Context
An increasing number of different kinds of sports-related disputes had arisen over the recent years, which comes as no surprise considering the significant growth of the sport industry. This gradually led sports governing bodies to adapt their structures accordingly. The disciplinary system set up – part of the “global law without the state”[1] that has been developed in the sports field – is tending to become increasingly judicial in nature, taking state structures as a model. Specialized disciplinary bodies and arbitration tribunals apply rules and issue rulings that are more and more similar to state courts decisions.
Given the autonomy and independence of sport, the intervention of national and international jurisdictions has been very limited. However, sports disciplinary bodies and arbitration tribunals should not be exempted from complying with the law, especially when human rights are at stake.
Until recently, the European Court of Human Rights has only been marginally involved in sports matters in general, and even less so in matters related to sports arbitration[2] until the landmark Mutu and Pechstein v. Switzerland case (2 October 2018, no. 40575/10 and 67474/10), that was hailed as a cornerstone toward the development of a new sports arbitration case law
In response to the judgement, the sports governing bodies as well as the disciplinary and arbitration bodies had become more aware of the need to protect human rights.
The law changes as social and economic life changes and so does the global sports law, which make us eager to see how human rights will shape the development and practice of the latter.
Therefore, it is worth looking closely at the disciplinary proceedings followed, where applicable, by arbitration – mainly in football at the European level – and determine whether, and if so, to what extent, human rights are protected by the sports organisations and arbitration tribunals when they are dealing with disciplinary matters, how the human rights are implemented in sports proceedings and how they could be applied more effectively.
This article is focused in particular on the (in)applicability of article 6 of the European Convention on Human Rights in sports disciplinary and arbitration proceedings.
Is the European Convention on Human Rights binding on sports bodies?
Undeniably, at European level, the European Convention on Human Rights (herein referred to as The Convention) – together with its additional protocols – represents the most advanced procedural mechanism to protect human rights against the abuses of State authorities. Since sports bodies and arbitration tribunals are private authorities, one question needs to be asked: what is the mechanism through which the human rights protected by the Convention are implemented in sports disciplinary and arbitration proceedings? The answer does not appear to be an easy one, although the issue regarding the bindingness of the Convention for sports disciplinary bodies and arbitration tribunals has been hotly debated and it will certainly be a subject which will be discussed for a long time to come.
The Convention directly binds States, not private parties. However, according to Article 1 of the Convention, States must control through their judiciary system that private parties respect fundamental rights of those within their jurisdiction. This obligation requires legislative and administrative measures to ensure the effective exercise or protection of the fundamental rights guaranteed by the Convention. Accordingly, although the majority opinion is that the European Convention on Human Rights is not, in principle, legally binding for the sports governing bodies and arbitration tribunals, since disciplinary sanctions are not measures taken by the state, but by private organisations, the tendency at present is to rather apply some provisions of the Convention to such proceedings only indirectly and partially.
Nevertheless, as it will be discussed in more detail further below, according to the recent case law of the European Court of Human Rights (herein referred to as the ECHR), some provisions of the Convention, in particular Article 6, are directly applicable to all adjudication proceedings, including arbitration, where they concern the determination of “civil rights and obligations or of any criminal charge”[3].
The nature of the disciplinary sanctions imposed in sports disciplinary and arbitration proceedings. Is this an eliminatory criterion for the applicability of Article 6 of the European Convention on Human Rights?
In general, the extent to which the guarantees of the Convention apply in sports disciplinary and arbitration proceedings, particularly those enshrined in Article 6, is determined by the nature of the sanctions imposed, as explained below. While for the proceedings concerning civil matters only art. 6 § 1 of the Convention applies, for the proceedings concerning criminal matters the whole art. 6 of the Convention applies.
Although at some point the issue was subject to debate, the Swiss Federal Tribunal (herein referred to as the TFS), which has jurisdiction to set aside awards made by the Court of Arbitration for Sport (herein referred to as the CAS), has on several occasions ruled on the nature of the disciplinary sanctions imposed by sports associations. It considers these to be private sanctions which are solely a matter of civil law, and not criminal law. These sanctions are based on the parties’ autonomy and are unconnected with the criminal courts’ power to punish[4]. The Court of Arbitration for Sport takes a similar view[5].
Therefore, one could easily conclude that sports disciplinary proceedings are unquestionably related to civil rights and obligations.
Notwithstanding, I believe that the civil nature of disciplinary sanctions does not itself exclude the applicability, even indirectly, of the criminal limb of Article 6 of the Convention, as it will be discussed further.
The guarantees of Article 6 of the European Convention on Human Rights. Do these guarantees apply in sports disciplinary and arbitration proceedings and, if so, to what extend?
Decisions taken by sports disciplinary bodies and arbitration tribunals are based on statues, regulations and contracts drawn up by sports organisations. In this regard, it is important that human rights be guaranteed from the moment of defining the rules and the sanctions and not only during the disciplinary proceedings or arbitration. This means that both procedural rights and substantive rights are of relevance in sports disciplinary proceedings.
During their specific proceedings, the disciplinary bodies and arbitration tribunals ruling on sports-related disputes cannot simply overlook fundamental human rights as, for example, the right to a fair trial, since the autonomy of sport cannot be legitimate when connected with human rights abuse[6].
The question that arises is whether all the guarantees of Article 6 of the Convention apply in sports disciplinary and arbitration proceedings and, if so, to what extent. What are those fundamental rights which may be infringed when disciplinary proceedings are initiated?
Under Article 6 § 1 of the European Convention on Human Rights, which applies to both criminal and civil proceedings, everyone is entitled to (i) a fair and public hearing (ii) within a reasonable time (iii) by an independent and impartial tribunal established by law. In case of criminal proceedings, Article 6 § 2 and § 3 of the European Convention on Human Rights expressly enshrines other additional guarantees[7].
The tendency at present, as mentioned earlier, is to rather apply Article 6 § 1 of the Convention to sports disciplinary proceedings only indirectly and partially, for reasons related to the fact that the Convention is an international treaty which seeks to protect individuals against measures taken by states rather than by private organisations.
Since disciplinary sanctions are not measures taken by the state, the Convention does not, in principle, apply directly to arbitration proceedings, still less to disciplinary proceedings. The Swiss Federal Tribunal accepts, however, that certain guarantees derived from Article 6 of the Convention may apply indirectly because they fall within the ambit of Swiss public policy. These are (i) the right to an independent and impartial tribunal, (ii) the right to have one’s case determined within a reasonable time and (iii) the right to a fair procedure[8]. The Court of Arbitration for Sport took a similar view in its decisions[9], recognizing, however, that some provisions of the Convention, in particular Article 6 § 1 on the right to a fair hearing, could apply “even in proceedings before an arbitration tribunal” given the fact that the Swiss Confederation, in exercising supervision over CAS decisions, was itself directly subject to the obligation to comply with the Convention.
The European Court of Human Rights has also underlined that the guarantees of the Convention, especially Article 6, does not apply systematically to the first steps of the disciplinary process, but must be applied to at least one degree of the proceedings.
At the same time, the European Court of Human Rights assesses that Article 6 § 1 of the Convention is directly applicable to all adjudication proceedings, including arbitration, where they concern the determination of ”civil rights and obligations or of any criminal charge”[10].
Withal, Article 6 is applicable to disciplinary proceedings before professional bodies where the right to practice a profession is directly at stake (Le Compte, Van Leuven and De Meyere v. Belgium; Philis v. Greece (no. 2), § 45).
Since sports disciplinary proceedings are unquestionably related to civil rights and obligations, as seen above, it has been concluded that only the guarantees of Article 6 § 1 of the Convention are applicable. But what about the additional guarantees enshrined by Article 6 § 2 and § 3 of the Convention? Are these applicable, even indirectly, in sports disciplinary and arbitration proceedings?
In order to answer this question, it must first be determined, in light of the case law of the European Court of Human Rights, if a specific disciplinary offence and/or sanction comes under the autonomous notion of a “criminal” offence. The starting-point for the assessment of the applicability of the criminal aspect of Article 6 of the Convention is based on the criteria outlined in Engel and Others v. the Netherlands (§§ 82-83): classification in domestic law; nature of the offence; severity of the penalty that the person concerned risks incurring.
The first criterion (classification in domestic law) is of relative weight and serves only as a starting-point.
The second and third criterion are alternative and not necessarily cumulative; for Article 6 to be held to be applicable, it suffices that the offence in question should by its nature be regarded as “criminal” from the point of view of the Convention, or that the offence rendered the person liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (Lutz v. Germany, § 55; Öztürk v. Germany, § 54).
There are many different types and forms of disciplinary sanctions and some of them – due to their seriousness – can have a significant impact, especially on high-level athletes who earn their living by competing in their respective sports on a professional level. That being said, as a matter of personal opinion I believe that we cannot overlook those disciplinary proceedings where, given the nature and degree of severity of the offence and of the consequences that can occur, the guarantees of Article 6 § 2 and § 3 of the Convention must also apply, even indirectly (more detailed below). Such disciplinary proceedings can be those regarding an anti-doping rule violation where the athlete’s professional life is at stake. A reprimand or a fine are sanctions of a relative minor weight, while a 4 (or more) year ban can certainly have a significant impact on an athlete’s career and therefore during the disciplinary or arbitration proceedings concerning such sanction, the guarantees of Article 6 § 2 and § 3 of the Convention must be applicable.
The civil nature of the sanctions imposed in sports disciplinary or arbitration proceedings does not exclude per se the applicability of some of the guarantees provided by Art. 6 § 2 and § 3 of the Convention. A sanction can still be seen as a “criminal charge” as opposed to a mere “disciplinary charge of a civil character” if the three main criteria set forth by the European Court of Human Rights are met.
Having considered what was said, one can conclude that the extent to which the guarantees of Article 6 of the Convention apply must be determined in concreto in each disciplinary and arbitration proceeding depending on the particularities of each case.
The applicability of Article 6 § 1 of the European Convention on Human Rights
As already mentioned, under Article 6 § 1 of the Convention everyone is entitled to (i) a fair and public hearing (ii) within a reasonable time (iii) by an independent and impartial tribunal established by law. We will further discuss in more detail if these requirements are met in proceedings followed before both sports disciplinary bodies and arbitration tribunals when dealing with sports-related disputes.
The right to an independent and impartial tribunal
For the purposes of Article 6 § 1 of the Convention a “tribunal” needs not to be a court of law integrated within the standard judicial system of the country concerned. Hence, a “tribunal” may be set up to deal with a specific matter which can be appropriately administered outside the ordinary court system, provided always that it offers the appropriate guarantees which are in place, both substantive and procedural (Rolf Gustafson v. Sweden, § 45; Lithgow and Others v. the United Kingdom, § 201).
A. Sports disciplinary bodies
Sports federations have considerable freedom[11] to set up their disciplinary system, in particular to provide for disciplinary cases to be dealt with by a single body, the ruling of which are not open to appeal within the federation, or they may set up a two-tier procedure, with a first level of jurisdiction and an appeal body. Similarly, sports federations may determine the methods of appointment and/or the number of their disciplinary bodies’ members.
Some federations have incorporated in their statues and/or regulations provisions for their disciplinary bodies to be independent of their other bodies (for example, Article 32 of the UEFA Disciplinary Regulations 2020[12]; Article 94 of the Romanian Football Association’s Statues[13]). Similarly, some federations went further and separated their investigating and adjudicating functions within their disciplinary bodies (exempli gratia, prosecuting officer of the Italian Football Federation; Disciplinary inspector for UEFA).
In anti-doping disciplinary proceedings, the Monitoring Group of the Council of Europe has adopted The Recommendation on ensuring the independence of hearing panels (bodies) and promoting a fair trial in anti-doping cases (T-DO/Rec (2017) 01) through which ”recommends States Parties to the Anti-Doping Convention to establish an independent, impartial and centralized panel (body) apart from the national sport federations, in charge of all hearing proceedings in anti-doping cases”.
However, that is not enough for them to be considered independent and impartial “tribunals” within the meaning of Article 6 § 1 of the Convention, whereas there is not only a functional relationship between the federations and their disciplinary bodies, but also a financial relationship (mainly because the activities of the disciplinary bodies are, in most cases, financed by the federation).
The lack of independence and impartiality of the sports disciplinary bodies is not in itself a problem as long as their decisions are subject to any external review (be it by state court or an independent and impartial arbitration body). In this matter, the Court of Arbitration for Sport held that an exclusion of any external review of disciplinary decisions taken by the judicial organs of an association would be in contradiction with this fundamental right, since internal bodies of federations do not meet the requirements of Article 6 § 1 of the Convention. An (ex ante) exclusion of any external review of disciplinary measures in the rules and regulations of an association would be null and void from a Swiss law perspective (CAS 2012/A/2747, WADA v. Judo Bond Nederland (JBN), § 5.17).
The Court of Arbitration for Sport’s jurisprudence is actually in line with the European Court of Human Rights case law, which underlines that the Convention calls for at least one of the following two systems: either the professional disciplinary bodies themselves comply with the requirements of Article 6 § 1, or they do not so comply but are subject to subsequent review by “a judicial body that has full jurisdiction” and does provide the guarantees of Article 6 § 1 (Albert and Le Compte v. Belgium, § 29; Gautrin and Others v. France, § 57).
B. Sports arbitration tribunals
Most federations provide for all disputes under their regulations to be settled exclusively by way of arbitration rather than to be settled in ordinary courts. Indeed, many provide for a final appeal to the Court of Arbitration for Sport which is now the main center for sports arbitration (for example, art. 55 of the FIFA Statues; art. 58 of the Romanian Football Federation Statues).
The CAS was established in 1984 in Lausanne by the International Olympic Committee with the idea of creating a supreme instance for sports disputes and moving them away from the jurisdiction of national courts. Since the CAS’s creation, the issue of its independence has been hotly debated. In a judgment of 1993 the Swiss Federal Court expressed reservations as to the independence of the CAS in relation to the International Olympic Committee, on account of the structural and economic links between the two institutions. That judgment led to a major reform of the CAS and later the Swiss Federal Tribunal fully acknowledged the latter as an independent tribunal.
Subsequently, in the famous case of Mutu and Pechstein v. Switzerland, the CAS’s status as an independent tribunal has been challenged before the European Court of Human Rights. In this particular matter, the Court held that a distinction must be drawn between voluntary arbitration and compulsory arbitration.
The parties involved in sports disputes have the option to submit to arbitration by means of an arbitration clause inserted in a contract or an arbitration agreement concluded after the dispute has occurred (voluntary arbitration). However, in most cases, opting for arbitration is a result of the inclusion in sports organisation’s statues or regulations of an arbitration clause which applies to all of their members (compulsory arbitration).
Before moving forward with the Court’s analysis in the Mutu and Pechstein case, we must first shortly discuss a peculiar issue regarding the forced arbitration clauses in sports-related disputes – are all of these lawful and valid?
RFC Seraing – a football club in the Belgian Second Division – launched a challenge in the Belgian civil courts arguing that the arbitration clause in FIFA’s statues, which recognizes CAS as an independent judicial authority and prohibits the recourse to ordinary courts of law, was unlawful and invalid. The Brussels Court of Appeal stated that the obligation on football clubs to resolve all disputes exclusively by way of arbitration before CAS (to the exclusion of the ordinary courts’ jurisdiction) was invalid under Belgian law. Undeniably, the potential impact of this judgement is significant since other jurisdictions may follow in the future Belgium’s reasoning.
Going back to the European Court of Human Rights’ ruling in the Mutu and Pechstein case, and assuming that forced arbitration clauses are valid, for determining if the waiver of the benefits of Article 6 is not contrary to the Convention, the distinction drawn between voluntary arbitration and compulsory arbitration is essential.
If arbitration is compulsory, in the sense of being required by law, the parties have no option but to refer their dispute to an arbitral tribunal, which must afford the safeguards secured by Article 6 § 1 of the Convention. However, in the case of voluntary arbitration to which consent has been freely given, no real issue arises under Article 6.
The European Court of Human Rights thus concluded that, even though it had not been imposed by law but by the [sports] regulations, the acceptance of CAS jurisdiction must be regarded as “compulsory” arbitration within the meaning of its case-law. The arbitration proceedings therefore had to afford the safeguards secured by Article 6 § 1 of the Convention.
The Court found that there has been no violation of Article 6 § 1 of the Convention on account of an alleged lack of independence and impartiality on the part of the CAS. However, without going in any further details, we must point out that the Court’s decision was not unanimous and a dissenting opinion was issued together with the Decision.
As some authors considered[14], the CAS may have dodged this first bullet but there could well be others. In order to avoid a fatal blow, it would therefore be wise to proactively acknowledge the limitations of the Pechstein majority ruling and make sure that the system is bulletproof when the next shot is fired.
The right to have one’s case determined within a reasonable time
Under Article 6 § 1 of the Convention [e]veryone is entitled to a […] hearing within a reasonable time […]. The European Court of Human Rights has repeatedly stressed the importance of administering justice without delays which might jeopardize its effectiveness and credibility (Scordino v. Italy (no. 1) [GC], § 224).
Article 6 § 1 of the Convention may also apply to proceedings which, although not judicial in nature, are nonetheless closely linked to supervision by a judicial body such as sports disciplinary and arbitration proceedings.
The reasonableness of the length of the proceedings coming within the scope of Article 6 § 1 of the Convention must be assessed in each case according to the particular circumstances. The whole of the proceedings must be considered. In complex cases such as doping cases, the athlete may need time to obtain evidence (witness statements, expert reports, documents, etc.), and there should be no question in setting short time limits for the sole purpose of expediting the proceedings. At the same time, sports disciplinary and arbitration bodies should ensure that the proceedings are not prolonged indefinitely in cases where an athlete is not provisionally suspended.
In sports arbitration no real issue has arisen regarding the reasonableness of the length of the proceedings since the standard time limits would be regarded by most as being very short.
The right to a fair procedure
The fairness of the procedures holds a prominent place in a democratic society as the European Court of Human Rights has always emphasized (Airey v. Ireland, § 24; Stanev v. Bulgaria [GC], § 231). Undeniably, not only states courts must ensure one’s right to a fair procedure, but also sports disciplinary and arbitration bodies. Whether or not proceedings are fair is determined by examining them in their entirety.
Within the meaning of Article 6 § 1 of the Convention, the right to a fair procedure has many components. For example, the right must be effective, meaning that the observations of the parties are actually “heard”, that is to say duly considered by the “tribunal”. In other words, the “tribunal” has a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties. As well, the parties must have access to the relevant documents. From the CAS’ perspective, applying retroactively a longer statute of limitation to a case that was already time-barred at the time of the entry into force of the new provision is incompatible with a “fair proceeding” and constitutes a violation of Article 6 § 1 of the Convention[15].
The principle of a fair hearing has explicitly been enshrined in the World Anti-doping Code 2021 (article 8.1.).
Public nature of proceedings
The public character of proceedings before the judicial bodies referred to in Article 6 § 1 of the Convention protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society (Judgment 8 December 1983, Pretto and Others v. Italy).
In sports disciplinary proceedings, however, parties are not entitled to a public hearing[16], since these are by definition private. The same applied to sports arbitration proceedings until the issue was raised before the European Court of Human Rights in the Mutu and Pechstein v. Switzerland case, where it was held that there had been a violation of the right to a fair trial on account of the failure to hold a public hearing before the Court of Arbitration for Sport in disciplinary anti-doping proceedings. The Court found that in compulsory arbitration a waiver of the right to a public hearing was not possible and determined that there had been a violation of Article 6 § 1 of the Convention due to the CAS tribunal’s denial of a public hearing although there has been an explicit request in this regard.
In response to this judgment, the Court of Arbitration for Sport adopted the new Article R57 of the CAS Code (in force as from 1st January 2019)[17], that reads as follows: At the hearing, the proceedings take place in camera, unless the parties agree otherwise. At the request of a physical person who is party to the proceedings, a public hearing should be held if the matter is of a disciplinary nature. Such request may however be denied in the interest of morals, public order, national security, where the interests of minors or the protection of the private life of the parties so require, where publicity would prejudice the interests of justice, where the proceedings are exclusively related to questions of law or where a hearing held in first instance was already public.
The Committee of Ministers, which supervises the execution of the final judgements of the Court, pointed out that several areas of the new Article R57 could still be deemed inconsistent with the guarantees of a public hearing under Article 6 § 1 of the Convention such as: (i) the limitation to disciplinary proceedings, since in the Court’s reasoning, the full applicability of Article 6 § 1 is the result of the compulsory nature of CAS arbitration; (ii) the limitation to physical persons, since disciplinary proceedings are not only directed against individuals but also against legal entities.
In order to avoid new potential complaints before the European Court of Human Rights, CAS must either extend the applicability of the new Article R57 or provide with a reasoning proving that the limitations are proportionate from the standpoint of Article 6 § 1 of the Convention.
In addition to those pointed out by the Committee of Ministers, I would also indicate some other several areas of the new Article R57 that could still be deemed inconsistent with the right to a public hearing. Exempli gratia, the fact that the criteria established for the denial of a request to a public hearing are formulated in general terms could create a discretionary power for the CAS in determining their applicability. Likewise, the fact that a hearing held in the first instance was already public should not be a criterion for the denial of such request, since the guarantees of the Article 6 of the European Convention on Human Rights should apply to all steps of the procedure.
Regarding the matter of public hearings, The Recommendation T-DO/Rec (2017) 01 “recommends State Parties to the Anti-doping Convention to (…) Ensure that anti-doping proceedings respect athletes’ right to a fair trial, by implementing the following principles: (…) public nature of the hearing.”
Legal aid
Article 6 § 3 of the Convention guarantees the right to free legal aid in criminal proceedings subject to certain conditions. To the contrary, Article 6 § 1 of the Convention does not require States to provide free legal aid for every dispute relating to a “civil right”. However, as reminded by the European Court of Human Rights, the Convention is intended to safeguard rights which are “practical and effective, in particular the right to access to a court”. Hence, in some cases Article 6 § 1 of the Convention compels the States to provide for assistance of a lawyer when such assistance proves indispensable for an effective access to court (Airey v. Ireland, application no. 6289/73, judgement of 9 October 1979, § 26).
Accordingly, the International Council of Arbitration for Sport (ICAS) has created a legal aid fund to facilitate access to CAS arbitration for individuals without sufficient financial means. However, two main issues may arise some concerns. Firstly, the legal aid may be granted only to natural persons. Article 6 of the Guidelines established by the ICAS (as from 1 November 2020) explicitly provides that legal aid cannot be granted to sports bodies, associations, clubs or to any other legal entities. Secondly, the legal aid is subject to the condition that the claim/appeal/defense has legal basis, which may be seen as an ex ante ruling, although the request for legal aid is not examined by the sole arbitrator/panel, but by the Legal Aid Commission.
Therefore, this limited scope may not be seen as consistent with Article 6 § 1 of the Convention (or indeed Article 6 § 3 of the Convention to the extent that it is applicable based on the severity of the sanction).
As regards to the sports organisations, there seems to be no system of legal aid for disciplinary proceedings conducted by their specialized bodies, in contrast with the proceedings before the CAS. One might wonder whether sports organizations should not in fact introduce a system similar to that adopted by CAS.
Waiving the procedural guarantees under Article 6 § 1 of the European Convention on Human Rights in arbitration
In line with its previous case law, the European Court of Human Rights reiterated that arbitral tribunals are in principle compatible with the “right to a court” under Article 6 § 1 of the Convention. However, the Court distinguished between compulsory (“arbitrage forcé”) and voluntary arbitration, holding that in compulsory arbitration all guarantees provided for in Article 6 § 1 of the Convention must be safeguarded under all circumstances. In contrast, if parties voluntarily consent to arbitration proceedings, those rights may be waived under the condition that this is being done “in a free, lawful and unequivocal manner”[18].
In the vast majority of cases, the parties have no option but to refer their sports-related dispute to an arbitral tribunal, which must afford the safeguards secured by Article 6 § 1 of the Convention. The CAS jurisdiction, as already mentioned, is often provided for by the applicable sports regulations, which means that athletes are “obliged […] to accept the arbitration agreement in order to take part in competitions”. In such cases, a waiver of the procedural guarantees under Article 6 § 1 of the European Convention on Human Rights in arbitration would be inconsistent with the Convention and the European Court of Human Rights case law.
Analogous application of criminal law guarantees under Article 6 of the European Convention for Human Rights
Sports disciplinary proceedings in general and anti-doping proceedings in particular might have to comply also with the specific guarantees of Article 6 § 2 and § 3 of the Convention. Some might wonder: why anti-doping proceedings in particular? The answer derives from the fact that (i) anti-doping sanctions might be significantly more severe – with an athlete’s professional life at stake – and (ii) anti-doping sanctions are applicable to all the athletes around the world, by operation of the World Anti-doping Code, and not only to a restricted group.
The civil nature of the sanctions imposed in sports disciplinary or arbitration proceedings does not exclude per se the applicability of some of the guarantees provided by the criminal limb of Article 6 of the Convention. A sanction can still be seen as a “criminal charge” as opposed to a mere “disciplinary charge of a civil character” if the three main criteria set forth by the European Court of Human Rights are met.
The application of the criminal law guarantees of the Convention in CAS arbitration has been and still is subject to significant debate. The CAS’ perspective in this manner is still inconsistent, since in some arbitration proceedings some of the safeguards provided by Article 6 § 2 and § 3 of the Convention had been applied, such as the privilege against self-incrimination[19], while in others it has been considered that Article 6 § 2 of the Convention is only applicable to criminal proceedings and, therefore, the presumption of innocence is not applicable in sports disciplinary and arbitration proceedings[20].
Other guarantees of Article 6 § 2 and § 3 of the Convention that should be applied, even indirectly, in arbitration proceedings are: the principle nullum poena sine lege, that prohibits the imposition of penalties not expressly provided by the law; the rule nullum crimen sine lege, which means that a person cannot be charged with an offence not specifically provided by the law. As well, the principle ne bis in idem must apply if another disciplinary proceeding is in progress or has already been completed for the same offence.
Conclusions
It may seem that sports disciplinary bodies and arbitration tribunals took advantage of the extraordinary autonomy they have – as a result of the apparent lack of outside intervention by the states – and set up a self-regulated disciplinary system that „serves primarily the smooth organization of sports, while the specific interests of the subjects of their rules, in particular those of the lower level sports organizations and of athletes, are of secondary importance or may fall completely by the way-side”[21].
In this regard, we should all be aware of the fact that power can sometimes be dangerous and can lead, in some cases, to abuse. When it comes to protecting human rights, the guarantees enshrined by the European Convention on Human Rights should represent necessary and efficient means to counteract authoritarian tendencies.
Human rights should represent the core of the disciplinary system set up by the sports governing bodies and in this matter, strengthening the quality of the sports disciplinary and arbitration procedures should be our main focus in the future.
The increase in the number of sports-related cases being brought before, and considered by the European Court of Human Rights in the recent years shows us that we are living in challenging and changing times, and sports governing bodies’ focus should be fighting against any kind of human rights abuse and adapting accordingly.
The European Court of Human Rights has a dynamic interpretation (also referred to by the Court as interpretation “in the light of present day-conditions”), which allows the Court to constantly update its case law and adapt it to current social developments and needs. As result, sports organisations bodies and arbitration tribunals cannot ignore the jurisprudence of the European Court of Human Rights in domains that are of relevance to their work. The activities of the sports federations and arbitration tribunals are already influenced by the case law of the European Court of Human Rights.
In the real world, as lived and experienced by real people, the demand for human rights is reality. The sports disciplinary system, like any other system designed by human beings, clearly has its flaws, but it is in our power to seek to make it right.
Global sports law’s development is the pathway to the future we want for all. It offers a framework to generate growth, achieve justice and strengthen human rights protection. But this requires strong foundations based on a will to ensure equity and justice.
[1] A. Duval, The FIFA Regulations on the Status and Transfer of Players: trans-national law making in the shadow of Bosman, Asser Institute, Asser research paper 2016-06 (2016), p. 25, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2760263 [Accessed 14 March 2021].
[2] Ch. Müller/S. Besson/A. Rigozzi (Eds), New Developments in International Commercial Arbitration 2020, Stämpfli 2020, p. 78.
[3] Case of Mutu and Pechstein vs. Switzerland (applications no. 40575/10 and 67474/10), 2 October 2018, § 56.
[4] TFS, 15 March 1993, Gundel v. FEI, ATF 119 II 271.
[5] CAS 2011/A/2384 Union Cycliste Internationale (UCI) v. Alberto Contador Velasco & Real Federación Española de Ciclismo (RFEC) & CAS 2011/A/2386 World AntiDoping Agency (WADA) v. Alberto Contador Velasco & RFEC, award of 6 February 2012.
[6] Brendan Schwab, Protect, Respect and Remedy: Global Sport and Human Rights, Sweet & Maxwell’s International Sports Law Review, p. 52.
[7] Presumption of innocence; information about the charges; adequate time and facilities to prepare one’s defense; right to defend oneself in person or through a lawyer; assistance of a court-appointed lawyer, where necessary; right to examine or have examined witnesses against one; right to obtain the attendance and examination of witnesses on one’s behalf; assistance of an interpreter, where necessary.
[8] ATF 127 III 429, Abel Xavier v. UEFA; TFS, 4A_370/2007, X v. Association A, SASP B, paragraph 5.3.2.
[9] CAS 2011/A/2433 Amadou Diakite v. FIFA, arbitral award of 8 March 2012, paragraph 58.
[10] Case of Mutu and Pechstein vs. Switzerland (applications no. 40575/10 and 67474/10), 2 October 2018, § 56.
[11] As an exception, in France, sport federations’ freedom to organize is very much restricted by state law, the standard disciplinary regulations enacted by the state requiring, inter alia, that disciplinary bodies have at least five members and that an appeal procedure exists.
[12] The members of the disciplinary bodies and the ethics and disciplinary inspectors are independent and may not belong to any other UEFA organ or committee. They shall not take any measure nor exercise any influence in relation to a matter where a conflict of interest exists, may exist or is perceived to exist. The members of the UEFA disciplinary bodies must sign an official declaration undertaking to exercise their functions in the conditions expressed above
[13] 1. The members of the disciplinary courts shall be independent and shall be subject only to the statutes and the regulations governing their activity. 2. Only members of the courts may take part in the deliberations of the disciplinary courts as well as their secretary. The presence of any other person except those shown above is strictly prohibited. 3. The following may not be members of the disciplinary courts: officials, collaborators and employees of FRF / LPF, observers, officials and employees of FRF affiliated members (clubs, AJF / AMFB) or members of other FRF commissions. In this regard, members of disciplinary courts must complies with the provisions of the Deontological Code of the members of the commissions with jurisdictional attributions within the FRF.
[14] Antonio Rigozzi, Sports Arbitration and the European Convention of Human Rights – Pechstein and beyond, extract from New Developments in International Commercial Arbitration 2020, Stampfli 2020, p. 95.
[15] CAS 2011/A/2384 & 2386 Union Cycliste Internationale (UCI) v. Alberto Contador & Real Federación Española de Ciclismo (RFEC), para. 72 and CAS 2011/A/2433 Amadou Diakite v. FIFA, para. 58.
[16] As an exception, hearings in disciplinary cases before sports federations in France must generally be held in public.
[17] Article R57 of the CAS Code reads as follows: At the hearing, the proceedings take place in camera, unless the parties agree otherwise. At the request of a physical person who is party to the proceedings, a public hearing should be held if the matter is of a disciplinary nature. Such request may however be denied in the interest of morals, public order, national security, where the interests of minors or the protection of the private life of the parties so require, where publicity would prejudice the interests of justice, where the proceedings are exclusively related to questions of law or where a hearing held in first instance was already public.
[18] Eiffage S.A. and others v. Switzerland, application No. 1742/05, judgment of 15 September 2009.
[19] CAS 2017/A/5003, Jérôme Valcke v. FIFA para. 260.
[20] CAS 2013/A/3139 Fenerbahçe SK v. UEFA, para. 90.
[21] Margareta Baddeley, The extraordinary autonomy of sports bodies under Swiss law: lessons to be drawn, published on 20th December 2019, The International Sports Law Journal.
Ruxandra Argăseală, Senior Lawyer PIPEREA ȘI ASOCIAȚII
