BY PROFESSOR DR IAN BLACKSHAW
The Court of Arbitration for Sport, based in Lausanne, Switzerland, has been operating now for 29 years and during this time has established itself, as its founders intended, to be the ‘supreme court of world sport’.
Providing arbitration and mediation for the settlement of sports-related disputes, one of its less well-known powers is the granting of so-called ‘provisional and conservatory measures’. Such measures are important and may often be needed because of the dynamics of sport, whereby a sports person may require an immediate determination of his/her rights or obligations, for example, in eligibility issues, pending a final decision of the case on its merits. The basis on which such measures are granted by the CAS has been clarified in the latest revision of the CAS procedural rules – the CAS Code of Sports-related Arbitration – which came into effect on 1 March of this year. For the main changes, see the article, entitled ‘The 2013 edition of the CAS Code – An overview of the key changes’ by Prof Antonio Rigozzi published in Global Sports Law and Taxation Reports, September 2013, at pp. 14 & 17.
The revised Article R37 of the Code now provides as follows:
“No party may apply for provisional or conservatory measures under these Procedural Rules before all internal legal remedies provided for in the rules of the federation or sports-body concerned have been exhausted.
Upon filing of the request for provisional measures, the Applicant shall pay a non-refundable Court Office fee of Swiss Francs 1,000, without which CAS shall not proceed. The CAS Court Office fee shall not be paid again upon filing of the request for arbitration or of the statement of appeal in the same procedure.
The President of the relevant Division, prior to the transfer of the file to the Panel, or thereafter, the Panel may, upon application by a party, make an order for provisional or conservatory measures. In agreeing to submit any dispute subject to the ordinary arbitration procedure or to the appeal arbitration procedure to these Procedural Rules, the parties expressly waive their rights to request any such measures from state authorities or tribunals.
Should an application for provisional measures be filed, the President of the relevant Division or the Panel shall invite the other party (or parties) to express a position within ten days or a shorter time limit if circumstances so require. The President of the relevant Division or the Panel shall issue an order on an expedited basis and shall first rule on the prima facie CAS jurisdiction. The Division President may terminate the arbitration procedure if he rules that the CAS clearly has no jurisdiction. In cases of utmost urgency, the President of the relevant Division, prior to the transfer of the file to the Panel, or thereafter the President of the Panel may issue an order upon mere presentation of the application, provided that the opponent is subsequently heard.
When deciding whether to award preliminary relief, the President of the Division or the Panel, as the case may be, shall consider whether the relief is necessary to protect the applicant from irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the Applicant outweigh those of the Respondent(s).
The procedure for provisional measures and the provisional measures already granted, if any, are automatically annulled if the party requesting them does not file a related request for arbitration within 10 days following the filing of the request for provisional measures (ordinary procedure) or any statement of appeal within the time limit provided by Article R49 of the Code (appeals procedure). Such time limits cannot be extended.
Provisional and conservatory measures may be made conditional upon the provision of security.”
It will be seen that provisional and conservatory measures may now be granted by the CAS in Ordinary, which include sports-related commercial disputes, for example, under a Sports Sponsorship Agreement, as well as Appeal Proceedings, which, as already mentioned, could involve, for example, an eligibility dispute between an athlete and his/her sports governing body, but only when the party applying for them has exhausted all internal legal remedies of the sport’s governing body concerned. In other words, no short cuts to the CAS are permitted through the device of interim measures. This legal requirement may, however, according to the particular situation, defeat the whole object of provisional and conservatory measures, the need for prompt action, for example, in football disputes where the FIFA Dispute Resolution Chamber, which is notoriously slow in practice, fails to issue a timely decision.
It will also be noticed that a party agreeing to submit a sports-related dispute to the CAS for determination is taken to have waived its right to seek interim relief from the ordinary courts or tribunals with jurisdiction in the particular matter. Thus, if preliminary injunctive relief is required, this should first be sought from the relevant courts or tribunals before bringing a case before the CAS. However, this could be a ‘catch 22’ situation, since most sports bodies require parties in dispute to first submit their disputes to their internal procedures and expressly prohibit resort to the courts. Is this lawful? Or does this amount to ousting the jurisdiction of the ordinary courts, which is contrary to ‘Public Policy’?
Furthermore, the criteria to be applied by the CAS, when deciding whether or not to grant provisional and conservatory measures, have now been spelled out in the revised Article R37 of the Code as follows:
– whether the relief is necessary to protect the applicant from irreparable harm;
– the likelihood of success on the merits of the claim; and
– whether the interests of the Applicant outweigh those of the Respondent(s).
These are the usual criteria that are followed by the courts when deciding whether or not to grant interim relief, such as an ‘interlocutory injunction’. And, indeed, these three requirements were already well-established in the CAS jurisprudence, which was, in fact, based on the provisions of Article 14(2) of the CAS Ad Hoc Division Rules and/or the practice generally followed in international commercial arbitrations. The CAS is an international arbitral body operating under Swiss Law.
These requirements, in the CAS practice, have been applied cumulatively – see, for example, the CAS Order of 17 June, 2011 in the case of A. Club v. Saudi Arabian Football Federation (SAFF). However, in a given case, any one of them may, according to the particular circumstances, be held to be decisive in the granting of the provisional relief sought.
It should be noted that, before granting any provisional relief, the President of the relevant CAS Division (Ordinary or Appellate) must rule on whether, on a prima facie basis, the CAS has jurisdiction in the particular case. If the President considers that the CAS does not have jurisdiction, the proceedings will be terminated. It should also be noted generally that CAS jurisdiction is not a given in relation to a sports-related dispute. See the issues raised in the article, entitled ‘CAS at the London 2012 Olympics: a question of jurisdiction’ by Prof Ian Blackshaw published in Global Sports Law and Taxation Reports, September 2012, at pp. 11 & 12.
|It should be further noted that Article R37 of the Code does not specify or limit the kinds of preliminary measures that the CAS Arbitrators can issue in a given case. But traditionally in arbitral proceedings, these measures tend to fall into three main categories:
– measures to facilitate the proceedings, such as orders to safeguard vital evidence;
– measures aimed at preserving the status quo during the proceedings, such as those that preserve the object of the proceedings; and
– measures that safeguard the future enforceability of the decision, such as those concerning property.
|For example, in the infamous ‘ Skategate’ case during the 2002 Salt Lake City Winter Games (Canadian Olympic Association v ISU, CAS OG 2002/4), an order was imposed on the judges not to leave the Olympic village before the CAS Ad Hoc Division had investigated the circumstances in which the disputed medal had been awarded.|
Furthermore, Article R37 of the Code contains a new provision which requires the party seeking provisional measures to file a claim on the merits of the case within 10 days of the application for provisional measures being filed in relation to Ordinary Proceedings and, in respect of Appeal Proceedings, within the time limits laid down in Article R49 of the Code. These time limits are not extendable. Thus, if they are not met, any provisional relief granted in the meantime will be revoked and also, of course, the CAS Proceedings themselves will be terminated.
Finally, in line with applications to ordinary courts for interim relief, the CAS, before granting any provisional and conservatory measures, may require some form of security, usually a financial deposit, to be given by the party seeking them.
All in all, the revised provisions of Article R37 of the CAS Code on provisional and conservatory measures are to be welcomed having introduced clarity and more certainty in the rules and procedures that are applicable to the granting of these important forms of interim relief.
However, such measures, as in ordinary court proceedings, are always in the discretion of the CAS and will only be granted when, according to the facts and circumstances of the particular case, it is appropriate to do so. It appears that, in practice, the granting by CAS of provisional measures is more the exception than the rule!
Prof Dr Ian Blackshaw is an international sports lawyer, academic and author and may be contacted by e-mail at ‘email@example.com’