FIFPro has serious concerns about the functioning of the Court of Arbitration for Sport (CAS), as the institution clearly lacks basic principles such as independence, equal representation and accessibility. This leads to the question whether football really needs CAS, says FIFPro's Head of Legal Department, Wil van Megen.
FIFPro has expressed its concerns ever since the moment that CAS was established in 1984.
In recent months, two interesting cases in different German courts (1) contested decisions previously made by CAS. Both decisions are under appeal, so it will take several more months before the final results are known. However, the aforementioned decisions support the concerns that FIFPro expressed before and also demonstrate that several fundamental issues have to be taken very seriously within the world of sports law.
In the Pechstein case, for example, the Oberlandesgericht (the German Court of Appeal) put forward the following three remarks about the independence of CAS:
1. Arbitrators and impartiality
The CAS system lays down that parties in a dispute can each nominate one arbitrator from a closed list of persons appointed by ICAS, the International Council of Arbitration for Sport.
The purpose of ICAS is to facilitate the resolution of sports-related disputes through arbitration or mediation and to safeguard the independence of CAS and the rights of the parties.
Looking at the provisions regulating the composition of ICAS it becomes clear that the Olympic movement has a dominant position (2). All twenty ICAS members were appointed because of their relationship with the Olympic movement (sports associations). None of these members has an official relationship with an athletes' association, even though four members have been appointed "with a view to safeguarding the interests of the athletes".
FIFPro's Head of Legal Department, Wil van Megen: "History shows that athletes' organisations have never had a real position which enabled them to nominate CAS arbitrators".
There is one exception: in 2001, when FIFA had decided to refer the handling of appeals from the FIFA Dispute Resolution Chamber (DRC) to CAS. On that occasion, the nominees for the internal FIFA appeal body were appointed as CAS arbitrators. Half of these nominees had been recommended from the clubs' side, the other fifty percent were put forward from the players' side: ten arbitrators from each side. At that time, the intention was to place these arbitrators on a so-called Football List, to be used with each football-related case brought to CAS.
In practice this system did not really function, as many other arbitrators were appointed to football related cases. Moreover, the players' organisations were never given the opportunity to replace arbitrators who resigned. In recent years, only four of the ten original "FIFPro" arbitrators were still working at CAS.
Recently, after many requests by FIFPro, CAS has invited FIFPro and the clubs to nominate new arbitrators to the list, 25 each. The process of appointing these new arbitrators is still in progress and is taking much longer than expected. FIFPro hopes it will ultimately bring the necessary changes.
However, the composition of ICAS remains unaltered. Van Megen: "That is a concern for FIFPro, and also for the German Court of Appeal, as it raised the perspective of impartiality of ICAS as the first and biggest issue in the Pechstein case".
2. Appointment of the President
The second point raised by the court was that the appointment of the President lacks transparency. The two arbitrators appointed by the parties involved have to choose a President from a 3-person shortlist prepared by the CAS administration. The way this shortlist is created lacks clarity and therefore does not meet the requirements of due process and a fair trial. The President has to be independent and any apparent partiality should be avoided.
3. Role of the CAS Secretary General
The German court also addressed the unclear role of the CAS Secretary-General, as to many people it is a mystery how he or she is nominated and what he/she is doing.
FIFPro feels that - whatever the outcome of the German court cases - these three issues raised by the Courts of Appeal need to be resolved.
Van Megen: "If CAS does not resolve these issues, combined with a significant cost reduction for athletes (3), the answer to the question: 'Does football need CAS?' should be evident".
Van Megen: "The practice of the FIFA DRC demonstrates that dispute resolution within football can be organised quite effectively, even though the FIFA DRC system does not function perfectly yet and decisions still take too long. If this system works in the first instance, then there is no doubt that it will work in appeal as well. Furthermore, the FIFA procedure is free of charge and enforcement of the decisions is more effective and cheaper".
- Pechstein case (OLG München, 15 January 2015. Ref.U 1110/14 Kart )/ Wilhelmshaven case (Hanseatic District Court, Bremen - case reference: 2 U 67/14 = 12 O 129/13 Landgericht Bremen)
- S4 of Statutes of the Bodies Working for the Settlement of Sports-Related Disputes
- To bring a case to CAS, athletes have to pay a fee of 14,000 Swiss francs (approximately 13,000 euro or 14,500 USD)
- Published: 31 March 2015