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The Court of Arbitration for Sport: Where Do Human Rights Stand?

10th May 2019

Author - Daniela Heerdt, Research Officer, Centre for Sport & Human Rights

The Court of Arbitration for Sport (CAS) enjoys a high standing as the supreme dispute settlement body in the world of sports. But what potential role might CAS play in wider efforts to address human rights abuses linked to mega-sporting events and sports in general? That question is one the Centre for Sport and Human Rights is exploring.

 

Embedding respect for rights in hosting agreements

In 2017, international sports bodies like the International Olympic Committee (IOC) and FIFA started to incorporate human rights provisions into their statutes and future event-regulations.

The new host city contracts (HCCs) for the Summer Olympic Games in 2024 and 2028 and the Winter Olympic Games in 2026 now include human rights clauses as core requirements. By signing the contract, the host city, National Olympic Committee (NOC) and Local Organising Committee (LOC) guarantee to the IOC to:

“protect and respect human rights and ensure any violation of human rights is remedied in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognised human rights standards and principles, including the United Nations Guiding Principles on Business and Human Rights”.

According to Article 3 of FIFA’s Statutes,

“FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights”.

Based on revised bidding regulations for the 2026 World Cup, FIFA expects all bidders to respect internationally recognised human rights, including workers’ rights, when carrying out activities related to the bidding or hosting of events.

 

What role for CAS?

These documents include arbitration clauses with explicit reference to CAS. New Olympic host city contracts can trigger CAS arbitration for the non-performance of any contractual obligation, including human rights (as stated in principle 13; see principle 51.2). FIFA’s Statutes require all member associations to accept the general jurisdiction of the CAS, in particular when it comes to matters related to the fulfilment of obligations under FIFA regulations (see articles 57-59). In addition, FIFA’s revised regulations for the 2026 World Cup give CAS exclusive jurisdiction if disagreements cannot be swiftly resolved privately between the parties.

That all reads quite theoretically and far into the future, but the potential role for CAS to deal with human rights related issues has been going through a stress test for the last few years, culminating in the recent ruling watched around the world to decide the fate of South African runner Caster Semenya.

Semenya lost her challenge to a regulation of the International Association of Athletics Federation (IAAF), which requires certain female athletes with differences of sex development (DSD) and naturally occurring testosterone levels above a certain level to take medication to lower it. In dismissing the request for arbitration, the CAS panel ruled in favour of the IAAF, but still openly acknowledged that the regulation is discriminatory.

Indeed, the regulation can lead to the exclusion of women and girl athletes with DSD and could violate international human rights norms, including the right to equal treatment, non-discrimination, or the right to health, and violate a woman’s autonomy and integrity. Despite this, the IAAF states that the DSD regulation is necessary and proportionate to ensure the fairness of competitions, and the CAS panel upheld that argument. Looking ahead, the saga will more than likely continue, given the panel raised serious concerns about the regulation and encouraged the IAAF to address these concerns. Semenya can also appeal the decision at the Swiss Federal Tribunal.

 

Reasons for caution

Will these developments open the flood gates to CAS considering a deluge of rights-based arbitrations? Would this be welcome? Would CAS even be equipped for it?

CAS was originally created as a forum to address private sports disputes. Most of its cases concern challenges to regulations or decisions by sport bodies, doping, or commercial matters related to employment and sponsorship, or general disciplinary matters. Human rights issues have come up in connection with the contractual rights of athletes or procedural failings of an individual arbitration. A handful of cases raised the issue of discrimination against certain athletes.

However, while human rights stand at the heart of those cases, the CAS is reluctant to factor human rights into its decisions, as the most recent decision in the Semenya case demonstrates.  In its current setup, human rights are sidelined and the applicable CAS arbitration rules do not offer adequate human rights protection. As John Ruggie highlighted in his FIFA report, “CAS’ 300-plus arbitrators ... generally lack human rights expertise”. In addition, the impartiality of CAS arbitrators and the fairness of proceedings have been challenged in a number of cases before the European Court of Human Rights.

Beyond athletes, other potential victims of event-related human rights abuses do not have access to the CAS. For CAS to have jurisdiction, an arbitration agreement has to be in place between the disputing parties. This means the sports body and its counter-part member association, NOC, LOC, or other business partner can initiate arbitration proceedings at CAS. Who doesn’t this include that might have a need to bring a case based on a human rights violation? People who have been forcefully evicted to make room for event-related infrastructure, or workers in abusive and exploitative working conditions on event-related construction, for example. While national courts might be the more effective forum to deal with such cases, arbitration systems including that of CAS can resolve issues more quickly. The CAS even  has an ad hoc division for the Olympic Games.

More generally, there is an ambivalence towards arbitration as a remedy mechanism for human rights cases. The greatest advantages associated with arbitration in the human rights context are its flexibility and international enforceability. For example, arbitrators and experts can be chosen by the parties to the dispute based on their knowledge and expertise, in this case on human rights. The greatest disadvantage comes from the non-transparent nature of arbitration, which runs counter to human rights being seen as matters of public concern. Arbitration proceedings can also be lengthy and costly, which is especially problematic since sports-related human rights abuses often hit the most marginalised groups in society – host communities, workers in construction, hospitality and supply chains.

Despite these concerns, the mere possibility of CAS arbitration for adverse human impacts associated with sport could indirectly have a positive impact on access to remedy for affected groups. To move from mere possibility to a reality that benefits people who have genuinely suffered, a few things need to start happening.

First, actors with the necessary legal standing are already able to act on behalf of those impacted, they just need to be willing to do so. More fundamentally, stakeholders and relevant organisations need to engage with CAS to build its capacity to consider the rights-based implications of its cases. Second, concrete measures need to be devised to overcome the current lack of rules and guidelines on how to procedurally deal with human rights matters, following the example of other arbitration institutions. A human rights filter could also be added to the current list of CAS arbitrators, to support affected parties in finding arbitrators with human rights expertise.

The time ahead requires collective efforts to explore the various entry points possible to improve access to remedy for all actors involved in sport. That includes building further momentum to ensure that CAS is positioned to play a constructive role in addressing sport and human rights realities.

 

Image: Wikipedia