The Elephant in the Room: The Grand Chamber and the independence of the CAS

Dr. Faraz Shahlaei & Dr. Antoine Duval

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Between the first and the eight of October, the Strasbourg Observers blog is hosting a symposium examining various aspects of the ECtHR’s ruling in Semenya v. Switzerland. The symposium was curated by Dr. Antoine Duval and Dr. Faraz Shahlaei. An introduction to the symposium and the case can be found here.

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Introduction

While the question of the independence of the Court of Arbitration for Sport (CAS) featured quite prominently during the hearing in 2024, it was ultimately put aside by the majority in its ruling. As we will explain, we were partly responsible through an amicus curiae submitted to the Grand Chamber for the emergence of the issue at the hearing. Moreover, we believe that reading between the lines of the majority’s opinion, and considering the separate concurring and dissenting opinions, the judgment provides implicit (and for the separate opinions, even explicit) support for our argument and will pave the way for future applications contesting the fact that the CAS, in its current institutional form, is an independent and impartial tribunal in the sense of Article 6(1) ECHR. 

Putting the question on the table: Our amicus curiae

After the referral of the Semenya case to the GC, we decided (together with Professor Cesare PR Romano) to intervene as third-parties, in order to put a fundamental question that we believe is a sine-qua-non pre-condition for compliance of transnational sports governance with the Convention on the agenda of the court: can the CAS be considered an independent and impartial tribunal under Article 6(1) of the ECHR?

This was an ambitious and difficult endeavour as we proposed to discuss an issue that was not directly raised during the whole process of Semenya’s legal odyssey, neither before the CAS and the Swiss Federal Supreme Court (FSC), nor before the ECtHR’s Third Section. Moreover, at least from the point of view of the FSC and the CAS, the question was deemed to have been settled by the prior 2018 judgment of the Third Section of the ECtHR in Mutu and Pechstein (paras 150-159), which had concluded in its analysis of Pechstein’s application that there were “insufficient grounds for it to reject the settled case-law of the Federal Court to the effect that the system of the list of arbitrators meets the constitutional requirements of independence and impartiality applicable to arbitral tribunals, and that the CAS, when operating as an appellate body external to international federations, is similar to a judicial authority independent of the parties” (para. 157). Nevertheless, we requested a permission to submit an amicus curia on the issue as we considered it fundamental to improve the fairness and accountability of transnational sports governance. With the GC’s approval, we submitted our intervention in February 2024.

Then, during the GC’s May 2024 hearing, surprisingly, a significant part of the debate was dedicated specifically to the issues raised by our brief. Concretely, the GC, in question 2(b) to the parties, asked whether the CAS can be considered an independent and impartial tribunal established by law under Article 6(1) of the ECHR?

The Swiss government argued that since the athlete had never raised this matter before, the FSC did not have the chance to examine the issue and, therefore, the domestic remedies had not been exhausted in this regard. Thus, the Swiss Government refused to enter further into the matter. The athlete’s legal team, however, drawing on the third-party intervention, forcefully argued that the CAS is not an independent and impartial tribunal, a breach, they argued, of the athlete’s rights under Article 6(1) of the Convention. The applicant’s legal representative invoked our intervention in the case as ‘valuable contextual evidence’ and placed it alongside what they called an increasing judicial recognition of the CAS’s deficiencies, to ask the GC to overturn the Mutu and Pechstein ruling upholding the CAS’s independence and impartiality.

How the GC sidelined the question on procedural grounds

Despite the existence of some sound and legally justifiable grounds to counter the defense raised by the State in the case, the GC demonstrated a high degree of procedural formalism in declining to engage with the issue (paras. 83-91). The judgment concluded that this question ‘does not form part of the scope of the case’ (para. 91), since Semenya ‘did not raise a complaint regarding a lack of access to an “independent and impartial tribunal established by law” within the meaning of Article 6 § 1’ in her application (para. 90).

As argued by one of us, this conclusion could have been different if due consideration had been given to the substantial body of ECtHR’s case law recognizing that inaction or passivity about enforcing a right cannot amount to a waiver of rights. Such an approach would necessitate a careful examination of whether a valid waiver has occurred in the present case. Approaching the issue specifically through the lens of a valid waiver, it is crucial to recall the GC’s unequivocal statement in the Semenya judgment that ‘acceptance of arbitration does not in itself imply that the person has waived the right to an independent and impartial tribunal; this right must have been waived expressly’ (para. 197). In the case of Caster Semenya, no express waiver of the right to an independent and impartial tribunal exists.

Notwithstanding the majority’s decision to dismiss the issue, the question of the independence of the CAS remains more than ever the elephant in the room, especially because multiple parts of the judgment (and the dissenting opinions) are pointing implicitly and explicitly at fundamental issues in this regard.

The Semenya ruling’s explicit recognition of the control exercised by the Olympic Movement over the CAS

While the GC refused to address directly the independence of the CAS, its ruling nevertheless reached a number of conclusions, which will have consequences for the (re-)assessment of the issue in the future. Building on the findings of the Court in Mutu and Pechstein, the GC stressed that CAS’s ‘mandatory and exclusive jurisdiction’ is imposed by the sport governing bodies (SGBs), which act also as regulators (para. 201). In this way, the GC drew a clear parallel between the SGBs and public authorities. More importantly, the Semenya judgement also pointed out that

‘the CAS was established under the auspices of the IOC; the members of the ICAS, the functions of which include adopting and amending the Code of Sports-related Arbitration and appointing the persons listed as CAS arbitrators, are appointed directly or indirectly by the Associations of Olympic International Sports Federations, the Association of the National Olympic Committees and the IOC; the ICAS is responsible for the functioning and financing of the CAS under the Code of Sports-related Arbitration, which the ICAS itself issued and which regulates the CAS and sets out its Procedural Rules’ (para. 203).

The GC even referred to the SGBs’ ‘inherent dominance’ (para. 203) and ‘structural control over the international sports arbitration system’ (para. 204). In short, while unwilling to decide the matter for procedural reasons, the Court was transparent in signaling that it considers the ICAS and the CAS to be controlled by the Olympic Movement.

This is particularly significant when considered alongside the jurisprudence of the ECtHR on the independence of courts under Article 6(1) ECHR. The Court has consistently held that objective impartiality implies that ‘the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality’ (Kerelin v. Russia, para. 51). In the ECtHR’s jurisprudence the ‘appearance’ is also important in assessing objective impartiality (id. para 51-52). Whether a court is objectively impartial depends on whether it offers ‘through its composition, guarantees sufficient to exclude any legitimate doubt about his impartiality’ (BEG S.P.A v. Italy, para. 129). The ECtHR has also clarified that ‘the objective test is functional in nature: for instance, professional, financial or personal links between a judge and a party to a case …, may give rise to objectively justified misgivings as to the impartiality of the tribunal’ (id. para. 131). It seems, therefore, quite difficult to square the Court’s findings that the CAS is controlled by the Olympic Movement collectively with its own jurisprudence on the independence and impartiality of courts.

Moreover, the Court’s conclusion that because ‘recourse to a single and specialised international arbitral tribunal facilitates a certain procedural uniformity and strengthens legal certainty’, the compulsory nature of the CAS arbitration ‘is not sufficient to give rise to a violation of Article 6 § 1’ (para. 199), was ultimately balanced out with a call for the FSC to exercise a particularly rigorous examination of the CAS when it affects the civil rights/fundamental rights of those affected by its compulsory jurisdiction (para. 209). This obligation undoubtedly applies to the right to access an independent and impartial tribunal, which is recognised under Swiss law in Article 30 of the Swiss Constitution and under Article 6(1) ECHR. In this context, it seems difficult to conclude that the extremely superficial assessment of the question by the ECtHR Chamber in Mutu and Pechstein would pass the Court’s threshold in Semenya. Instead, as the Court has strongly hinted at in its judgment, the CAS’s current governance and operation is captured by the SGBs, who decisions the CAS is supposed to review independently. As we argued it our third-party intervention, this state of affairs can hardly be reconciled with the ECtHR jurisprudence. Our view is further comforted by the separate opinion of Judge Šimáčková, which walks in the footprints of the dissenting opinion of Judges Serghides and Keller in the Mutu and Pechstein case.

Judge Šimáčková’s separate opinion: skepticism on the independence of the CAS

Judge Šimáčková’s concurring opinion departs from the procedural formalism of the GC’s majority to directly engage with the question of whether the CAS is an independent and impartial tribunal established by law.

Her opinion contradicts the conclusion of the Mutu and Pechstein judgment. She not only questioned whether the CAS qualifies as a tribunal ‘established by law’ under Article 6(1), but also emphasized that the GC ‘should have begun by ascertaining whether the applicant had had access to an independent and impartial tribunal’ (para. 2 of her opinion). In her view, this question was implied in the arguments raised by the applicant, domestically exhausted by the FSC, and expressly discussed by both parties ‘in their written observations and at the hearing’ before the GC (paras. 4-7).

She argued that the role of SGBs is ‘structurally predominant in CAS’ (para. 21) and that the sports arbitration system ‘provides an advantage to one of the parties before the CAS in disputes between a sports body and an athlete (para. 22)’. She added further that beyond ‘this structural imbalance, it might be questioned whether a panel whose members are chosen by the parties (or, in the absence of agreement, by the president of the division, who was himself or herself appointed by the sports bodies) can be regarded as independent’ (para. 23). She concluded that such considerations do ‘raise a question, at least in terms of the theory of appearances, according to which it must be clear that justice has been rendered impartially’ (para. 24).

This separate opinion, building upon the dissent of Judge Serghides and Keller in the Mutu and Pechstein judgement, confirms that the question of the independence of the CAS remains more than ever doubtful in the eyes of some of the ECtHR judges. In fact, a new challenge against the CAS on the basis of its institutional set-up being incompatible with article 6(1) ECHR would likely trigger the Court to reconsider its assessment of the CAS’s independence and provoke a much-needed fundamental reform of its governance and operation. 

Conclusion: Paving the way a future challenge of the independence of the CAS

Paradoxically, the Semenya judgment, while formally disregarding the question of the CAS’s independence and impartiality on procedural grounds, should in fact be read as planting the legal seeds of a renewed challenge on the basis of the CAS’s current lack of independence and impartiality.  In particular, the GC’s recognition that SGBs ‘exercise structural control over the international sports arbitration system’ is an important acknowledgement that the independence of the CAS is currently at best problematic, primarily because of the set-up of its internal governance. Indeed, if we are to tolerate the imposition by SGBs of a private justice onto a wide range of individuals (athletes, coaches, referees, etc.) involved in international sport, this justice will have to display real independence from the private powers that it is supposed to check. There is too much at stake for those concerned, as illustrated by Caster Semenya’s fate, for it to be otherwise. In this regard, it is extremely difficult to square the current governance and operation of the CAS with the basic requirements of the existing jurisprudence of the ECtHR on judicial independence. The CAS can anticipate this issue and initiate a reform process to fundamentally reshape (and democratize) its governance structure, or it can wait until the cracks in its walls widen to the point where the entire structure falls apart.