Changes are Afoot at the CAS

by Rant on October 2, 2009 · 6 comments

in Miscellaneous, News and Views

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?

TBV October 2, 2009 at 11:06 pm

Two open questions are,

(1) Will this rule eliminate conflicts of interest, or only the “appearance” of conflicts of interest?

(2) What are the other procedural changes, and will they take back with the other hand what the other hand appeared to offer in fairness?

TBV

strbuk October 3, 2009 at 5:04 am

>>While I wouldn’t cast aspersions on any particular individual<<

Gee Rant *I* would!!

str

Rant October 3, 2009 at 8:09 am

TBV,
I’m inclined to believe the answer to the first question is that it’s more about appearances. I’ll be scouring the CAS site in the near future to see if they’ve actually published a document outlining what the other changes are.
strbuk,
I was just feeling a bit charitable last night. There are certain people who are all too easy targets in the game of aspersion-casting. 😉

Jean C October 3, 2009 at 10:35 am

Some news from Humanplasma

The lab has admitted to have done 150 transfusions done paid 300.000 euros,
around 30 athletes were involved. They stopped their activity when blood doping became illegal in Austria.
A newspaper reported there were 7 different nations and among the athletes there were 10 riders, 4 rowers.

Humanplasma admet la fraude fiscale mais pas le dopage

VIENNE, 2 oct 2009 (AFP)

Le laboratoire viennois Humanplasma, soupçonné d’être au coeur d’un système de dopage sanguin, a admis vendredi avoir fraudé le fisc autrichien en ne déclarant pas 300.000 euros provenant de “prises de sang” sur des sportifs, mais conteste toujours les accusations de dopage.

“Nous avons informé les autorités depuis plusieurs mois”, a souligné une porte-parole du laboratoire, Michaela Eisler. Humanplasma affirme que la somme concerne des “prises de sang” réalisées entre fin 2003 et début 2006 sur une trentaine de sportifs. A cette période, le dopage sanguin n’était pas passible de poursuites en Autriche.

Le parquet de Vienne avait ouvert une enquête fin septembre pour fraude fiscale. “Nous cherchons à établir si l’autodénonciation du laboratoire est antérieure à la procédure”, a indiqué un porte-parole du parquet Gerhard Jarosch. Cette distinction ne remettrait cependant pas en cause des accès au dossier au cas par cas pour les agences antidopage intéressées, d’après lui.

Selon le magazine Sportwoche, parmi les clients issus de sept nations et six disciplines, figuraient notamment dix cyclistes et quatre rameurs. “Environ 150 traitements ont été effectués”, a confirmé le représentant du parquet.

William Schart October 3, 2009 at 1:10 pm

Well, it would seem to me that if indeed CAS people can only take one role in proceedings, it will indeed eliminate potential conflicts of interest which might arise from the same person taking various roles in different proceedings. If you only can be on the prosecution side, for example, there cannot be any conflict arising because you once served to defend an athlete.

However, there is the problem that (presumably) there are many CAS people how have served in differing roles prior to the implementation of this new rule. Unless CAS intends to sweep the house clean (which I doubt), there is still a potential for conflicts of interest arising from this situation.

Rant October 9, 2009 at 9:11 pm

In the better late than never department…
Jean,
Any more word about HumanPlasma? I’d sure like to know who those 10 riders are.
William,
That’s a point. For the foreseeable future, there would still be potentials for conflicts of interest, even though in the longer term it will set up a system which might have fewer conflicts of interest.

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