Human Rights Approach to Favouritism and Equality before the Court of Arbitration for Sport

Abstract

This paper aims to assess the institutional and procedural structures of the Court of Arbitration for Sport (CAS) from the public international human rights law perspective, reviewing the tensions between private lex sportiva and standards relating to fundamental fair trials. The CAS serves as the worldwide highest court for athletic conflicts, and have monopolistic jurisdiction through compulsory arbitration clauses in sporting licenses that stipulate that athletes must give up access to local courts in order to participate in professional sports. This paper argues that from a structural perspective, the CAS has an institutional bias that is working in favour of governing bodies of sports and not in favour of the individual participants. That is because the nominating process for arbitrators is limited, the procedure favours the "closed list" of well- capitalized "repeat players" such as WADA and FIFA and the administrative control of the International Council of Arbitration for Sport (ICAS). The structural vulnerabilities are assessed in the light of the jurisprudence of the European Court of Human Rights, in particular that of Mutu and Pechstein v. Switzerland and the substantive challenges in Semenya v. Switzerland. The analysis illustrates how the decisions taken by the courts at a national level have been influenced by the private sport regimes in a way that vitiates the fundamental requirement for courts to remain independent, fair and unbiased treatment of both parties, as protected under Article 6(1) of the ECHR and Article 14 of the ICCPR. To redress this bias, this paper makes concrete normative proposals to remove the current bias, such as allowing athlete unions to have equal appointing rights in ICAS, opening the list of arbitrators to human rights experts and expanding independent legal aid mechanisms to retain the legal legitimacy of international sport.