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Arbitration's New Age
L. Jon Wertheim
August 09, 1999
More sports disputes are being settled out of court
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August 09, 1999

Arbitration's New Age

More sports disputes are being settled out of court

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Structurally, anyway, it's downright quaint, a white house nestled next to Lake Geneva at the Olympic complex in Lausanne, Switzerland. But the Court of Arbitration for Sport (CAS) is emerging as one of the most powerful and far-reaching institutions in international athletics. Created in 1983 by the International Olympic Committee as a tribunal for resolving sports-related disputes, the CAS was restructured as an independent body in 1994. Recently, CAS has dealt with matters ranging from Michelle Smith de Bruin's alleged tampering with her urine sample to whether a boot cover that obscured a manufacturer's logo on a speed skate was improper. "Half the world is screaming that an athlete is a drug cheat, and the other half thinks there's a witch-hunt going on," says Richard Young, a Colorado Springs attorney who serves as a CAS arbitrator. "Well, CAS is a forum for cutting through the emotion and getting to the truth."

The procedure for using CAS is fairly simple. Currently, scores of governing bodies and international sports organizations—the IAAF, which governs track and field, is a conspicuous exception—have agreed to give CAS binding authority to rule, originally or on appeal, on relevant disputes involving their athletes. When contretemps arise, depending on the type of case, the parties may agree on one arbitrator, or each party may choose an arbitrator from CAS's pool of 150 internationally regarded experts, with a third arbitrator selected by CAS to serve as a de facto president of the panel.

Many of the virtues of CAS mirror those of arbitration genetically: It's less expensive, more efficient and as binding as conventional litigation. Financed by the IOC and various sports federations, the annual budget for CAS is roughly $800,000. Parties pay a filing fee of about $330 to have their disputes heard, but for appellate cases the arbitrators' hourly wage of $130 is subsidized by CAS. As is traditionally the case in European courts, the losing party often pays the prevailing litigant's costs. Smith de Bruin, for instance, paid roughly $10,000 to FINA, the international swimming federation, after CAS refused her appeal.

Whereas litigation can languish in courts for years, CAS decisions are ordinarily handed down within 120 days of closing arguments. At the Olympic Games a panel of CAS arbitrators is present to dispense emergency justice within 24 hours. It was CAS, for instance, that reinstated Canadian snowboarder Ross Rebagliati's gold medal after he had tested positive for marijuana at Nagano.

Not that CAS is without its flaws. That the office is situated on IOC grounds and receives part of its funding from the IOC suggests that it may not be entirely independent. What's more, CAS is not immune from the issues of legal relativism that plague any international tribunal. Is hearsay evidence, for instance, as readily dismissed in China as it is in Germany? Should an Indonesian federation be subjected to a U.S. arbitrator's notion of due process? Proponents say CAS is a step in the right direction. "The bottom line is that people snicker when a national sports federation says it has tested its athletes for drugs, and they're all clean," says one CAS arbitrator. "But if a blue-ribbon panel of three independent arbitrators from three countries reaches the same conclusion, it carries all the weight in the world."

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