TROUBLE WITH THE 'COURT OF ARBITRATION OF SPORT' (CAS)
MANILA, March 25, 2006 (STAR) THE GAME OF MY LIFE By Bill Velasco - The impasse in basketball is going nowhere, since both Pilipinas Basketball and the Basketball Association of the Philippines need each other to help the program get FIBAís nod to move forward. BAP president Joey Lina has mentioned the growing possibility of running to the Court of Arbitration of Sport (TAS-CAS) to finally redress the matter. But this is far easier said than done.
The early 1980ís saw a marked increase in international sports disputes, with no neutral body recognized by all entities in sports available to resolve the disagreements and, whenever necessary, hand out the appropriate awards. In 1981, shortly after he became International Olympic Committee president, Juan Antonio Samaranch broached the idea of forming a court to decide sports-specific issues. IOC member Keba Mbaye, then a judge in the International Court of Justice in The Hague, Netherlands, headed the working group to formulate the statutes and guidelines for the entity proposed.
On June 30, 1984, the statute of the Tribunal Arbitral du Sport - Court of Arbitration of Sport was enforced, with modifications being made in 1990.
The CAS was made of 60 members (15 each) appointed by the IOC, IOC president, International Federations (IFs) and National Olympic Committees (NOCs). In 1991. the CAS published a guide to arbitration, which stated the following: "Any dispute arising from the present Statutes and Regulations of the ... Federation which cannot be settled amicably shall be settled finally by a tribunal composed in accordance with the Statute and Regulations of the Court of Arbitration for Sport to the exclusion of any recourse to the ordinary courts. The parties undertake to comply with the said Statute and Regulations, and to accept in good faith the award rendered and in no way hinder its execution."
Basically, two types of dispute may be submitted to the CAS: those of a commercial nature, and those of a disciplinary nature. The first revolves around compensation, contracts, sponsorships and rights fees. The second involves violation of federation rules and so on, such as allegations of drug use.
Initially, the majority of cases involved revolved around issues of citizenship of athletes, contracts concerning employment, television rights, sponsorship and licensing. With the appearance of the appeals arbitration clause, numerous doping cases were also added to those brought before the CAS, and it was as the result of, or thanks to one such case that the structure of the CAS would have to evolve.
In February of 1992, a horse rider named Elmar Gundel was involved in a horse doping case, and contested the decision of the CAS with the Swiss Federal Tribunal. The Federal Tribunal confirmed the independence of the CAS, but also questioned the power and funding the IOC had behind it. This meant that the TAS-CAS would have to become even more independent. This resulted in the formation of an International Council of Arbitration of Sport to support the CAS. The ICAS consists of 20 "high-level jurists," including Judge Richard Sheppard Arnold of Americaís 8th Circuit Court of Appeals.
What are some of the hitches in sending a case to the CAS? First of all, the CAS website states that both parties have to agree to be placed under arbitration. At the onset, this would make it difficult for the BAPís proposed appeal to prosper.
Secondly, the arbitration proceedings take, on the average, about six to twelve months. This will make our predicament even more dire, considering we are trying to make it in time for the Asian Games in Qatar in September. The only exception is the Olympic Games. Since the arbitration process typically takes months, special ad hoc CAS panels are created during each Olympics to handle disputes within 24 hours. At the Sydney Olympics, for example, the ad hoc court quickly upheld the IOCís decision to revoke the gold medal of Romanian gymnast Andrea Raducan, who tested positive for the stimulant pseudoephedrine.
Another issue to be raised is the cost. Who will be paying the arbitration fees, should the case ultimately make it to the CAS? Who will travel back and forth to Lausanne, Switzerland, for the proceedings? At the end of the day, will it all be worth it?
Or wouldnít it be simpler to just sit down and talk it over, again?
Chief News Editor: Sol Jose Vanzi
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