Changes are Afoot at the CAS

Like a number of journalists, sportswriters and members of the media who have at least a passing interest in sports arbitration, I’m on the Court of Arbitration for Sports’ email list. Whenever there’s a press release about a decision, or a pending decision, or anything else they want to publicize, an email finds its way into my Inbox. I’ve been a bit swamped with the day job, so when I saw a little ditty land in my Inbox yesterday with the subject line “The CAS amends its rules,” my first reaction was, “big whoop.” What change could they make that would really amount to anything?

Actually, the change in their rules is kind of a big deal. For years, the CAS system has been — shall we say — a rather incestuous affair. Those who sit on an arbitration one day may be prosecuting a case the next. Or two CAS member, one of whom was representing an athlete and the other who was sitting in judgment may both be sitting in judgment of someone else. Or working on the same team to prosecute an athlete charged with doping or breaking other rules. Or representing different interests in a contract dispute. Or … well, you get the idea.

Point is, there’s a whole lot of (possible) conflict of interest going on in such a system. The potential exists for quite a few quid quo pro arrangements between the various members of the CAS. After congratulating themselves for their longevity, the second paragraph of yesterday’s press release from the CAS launches into this brief announcement:

The highlight of this meeting was the adoption of the revised Code of Sports-related Arbitration (CAS regulations). The most significant amendment is the prohibition for CAS arbitrators and mediators to also act as counsel before the CAS. This prohibition of the double-hat arbitrator/counsel role was decided in order to limit the risk of conflicts of interest and to reduce the number of petitions for challenge during arbitrations. The other amendments to the Code are related to procedural issues.

Wow. So if this is correct, members of the CAS can either be arbitrators deciding cases, or they can represent athletes or other parties bringing cases before the CAS, but they can’t do both. Not sure what to say about that, other than, “It’s about time.”

While I wouldn’t cast aspersions on any particular individual, it’s all too easy for the arbitrator/attorneys involved to be tempted to find in favor of someone they may work with in a different capacity further down the road. One day the roles might be switched, with the person acting as representative today being in a more judicial or mediating role tomorrow. That puts a person who is not a member of this particular club, but who happens to be representing an athlete or club or federation, at a disadvantage. And by extension, his/her client would suffer the same disadvantage, too.

If sport is all about playing by the rules, then those who enforce the rules should be above reproach — and that includes the CAS. The CAS’ rule change is a small step in the right direction. Let’s hope that it’s a real change and not just a change on paper.

I makes me wonder, though. If such a rule had been in place in the past, what effect would it have had on some of the prominent doping cases of the last three-plus years?