Avoiding bias in sports law disputes
Sport briefing: the Human Rights Court has rejected a challenge to the impartiality of the Court of Arbitration for Sport, but steps have in any event been taken to underpin CAS's independence
The essence of sport is to play fair and play to the rules. When rules have to be enforced, those subject to the rules must have confidence in the independence and impartiality of the procedures and decision-makers. In Mutu & Pechstein v Switzerland (2 October 2018), the latest instalment in Adrian Mutu’s dispute against Chelsea FC and others, the European Court of Human Rights (ECtHR) considered a challenge to the independence and impartiality of the Court of Arbitration for Sport (CAS). It rejected the player’s challenge that CAS was conceptually biased when it made rulings against him in 2005 and 2009, following litigation arising from his breaking doping rules with cocaine use.
In 2005, the Football Association Premier League Appeals Committee determined that Mutu was in unilateral breach of contract “without reasonable cause”. CAS agreed. In a separate action for damages, Mutu was ordered to pay his former club, Chelsea, more than €17 million. In 2009, CAS dismissed Mutu’s appeal against this order. Mutu appealed to the Swiss Federal Supreme Court, arguing that CAS could not be considered “independent and impartial”. This appeal was dismissed.
At the ECtHR, relying on article 6(1) of the Convention, Mutu alleged that CAS could not be regarded as an independent and impartial tribunal because one of the arbitrators on the CAS panel had been a partner in a law firm that represented the interests of Chelsea owner Roman Abramovich. Mutu also objected to the same arbitrator sitting on the 2009 CAS panel and a previous panel in 2005, and observed that he had no choice in who was on the panel from whom the arbitrators were appointed.
Article 6 in context
To assess the importance of this decision it must first be recognised that professional athletes typically have to accept the arbitration clauses present in the rule books of most sports governing bodies. There is in essence a necessary compelled consent to such arbitration, as opposed to truly informed and free consent. To compete, the athlete must accept CAS’s jurisdiction. However, in this case the ECtHR recognised that Mutu’s consent to CAS’s jurisdiction was not unequivocal and could not be considered as having been freely given. Due to these circumstances the court held that, in accepting CAS’s jurisdiction, Mutu had not waived his right to have his case heard by an independent and impartial tribunal.
Turning to whether CAS was an “independent and impartial tribunal established by law” at the time it ruled on Mutu’s cases, the court held that CAS had full jurisdiction to examine any matter submitted to it in the context of disputes. Decisions could be appealed to the Swiss Federal Supreme Court, which always considered CAS decisions as “genuine judgments, similar to those of a state court”. Consequently, CAS had the appearance of a “tribunal established by law”.
On the question of CAS’s independence, the court dismissed Mutu’s argument that CAS was biased in its rulings against him. Mutu was unable to establish bias or a lack of independence in relation to the specific arbitrators appointed to his case. However, the court did note that an athlete appearing before CAS could only nominate an arbitrator from a “closed list”, the names on that list being determined by a committee predominantly made up of members from sports governing bodies. An athlete did not have full freedom of choice over the selection of an arbitrator, whereas organisations could exercise a “real influence” in the mechanism for appointing arbitrators at the time.
Over the past eight years, while this case has been pending, ICAS, the governing body of CAS, has regularly reviewed its own structures and rules in order to strengthen its independence. ICAS is now comprised of a large majority of external legal experts not affiliated to sports organisations. The list of arbitrators has been increased and the privilege reserved to sports organisations to propose the nomination of arbitrators on the list has been abolished. These changes will help to address the point made by the minority of the court in Mutu that it is not satisfactory for arbitrators to be individually impartial if the structure of the organisation gives the appearance of bias. In future cases the question of whether a body presents an appearance of independence will be an important one.
While Mutu’s challenge based on conceptual institutional bias failed, Pechstein’s arguments about being entitled to a public hearing when requested, in order to observe her article 6 rights, succeeded – giving sports bodies and administrators much food for thought over whether to begin to open the doors when conducting an arbitration, when one party requests this.
Bruce Caldow, partner, and James Clelland, trainee solicitor, Harper Macleod LLP