That’s Not A Red Card – Everything You Ever Wanted to Know

 

Introduction

With 5 billion fans and 265 million active footballers around the world, according to the International Federation of Association Football (“FIFA”), football is a truly global sport. The FIFA World Cup attracts around 3.5 billion spectators every four years, which arguably makes it the most watched global sports competition.

FIFA is the global governing body of football. Founded in 1904 and composed of 211 affiliated member associations, FIFA plays an important role in the development of the sport and in supporting national football associations.

Over the years, football has become more commercialized. FIFA reported USD 766 million in revenue in 2021. This increased commercialization of the sport has naturally resulted in an increase in disputes. These can be either of commercial nature (such as execution of contracts, player transfers, or broadcasting rights) or of a disciplinary nature, including on-pitch discipline, anti-doping matters, and corruption issues such as match-fixing, amongst other concerns.

Most sports disputes start  before first instance non-arbitral bodies. For instance, FIFA has its own Football Tribunal, composed of the Dispute Resolution Chamber, the Players’ Status Chamber, and the Agents’ Chamber. Many national associations have also set up their own non-arbitral first instance panels. These panels are often made up of football experts, not lawyers, who will decide on sanctions according to the relevant rules and regulations. If one of the parties wishes to appeal the first-instance decision, it will then go before an arbitral body, which can be internal to the regional, national, or international federation.

 

Sports Arbitration: An Overview 

In the mid-1990s, arbitration was becoming the go-to dispute resolution forum for sports disputes.  The landmark 1995 CJUE ruling in the Bosman case (See, Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93), is perhaps better known for its impact on the freedom of movement of players and transfer systems, but also had an important effect on dispute resolution in football. The European Commission discussed the importance of a proper dispute resolution system for the sport with FIFA and other industry stakeholders, which resulted in FIFA aligning themselves with the Court of Arbitration for Sports (“CAS”) as the ultimate arbitral body.

FIFA then imposed the “supremacy” of arbitration on its member associations through Article 58 of the FIFA Statutes, which prohibits recourse to ordinary courts of law (save in limited circumstances such as some employment disputes), recognizes CAS “as an independent judicial authority”, and mandates that confederations, member associations and leagues “ensure that their members, affiliated players, and officials comply with the decisions passed by CAS”.

Why Sports Arbitration?

There are a number of reasons why arbitration is considered to be the preferred method of dispute resolution in the sporting context:

  • Consistency of approach in decision-making across a truly global game rather than recourse to 211 members associations’ national courts, which would likely result in a significant divergence in decisions.
  • FIFA has a vested interest in ensuring that disputes are resolved within the sport rather than in the full glare of the public eye. This allows some of the media attention to be taken away from the disputes during proceedings (which can take a considerable amount of time), even if the outcomes are public.
  • A pool of arbitrators that are known to be industry experts ensures greater understanding of specific issues and consistency of decisions. The flexibility of being able to select arbitrators can also make the parties feel more involved and, sometimes, speed up the process.
  • Speed is a substantial advantage. For instance, the Ad Hoc Division, which presides over disputes in the FIFA World Cup, has a 48-hour turnaround from when a claim is launched to when the decision is rendered.
  • Flexibility in the conduct of proceedings (such as on disclosure and evidence), even more than standard commercial arbitration, which tends to be more prescriptive in terms of procedure.
  • The finality of awards is very attractive for parties – similarly to commercial arbitration, there is a very limited right of appeal.
  • Arbitration can be cheaper – it may not always be the case and depends on the specificities of each case. Ad Hoc arbitration can be cheaper since the proceedings are dealt with quickly, but standard appeal proceedings may take many months.

Key differences between Sports Arbitration and Commercial Arbitration

  • Public awards: in order to have consistency in decision-making, it is more common to see public awards in sports arbitration than in commercial arbitration. Parties can always opt-out and agree to keep an award confidential. Yet, a body of CAS and FIFA Arbitral Bodies’ case law exists, which allows parties to point tribunals toward relevant considerations. Awards do not form binding precedents but do have persuasive power, with the objective of ensuring that sanctions are proportionate and fair.
  • Public hearings: in recent time, public hearings have been allowed in disciplinary proceedings before the CAS.
  • Standardized sanctions: bodies like the World Anti-Doping Agency (“WADA”) have standardized penalty sanctions for first-time offenses for breaching the World Anti-Doping Code.
  • Expedited proceedings: Matters can be dealt with on an expedited basis.
  • Interim measures imposed by arbitral tribunals in sports arbitration tend to be more easily enforceable than in commercial arbitration – for instance, if a sanction has been imposed on a player, he/she may not be able to play the next match.
  • Closed list of arbitrators: the CAS manages a list of approximately 300 arbitrators. There is a debate about whether this is beneficial, with the sport being a truly global game and demographically diverse. However, this pool of industry specialists does promote much-needed expertise in decision-making.
  • Consistent legal seat: Lausanne, Switzerland, is the seat for all CAS arbitrations, with the Swiss Code of Procedure applicable in terms of procedural matters and appeals.

 

Overview & History of the Court of Arbitration for Sport

The CAS was established in 1984 in Lausanne pursuant to an initiative by the International Olympic Committee to address independent dispute resolution in sports. The purpose of the CAS is to facilitate the resolution of global sports-related disputes by arbitration or mediation. The CAS also has its own procedural rules catering to the unique needs of the sporting world.

The CAS has seen rapid growth and an increasing caseload throughout the years, with around 600 cases per year since 2016 and more than 900 cases in 2020. This relatively quick establishment of the CAS as the “supreme court of sports” is a testament to how it has helped the development of sports law and dispute resolution.

There is a pool of CAS arbitrators who hear cases. Arbitrators are nominated to the CAS list by their peers, federations, and international bodies. Cases are heard either by a sole arbitrator or a panel of three arbitrators.

The CAS was historically composed of two divisions:

  • the Ordinary Arbitration Division, which hears first instance cases, normally commercial disputes (rather than disciplinary), and
  • the Appeals Arbitration Division, which hears appeals of first instance decisions made by sports governing bodies such as FIFA or national associations.

More recently two other divisions have been established:

  • the Anti-Doping Division, which hears first-instance anti-doping cases, and
  • the Ad Hoc Division, which is sits around major sporting events to preside over expedited proceedings in order not to disrupt the global spectacle of competitions such as the World Cup and the Olympics.

CAS Ad Hoc Division for the FIFA World Cup

Prior to the kick-off of the tournament, the CAS released the Arbitration Rules for the 2022 FIFA World Cup Qatar Final Round, which sets up the ad hoc Division of CAS to hear disputes that could arise during the 2022 FIFA World Cup. Pursuant to those rules, the International Council of Arbitration for Sport established an ad hoc Division of the CAS, consisting of arbitrators appearing on a special list, a President, and a Court Office.

The Ad Hoc Division and each Panel may carry out all the actions which fall within their mission. Their decisions are enforceable immediately and may not be appealed or otherwise challenged.

Under the Memorandum of Understanding signed with the International Court of Arbitration for Sport (ICAS), Qatar Sports Arbitration Foundation (QSAF) will be the headquarters of CAS during the 2022 FIFA Qatar World Cup to be hosted by Qatar. The legal seat remains in Lausanne, Switzerland.

As can be seen in the table below, historically there has not been a heavy caseload of World Cup CAS cases. Since the CAS essentially has an appellate function, first-instance decisions are made by FIFA mechanisms.

Year Number of cases
1998 5
2002 8
2006 12
2010 5
2014 10
2018 15

 

Reluctance to Overturn “Field-Of-Play” Decisions

One of the long-standing principles of CAS is that CAS panels do not review “field-of-play” sporting decisions made by referees, judges, umpires, or other officials responsible for applying the rules or laws of a particular sport. The exception to this principle is in instances where there is evidence of bad faith, arbitrary action, malicious intent, actionable wrongs, corruption, or procedural errors, etc. (See, CAS ad hoc Division 02/007 (O.G. Salt Lake City), Korean Olympic Committee / International Skating Union (Award of 23 February 2002) and CAS ad hoc Division 00/013 (O.G. Sydney), Bernardo Segura / International Amateur Athletic Federation (Award of 30 September 2000)

 

Notable World Cup CAS Cases

 

  • FIFA Code of Ethics Articles 19 & 27 – Bribery / Conflict of Interest: Osiris Guzmán v. Fédération Internationale de Football Association (FIFA), CAS 2018/A/6038, Arbitral Award, 23 September 2019
    • This case involved an official from the Dominican Football Federation who had access to the World Cup 2014 and 2018 match tickets and was found to have sold them for personal gain.
    • The case was first litigated before the Adjudicatory Chamber of the FIFA Ethics Committee.
    • The question in front of CAS was not the rights and wrongs of the decision of the FIFA Ethics Committee, but it was a case of considering the proportionality of the penalty that was handed out, which was, in fact, reduced to a 7-year ban and fine.

 

Roles of Principles in Life, Law, at the CAS & Potential Impact

The CAS is an important international arbitration forum that provides a platform for the consideration and application of principles in the conduct of sports disputes and sports law. Due to the international nature of the disputes, the CAS presents a blend of civil and common law concepts.

As seen in the above-cited cases, proportionality plays an important role in fines and suspensions handed out to athletes. Whether it is, for example, proportionality or the concept of non-interference with field-of-play decisions, these principles provide stability and guidance. They also offer guidelines and important commercial benefits to parties who can avoid having to unnecessarily consume time and money litigating points that are largely established.

 


Steve Bainbridge is a Partner in Squire Patton Boggs‘s Dubai office and Head of the firm’s Middle East Sports & Entertainment team. He has extensive experience gained on a wide array of transactions underpinning the sports sector, from governance issues to athlete endorsement agreements, anti-ambush marketing strategies, player contracts, broadcasting, merchandising and licensing agreements, disciplinary issues and various sports-specific venue management arrangements. He regularly advises foreign law firms, individuals, corporate entities, governing bodies and institutions on matters spanning motorsports, horseracing, triathlons, MMA, cycling, golf, tennis, cricket, rugby and football, among others. He is also a World Athletics Disciplinary Tribunal member.

Andrew Moroney is a Senior Associate at Squire Patton Boggs with a wide array of experience advising clients in the sports, esports and events sectors on sponsorship, broadcasting, merchandising, ticketing, player contracts, intermediary issues, athlete endorsement, disciplinary issues, governance, regulatory matters and disputes. He regularly advises corporate entities, governing bodies, individuals and foreign law firms on matters spanning football, cycling, horseracing, motorsports, golf and tennis. Andrew has a particular interest in the esports industry, acting for publishers, tournament organisers and esports teams. He currently sits as an arbitrator on the International Paralympic Committee’s Anti-Doping Panel and Board of Appeal of Classification.

Zeyad Abouellailis a Legal Content Officer at Jus Mundi and a PhD candidate at Paris-Saclay University. His research focuses on the post-award phase in investment arbitration. He holds two Master’s Degrees in International Business Law from Paris-Saclay University and Paris 1 Panthéon-Sorbonne University. Prior to joining Jus Mundi, Zeyad has interned at several law firms in international arbitration and corporate law in Cairo, Egypt.