Int Sports Law J (2016) 15:253–255

DOI 10.1007/s40318-015-0083-7

BOOK REVIEW

Questioning the (in)dependence of the Court of Arbitration

Antoine Duval1

Published online: 2 December 2015

Keywords Lex Sportiva
Court of Arbitration for Sport
The book is relatively slow in tackling this question. The
Independence
Pechstein
Arbitration
Transnational law author is keen on providing a comprehensive analysis of
the general context of his work in Chapter 2 on the CAS
The book under review is the published version of a PhD thesis and the lex sportiva,5 his theoretical apparatus in Chapter 3
defended in 2013 by Andrew Vaitiekunas at Melbourne Law on the relevant theories of law,6 and of his analytical frame
School. A PhD is too often the occasion of taking stock of legal to assess the independence of the CAS in Chapter 4 on
developments rather than anticipating or provoking them. This independence and impartiality.7 Although these chap-
is certainly not the case with this book. Its core subject of ters are useful to comprehend the red thread guiding his
interest is the study of the independence of the Court of Arbi- research, they could also have been synthetized and
tration for Sport (CAS)—an issue that has risen to prominence shortened. Any reader interested mainly in the assessment
with the recent Pechstein ruling of January 2015 of the Ober- of the independence of the CAS might be tempted to jump
landesgericht München, Germany.1 The publication of this directly to Chapter 5 and 6, which provide the core of
book could, therefore, not have come at a better time. the author’s analysis and his most valuable scholarly
The fundamental question underlying Vaitiekunas’ contribution.
research is: ‘‘does CAS have sufficient independence to be a Chapter 5 reviews in detail the well-known favourable
law-maker?’’.2 As many in the field, Vaitiekunas considers the assessment by the Swiss Federal Tribunal of the indepen-
CAS as the key institution in the production of a lex sportiva or dence of the CAS.8 The most important and interesting
transnational sports law. Hence, he thinks that ‘‘the closer aspect of the chapter is that it already engages in a critical
CAS’s standards of independence and impartiality are to those assessment of this jurisprudence. When discussing the
that apply to the judiciary, the stronger may be the claim that impact of the post-Gundel Paris reform agreement,
CAS’s lex sportiva constitutes law’’.3 Although I am myself Vaitiekunas concludes that ‘‘a number of facets of the
sympathetic to the idea of the existence of a lex sportiva, I reform indicate continuing links, albeit indirect between
would be cautious in attributing it mainly to the CAS. Instead, the Olympic governing bodies and CAS, thus undermining
I think that the notion of lex sportiva is rather reflecting the
1
complex legal interaction between the rules (and raw political Oberlandesgericht (OLG) München [2015] Az. U 1110/14 Kart.
power) of international Sports Governing Bodies (SGBs) and https://openjur.de/u/756385.html. Accessed 1 June 2015. See our
translation of the ruling. http://papers.ssrn.com/sol3/papers.cfm?ab
the CAS’s jurisprudence.4 Yet, this should not detract from the stract_id=2561297. Accessed 12 October 2015. See also our article on
value of posing the question of CAS’ independence as a the case Duval and Rompuy 2016.
2
hallmark of its legitimacy. Vaitiekunas 2014, p. 2.
3
Ibid, p. 3.
4
Duval 2013.
& Antoine Duval 5
Vaitiekunas 2014, p. 7–50.
a.duval@asser.nl 6
Ibid, p. 51–83.
7
1
International and European Sports Law at T.M.C. Asser Ibid, p. 85–120.
8
Institute, The Hague, The Netherlands Ibid, p. 121–177.

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254 Int Sports Law J (2016) 15:253–255

the perception that CAS is truly an independent arbitral outcome of the assessment is relatively limited. It is clear
body’’.9 He notes that ‘‘[w]hether ICAS members are ex ante that the author is doubtful of the independence of
appointed from within or outside the membership of the top CAS. He assesses first the individual independence of the
sports bodies, they ultimately owe their appointment to arbitrators, referring to four main criteria:
these bodies’’.10 He criticizes the CAS arbitrator list as it
‘‘The four main recognised safeguards of a judge’s
‘‘does not indicate who nominated the individual arbitra-
personal independence under judicial independence
tors, leaving an athlete at risk of choosing an arbitrator
norms are security of tenure in a judge’s appointment,
nominated by the very IF [International Federation] against
restrictions on the removability of a judge, adequate
which they are taking CAS proceedings’’.11 In any case,
and secure remuneration for judicial service and
‘‘the appointment [as CAS arbitrator] can be seen as
immunity from legal action in the exercise of judicial
occurring under the control of the Olympic governing
functions’’.22
bodies through their members or delegates in ICAS’’.12
Interestingly, this reasoning is analogu to the one used by Furthermore, he contends that an arbitrator must fulfil a
the Oberlandesgericht München in its Pechstein ruling.13 yardstick of substantive independence implying ‘‘a judge to
Unsurprisingly, Vaitiekunas is also extremely critical of be free from any inappropriate connections or influ-
the SFT’s judgment in the Lazutina case endorsing the ences’’.23 In this regard, he contends that ‘‘all CAS arbi-
independence and the legitimacy of the CAS post-Gun- trators […] owe their presence on the closed list to the
del.14 He argues that the SFT ‘‘appears almost as an Olympic governing bodies, thereby creating the appearance
apologist for CAS’’15 and criticizes its ‘‘non-objective of a lack of independence from them’’.24 Finally, regarding
approach to statements by people close to CAS’’.16 the institutional independence of the CAS, Vaitiekunas
Moreover, he denounces a ‘‘formalistic approach in suggests three main focal points: the structural links, the
assessing CAS’s independence from the IOC’’.17 Indeed, administrative links and the financial links. The structural
by privileging formal factors, such as the ICAS’s formal links of the CAS with the Olympic movement are per-
legal independence, ‘‘the SFT implicitly chose not to lift ceived as the main hindrance to CAS’s independence. This
ICAS’s veil to consider who has the real powers behind is because, ‘‘[g]iven the mutual ties and links which the
ICAS’’.18 Importantly in light of the Pechstein case, he IOC, the IFs and the NOCs […] have under the Olympic
attacks the fact that ‘‘the SFT limited its analysis con- Charter, these bodies may appear to have influence col-
cerning CAS’s institutional independence solely to CAS’s lectively on ICAS’’.25 His conclusions is sans appel: ‘‘The
independence from the IOC and did not consider CAS’s potential influence that the Olympic governing bodies may
independence from the Olympic governing bodies collec- be perceived to exercise over ICAS and the CAS secretary
tively’’.19 Finally, he reiterates his critique against the general is inconsistent with judicial independence norms
closed list system, arguing that ‘‘the very process for the which require judicial matters to be exclusively within the
nomination and selection of arbitrators to the list creates an responsibility of the judiciary’’.26
appearance of bias in favour of the Olympic governing This highly sceptical view regarding the independence
bodies’’.20 of CAS, leads him to propose a set of potential reforms.27
Henceforth, Chapter 621 vows to pitch CAS’s indepen- His first recommendation is to implement ‘‘a restructuring
dence against judicial independence standards discussed in of ICAS to ensure that it is institutionally independent’’.28
Chapter 4. Coming from Chapter 5, the suspense as to the This would imply that ‘‘appointments to ICAS should
exclude members of the IOC, executive members of the
9
Ibid, p. 142.
IFs, NFs and NOCs and their employees and anyone
10
Ibid, p. 146.
recently in these roles’’.29 Moreover, ‘‘the CAS code
11
Ibid, p. 150.
should be amended to prohibit the appointment of Olympic
12
Ibid, p. 151. governing body associates or athlete associates as CAS
13
See supra n 1, Oberlandesgericht (OLG) München [2015], paras
3b, bb, 3aaa and bbb.
14 22
Supra n 2, Vaitiekunas, p. 168–174. Ibid, p. 184.
15 23
Ibid, p. 169. Ibid, p. 188.
16 24
Ibid. Ibid, p. 189.
17 25
Ibid, p. 171. Ibid, p. 191.
18 26
Ibid. Ibid, p. 193.
19 27
Ibid. Ibid, p. 197–199.
20 28
Ibid, p. 174. Ibid, p. 197.
21 29
Ibid, p. 179–200. Ibid, p. 198.

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arbitrators’’.30 Regarding the funding of ICAS and CAS, he question of the legitimacy of both the rulemaking bodies of
suggests ‘‘the imposition of a levy on the broadcasting lex sportiva (read FIFA or the IOC) and its adjudicative
rights to or sponsorships of major sports events’’.31 To bodies (read the CAS) is of great importance. In fact, their
secure CAS arbitrators individual independence, he is in illegitimacy (here I differ from Vaitiekunas’ argument)
favour of appointing them ‘‘on a tenured basis to a speci- should not primarily imply their non-existence as law-
fied retirement aged’’.32 He also recommends ‘‘that arbi- making bodies, but rather the need for a reform (or even a
trators be appointed randomly to cases or on a revolution) in the way they operate.
predetermined basis’’.33 Eventually, he advises ‘‘to provide This book is precious, because it highlights very well the
arbitrators with greater security in remuneration by challenges ahead in our transnationalizing legal world.
appointing them on a fixed salary, like judges, payable Democratizing international (or transnational in this case)
regardless of whether and how many cases they are judicial bodies is key if the ideal and function of an inde-
appointed to arbitrate’’.34 Vaitiekunas is convinced that if pendent justice for world citizens is to be sustained.38 We
his recommendations were implemented, ‘‘CAS would be a need to understand that transnational private bodies are in
true sports court, rather than an arbitral tribunal’’.35 the business of exercising a sort of public authority and
The final chapter 7 of the book dedicated to CAS’s should live up to analogous accountability and legitimacy
independence from external judicial review is a bit of a standards than the one that have been progressively
mystery to the reviewer. Vaitiekunas offers a relatively developed in the framework of the nation-states. The CAS
succinct, but rigorous comparative study of the various is one of those, and the pending Pechstein case is a nec-
national (and European) judicial avenues where CAS essary itch to reflexively trigger a much-needed reform of
awards can be reviewed. He rightly concludes that CAS its internal structure and functioning. The precise form this
awards can be subjected to the control of national courts reform will eventually take is not crucial. What is essential,
and European Institutions. However, his assumption that however, is that the reform ensures that CAS arbitrators be
‘‘CAS awards must be independent from review or inter- seen as rendering sporting justice at a personal (if not
vention by state courts, such that they operate as final geographical) distance from those who are adopting and
authority in the resolution of sports disputes’’36 and the enforcing the rules of the lex sportiva. This book is an
consequence he derives from it, denying to lex sportiva any important critical contribution in that direction.
status as a legal order due to the lack of final authority of
the CAS, seem to be flawed.37 Indeed, in no legal context,
national or otherwise, is a judicial decision absolutely final.
National courts’ judgments are often contested when their References
recognition is asked in another country, this does not entail,
Duval A (2013) Lex Sportiva: a playground for transnational law. Eur
however, that national law is not law. Similarly, the sub- Law J 19:822–842
jection of the judgments of the highest national courts of Duval A, Van Rompuy (2016) Protecting Athletes’ right to a fair trial
the EU Member States to the potential review of the Court through EU competition law: the Pechstein case. In: Paulussen C
of Justice of the EU or the European Court of Human et al. (eds) Fundamental rights in International and European
Law, T.M.C. Asser Press, The Hague
Rights should not lead us to deny any legal value to Vaitiekunas A (2014) The court of arbitration for sport: law-making
national law. We are living in a pluralist legal age ruled by and the question of independence. Stämpfli Verlag, Berne
complex transnational legal assemblages and lex sportiva Von Bogdandy A, Venzke I (2014) In whose name? A public law
fits very well into this picture. Nonetheless, and on this theory of international adjudication. Oxford University Press,
New York
point I share the view of the author of this book, the

30
Ibid.
31
Ibid, p. 199.
32
Ibid.
33
Ibid.
34
Ibid.
35
Ibid.
36
Ibid, p. 265.
37
Ibid, p. 269: ’’CAS’s lack of final authority, in particular where
38
state public policy or EU law are in question, derogates from CAS’s For a similar idea applied to international courts, see Von
lex sportiva being an independent legal order‘‘. Bogdandy and Venzke 2014.

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