these rules, the CAS was composed of 60 members appointed by the IOC, the International Federations (IF), the National Olympic Committees (NOC) and the IOC President (15 members each). The IOC President had to choose those 15 members from outside the other three groups. In addition, all the operating costs of the CAS were borne by the IOC. In principle, the proceedings were free of charge, except for disputes of a financial nature, when the parties could be required to pay a share of the costs. The annual budget was approved by the CAS President alone. What is more, the CAS Statute could be modified only by the IOC Session, at the proposal of the IOC Executive Board. The CAS Statute and Regulations provided for just one type of contentious proceedings whatever the nature of the dispute. The claimant lodged his request with the CAS, accompanied by the arbitration agreement. The request was then examined by a “Requests’ panel” which ruled on the admissibility of the request, subject to a final decision by the panel of arbitrators which would then be called on to hear and rule on the dispute, if necessary. The parties thus remained free to continue their action in spite of a rejection decision by the Requests’ panel. The proceedings could then begin with an attempt at achieving conciliation, either at the proposal of the parties, or pursuant to a decision by the CAS President if he judged that the dispute was suitable for conciliation to be attempted. If this failed, the arbitration procedure itself was started. Alongside this contentious procedure there was also an advisory procedure open to any interested sports body or individual. Through this procedure, the CAS could give an opinion on a legal question concerning any activity related to sport in general. The advisory procedure still exists, but it has been modified somewhat, and access to it restricted (see below). In 1991, the CAS published a Guide to arbitration which included several model arbitration clauses. Among these was one for inclusion in the statutes or regulations of sports federations or clubs. This clause read as follows: “Any dispute arising from the present Statutes and Regulations of the ... Federation which cannot be settled amicably shall be settled finally by a tribunal composed in accordance with the Statute and Regulations of the Court of Arbitration for Sport to the exclusion of any recourse to the ordinary courts. The parties undertake to comply with the said Statute and Regulations, and to accept in good faith the award rendered and in no way hinder its execution.” This clause prefigured the subsequent creation of special rules to settle disputes related to decisions taken by sports federations or associations (appeals procedure). The International Equestrian Federation (FEI) was the first sports body to adopt this clause. This was the starting point for several “appeals” procedures even if, in formal terms, such a procedure did not yet exist. After that, other national and international sports federations adopted this appeals arbitration clause, which meant a significant increase in the workload of the CAS. Up to 1991-1992, a wide variety of cases were submitted to the CAS involving issues such as the nationality of athletes and contracts concerning employment, television rights, sponsorship and licensing. With the appearance of the appeals arbitration clause, numerous doping cases were subsequently brought before the CAS, and it was as the result of, or thanks to one such case that the structure of the CAS would have to evolve. The 1994 reform In February 1992, a horse rider named Elmar Gundel lodged an appeal for arbitration with the CAS on the basis of the arbitration clause in the FEI statutes, challenging a decision pronounced by the federation. This decision, which followed a horse doping case, disqualified the rider, and imposed a suspension and fine upon him. The award rendered by the CAS on 15 October 1992 found partly in favour of the rider (the suspension was reduced from three months to one month: see arbitration CAS 92/63 G. v/ FEI in Digest of CAS Awards 1986-1998). Unhappy with the CAS decision, Elmar Gundel filed a public law appeal with the Swiss Federal Tribunal. The appellant primarily disputed the validity of the award, which he claimed was rendered by a court which did not meet the conditions of impartiality and independence needed to be considered as a proper arbitration court. In its judgement of 15 March 1993 (published in the Recueil Officiel des Arrêts du Tribunal Fédéral [Official Digest of Federal Tribunal Judgements] 119 II 271), the Federal Tribunal (FT) recognised the CAS as a true court of arbitration. The supreme court noted, inter alia, that the CAS was not an organ of the FEI, that it did not receive instructions from this federation and retained sufficient personal autonomy with regard to it, in that it placed at the disposal of the CAS only three arbitrators out of the maximum of 60 members of which the CAS was composed. However, in its judgement the FT drew attention to the numerous links which existed between the CAS and the IOC: the fact that the CAS was financed almost exclusively by the IOC; the fact that the IOC was competent to modify the CAS Statute; and the considerable power given to the IOC and its President to appoint the members of the CAS. In the view of the FT, such links would have been sufficient seriously to call into question the independence of the CAS in the event of the IOC’s being a party to proceedings before it. The FT’s message was thus perfectly clear: the CAS had to be made more independent of the IOC both organisationally and financially. Other major changes included the creation of two arbitration divisions (Ordinary Arbitration Division and Appeals Arbitration Division) in order to make a clear distinction between disputes of sole instance and those arising from a decision taken by a sports body. Finally, the CAS reforms were definitively enshrined in a "Code of Sports-related Arbitration", which came into force on 22 November 1994 and was revised on 1 January 2004. The new structure of the ICAS might have been put to the test in 2000, when a Romanian gymnast, Andreea Raducan, who had been stripped of one of the gold medals she had won at the Sydney Olympic Games a few weeks earlier, appealed to the Swiss Federal Tribunal against a CAS award. However, the Federal Tribunal decided to dismiss the appeal without tackling the question of the independence of the restructured CAS. It was not until 27 May 2003 that the Federal Tribunal assessed the Court's independence in detail, having heard an appeal by two Russian cross-country skiers, Larissa Lazutina and Olga Danilova, against a CAS award disqualifying them from an event at the Olympic Winter Games in Salt Lake City. In a remarkably detailed and exhaustive judgement, the Federal Tribunal dissected the current organisation and structure of the ICAS and CAS, concluding that the CAS was not "the vassal of the IOC" and was sufficiently independent of it, as it was of all other parties that called upon its services, for decisions it made in cases involving the IOC to be considered as true awards, comparable to the judgements of a State tribunal. The Federal Tribunal also noted the widespread recognition of the CAS amongst the international sporting community, showing that the CAS was meeting a real need. On this subject, the Federal Tribunal added: "There appears to be no viable alternative to this institution, which can resolve international sports-related disputes quickly and inexpensively. (…) The CAS, with its current structure, can undoubtedly be improved. (…) Having gradually built up the trust of the sporting world, this institution which is now widely recognised and which will soon celebrate its twentieth birthday, remains one of the principal mainstays of organised sport". ​ The Paris Agreement ​The creation of the ICAS and the new structure of the CAS were approved in Paris, on 22 June 1994, with the signing of the “Agreement concerning the constitution of the International Council of Arbitration for Sport”, known as the “Paris Agreement”. This was signed by the highest authorities representing the sports world, viz. the presidents of the IOC, the Association of Summer Olympic International Federations (ASOIF), the Association of International Winter Sports Federations (AIWF) and the Association of National Olympic Committees (ANOC). The preamble of the Agreement states that “with the aim of facilitating the resolution of disputes in the field of sport, an arbitration institution entitled the “Court of Arbitration for Sport" (hereinafter the CAS) has been created, and that, with the aim of ensuring the protection of the rights of the parties before the CAS and the absolute independence of this institution, the parties have decided by mutual agreement to create a Foundation for international sports-related arbitration, called the “International Council of Arbitration for Sport” (hereinafter the ICAS), under the aegis of which the CAS will henceforth be placed.” The Agreement determined the appointment of the initial members of the ICAS and the funding of the CAS. In 2003, the ICAS/CAS budget totalled CHF 7,3 million. Since the Paris Agreement was signed, all Olympic International Federations and many National Olympic Committees have recognised the jurisdiction of the Court of Arbitration for Sport and included in their statutes an arbitration clause referring disputes to the CAS. Since the World Conference on Doping in Sport, held in March 2003, the Olympic Movement and numerous governments have promulgated the World Anti-Doping Code, Article 13 of which states that the CAS is the appeals body for all international doping-related disputes. ORGANISATION AND STRUCTURE OF THE ICAS AND CAS 1. The Code of Sports-related Arbitration of 22 November 1994 Since 22 November 1994, the Code of Sports-related Arbitration (hereinafter: the Code) has governed the organisation and arbitration procedures of the CAS. The​ Code was revised in 2003 in order to incorporate certain long-established principles of CAS case-law or practices consistently followed by the arbitrators and the Court Office. The latest version of the Code of Sports-related Arbitration entered into force on 1 January 2010. The 70-article Code is divided into two parts: the Statutes of bodies working for the settlement of sports-related disputes (articles S1 to S26), and the Procedural Rules (articles R27 to R70). Since 1999, the Code has also contained a set of mediation rules instituting a non-binding, informal procedure which offers parties the option of negotiating, with the help of a mediator, an agreement to settle their dispute. The Code thus establishes rules for four distinct procedures: · the ordinary arbitration procedure; · the appeals arbitration procedure; · the advisory procedure, which is non-contentious and allows certain sports bodies to seek advisory opinions from the CAS; · the mediation procedure. There are two classic phases to arbitration proceedings: written proceedings, with an exchange of statements of case, and oral proceedings, where the parties are heard by the arbitrators, generally at the seat of the CAS in Lausanne. The mediation procedure follows the pattern decided by the parties. Failing agreement on this, the CAS mediator decides the procedure to be followed.   2. The International Council of Arbitration for Sport (ICAS) The ICAS is the supreme organ of the CAS. The main task of the ICAS is to safeguard the independence of the CAS and the rights of the parties. To this end, it looks after the administration and financing of the CAS. The ICAS is composed of 20 members who must all be high-level jurists well-acquainted with the issues of arbitration and sports law. Upon their appointment, the ICAS members must sign a declaration undertaking to exercise their function in a personal capacity, with total objectivity and independence. This obviously means that in no circumstances can a member play a part in proceedings before the CAS, either as an arbitrator or as counsel to a party. The ICAS exercises several functions which are listed under article S6 of the Code. It does so either itself, or through the intermediary of its Board, made up of the ICAS President and two vice-presidents, plus the two presidents of the CAS Divisions. There are, however, certain functions which the ICAS may not delegate. Any changes to the Code of Sports-related Arbitration can be decided only by a full meeting of the ICAS and, more specifically, a majority of two-thirds of its members. In other cases, a simple majority is sufficient, provided that at least half the ICAS members are present when the decision is taken. The ICAS elects its own President, who is also the CAS President, plus its two Vice-presidents, the President of the Ordinary Arbitration Division, the President of the Appeals Arbitration Division and the deputies of these divisions. It also appoints the CAS arbitrators and approves the budget and accounts of the CAS.   3. The Court of Arbitration for Sport (CAS) The CAS performs its functions through the intermediary of arbitrators, of whom there are at least 150, with the aid of its court office, which is headed by the Secretary General. One of the major new features following the reform of the CAS was the creation of two divisions: an “Ordinary Arbitration Division”, for sole-instance disputes submitted to the CAS, and an “Appeals Arbitration Division”, for disputes resulting from final-instance decisions taken by sports organisations. Each division is headed by a president. The role of the division presidents is to take charge of the first arbitration operations once the procedure is under way and before the panels of arbitrators are appointed. The presidents are often called upon to issue orders on requests for interim relief or for suspensive effect, and intervene in the framework of constituting the panels of arbitrators. Once nominated, the arbitrators subsequently take charge of the procedure. The 275 CAS arbitrators (2007 figure) are appointed by the ICAS for a renewable term of four years. The Code stipulates that the ICAS must call upon “personalities with a legal training and who possess recognised competence with regard to sport”. The appointment of arbitrators follows more-or-less the same pattern as for the ICAS members. The CAS arbitrators are appointed at the proposal of the IOC, the IFs and the NOCs. The ICAS also appoints arbitrators “with a view to safeguarding the interests of the athletes” (article S14 of the Code), as well as arbitrators chosen from among personalities independent of sports organisations. Even when the CAS arbitrators are proposed by sports organisations, the fact remains that they must carry out their functions with total objectivity and independence. When they are appointed, they have to sign a declaration to this effect. The arbitrators are not attached to a particular CAS division, and can sit on panels called upon to rule under the ordinary procedure as well as those ruling under the appeals procedure. CAS panels are composed either of a single arbitrator or of three. All arbitrators are bound by the duty of confidentiality and may not reveal any information connected with the parties, the dispute or the proceedings themselves. TYPES OF DISPUTES SUBMITTED TO THE CAS Generally speaking, a dispute may be submitted to the Court of Arbitration for Sport only if there is an arbitration agreement between the parties which specifies recourse to the CAS. Article R27 of the Code stipulates that the CAS has jurisdiction solely to rule on disputes connected with sport. Since its creation, the CAS has never declared itself to lack jurisdiction on the grounds of a dispute’s not being related to sport (see in this regard the award delivered in the arbitration TAS 92/81 in the Digest of CAS Awards 1986-1998). In principle, two types of dispute may be submitted to the CAS: those of a commercial nature, and those of a disciplinary nature. The first category essentially involves disputes relating to the execution of contracts, such as those relating to sponsorship, the sale of television rights, the staging of sports events, player transfers and relations between players or coaches and clubs and/or agents (employment contracts and agency contracts). Disputes relating to civil liability issues also come under this category (e.g. an accident to an athlete during a sports competition). These so-called commercial disputes are handled by the CAS acting as a court of sole instance. Disciplinary cases represent the second group of disputes submitted to the CAS, of which a large number are doping-related. In addition to doping cases, the CAS is called upon to rule on various disciplinary cases (violence on the field of play, abuse of a referee). ​ Such disciplinary cases are generally dealt with in the first instance by the competent sports authorities, and subsequently become the subject of an appeal to the CAS, which then acts as a court of last instance. THE DECENTRALISED CAS OFFICES AND THE AD HOC DIVISIONS ​In 1996, the ICAS created two permanent decentralised offices, the first in Sydney in Australia, and the second in Denver, in the United States of America. In December 1999, the Denver office was transferred to New York. These offices are attached to the CAS court office in Lausanne, and are competent to receive and notify all procedural acts. Creating them made it easier for parties domiciled in Oceania and North America to have access to the CAS.​ ​ Later in 1996, the ICAS created a CAS ad hoc division with the task of settling finally and within a 24-hour time-limit any disputes arising during the Olympic Games in Atlanta. This ad hoc division was composed of two c