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James MERRYWEATHER

'Consent' in international sports arbitration:

striking the right balance

The case of Mutu and Pechstein v. Switzerlandwas heralded as a landmark

case as it represented the most significant examination of the Court of
Arbitration for Sport (CAS) in over a decade. The case exposed several
issues with CAS, and due to its prominent status as the so-called "supreme
court of world sports," these issues should have been addressed as a
matter of urgency. This, regrettably, did not turn out to be the case and so
this paper seeks to bring forward a further call for reform. By advocating
for an open list of arbitrators, and reforms to the structure of ICAS, whilst
also establishing a system of precedent and the regular publication of
awards, this paper suggests meaningful ways to balance the competing
interests of key stakeholders in sports arbitration.

Keywords: Court of Arbitration for Sport, impartiality, independence, athletes,

sports governing bodies, sport

Table of contents
I Problems within the Code of Sports-related Arbitration ......................... 420
A IC A S Sta tu te s ....................................................................................... 4 2 0
1 M e m be rs h ip of IC A S ...................................................................... 4 2 0
2 M e m be rs h ip of ICA S ...................................................................... 4 2 1
3 T he pres id e nts of IC A S .................................................................. 42 3
4 IC A S statutes: conclusion .............................................................. 424
B The CAS Code of Sports-related Arbitration..........................................425
1 C o n fid e n tia lity ................................................................................ 4 2 5
2 P u b lic h e a rin g s .............................................................................. 4 2 6
3 Code of Sports-related Arbitration: conclusion ............................... 427
II Reforms to the Court of Arbitration for Sport.........................................428
A R eform to the IC A S statutes ................................................................. 428
1 C o m pos itio n of IC A S ...................................................................... 4 2 8
2 A ppointm ent of presidents ............................................................. 430
3 A ppo intm e nt of arbitrators .............................................................. 432
a G reate r tra ns pa re ncy .............................................................. 4 32
b O pe n list of a rbitrato rs ............................................................ 4 3 3
B Reform to the Code of Sports-related Arbitration...................................434
1 P u b lication of aw a rd s ..................................................................... 4 3 4
2 A syste m of preced e nt ................................................................... 4 3 5
https://doi.org/1 0.37942/9783708342184-601 419
James MERRYWEATHER

III Conclusion............................................................................................437
IV B ib lio g ra p h y .......................................................................................... 4 3 7

I Problems within the Code of Sports-related Arbitration

Whilst the current model of international sports "depends on a compulsory,
specialised, centralised system of international dispute resolution,"1 this does
not mean that the current system is perfect. If anything, the Pechstein decision,
and the subsequent literature it inspired, exposed a series of flaws within the
current system regarding the protection of athlete's rights, as well as the overall
fairness of CAS proceedings. The decision in Pechstein was handed down in 2018,
and the literature followed shortly afterwards, so the question arises as to what
extent that decision, and its commentary, have meaningfully improved today's
Code of Sports-related Arbitration. This paper postulates that whilst improvements
have been made, such improvements do not represent a substantial rebalancing
of interests and there still exist issues in the current system which can and
should be addressed.

A ICAS Statutes
Whilst not strictly related to the Code of Sports-related Arbitration and proceedings
before the CAS, the ICAS Statutes nevertheless exert considerable influence.
This is because ICAS, as the organisation which oversees the CAS, is empowered
to make a number of decisions which directly impact how participants engage
with it. Against this background, there are several issues which need to be
addressed within the ICAS Statutes.

1 Membership of ICAS
The 2023 Code of Sports-related Arbitration of the CAS provides that ICAS is
composed of twenty-two members.2 These members are appointed as follows:
six members are appointed by the International Sports Federations (five by the
Association of Summer Olympic International Federations and one by the
Association of Winter Olympic International Federations); four members are
appointed by the Association of the National Olympic Committees; four members
are appointed by the IOC; four members are appointed by the fourteen members
of ICAS detailed previously, after appropriate consultation with a view to
safeguarding the interests of the athletes; and finally, four members are appointed

1 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 2, available at
https://www.blackstonechambers.com/news/analysis-compelled_consent_/ (15
July 2023).
2 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 1, S4.
420
 'Consent' in international sports arbitration: striking the right balance

by the eighteen other members of ICAS, chosen from among personalities

independent of the bodies designating the other members of the ICAS. 3
The structure of ICAS is a vital consideration given the extensive competences
which it possesses. Moreover, whilst the number of people which make up ICAS
has changed since the Pechstein decision was issued, the concerns expressed
in that decision still remain relevant. This is because only four out of the twenty-
two members of ICAS are appointed with a view to safeguarding the interests of
athletes, 4 and only a further four are completely independent. 5 This led the
dissenting minority in the Pechstein to note that, "[i]t follows from this that the
organisations [sporting federations] have a not insignificant influence on the
composition of the ICAS." 6 This conclusion is based on the fact that sixty three
percent of ICAS is comprised of members of the sporting federations and the
impact of this is that, whilst each individual appointed to ICAS must "sign a
declaration undertaking to exercise their function personally, with total objectivity
and independence,"7 "this organisational structure does not give th[e] appearance
[of independence]."8 This concern is only exacerbated further when one considers
that the sixty three percent of ICAS (which comprises the sporting federations),
makes up one side of the disputes before the CAS. Meanwhile, the eighteen
percent, which is there to safeguard the interests of athletes, comprises the other
party in such proceedings. Consequently, there exists a clear imbalance in the
representation of interests within the structure of ICAS. This imbalance is
especially problematic, however, because ICAS is empowered to act in a way
which could negatively affect the interests of athletes.

2 Membership of ICAS
The reason why the composition of ICAS is of such significance, is due to the
power which it exercises. As provided for by S6 of the Code of Sports-related
Arbitration, ICAS "appoints the arbitrators who constitute the list of CAS arbitrators
and the mediators who constitute the list of CAS mediators on the proposal of
the CAS Membership Commission. It can also remove them from those lists." 9
When appointing individuals to that list, the "ICAS shall appoint personalities to
the list of CAS arbitrators with appropriate legal training, recognized competence

3 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 1, S4.
4 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 1, S4.
5 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 1, S4.
6 ECtHR, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018, 40575/10
and 67474/10, Joint Partly Dissenting, Partly Concurring Opinion of Judges Keller
and Serghides, para. 9.
7 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 1, S5.
8 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 8-9.
9 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 2, S6 (4).
421
James MERRYWEATHER

with regard to sports law and/or international arbitration, a good knowledge of

sport in general and a good command of at least one CAS working language." 1 0
Individuals will only be appointed to the list of arbitrators, however, when their
"names and qualifications are brought to the attention of ICAS, including by the
IOC, the IFs [International Federations], the NOCs [National Olympic Committees]
and by the athletes' commissions of the IOC, IFs and NOCs." 1 1 What these rules
provide therefore is that ICAS, a body which is already largely comprised of
representatives of sporting federations, will only appoint arbitrators to the list,
upon nomination by bodies which are also largely the sporting federations. Given
the considerable influence of sporting federations, the nomination procedure
does not appear as if it takes into account, and balances, the interests of all
participants before the CAS.
This appearance becomes particularly problematic when one considers how
the parties then interact with the nominated arbitrators. In the Code of Sports-
related Arbitration, R40.2 specifies that "[t]he parties may agree on the method
of appointment of the arbitrators from the CAS list." 12 In other words, when the
parties are invited to nominate their arbitrator, as occurs in all commercial
arbitrations, they are only permitted to appoint those from the CAS list. The reality
which the rules, as they are, presents, is not one which is satisfactory to all as
"[t]he mandatory list of arbitrators has raised some issues regarding the excessive
limitation of the parties to appoint the arbitrat[or] of their choice as well as the
equality of the parties."1 3 The defence to this criticism has frequently been that
it preserves the quality of the arbitrators as by having a closed list of arbitrators,
it ensures that the arbitrators are suitably well qualified to preside over
international sports disputes, and thus can also ensure the efficient resolution of
disputes which is so crucial.14 That argument is not, however, convincing. This
is because "[i]n much more technical areas - such as in the pharmaceutical or
aeronautical industry - the parties may choose their arbitrator freely without there
being any problem." 15 Given this, and whilst a discernible and mutually exclusive
advantage does not appear to exist for a closed list of arbitrators, athletes

10 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section C, 2, S14.
11 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes, (1 February 2023), Section C, 2, S14.
12 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section B, R40.2.
13 Despina Mavromati/Mathieu Reeb, Commentary on the CAS Procedural Rules,
Article R40 [Formation of the Panel], in: Despina Mavromati/Mathieu Reeb, The
Code of the Court of Arbitration for Sport: Commentary, Cases and Materials,
Alphen aan den Rijn 2015, 265.
14 Despina Mavromati/Mathieu Reeb, Commentary on the CAS Procedural Rules,
Article R40 [Formation of the Panel], in: Despina Mavromati/Mathieu Reeb, The
Code of the Court of Arbitration for Sport: Commentary, Cases and Materials,
Alphen aan den Rijn 2015, 265; Swiss Federal Tribunal, A. et B. v. Comite
International Olympique, Federation Internationale de Ski et Tribunal Arbitral du
Sport, Judgment of 27 May 2003, BGE 129 11 445, para. 3.3.3.2.
15 ECtHR, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018, 40575/10
and 67474/10, Joint Partly Dissenting, Partly Concurring Opinion of Judges Keller
and Serghides, para. 14.
422
 'Consent' in international sports arbitration: striking the right balance

nevertheless have to appoint an arbitrator who has largely been nominated by

the sports federations. The crux of this problem was detailed by the dissenting
minority in Pechstein who observed that that "the organisations which appoint
the arbitrators (International Federations (IF), the International Olympic Committee
(IOC) and the National Olympic Committees (NOCs)) all represent one party in
the arbitration - the sports bodies and not the athletes." 16 Such an imbalance
does not adequately reflect the interests of all participants before the CAS, and
as a consequence, the rules which enable it should be reformed.

3 The presidents of ICAS

An additional competence which ICAS possesses is to elect, for a period of four
years, a President, three Vice-Presidents, Presidents of the Ordinary Arbitration
Division, the Anti-Doping Division, and the Appeals Arbitration Division, as well
as their deputies. 17 Significantly though, "[t]he election of the President and of
the Vice-Presidents shall take place after consultation with the IOC, the ASOIF,
the AIOWF and the ANOC." 1 8 The heavy involvement of sporting federations,
who typically appear on one side of proceedings before the CAS, should not
materially affect the independence and impartiality of the Presidents and Vice
Presidents appointed in this manner. Nevertheless, the appearance of
independence and impartiality, is just as important as having it materially exist
too. 19 As such, the question has to be asked as to whether this procedure casts
doubts over that appearance.
The biggest concern surrounding the appearance of independence and
impartiality comes to the fore when reviewing the procedural rules for appeals
before the CAS. This is because R54 details that the President of the Division
shall appoint the sole arbitrator, 2 0 and in cases where three arbitrators are to be
appointed, "the President of the Division shall appoint the President of the Panel
following nomination of the arbitrator by the Respondent and after having consulted
the arbitrators." 2 1 Such a procedure may, on the face of it, be uncontroversial as
being able to appoint individuals suitably well qualified to efficiently render a
well-reasoned decision is entirely legitimate. Problems, however, do arise due
to the fact that in the absence of a majority decision, the President alone can
render an award. 22 This is to be considered an extensive power, because in

16 ECtHR, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018, 40575/10

and 67474/10, Joint Partly Dissenting, Partly Concurring Opinion of Judges Keller
and Serghides, para. 8.
17 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 2, S6 (2).
18 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 2, S6 (2).
19 ECtHR, Findlay v. United Kingdom, Judgment of 25 February 1997, 22107/93, para. 73.
20 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section C, R54.
21 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section C, R54.
22 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section C, R59.
423
James MERRYWEATHER

appeal proceedings, "[t]he Panel has full power to review the facts and the law.
It may issue a new decision which replaces the decision challenged or annul the
decision and refer the case back to the previous instance." 2 3
The Oberlandesgericht Miinchen, when it heard one of Ms Pechstein's appeals
(priorto it making its way to the ECtHR), took issue with this situation. It observed
that by nominating Presidents from within its organisation, ICAS is "contaminating"
its independence. 24 This is because through this mechanism, "the [Sports
Governing Bodies] can also exercise an indirect influence on the third member
of the arbitral panel competent to deal with a specific dispute." 25 There is a grave
risk of this negative influence when one considers the fact that the current
President of the Appeals Arbitration Division, Ms Corinne Schmidhauser Oly,
formerly worked on the legal committee of a sports governing body. Whilst such
a mechanism does not lead to the conclusion that every President of every appeal
tribunal, nominated by Ms Schmidhauser Oly, lacks personal integrity, it
nevertheless leads to a perception of a structural bias by the parties to the
26
disputes.

4 ICAS statutes: conclusion

As has been detailed above, ICAS has two significant flaws: namely that it, itself,
is heavily weighted towards the sports federations, and when it exercises some
of its competences, it can be argued that it subsequently contaminates its
independence. 27 The problem with this is that it raises legitimate, and in the
opinion of the dissenting minority in Pechstein, well-founded concerns surrounding
the independence and impartiality of the CAS as a whole. 28 Moreover, following
the publication of the Pechstein judgment, commentators acknowledged that
"the CAS may have dodged this first bullet," but that "in order to avoid a fatal
blow," 2 9 the CAS should make sure that the system is "bulletproof for when the

23 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),

Section C, R57.
24 Antoine Duval/Ben Van Rompuy, The Compatibility of Forced CAS Arbitration with
EU Competition Law: Pechstein Reloaded, available at https://ssrn.com/
abstract=2621983 or http://dx.doi.org/1 0.2139/ssrn.2621983, (23 June 2015), 27.
25 Antoine Duval/Ben Van Rompuy, The Compatibility of Forced CAS Arbitration with
EU Competition Law: Pechstein Reloaded, available at https://ssrn.com/
abstract=2621983 or http://dx.doi.org/1 0.2139/ssrn.2621983, (23 June 2015), 27.
26 Antoine Duval/Ben Van Rompuy, The Compatibility of Forced CAS Arbitration with
EU Competition Law: Pechstein Reloaded, available at https://ssrn.com/
abstract=2621983 or http://dx.doi.org/1 0.2139/ssrn.2621983, (23 June 2015), 27.
27 Antoine Duval/Ben Van Rompuy, The Compatibility of Forced CAS Arbitration with
EU Competition Law: Pechstein Reloaded, available at https://ssrn.com/
abstract=2621983 or http://dx.doi.org/1 0.2139/ssrn.2621983, (23 June 2015), 27.
28 ECtHR, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018, 40575/10
and 67474/10, Joint Partly Dissenting, Partly Concurring Opinion of Judges Keller
and Serghides, para. 16.
29 Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller/S. Besson/A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020, 95.
424
 'Consent' in international sports arbitration: striking the right balance

next shot is fired." 30 As the current version of the ICAS Statutes, an integral part
of the Code of Sports-related Arbitration, possesses the same clauses, the
concerns expressed remain as prevalent as ever.

B The CAS Code of Sports-related Arbitration

Whilst the particular composition of ICAS means that, when it exercises certain
competences, concerns are raised over its independence and impartiality, that
is not to say that the Code of Sports-related Arbitration does not raise other
concerns. As previously detailed, the appointment of Presidents of the arbitral
tribunal in appeal proceedings, as well as the power that is given to that position,
is already one prominent example of concern. Nevertheless, the provisions on
confidentiality, 31 and the holding of public hearings, 32 also facilitate certain
inequalities between the parties, which also then further supports the position of
sports federations. These two key provisions will be explained further.

1 Confidentiality
Underthe current version of the CAS Rules, all proceedings are to be considered
confidential. 33 The direct consequence of this is that "[a]wards shall not be made
public unless all parties agree, or the Division President so decides."34 The CAS
does not restrict the publication of awards in appeal cases, except where both
parties agree as such. 35 This presents a clear benefit, in most situations, to
athletes, however, not publishing all awards, creates a degree of inequality
between the parties. This is because, even with the publication of the awards
from appeals, only a small number of CAS decisions are actually made available
on the database.36 Meanwhile, sports governing bodies, who always remain a
constant counterparty in proceedings, "have access to previous decisions which
they were party to, irrespective of whether the CAS has chosen to publish those
decisions." 37 Athletes have no such access as whilst they may only be involved
in one case in their career, sports governing bodies could well be involved in
several per year. Moreover, these governing bodies will also be repeatedly

30 Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller/S. Besson/A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020, 96.
31 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section B, R43.
32 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section B, R44.2.
33 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section B, R43.
34 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section B, R43.
35 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section C, R59.
36 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 13.
37 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 13.
425
James MERRYWEATHER

involved in the same categories of disputes, for example anti-doping. Athletes,

again, do not have the same exposure. The result is a vast difference in access
to information, and with this, comes a definite degree of inequality between the
parties. Whilst this is, on the face of it, potentially not overly problematic, it materially
impacts the ability of athletes to prepare their case, assess their chances of
success, but also to make their own conduct compatible with the CAS' lex
sportiva. Thus, there exists a very real disadvantage, and one which should be
rectified.

2 Public hearings
If Pechstein was said to have one clear impact on the operations of the CAS,
then the provisions surrounding a public hearing is most definitely it. Despite the
majority in Pechstein not finding a violation of Article 6 on the grounds that the
CAS lacks sufficient independence and impartiality, it did find a violation because
of the lack of a public hearing.38 Consequently, the CAS set about rectifying this
flaw in its rules. The result was that in ordinary arbitral proceedings, the hearing
is not public (unless the parties agree otherwise), 39 however in appeal proceedings,
the same is true, except that "[alt the request of a physical person who is party
to the proceedings, a public hearing should be held if the matter is of a
disciplinary nature." 40 The CAS then mimicked the exceptions to Article 6, by
further providing that, "[s]uch request may ... be denied in the interest of morals,
public order, national security, where the interests of minors or the protection of
the private life of the parties so require, where publicity would prejudice the
interests of justice, where the proceedings are exclusively related to questions
of law or where a hearing held in first instance was already public." 41 Like most
provisions in the CAS' Procedural Rules, this does not appear to be deeply
problematic. Nevertheless, the concern around R57 is how the CAS interprets
the exceptions to it, as whilst the rule possesses the same wording of the ECHR,
the CAS does not have the case law of the ECtHR to rely on which more
precisely details these exceptions.
The first concern which emanates from the rule is that the right to a public
hearing under the ECtHR's case law is not limited to disciplinary cases. 42 In
theory, it could be, but only when arbitration has been freely consented to, and
thus the right to a public hearing has been waived. 43 Where this has not occurred,

38 ECtHR, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018, 40575/10

and 67474/10, para. 183.
39 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section B, R44.2.
40 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section C, R57.
41 CAS Code of Sports-related Arbitration, Procedural Rules (1 February 2023),
Section C, R57.
42 Antoine Duval, Time to go Public? The Need for Transparency at the Court of
Arbitration For Sport, in: Duval/Rigozzi (eds.), Yearbook of International Sports
Arbitration 2017, The Hague 2019, 10.
43 ECtHR, Hakansson and Sturesson v. Sweden, Judgment of 21 February
1990,11855/85, para. 66.
426
 'Consent' in international sports arbitration: striking the right balance

as is more typical in sports arbitration, then litigants must be given the opportunity
to request a public hearing.44 At current, this is not reflected in the current Code
of Sports-related Arbitration.
In situations though where it might be necessary to hold proceedings in
camera, then these must be "strictly required by the circumstances." 45 This is
because the ECtHR has held, for example, that "the mere presence of classified
information in the case file does not automatically imply a need to close a trial to
the public." 46 The reason behind such a decision is that the "courts must consider
whether such exclusion is necessary in the specific circumstances in order to
protect a public interest, and must confine the measure to what is strictly
necessary in order to attain the objective pursued." 47 Against this background,
the CAS "should adopt a wide understanding of the right to a public hearing ...
and a strict reading of any exceptions to it." 48 The Code of Sports-related
Arbitration does not contain any wording to this effect though, and so the problem
is that without a system of binding precedent, nor the wide publication of awards,
it is not possible to know whether Article 6 is upheld in the application of R57.
This is of significant concern as not only would a failure to do so expose the CAS
to various legal challenges, 49 it also would materially violate the rights of athletes.
This is, in addition to all of the above highlighted critiques, something which
needs to be addressed.

3 Code of Sports-related Arbitration: conclusion

As illustrated above, it appears that despite the ECtHR's examination of the inner
workings of the CAS, that not all concerns have been adequately addressed. It
is clear that the rules have been improved in light of certain findings by the court,
but the key question looming over the CAS is whether it is enough? As was
acknowledged in the aftermath of Pechstein "the CAS may have dodged this first
bullet,"50 but that "in order to avoid a fatal blow," 51 the CAS should make sure

44 William A. Schabas, The European Convention on Human Rights: A Commentary,

Oxford 2015, 290.
45 William A. Schabas, The European Convention on Human Rights: A Commentary,
Oxford 2015, 290.
46 ECtHR, Belashev v. Russia, Judgment of 4 December 2008, 36328/20, para. 83.
47 ECtHR, Nikolova and Vandova v. Bulgaria, Judgment of 17 December 2013,
20688/04, para. 74.
48 Antoine Duval, Time to go Public? The Need for Transparency at the Court of
Arbitration For Sport, in: Duval/Rigozzi (eds.), Yearbook of International Sports
Arbitration 2017, The Hague 2019, 11.
49 Antoine Duval, Time to go Public? The Need for Transparency at the Court of
Arbitration For Sport, in: Duval/Rigozzi (eds.), Yearbook of International Sports
Arbitration 2017, The Hague 2019, 11.
50 Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller, S. Besson, A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020, 95.
51 Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller, S. Besson, A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020, 95.
427
James MERRYWEATHER

that the system is "bulletproof for when the next shot is fired."5 2 It is submitted
that, despite the revisions contained within the 2023 Code of Sports-related
Arbitration, it is still not enough. The current structure of ICAS appears to still
lack independence and impartiality, meanwhile certain provisions of the Code
create a clear disadvantage for athletes compared to the sports governing
bodies. The overall concern is then worsened still when one considers that, for
many, proceedings before the CAS are not freely consented to by those who are
subject to them. As such, the question, which has to be asked, is whether the Code
of Sports-related Arbitration, including the ICAS Statutes, can be improved, such
that concerns over the lack of consent dissipate.

II Reforms to the Court of Arbitration for Sport

The CAS, ever since its inception, always intended to become the "supreme
court of world sports."5 3 In the close to forty years since its creation, it has only
grown in popularity and in mainstream acceptance. Whilst this is the position of
the CAS now, this was only possible because it was ,always conscious of the
possibility of improvement and reform," 54 as evidenced by the various revisions
which have been made to the CAS as an organisation, and its Code of Sports-
related Arbitration. Yet, as has also been evidenced in the preceding section,
there are still concerns surrounding the operations of the CAS, and such concerns
are only exacerbated further by the fact that proceedings operate on the basis
of a system of compelled consent. 55 Despite the current reality, it is advanced
that if "the CAS ... could be relied upon to give open, fair, transparent judgments
then the criticisms of coerced consent lose their potency." 56 This Chapter will
therefore set out the potential reforms to the CAS which will help achieve this aim.

A Reform to the ICAS statutes

1 Composition of ICAS
Arguably one of the biggest concerns surrounding the independence and
impartiality of the CAS, is the lack of even an appearance of it in ICAS. As an
athlete, or in other words, the likely counterparty against the sports governing
bodies in proceedings before the CAS, it is difficult to have confidence in a body

52 Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller, S. Besson, A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020, 96.
53 Swiss Federal Tribunal, A. et B. v. Comite International Olympique, Federation
Internationale de Ski et Tribunal Arbitral du Sport, Judgment of 27 May 2003, BGE
129 III 445, 462.
54 Hannah Bronte Le-Fevre, Ready, set, reform? The future of sports arbitration,
International Arbitration Law Review, 23 (2020) 3, 201.
55 Johan Lindholm, A legit supreme court of world sports? The CAS(e) for reform, The
International Sports Law Journal, 21 (2021), 3.
56 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 6.
428
 'Consent' in international sports arbitration: striking the right balance

in which their interests are only represented by a small minority. Moreover, this
perception is only worsened still since the representatives, who are appointed to
safeguard the interests of athletes, are done so by the sports governing bodies
themselves. 57 This reality is deeply unsatisfactory.
Previous scholarship has suggested reforming ICAS' membership, and the
biggest commonality between all current suggestions, is that the bodies
representing athletes should be able to appoint members to ICAS directly.58
Despite agreement on this point, there are differing views regarding the number
of representatives of different interests. On the one hand, authors like De Marco
and Hannah suggest that eight members should be appointed by the sports
governing bodies, eight members should be appointed by bodies representing
athletes' interests, and finally, four should be appointed (or eight in the case of
Hannah), by the previous sixteen. 59 On the other hand, however, Duval suggests
a different composition for ICAS. He advances that only four members of ICAS
should be appointed by the sports governing bodies, whilst four are "selected by
representatives of the athletes (at a specific conference or assembly including,
for example, FIFPro, UNI World Athletes, EU Athletes, and the IOC Athletes'
Commission)." 60 Where he crucially differs from De Marco and Hannah is by
advancing that the final twelve members should be picked by the first eight.61
The reason for this is that he intends the twelve, neutral members, of ICAS to
have the "upper hand on the two partisan fractions inside ICAS." 62
It is advanced that Duval's suggestion for reform is to be considered the best
for ensuring the legitimate independence and impartiality of ICAS. Where he
stops in his suggestion for reform, however, is analysing the reason why it is to
be preferred. This paper will fill that gap. One of the key advantages, for both
sports governing bodies and athletes alike, is the quality which a specialised

57 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes (1 February 2023), Section B, 1, S4.
58 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future of
Sports Arbitration, Blackstone Chambers, 4 July 2016, 9; Hannah Bronte Le-Fevre,
Ready, set, reform? The future of sports arbitration, International Arbitration Law
Review, 23 (2020) 3, 206; Antoine Duval, The Court of Arbitration for Sport after
Pechstein: Reform or Revolution?, available at <https://www.asser.nl/SportsLaw/
Blog/post/the-court-of-arbitration-for-sport-after-pechstein-reform-or-revolution>
(15 July 2023).
59 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future of
Sports Arbitration, Blackstone Chambers, 4 July 2016, 9; Hannah Bronte Le-Fevre,
Ready, set, reform? The future of sports arbitration, International Arbitration Law
Review, 23 (2020) 3, 206.
60 Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or
Revolution?, available at <https://www.asser.nl/SportsLaw/Blog/post/the-court-of-
arbitration-for-sport-after-pechstein-reform-or-revolution> (15 July 2023), 3.
61 Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or
Revolution?, available at <https://www.asser.nl/SportsLaw/Blog/post/the-court-of-
arbitration-for-sport-after-pechstein-reform-or-revolution> (15 July 2023), 3.
62 Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or
Revolution?, available at <https://www.asser.nl/SportsLaw/Blog/post/the-court-of-
arbitration-for-sport-after-pechstein-reform-or-revolution> (15 July 2023), 3.
429
James MERRYWEATHER

arbitral institution in sports brings.63 This is because it ensures that proceedings

are conducted in an efficient manner, whilst also enabling them to consider the
emerging lex sportiva (i.e., also ensuring that sports arbitration accounts for the
nuances of international sports). 64 As such, whilst appointing twenty (or twenty
two) independent members of ICAS would make the organisation completely
independent and impartial from all parties which appear before the CAS, this
would not be advantageous. Representatives of sports governing bodies, as well
as of athletes, are necessary to ensure that the CAS continues to offer quality in
its dispute resolution mechanism. The specialist, intricate, knowledge which
comes from being a representative of either party, would not be attainable in an
independent individual, no matter how well qualified. As such, it is absolutely
necessary to continue to have representatives of the sports governing bodies,
and of athletes, in ICAS.
Turning to the question of whether the independent members should have
the "upper hand on the two partisan fractions inside ICAS." 65 On this point, it
seems that such a situation would enable a much better balance to be struck
between the interests of the parties. Whilst there is a clear advantage to having
specialist knowledge within ICAS, it is not necessary for such specialism to be
in the majority. This is especially true when the most potent criticism levelled at
66
ICAS currently is the appearance of a lack of independence and impartiality.
As such, having individuals who are independent in the majority, will remove such
criticism, and it will also reduce the appearance of bias when ICAS exercises
some of its most important functions (i.e., inter alia, appointing arbitrators and
appointing the Presidents of the CAS divisions). More than this however, being
independent means that such individuals will not deliberately favour one side or
the other, and as such, they can then account for the interests of both sides and
choose the 'best' middle ground. This would result in a membership structure
which is much more palatable for the current majority within ICAS to accept and
would further enable it to 'strike the right balance.'

2 Appointment of presidents
One of the key functions of ICAS, is that it also appoints the Presidents of the
various divisions. As detailed in the preceding section, this is problematic when
ICAS appoints the Presidents from within its membership, and this is only
worsened still when the President of the Appeals Division is empowered to
exercise a large amount of control over the proceedings. The independence of

63 ECtHR, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018, 40575/10

and 67474/10, para. 98.
64 Gregory loannidis, Defending the rights of athletes before the Court of Arbitration
for Sport (CAS): revising procedural and substantive aspects of sports law litigation
and practice, International Sports Law Review, 4 (2021), 64.
65 Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or
Revolution?, available at <https://www.asser.nl/SportsLaw/Blog/post/the-court-of-
arbitration-for-sport-after-pechstein-reform-or-revolution> (15 July 2023), 3.
66 ECtHR, Mutu and Pechstein v. Switzerland, Judgment of 2 October 2018, 40575/10
and 67474/10, Joint Partly Dissenting, Partly Concurring Opinion of Judges Keller
and Serghides, para. 9.
430
 'Consent' in international sports arbitration: striking the right balance

the person in this position is therefore vital, as it can remove any potential bias
towards one party, and considering the cases which appear before the CAS
Appeals Division (e.g., "it deals with all the disputes related to doping and transfer
cases, but also those arising from disciplinary sanctions imposed by the SGBs
and their political decisions,") 67 this is more important still. The first suggestion
for reform therefore is that the Presidents should be appointed from the suggested
membership structure of ICAS detailed previously. The 'partisan' groups within
ICAS (i.e., the representatives of the sports governing bodies, and the athletes),
however, would not be able to serve as President of the Appeals Division. This
would ensure the President's appearance of neutrality, as well as ensuring there
is no connection which would incentivise them to favour one party over the other.
In this vein, a further reform which has been suggested though, is a threshold
of independence which must be reached, prior to someone being able to assume
a Presidential position. De Marco suggests that the Presidents "should be
independent both of all regulators and Olympic committees and of those bodies
representing the interests of players,"6 8 however Duval goes further than this.
He writes that ICAS should "[i]mpose a regime of incompatibilities to the
President of the Appeals Division. He or she must accept to forego all his or her
mandates within the SGBs and sever all contractual ties susceptible of giving
rise to a conflict of interest." 69 The reasoning behind Duval's suggestion is that
"[o]nly by ensuring that he or she has no direct and personal, contractual or financial
links with the SGBs can the CAS preserve its independence and legitimacy." 70
Where Duval needs to go further though is by applying the same criteria to
organisations which represent the interests of athletes. Whilst the suggestion for
reform, as formulated currently, is no doubt a direct response to today's system
of ICAS, it is still not satisfactory as it then tips the scales the other way (i.e., it
could then potentially favour athletes too heavily). Moreover, such a reform lacks
the pragmatism to be accepted by the current composition of ICAS for the same
reason. As such, the reforms should be to appoint the Presidents from ICAS, as
detailed previously, and have the relevant individuals sever any and all ties to
sports governing bodies and athlete organisations alike. Such a reform would
ensure that the Presidents are truly independent and can exercise their functions
without any ulterior motives.

67 Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or
Revolution?, available at <https://www.asser.nl/SportsLaw/Blog/post/the-court-of-
arbitration-for-sport-after-pechstein-reform-or-revolution> (15 July 2023), 3.
68 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 9.
69 Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or
Revolution?, available at <https://www.asser.nl/SportsLaw/Blog/post/the-court-of-
arbitration-for-sport-after-pechstein-reform-or-revolution> (15 July 2023), 4.
70 Antoine Duval, The Court of Arbitration for Sport after Pechstein: Reform or
Revolution?, available at <https://www.asser.nl/SportsLaw/Blog/post/the-court-of-
arbitration-for-sport-after-pechstein-reform-or-revolution> (15 July 2023), 4.
431
James MERRYWEATHER

3 Appointment of arbitrators
Alongside the composition of ICAS, the method of the appointment of arbitrators
appears to be the most hotly debated element of any potential CAS reform.71 In
the scholarship to date on this issue, four key suggestions for reform have
emerged: firstly, expand the current closed list of arbitrators; 72 secondly, introduce
a system of rotating arbitrators, akin to the court system; 73 thirdly, increase
transparency surrounding the reasons for the appointment of arbitrators; 74 fourthly,
provide an open list of arbitrators which can be appointed. 75 It is put forward,
however, that the most meritorious suggestions are those which focus on greater
transparency and an open list of arbitrators.

a Greater transparency
The nomination process to the closed list of CAS arbitrators has been reformed
over the years. Whilst it began as a quota system (i.e., that twenty percent had
to be appointed from the sports governing bodies, and another twenty percent
had to be appointed with a view to safeguarding athletes), 76 the process of
appointment is now much more meritocratic. Nevertheless, authors such as
Rigozzi, for instance, have argued that "the real problem of perception lies in the
opacity of the nomination process." 77 This is because he argues that "[u]ntil it is
possible to determine who proposed the arbitrators for appointment by the ICAS
- or indeed which arbitrator(s) applied spontaneously, without being proposed
by anyone - and the way in which the newly created CAS Membership Commission
evaluates the various candidatures,"78 then the supposed meritocratic appointment
process does not offer a meaningful improvement.

71 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 9.10; Johan Lindholm, A
legit supreme court of world sports? The CAS(e) for reform, The International Sports
Law Journal, 21 (2021), 4; Hannah Bronte Le-Fevre, Ready, set, reform? The future
of sports arbitration, International Arbitration Law Review, 23 (2020) 3, 203-205;
Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller/S. Besson/A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020,100-104.
72 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 9.
73 Johan Lindholm, A legit supreme court of world sports? The CAS(e) for reform, The
International Sports Law Journal, 21 (2021), 4.
74 Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller/S. Besson/A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020,100-104.
75 Hannah Bronte Le-Fevre, Ready, set, reform? The future of sports arbitration,
International Arbitration Law Review, 23 (2020) 3, 203-205.
76 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-related Disputes (2004), Section C, 2, R14.
77 Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller/S. Besson/A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020, 100.
78 Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights
- Pechstein and beyond, in: Ch. Muller/S. Besson/A. Rigozzi (eds.), New
Developments in International Commercial Arbitration 2020, Bern 2020, 100.
432
 'Consent' in international sports arbitration: striking the right balance

Against this background, Hannah further argues that "[i]f the choice of arbitrator
is to remain limited to the closed list system, it is essential that the CAS provides
more information as to the nomination and jurisdictional history of the arbitrators
to ensure that parties can at least make fully informed choices."79 She suggests
that "[i]nformation as to the arbitrator's jurisprudential record, relevant contractual
relationships and links to their publications would be highly relevant."80
It is advanced that great transparency surrounding the current list of CAS
arbitrators should be considered as the bare minimum when one considers any
potential reforms. The reason for this is simple: party autonomy is at the forefront
of arbitration as a means of dispute resolution.8 1 It is one of the fundamental
tenets which sets it apart from state court litigation and distinguishes it from other
methods of dispute resolution as well. Consequently, the question must be asked
as to how party autonomy can be exercised in the dark? Despite the fact that the
current closed list contains over four hundred names, there is no record of who
was appointed by whom. Moreover, there is also no indication as to how certain
arbitrators perceive certain issues based on publications, or other information.
Things that are very much a standard part of any selection of an arbitrator in
international commercial arbitration, are curiously absent in sports arbitration.
This has to change in order to best give effect to the principle of party autonomy,
and it is something which should be implemented whether the CAS chooses to
pursue more substantial reforms or not.

b Open list of arbitrators

The most popular suggest when it comes to reforming the CAS, is the abolition
of the closed list of arbitrators. Whilst the dominant reason in favour of keeping
the list closed, is the maintenance of a select list of arbitrators who are suitably
well-qualified to serve as arbitrators at the CAS, it is advanced that this aim is
not mutually exclusive with a closed list of arbitrators.
The key reason why an open list is to be preferred is because of the way in
which arbitrators have been appointed up until now. In an earlier iteration of the
CAS rules, arbitrators were appointed by the sports governing bodies, and
although they still had had to appoint twenty percent of arbitrators with a view to
safeguarding the interests of athletes,8 2 sixty percent of the arbitrators were
nevertheless directly appointed by the sports federations.8 3 Today's rules have
abandoned the quota, but as detailed above, it is still unclear how an arbitrator
has been appointed, and by whom. This reality does not enable the parties, and
athletes in particular, to adequately assess who they wish to nominate as their

79 Hannah Bronte Le-Fevre, Ready, set, reform? The future of sports arbitration,
International Arbitration Law Review, 23 (2020) 3, 204.
80 Hannah Bronte Le-Fevre, Ready, set, reform? The future of sports arbitration,
International Arbitration Law Review, 23 (2020) 3, 204.
81 Margaret L. Moses, The Principles and Practice of International Commercial
Arbitration, 3 rd ed., Cambridge 2017, 1.
82 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-related Disputes (2004), Section C, 2, R14.
83 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-related Disputes (2004), Section C, 2, R14.
433
James MERRYWEATHER

arbitrator. Even if they could accurately assess who they want, the reality they will
likely face is that there are only a select few arbitrators who are truly independent,
and even then, they may not have the expertise necessary to arbitrate a specific
dispute. Thus, whilst the closed list is there to ensure that those who preside
over disputes at the CAS, have the relevant expertise, the choice of an arbitrator
appears to really be Hobson's choice (that is to say there is no real choice at
all). 84 The solution to such a problem therefore is that the CAS should "use an
open list to provide reliable and current information as to available arbitrators
and assist parties in finding an arbitrator suitable to hear their dispute." 85 Not
only does this truly realise party autonomy in the arbitral process, but it can also
ensure that parties accurately choose the best arbitrator for their dispute.
As mentioned though, the biggest criticism of an open list is that there is a
risk of "jeopardis[ing] the efficiency and integrity of CAS proceedings. This is
especially true for specific types of disputes such as anti-doping disputes which
require a high level of expertise."86 Nevertheless, the current Code of Sports-
related Arbitration already provides a minimum criteria regarding qualification,
namely that "ICAS shall appoint personalities to the list of CAS arbitrators with
appropriate legal training, recognized competence with regard to sports law
and/or international arbitration, a good knowledge of sport in general and a good
command of at least one CAS working language."8 7 Thus, it should be the case
that any fear surrounding a lack of experience can be managed by providing a list
of arbitrator requirements to maintain a minimum level of expertise, whilst also
safeguarding the independence of the arbitrator from either party.88 Such a system
would mean that the parties are no longer restricted to those arbitrators on a
closed list, but the quality and experience of a good arbitrator can still be preserved.

B Reform to the Code of Sports-related Arbitration

1 Publication of awards
The publication of awards, whilst nothing new to the CAS, is nevertheless still
something which is underutilised. As such, it is advanced that both R43 and R59
should be reformed to create a presumption of publishing awards, except where
undue hardship or harm can be proved. 8 9 Thus, the new rule will read, "the

84 Antonio Rigozzi/Fabrice Robert-Tissot, 'Consent' in Sports Arbitration: Its Multiple

Aspects, in: E. Geisinger/E. Trabaldo-de Mestral (eds.), Sports Arbitration: A Coach
for Other Players? - ASA Special Series No. 41, New York 2015, 55.
85 Hannah Bronte Le-Fevre, Ready, set, reform? The future of sports arbitration,
International Arbitration Law Review, 23 (2020) 3, 203.
86 Hannah Bronte Le-Fevre, Ready, set, reform? The future of sports arbitration,
International Arbitration Law Review, 23 (2020) 3, 204.
87 CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the
Settlement of Sports-Related Disputes, (1 February 2023), Section C, 2, S14.
88 Hannah Bronte Le-Fevre, Ready, set, reform? The future of sports arbitration,
International Arbitration Law Review, 23 (2020) 3, 204.
89 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 12; Hannah Bronte Le-
Fevre, Ready, set, reform? The future of sports arbitration, International Arbitration
434
 'Consent' in international sports arbitration: striking the right balance

original award, a summary and/or a press release setting forth the results of the
proceedings shall be made public by CAS, unless either party can prove undue
hardship or harm. In any event, the other elements of the case record shall remain
confidential."
The first clear advantage of this, is that it enables a greater consistency of
decisions. As highlighted by De Marco, in the case of anti-doping violations, "each
sport, the world over, is regulated by the same [World Anti-Doping Agency] Code
and ... it would therefore be extremely unfair on one player to be more severely
sanctioned for the same act under the same rules than another." 90 By publishing
more decisions, it would clearly enable a greater consistency within decisions as
like cases could be treated alike, similarto the common law system of precedent.
Whilst a strict system of precedent will be discussed below, even a small
improvement in consistency, would greatly improve the current workings of the
CAS. Perhaps more importantly though, by ensuring the consistency of decisions,
any allegations of bias against the CAS also loses their potency as the award is
there for everyone to review.
The second biggest advantage of publishing all decisions is that it remedies
the disadvantage of not doing so detailed earlier, namely the inequality between
the parties. Under the status quo, athletes, and by extension, their counsel, are
the only people privy to the decisions which CAS publish on their database. 91
Conversely, sports governing bodies have access to all of the CAS awards which
they have been a party to, which, even estimating conservatively, will be far more
than the typical athlete will ever participate in. Thus, one party is in possession
of a wealth of information which they can use to put forward their case, and also
evaluate their chances of success, 92 but the other party is, in effect, going in blind.
By creating a more level playing field for all parties to compete on therefore, any
allegations of bias, or a lack of independence, are without merit. The imbalance
between sports governing bodies and athletes, can therefore become much
more balanced as a consequence.

2 A system of precedent
The emergence of lex sportiva is, at least at its most basic level, a well-documented
phenomenon that has gained common acceptance. 93 This largely details that
there are specific legal considerations which must be applied to the nuances of
sport. Yet, there still exists certain controversies surrounding its exact application,

Law Review, 23 (2020) 3, 207.

90 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 12.
91 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 13.
92 Saverio Spera, Time for Transparency at the Court of Arbitration for Sport, available at
https://www. asser. nl/SportsLaw/Blog/post/transparency-at-the-court-of-arbitration-
for-sport-by-saverio-spera#_ftnref6 (15 July 2023).
93 ECJ, Union royale belge des societes de football association ASBL v. Jean-Marc
Bosman, Royal club liegeois SA v. Jean-Marc Bosman and others and Union des
associations europeennes de football (UEFA) v. Jean-Marc Bosman, Judgment of
15 December 1995, C-415/93.
435
James MERRYWEATHER

and also to what extent the CAS contributes to it. As highlighted throughout,
there is a clear imbalance between sports governing bodies, and athletes,
however, it is advanced that a system of precedent, or stare decisis, could help
promote equality between the parties and resolve such an imbalance.
The starting point for this reform is that "the Court of Arbitration for Sport has
established the normative conclusion that the CAS ought to follow its own
precedents based on the systemic interests of foreseeability, consistency, and
coherency." 94 These three interests are clearly advantageous, and certainly aid
in the rebalancing of interests in proceedings before the CAS. Consequently, the
question is therefore why a system of precedent, as only exists in the common
law world, is a necessary reform when the publication of decisions achieves the
same objectives. The answer is that it facilitates the better resolution of disputes
in global sports worldwide. 95
Recently, it has become an emerging theme that the CAS is credited with the
development of its own lex sportiva,96 or common principles in global sports, due
to its role as the "supreme court of world sports." 97 The benefit to world sports
being clear: that by developing a clear lex sportiva, the CAS can create an
"integrated, consistent, global regulatory dispute resolution procedure." 98 The
development of a lex sportiva, as created via a system of precedent, is uniquely
the way to do this. As most sports governing bodies resort to the CAS, either as
the exclusive dispute resolution mechanism in the first instance, or, following the
internal procedure within the sports governing body, the influence of the CAS on
world sports is clear. As such, creating a binding system of precedent, sets the
standard that sports governing bodies and athletes alike have to abide by. This
not only guarantees the equality of the parties (i.e., that both parties are treated
the same), but it also ensures the "coherent [and] consistent ... resolution of sports
disputes." 99 It is therefore advanced that "[Il]egal coherence is necessary to
achieve fairness," 100 and precedent is the means which facilitates this aim.

94 Johan Lindholm, A legit supreme court of world sports? The CAS(e) for reform, The
International Sports Law Journal, 21 (2021), 2.
95 Zachary Gotlib, Athletes Have Rights, Too: Investigating the Extreme Unfairness in
Sports' Purported Supreme Authority - Why the International Court of Arbitration for
Sport Fails to Reign Supreme, Cardozo Journal of International & Comparative Law,
24 (2016) 2, 413-415.
96 Jennifer R. Bondulich, Rescuing the Supreme Court of Sports: Reforming the Court
of Arbitration for Sport Arbitration Member Selection Procedures, Brooklyn Journal
of International Law, 42 (2016) 1, 279.
97 Swiss Federal Tribunal, A. et B. v. Comite International Olympique, Federation
Internationale de Ski et Tribunal Arbitral du Sport, Judgment of 27 May 2003, BGE
129 III 445, 462.
98 Nick De Marco KC, Compelled Consent - Pechstein & The Dichotomy and Future
of Sports Arbitration, Blackstone Chambers, 4 July 2016, 13.
99 Hannah Bronte Le-Fevre, Ready, set, reform? The future of sports arbitration,
International Arbitration Law Review, 23 (2020) 3, 209.
100 Zachary Gotlib, Athletes Have Rights, Too: Investigating the Extreme Unfairness in
Sports' Purported Supreme Authority - Why the International Court of Arbitration for
Sport Fails to Reign Supreme, Cardozo Journal of International & Comparative Law,
24 (2016) 2, 413.
436
 'Consent' in international sports arbitration: striking the right balance

III Conclusion
What this paper has set out to do is to renew the calls for reform, both in the
organisational structure of the CAS, as well as to its Code of Sports-related
Arbitration. What separates sports arbitration from commercial arbitration, is that
fact that, "[c]ommerce is not usually about the creation of a level and fair playing
field (often the opposite), yet those principles are integral to sport and to the
resolution of disputes in sport." 101 As such, the most important reforms to the CAS,
if any at all, have to be centred around 'levelling the playing field', or to use the
words of the title, 'striking the right balance'.
The reforms detailed above, however, do not even cover all possibilities for
reform. Further suggestions regarding public hearings, the method of appointment
for the President of the arbitral tribunal, as well as the involvement of the CAS
in reviewing the award prior to it being issued, are all still areas which can be
improved. Despite this, the focus of this paper is on achieving a balance of
competing interests in international sports arbitration, and with good reason given
the imbalance which exists currently. Thus, the impetus for reform must be
focussed on addressing this issue, prior to any further considerations on the
optimisation of the CAS process. Implementing the suggested reforms will, not
only address this imbalance, but also meaningfully improve the workings of the
CAS, whilst ensuring genuine compatibility with the European Convention on
Human Rights. It is therefore submitted that there are clear advantages for
pursuing such reforms, and the CAS should act upon them.

IV Bibliography
Books
Duval, Antoine/Rigozzi, Antonio (eds.), Yearbook of International Sports Arbitration 2017,
The Hague 2019
Geisinger, Elliot/Trabaldo-de Mestral, Elena. (eds.), Sports Arbitration: A Coach for Other
Players? - ASA Special Series No. 41, New York 2015
Mavromati, Despina/Reeb, Mathieu, The Code of the Court of Arbitration for Sport:
Commentary, Cases and Materials, Alphen aan den Rijn 2015
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European Union
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 'Consent' in international sports arbitration: striking the right balance

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129 III 445
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of Sports-related Disputes (2004)
CAS Code of Sports-related Arbitration, Statutes of the Bodies Working for the Settlement
of Sports-Related Disputes (01 February 2023)

439