International sports dispute resolution in 2020 - and what to expect in 2021
A selection of CAS & Swiss Federal Tribunal judgments rendered in 2020 & major regulatory reforms
The Covid-19 pandemic affected dispute resolution in sports, albeit in a different way than it affected sports in general. While sporting activity and competitions – with or without fans in the stadium – largely stopped for several months and for the vast majority of sports, dispute resolution in sports swiftly adapted to the new situation and disputes were resolved, in most cases, online through hearings held by video conference.
With respect to the cases decided by the Court of Arbitration for Sport (CAS) in 2020, we can select a few: the year started – and ended with the case of the Chinese swimmer Sun Yang (after the famous public hearing that took place in Montreux in November 2019). In February 2020, the CAS Panel upheld WADA’s appeal, finding that the athlete committed an anti-doping rule violation (ADRV) and imposed an 8-year ineligibility period for a second ADRV. Sun Yang’s case is set to continue in 2021 since his motion to set aside the CAS award is still pending before the Swiss Federal Tribunal (SFT), while his request for revision of the CAS Award was accepted by the SFT for reasons of partiality of one of the arbitrators and the case will be reheard by the CAS with a new panel composition.
In 2020, the CAS also confirmed a FIFA Ethics Committee decision that imposed the lifetime ban and a fine of CHF 1 million on Karim Keramuddin, former President of the Afghanistan Football Federation (AFF) after several complaints were filed by female Afghan football players accusing him of sexual and physical abuse.
Furthermore, CAS ruled on the Manchester City FC appeal against a UEFA decision that found the English club to have contravened UEFA’s Club Licensing and Financial Fair Play Regulations. The CAS panel held that Manchester City FC had not disguised equity funding as sponsorship contributions, but it did fail to cooperate with the UEFA authorities. Most charges were either not established before the CAS or were found to be time-barred. It therefore lifted the UEFA-imposed exclusion from participation in UEFA club competitions, and maintained the fine after reducing it to EUR 10 million.
The CAS also issued its decision on the well-known of Blake Leeper, a US bilateral transtibial amputee sprinter who appealed against a decision rendered by World Athletics (WA). The WA decision had denied Blake Leeper’s application to wear his prostheses in competition in order to qualify for the 2020 Olympic Games, in accordance with the IAAF Rules. On appeal, the CAS Panel found that the contested rule was partially unlawful (placing the burden of proof upon the athlete) but concluded that WA had a legitimate objective in pursuing the contested rule, namely, to prevent disabled athletes from competing against able-bodied athletes with mechanical aids that do more than compensate for the effect of their disability. Blake Leeper’s case will also continue in 2021, since the athlete filed a motion to set aside the CAS award before the SFT for being “racially discriminatory.”
In 2020, the SFT also issued another important judgment in the case of Caster Semenya v World Athletics, rejecting the motion to set aside the CAS award that had confirmed the validity of the World Athletics eligibility rules for Athletes with Differences of Sex Development (DSD Regulations). Caster Semenya has reportedly taken her case to the European Court of Human Rights (ECtHR).
The last highly-publicized CAS case of the year was rendered in December 2020 in the appeal filed by Russian Anti-Doping Agency (RUSADA) against the four-year ban imposed by WADA for non-compliance with the WADA Code (CAS 2020/O/6689). In a very complex dispute that involved 50 intervening parties, the CAS Panel confirmed that RUSADA was non-compliant with the WADA Code for failing to deliver the authentic Laboratory Information Management System (LIMS) and other analytical data from the former Moscow Laboratory to WADA. The CAS has only published part of the conclusions and the operative part of the Award, which show that the CAS Panel reduced the originally imposed sanction of four years to two years and the possibility during this period for any athlete / athlete support personnel from Russia to participate in—or attend—the Olympic and Paralympic Games and other world championships if they have not been subject to a suspension and so far as they do not use the flag of the Russian Federation or the national anthem. The decision, whose operative part includes plenty of caveats further reducing the effect of the sanction, faced criticism by the media and athletes’ unions.
Covid-19 cases brought before the CAS
The CAS also registered and decided on a couple of Covid-19-related matters, such as the case of Slovan Bratislava against UEFA (CAS 2020/A/7356): this case will likely serve as a precedent for analogous cases in other football tournaments (such as the 2020 FIFA WC qualifiers) as it dealt with the responsibility for a match that cannot be played due to Covid-19 reasons, including testing and mandatory quarantine of players on arrival at the match venue.
The “Ghoddos” case (CAS 2019/A/6463 & 6464) related to the unilateral termination of an employment contract but touched upon a procedural Covid-19-related issue, namely the possibility of the CAS Panel to hold an online hearing notwithstanding the appellant’s objections. The Panel confirmed that such a hearing – in line with the CAS Covid-19 Emergency Guidelines—does not violate the parties’ right to be heard.
Another case registered by the CAS in December 2020 (but which will be decided in 2021) relates to the appeal filed by the Ukranian Football Association (UFA) against a UEFA decision which declared a match against Switzerland forfeited. Here, the match that could not take place after the Swiss authorities placed the entire UFA delegation into mandatory quarantine.
Major regulatory changes / reforms in 2020
Back in March 2020, the CAS issued its “CAS Emergency Guidelines” in order to cope with the Covid-19 pandemic and offer for more flexibility with respect to deadlines fixed in the CAS Code and the electronic filing of submissions, without the consent of both parties. The CAS Code was further modified in July 2020 and Spanish was added as the third official working language of the institution.
In April 2020 and after consultation with different stakeholders, FIFA issued the FIFA “Covid-19 Football Regulatory Issues” guidelines that addressed some key practical issues arising from the pandemic, mostly with respect to player contracts and the transfer system generally. In June 2020, and after several workshops with member federations, FIFA proposed further temporary amendments to the FIFA RSTP and its procedural rules.
The Gymnastics Ethics Foundation (GEF), which was established in 2019 in response to the USA Gymnastics sexual abuse scandal, continued its operations in 2020, adopting changes to its rules and regulations and appointing a new independent disciplinary tribunal as of January 2021.
What to expect in 2021?
From a Swiss arbitration law perspective, the 12th Chapter of the Swiss Private International Law Act (LDIP or PILA) has been amended and the amendments will come into force in January 2021. The major amendments that can impact on CAS-related disputes include the possibility to file submissions to the Swiss Federal Tribunal in English and the removal of the admissibility condition of a minimum disputed amount. The amended provisions bring also some clarifications with respect to the application of PILA, the statutory arbitration clauses and the forms of communication that allow the arbitration agreement to be evidenced by text.
Several International Federations are currently reviewing their rules or statutes for 2021, including the International Weightlifting Federation (IWF) which undertook a series of major institutional reforms following the incidents uncovered by the ARD Documentary in January 2020 and largely confirmed by the McLaren investigation in June 2020. In 2021, the IWF will also launch an independent Ethics and Disciplinary Tribunal (EDC), a platform to file complaints related to potential violations of the IWF rules, and a separate and independent investigatory chamber.
Apart from the new WADA Code that will enter into force in January 2021, the new version of the FIFA Rules on the Status and Transfer of Players (RSTP) will also come into force in 2021 and includes a series of important amendments, such as a new general regulatory framework for coaches, new labour conditions for professional female players (including a minimum period of maternity leave), the enforcement of monetary decisions by FIFA and other rules in preparation of the FIFA clearing house.
With the EURO 2020 and the Tokyo 2020 Olympic Games coming up in the summer of 2021, we expect several disciplinary, qualification, eligibility and selection disputes to be filed both before the CAS in Lausanne but also before the CAS Ad Hoc Division at the Olympic Games. The EURO 2020 will also have a number of members of its UEFA Appeals Body present in situ, with an immediate appeal possible before the CAS Ad Hoc Division for the EURO 2020.
Note: This selection was compiled for LawInSport’s “Key sports law cases and developments in 2020” , which features key sports law issues from all over the world.
