Abstract
The importance of the Court of Arbitration for Sport in the resolution of sporting disputes has become synonymous with the continuous development of sports law as a separate legal discipline. The unique structure of this supreme Court for sport, along with its composition, have created an unparalleled framework for the practice of sports law and at the same time a need for a better understanding of such practice. The author discusses the particular and unique elements of practice and procedure before the Court of Arbitration for Sport and explains that such practice has several similarities with the traditions of common law systems. He critically assesses specific elements of practice such as the standard of proof, examination of witnesses, the use of presumptions and negative inferences, along with the use by CAS Panels of previous decisions and concludes that although there is no declared system of binding precedent, in practice, CAS Panels, silently, operate a form of such binding precedent. He calls for ICAS to declare a system of binding precedent before the CAS and suggests that such system will restore certainty, predictability, consistency and clarity.
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Notes
- 1.
Anglo-Saxon law, the body of legal principles that prevailed in England from the 6th century until the Norman Conquest (1066). In conjunction with Scandinavian law and the so-called barbarian laws (leges barbarorum) of continental Europe, it made up the body of law called Germanic law. Anglo-Saxon law was written in the vernacular and was relatively free of the Roman influence found in continental laws that were written in Latin. Roman influence on Anglo-Saxon law was indirect and exerted primarily through the church. There was a definite Scandinavian influence upon Anglo-Saxon law as a result of the Viking invasions of the 8th and 9th centuries. Only with the Norman Conquest did Roman law, as embodied in Frankish law, make its influence felt on the laws of England.
- 2.
Such elements were the jury, ordeals (trials by physical test or combat), the practice of outlawry (putting a person beyond the protection of the law), and writs (orders requiring a person to appear before a court).
- 3.
Ancient Athens had a mechanism, called dikastaí, to assure that no one could select jurors for their own trial. The institution of trial by jury was ritually depicted by Aeschylus in the Eumenides, the third and final play of his Oresteia trilogy. In this play the innovation is brought about by the goddess Athena, who summons twelve citizens to sit as jury. The god Apollo takes part in the trial as the advocate for the defendant Orestes, and the Furies as prosecutors for the slain Clytaemnestra. In the event the jury is split six to six, and Athena dictates that in such a case the verdict should henceforth be for acquittal.
- 4.
Cardozo 1921, p. 113.
- 5.
Goodhart 1934, p. 61.
- 6.
Practice Direction [1966] 3 All ER 77. See also Duxbury 2008, pp. 125–149.
- 7.
Some commentators submit the necessity of judicial creativity in stronger terms: “…it is an abdication of judicial responsibility for judges, at least in the law of obligations, to decline to develop the common law on the grounds that legislation is more appropriate. Even if a statutory solution would be better, no one can predict whether legislation will, or will not, be passed. It is therefore preferable for judges to proceed as they think fit, whether the decision be in favour or against a development, knowing that the Legislature is free to impose a statutory solution if the common law position is thought unsatisfactory or incomplete.” Burrows 2012, p. 258. Duxbury 2008, p. 11.
- 8.
Denning 1979, pp. 285–314.
- 9.
- 10.
Arthur Hall v. Simons [2000] 3 WLR 543 at 683.
- 11.
Lord Justice Laws (2012) Our Lady of the Common Law. ICLR Lecture, p. 3. http://www.iclr.co.uk/assets/media/iclr-annual-lecture-transcript-2011.pdf. Accessed 16 February 2016.
- 12.
In French: Tribunal arbitral du sport, TAS.
- 13.
Reeb 2002, pp. 23–25.
- 14.
CAS 92/63, Gundel v. Fédération Equestre Internationale, Award of 10 September 1992.
- 15.
Published in the Recueil Officiel des Arrêts du Tribunal Fédéral [Official Digest of Federal Tribunal Judgements] at SFT 119 II 271.
- 16.
Articles S1-S26.
- 17.
Articles R27-R70.
- 18.
See The History of the CAS at http://www.tas-cas.org/en/general-information/history-of-the-cas.html. Accessed 16 February 2016.
- 19.
This was evident in four football appeals the author was involved in before the CAS. See CAS 2011/A/2483, Iraklis Thessaloniki FC v. Hellenic Football Federation & Greek Super League.
- 20.
Pursuant to Articel R 57 CAS Code, which grants CAS Panels the authority to produce a full review of the facts and the law. See also CAS 2009/A/1880 & 1881, FC Sion & E. v. Fédération Internationale de Football Association (FIFA) & Al-Ahly Sporting Club, Award of 1 June 2010, where the panel stated as follows: “…the CAS appeals arbitration allows a full de novo hearing of a case, with all due process guarantees, which can cure any procedural defects or violations of the right to be heard occurred during a federation’s (or other sports body’s) internal procedure. […] it is the duty of a CAS panel in an appeals arbitration procedure to make its independent determination of whether the Appellant’s and Respondent’s contentions are correct on the merits, not limiting itself to assessing the correctness of the previous procedure and decision” (paras 142, 146).
- 21.
For further discussion see CAS 2002/O/373, Canadian Olympic Committee (COC) & Beckie Scott v. International Olympic Committee (IOC), Award of 18 December 2003.
- 22.
Ibid., para 14.
- 23.
Kaufmann-Kohler 2007, p. 366.
- 24.
- 25.
CAS 2008/A/1545, Andrea Anderson, LaTasha Colander Clark, Jearl Miles-Clark, Torri Edwards, Chryste Gaines, Monique Hennagan, Passion Richardson v. International Olympic Committee (IOC), Award of 16 July 2010.
- 26.
CAS 97/176, UCI v. Jogert & NCF, Award of 15 January 1998, para 40.
- 27.
CAS 2004/A/628, International Association of Athletics Federations ( IAAF) v. USA Track & Field (USATF) & Y., Award of 28 June 2004, para 73.
- 28.
CAS 2008/A/1545, Andrea Anderson & al. v. IOC, para 55.
- 29.
Ibid.
- 30.
Blackaby et al. 2009.
- 31.
See the case of CAS 2010/A/2229, WADA v. FIBV & Berrios, Award of 28 April 2011. This standard was first used in sport in the case of CAS 96/003 & 004, Korneev and Gouliev v. IOC, Award of 4 August 1996. Its true origin in the law can be identified in the Australian case of Briginshaw v. Briginshaw [1938] 60 CLR 336.
- 32.
CAS 2009/A/1805 & 1847, IAAF v. RFEA and Josephine Onyia, Award of 22 September 2009.
- 33.
See CAS 2008/A/1574, D’Arcy v. Australian Olympic Committee, Award of 7 July 2008.
- 34.
See CAS 2005/A/887, IAAF v. SEGAS, Kenteris & Thanou.
- 35.
Miller v. Cawley [2002] EWCA Civ 1100, The Times (6 September 2002).
- 36.
Miller v. Minister of Pensions [1947] 2 All ER 372 at 374.
- 37.
UKHL 47 [2003] 1 AC 153 at 55.
- 38.
See the leading judgement of Richards LJ in the case of R (N) v. Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468 at 60.
- 39.
See Denning LJ in Bater v. Bater [1951] P 35 at 37.
- 40.
CAS 2008/A/1574, D’Arcy v. Australian Olympic Committee. See also Baroness Hale in Re B (Children) (Care Proceedings): Standard of Proof [2008] UKHL 35, [2009] 1 AC 11 at 70–72: “Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where, relevant, in deciding where the truth lies.”.
- 41.
Supra 31.
- 42.
Hornal v. Neuberger Products Ltd [1957] 1 QB 247.
- 43.
CAS 2006/A/1067, IRB v. Keyter, Award of 13 October 2006. It was stated by the Panel: “…that the occurrence of a specified circumstance is more probable than its non-occurrence.” The athlete may also have the opportunity to demonstrate departures from the International Standards for Testing.
- 44.
CAS 2002/A/385, T v. FIG, Award of 23 January 2003, para 57. See also CAS 2004/O/645, USADA v. Montgomery, Award of 13 December 2005; CAS 2005/A/884, Hamilton v. USADA & UCI, Award of 10 February 2006; CAS 2005/A/887, IAAF v. SEGAS, Kenteris & Thanou.
- 45.
This much is also supported by the new version of the WADA Code 2015.
- 46.
Rodger 2005, p. 79.
- 47.
Michael Beloff QC suggests: “In my experience, rules of domestic or international federations tend to resemble the architecture of an ancient building: a wing added here, a loft there, a buttress elsewhere, without adequate consideration of whether the additional parts affect adversely the symmetry of the whole”, see Beloff 2001, p. 42.
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Ioannidis, G. (2016). The Influence of Common Law Traditions on the Practice and Procedure Before the Court of Arbitration for Sport (CAS). In: Duval, A., Rigozzi, A. (eds) Yearbook of International Sports Arbitration 2015. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-129-6_2
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