Introduction
The Court of Arbitration for Sport (the “Court”) is the authoritative body for arbitration in international sports. Based in Lausanne, Switzerland, the Court has ruled on numerous disputes affecting athletes and sports organizations around the world, ranging from player transfers to abuse of referees. Not only is the Court’s impact far-reaching, but its decision-making powers have continuously impacted international law. As the leading arbitration authority in international sports, scores of cases have been presented in front of the Court since its establishment in 1984.
The jurisdiction of the Court of Arbitration for Sport is widely recognized by Olympic International Federations and National Olympic Committees, as well as international governing bodies of various sports. Many of these organizations’ statutes include referrals of disputes to the Court for arbitration needs. The recognition of the Court’s authority in so many governing bodies conveys the power and importance that the Court holds in the context of international law.
Sports have always been known as a unifying force between people all around the world, so the Court’s presence in both law and sport give it an especially unique power. In order to understand the effect the Court has had on international policy and law, one needs to understand the history, formation, and processes of the Court. The first section of this article will explain each of these subjects, and lead into the second section: a discussion of the types of disputes the Court hears. Lastly, the third section will be an in-depth explanatory analysis of some of the Court’s most notable decisions, specifically regarding the various bans on Russia and Russian athletes in international sports, and the reasonings behind those bans, as an illustration of the Court’s international influence. These decisions include Russia’s state-backed doping scandal, Kamila Valieva’s positive drug test at the 2022 Winter Olympic Games in Beijing, and the Russian invasion of Ukraine leading to bans from both UEFA and FIFA.
Section 1
The Court of Arbitration for Sport was created by the IOC to fill a gap in decision-making and dispute resolution in the international sports arena. The International Olympic Committee (IOC) is the head of the Olympic Movement, defined as “the concerted, organized, universal and permanent action, carried out under the supreme authority of the IOC, of all individuals and entities who are inspired by the values of Olympism,” and was created to encourage community and solidarity between nations.[1] Throughout its history, the IOC has pursued its goal of integrity within the role of sports in society. The Court plays a key role in the IOC’s mission.
Juan Antonio Samaranch, the President of the IOC, originated the idea of forming an authority to preside over international sport disputes in 1981.[2] There was a distinct lack of a decision-making figure when it came to settling these types of disputes in the international arena. Samaranch saw the need for an independent, authoritative body to rule over sports-specific issues and began the discussions for creating such an institution. Having a separate but widely recognized arbitral body would allow for quick and cost-effective but binding decisions for any sports-related issues that arose within international sports. Soon after Samaranch announced his idea, a collection of IOC members led by future President of the International Council of Arbitration for Sport, His Excellency Judge Kéba Mbaye, drafted the statutes that would become the Court of Arbitration for Sport once officially ratified in 1984.[3]
At the Court’s inception, the statutes detailed the Court’s procedure for arbitration and the financial structure of the Court. The IOC was solely responsible for any and all operating costs.[4] The Court was not required to be used by any athletes or sports organizations, but was available to any such parties who needed its services.[5] Along with the official ratification of the CAS Statutes of 1984 came some procedural regulations, which governed the Court for the following decade after its creation. These regulations detailed the composition of the Court and the process in which the Court’s members were appointed. The IOC, the International Federations, the National Olympic Committees, and the IOC President were responsible for appointing the sixty members of the Court.[6] The IOC President was specifically responsible for appointing fifteen of these sixty members from outside the organizations previously mentioned.[7] The IOC generally oversaw the running of the Court, including any amendments or modifications to the CAS Statutes, even the proposals of such changes. Before 1994, the Court’s Statutes and regulations only detailed one form of procedure for any of the disputes it ruled on. Most of the cases the Court heard were of a commercial nature until sports federations and organizations adopted one of the Court’s model arbitration clauses. Adopting one of these clauses would allow the Court to begin hearing disputes of a disciplinary nature. The Court also had the ability to take on an advisory role to any sports-related body that wished to utilize it. This process allowed the Court to be presented with a legal question regarding, either directly or indirectly, an issue in sports, and the Court could then provide an opinion. In current times, the Court can still take on an advisory role, but the procedure by which it does so has been amended since the original CAS Statutes of 1984.
In 1994, the Court went through a reformation. Throughout the year, the Court was restructured, creating the two new arbitration divisions still seen in the Court today. These divisions are known as the Ordinary Arbitration Division and the Appeals Arbitration Division, and clarified the distinction between the types of disputes the Court oversaw.[8] The Ordinary Arbitration Division oversees “sole-instance disputes” while the Appeals Arbitration Division oversees disputes arising from the decisions of sports organizations.[9] Also introduced in the same year was the International Council of Arbitration for Sport (ICAS), in charge of the financing and oversight of the Court.[10] This was a shift in the management of the Court as it had previously been under the direction of the IOC, making it one of the more monumental modifications in the Court’s structure. Accompanying the creation of ICAS and the new arbitration divisions in the 1994 Reform was the drafting of the Code of Sports-related Arbitration. The Code includes two sections, the Statutes and the Procedural Rules, and has governed the Court since the Reform to the present day.[11] The Code contains rules for four types of procedures, including the ordinary arbitration procedure, the appeals arbitration procedure, the advisory procedure, and the mediation procedure.[12] All of these modifications were approved in late 1994, establishing the new configuration of the Court to be known as the Paris Agreement.[13]
Understanding the Court’s structure is a key part in recognizing how it has become such an integral part of international law and sports. ICAS is comprised of twenty members, and includes a President and two Vice Presidents. Each Vice President is also the President of one of the two Arbitration Divisions.[14] Both the President and the two Vice Presidents are elected by the council members.[15] The Council’s President also serves as the Court’s President.[16] All members must be well-educated on sports law and arbitration in order to serve on the council, and must sign a declaration promising their objectivity and impartiality once appointed.[17] This declaration also prevents any ICAS member from any involvement in a dispute proceeding in front of the Court.[18]
The Court is composed of at least 150 arbitrators between the two Divisions.[19] Per the Court’s website, there are currently 381 CAS arbitrators, hailing from numerous countries worldwide.[20] Arbitrators are not restricted to ruling solely on the disputes of one Division, and instead may rule on disputes arising under either Division. The President of each Division is responsible for leading the beginning procedures of an arbitration hearing before the panel of one to three arbitrators is selected. This means the Presidents are often responsible for issuing preliminary requests, but once the panel of arbitrators is appointed, the selected arbitrators continue in the President’s stead.[21] Sports organizations propose potential arbitrators to the Council, who then appoint the arbitrators for four-year renewable terms.[22] The Court’s arbitrator appointment process generally reflects the appointment process for ICAS members. Although the sports organizations propose the candidates for appointment, it is the responsibility of the arbitrators to remain impartial and objective in all of their duties. To be a potential candidate for a CAS arbitrator position, the Code requires the candidate to have legal training and the necessary level of competence of issues arising in sports.[23] This is also a reflection of the ICAS member requirements to be well-educated and well-informed. As with most legal positions, CAS arbitrators are held to a high standard of confidentiality, and may not release any information that pertains to the proceedings of a dispute in front of the Court.[24]
In addition to the Divisions of the Court, there are also ad hoc, or “for this special purpose,”[25] divisions for dealing with specific events or issues that occur in international sports. For example, there are ad hoc divisions for each Olympic Games, both summer and winter, as well as ad hoc divisions for various European Football Championships.[26] There are also two decentralized CAS offices, in Sydney, Australia, and New York in the United States. These offices were created by ICAS to better enable parties to access CAS from various places around the world, especially those in North America and Oceania.[27] Although decentralized, these offices are fully competent to conduct any and all procedural acts as done in the main Lausanne CAS office, and are acknowledged as extensions rather than separate offices.[28]
Section 2
Before the Paris Agreement and the 1994 reform of the Court, there was generally only one kind of proceeding the Court would conduct. If a dispute came under the Court’s purview, under the discretion of either party, or of the President of the Court if the President felt the situation surrounding the dispute made it possible, there would first be an attempt at reconciling the parties.[29] If reconciliation was not possible, or if the attempts to reconcile failed, then the parties would begin the process of arbitration.[30] After the Paris Agreement, the Court’s Divisions were able to rule over a myriad of disputes under various types of proceedings as mentioned previously. This change was partially due to not only the growth of the number of disputes brought to the Court, but in response to Elmar Grundel’s appeal of the Court’s decision on Grundel’s appeal for arbitration.[31] Grundel was a professional horse rider who was disqualified, suspended, and fined by the International Equestrian Federation (FEI) after a scandal involving horse doping in 1992.[32] Grundel was unsatisfied with the Court’s ruling on his appeal for arbitration, so he filed an appeal of the Court’s decision with the Swiss Federal Tribunal under the claim that the Court was not an independent and objective body. This allegation was due to the Court’s apparent connection with the FEI, since the FEI included an arbitration clause in its statutes referring disputes to the Court.[33] However, while the Court was held to be unaffiliated with the FEI in regard to its decision-making processes, the Court was shown to have numerous ties to the IOC. These ties led to questions about the Court’s objectivity when it came to matters involving the IOC.[34] As a result, the structure of the Court and its procedures were modified in 1994 to grant it independence as an institution from the IOC, and generally reflects the current structure of the Court today.
Now, disputes may only be referred to the Court if there is an arbitration agreement between the two parties that specifically refers disputes arising between the parties to the Court.[35] As mentioned previously, the Court’s Code has established four types of proceedings. In the arbitration processes, the parties engage in a written proceeding and an oral proceeding.[36] In the mediation process, the parties are in charge of deciding the format of the proceedings.[37] However, if the parties’ choice of process fails, then it is up to the Court’s mediator to decide how the parties will proceed. Disputes that are referred to the Court are generally one of two types: either of a commercial nature or a disciplinary nature.[38]
Commercial disputes are those that include but are not limited to contractual obligations, such as licensing, sponsorships, media rights, and employment, as well as civil liability issues.[39] This type of dispute covers a wide range of issues, from television rights and contractual obligations to player transfers and player injuries that occur on the field. A recent commercial dispute that the Court ruled on was the appeal by the Cardiff City Football Club (CCFC) of a decision made by the Bureau of the FIFA Players’ Status Committee. The appeal centered on the transfer of player Emiliano Sala. Sala passed away in an airplane crash over the English Channel on January 21st, 2019.[40] However, over the few days prior to the crash, the CCFC and Sala’s current team, FC Nantes, had exchanged numerous versions of a player transfer agreement, including the installment amounts of the transfer fee.[41] The Court oversaw the CCFC’s appeal on having to pay FC Nantes the first installment of the transfer fee, equal to six million euros, because the CCFC did not consider Sala’s transfer to be complete before his death. However, the Court did find that the transfer had been completed before Sala’s death and upheld the decision requiring the CCFC’s payment of the first installment.[42] While many of these disputes are incredibly interesting in regard to their effects on international law, the Court’s second type of dispute has taken more of a front seat in the sports world and news media throughout recent years.
The second type of dispute that the Court hears are those of a disciplinary nature. Disciplinary disputes may include cases of violence or abuse between players or against referees, as well as other similar situations.[43] However, most disciplinary disputes that the Court rules on are predominately cases related to doping.[44] The World Anti-Doping Agency (WADA) was established in 1999 as the leader in the international fight against doping in sports.[45] The worldwide mission to promote clean participation in sports led to the creation of the World Anti-Doping Code (WADC), which is now the main resource for anti-doping rules in the Court’s disputes. The WADC, formulated by the Olympic Movement and several national governments, is one of the leading examples of how the decisions and missions of the Court have affected international law. The creation of the WADC came to fruition due to the need of a more standardized set of anti-doping rules and regulations.[46] After the Tour de France doping scandal in 1998, the desire for cohesive, worldwide anti-doping rules skyrocketed.[47]
Article 1 of the WADC defines doping as “…the occurrence of one or more of the anti-doping rule violations set forth in Article 2.1 through Article 2.11 of the Code.”[48] Articles 2.1 through 2.11 detail the various circumstances that are considered violations of the anti-doping rule, including but not limited to: the “Presence of a Prohibited Substance or its Metabolites or Markers in an Athlete’s Sample,” and the “Administration or Attempted Administration by an Athlete or Other Person to any Athlete In-Competition of any Prohibited Substance or Prohibited Method, or Administration or Attempted Administration to any Athlete Out-of-Competition of any Prohibited Substance or any Prohibited Method that is Prohibited Out-of-Competition.”[49] Article 13 of the WADC states that the Court of Arbitration for Sport oversees all international doping-related dispute appeals.[50]
Doping is an issue that has plagued the sports world for decades. It is one of the most serious allegations that an athlete can face, as it affects the integrity and heart of every sport. Doping allegations, whether proven true or not, have a tendency to follow an athlete wherever their career takes them. Doping allegations have affected numerous international sport competitions, including the Olympic Games. Just four short years after the Court was formed, Ben Johnson, an Olympic sprinter from Canada, tested positive for anabolic steroids and was stripped of his gold medal for the 100-meter dash.[51] Samaranch, himself, noted the penalties against Johnson were a sign that “we have won the battle against doping.”[52] However, Johnson’s penalties were not nearly the last time doping was an issue in international sports.
One of the most infamous disputes to come in front of the Court was an important chapter of the Russian doping scandal saga that continues to cast a dark shadow on Russian athletes to this day. The dispute consisted of an appeal of the sanctions against Russia for the state-backed doping program that resulted in the nation’s temporary ban from competing in sports on the international stage. In just a short period of time, the Court soon ruled on another Russian-led appeal against a ban in international sports, this time due to the country’s invasion of neighboring Ukraine.
Section 3
Russia’s actions and the Court’s subsequent decisions on the appeals brought in front of it have led to more countries and organizations ostracizing Russia, whether directly or indirectly. The Court’s stance on these decisions has suggested to other governing bodies that Russia has little support on the world stage, and encouraged them to exclude Russia from their operations. The recent history between Russia and the Court are a perfect example of how arbitration in international sports can affect and be affected by what is going on in international politics and law.
In order to explain the dispute heard by the Court, the events prior to the appeal must be discussed. Beginning in December of 2014, allegations of systemic doping practices within Russia’s governing body for athletics, the All-Russia Athletics Federation, were broadcasted in a documentary on a German television channel.[53] The documentary sparked an investigation by WADA, which created an Independent Commission to spearhead the investigation surrounding corruption, tampering of samples and test results, and the failure to implement anti-doping processes.[54] After the Independent Commission completed its investigation and submitted its findings to WADA, WADA’s Independent Compliance Review Committee endorsed the Independent Commission’s recommendations that RUSADA be found non-compliant and the Moscow Laboratory’s accreditation be suspended.[55] In November of 2015, WADA’s Foundation Board did exactly that.[56]
Within months, new allegations of a state-backed doping program in Russia surfaced on American news media from Dr. Grigory Rodchnekov, the Moscow Laboratory’s former director.[57] WADA once more initiated investigations into doping allegations against Russia, this time appointing a member of the Independent Commission, Professor Richard McLaren, to investigate.[58] Professor McLaren submitted two reports and an Evidence Disclosure Package to WADA. The First McLaren Report was summarized by his three key findings: “1. The Moscow Laboratory operated, for the protection of doped Russian athletes, within a State-dictated failsafe system, described in the report as the Disappearing Positive Methodology. 2. The Sochi Laboratory operated a unique sample swapping methodology to enable doped Russian athletes to compete at the Games. 3. The Ministry of Sport directed, controlled and oversaw the manipulation of athlete’s analytical results or sample swapping, with the active participation and assistance of the FSB, CSP, and both Moscow and Sochi Laboratories.”[59] The “Games” in question were the 2014 Winter Olympics held in Sochi, Russia, where Russia took home not only the most gold medals, but the most medals overall.[60] The First McLaren Report led WADA’s Executive Committee to maintain RUSADA’s non-compliant status and to pursue further investigations into the agency.[61] The Second McLaren Report affirmed the findings of the First McLaren Report, and was submitted with Evidence Disclosure Packages to present WADA with evidence of the athletes believed to be involved in the doping program.[62]
In response to RUSADA’s non-compliance, WADA created a list of conditions that RUSADA had to meet in order to be reinstated as a compliant signatory, or signing party, of the WADC.[63] These conditions were known as the “Roadmap Requirements.”[64] An important condition of the Roadmap Requirements was that all of the information regarding the data and samples from the Moscow Laboratory must be made accessible to the appropriate entities by the Russian government.[65] Throughout the time of the investigations and the period of RUSADA’s non-compliance, the Roadmap Requirements were amended, likely to specifically reference the information that needed to be examined for alleged modifications. Another condition of the Roadmap Requirements that played a significant role in the extended time period prior to RUSADA’s reinstatement was the public recognition of the findings in the two McLaren Reports, including confirming the presence of a state-backed doping program.[66]
During the time of the investigations, the international governing body of track and field known as the International Association of Athletics Federations, banned Russia from its competitions.[67] However, Russian athletes were still allowed to compete in the 2016 Olympic Games held in Rio de Janeiro, outside of track and field events, after the IOC allowed each international sporting federation to decide their own sanctioning methods.[68] Russia still finished fourth overall in medals won, including nineteen gold medals, making up a near third of their 56 medals.[69]
In October 2017, WADA received information from an alleged whistleblower that Russia and RUSADA were turning over fraudulent or incomplete information.[70] The whistleblower’s allegations had once more sparked investigations into Russian athletes and authorities, as well as the Moscow Laboratory. WADA asked for, but did not receive, the samples mentioned in the whistleblower’s allegations. The samples were apparently unable to be sent, per letters sent to WADA from the ROC and RUSADA, because they were the subject of investigations for the state-sponsored doping program.[71] However, as WADA’s request was part of the Roadmap Requirements necessary for RUSADA’s reinstatement, and after further review of the McLaren Reports, the IOC banned Russia from competing at the 2018 Olympic Winter Games in PyeongChang and suspended the Russian Olympic Committee and its president.[72] The Russian Olympic Committee was also fined $15 million USD.[73] The PyeongChang Games marked the beginning of the ban on the Russian flag and national anthem at the Olympic Games, but 168 Russian athletes still competed, just under the name of “Olympic Athletes from Russia.”[74] WADA decided to give Russia and RUSADA another chance with strings attached: RUSADA would be temporarily reinstated with conditions, namely complying with the measures and deadlines instituted by WADA by making the Moscow Laboratory’s data and samples accessible to officials, in September 2018.[75] However, RUSADA missed the deadlines WADA set by not procuring the data requested from the Moscow Laboratory.[76] In addition, two of the Roadmap Requirements still had not been met: the data and samples requirement of the information requested by WADA originally, the public recognition of the First and Second McLaren Reports findings, and the public recognition of the state-backed doping program in Russia.[77] Once more, an investigation by WADA occurred into the missed deadline and alleged that there had been falsified and altered data within the Moscow Laboratory before it was prepared to be accessed by WADA.[78] RUSADA was once more found to be non-compliant, and WADA sought to institute signatory consequences against the agency.[79]
Due to the evidence of non-compliance, not only was a four-year period of consequences imposed on the athletes, government officials and authorities, and athletic staff members involved in the doping program, but the consequences included bans from international sporting events and competitions.[80] Russian government officials would not be allowed to sit as board or committee members of any signatories during this four-year period, nor would any signatories be issued accreditation for any Olympic Games or World Championships held during the period.[81] These government officials included anyone from the president of the Russian Federation to any and all persons that worked for the Russian Investigative Committee, who were in charge of leading the nation’s investigations into corruption within Russia.[82]
A panel of three arbitrators from the Court of Arbitration for Sport ruled on WADA’s allegation that the Russian Anti-Doping Agency (RUSADA) failed to comply with the International Standard for Code Compliance by Signatories (ISCCS) requirement of procuring and delivering authentic data to WADA from the Moscow Anti-Doping Laboratory, whether such a requirement was valid, and if valid, what signatory consequences would be imposed.[83] The hearing lasted only four days, but the impact of the decision was felt worldwide.
One of the most controversial results from the Court’s decision was reducing the four-year ban on Russia to just two years, essentially cutting the punishment period directly in half.[84] This was due to the Court’s examinations of the WADC and the ISCCS, and its determination that while the actions of RUSADA and Russian authorities were serious, there needed to be balance with the punishment of the wrongdoing and the encouragement of future Russian athletes to participate in international sports in a clean manner.[85] In true solidarity with the Court’s original founding principles, and those of the IOC and Olympic Movement, the promotion of integrity and unity in sports was of paramount importance in the Court’s decision to shorten the time period of the ban against Russia.
The Court’s decision was issued on December 17th, 2020: In order for RUSADA to officially reinstated after the two-year period, RUSADA had to fulfill multiple conditions, which includes but is not limited to: RUSADA had to pay an equivalent of $1,270,000 US Dollars to WADA as repayment for the costs WADA incurred in conducting the investigations into the Moscow Laboratory; RUSADA had to investigate any of the cases that included the incomplete or inaccurate data submitted to WADA, as well as submit as much of the correct and complete date RUSADA could find; RUSADA was barred from interfering with any investigations or testing of Russian athletes by other Anti-Doping Organizations; and the Director General of RUSADA had to provide quarterly reports on RUSADA’s compliance to these conditions to WADA, as well as confirming the conditions were not interfered with or violated by any Russian authorities.[86] RUSADA also bore the majority of the costs of the arbitration, being ordered to pay 80% compared to WADA’s 20%.[87] In addition, WADA was to receive a fine of the lesser of either 10% of RUSADA’s 2019 income or the equivalent of $100,000 US Dollars within ninety days of the notification of the arbitration decision.[88]
Although Russia was banned from competing in international sport competitions, many of the nation’s athletes have been permitted to compete, but face numerous restrictions while doing so. The athletes may wear Russian colors on their uniforms, but if a flag is featured, the words “neutral athlete” must be worn as well.[89] Many of these competitions have not seen the Russian flag nor heard the Russian national anthem played when Russian athletes win. For example, Russian athletes have been competing under a different flag. Gone are the notable white, blue, and red horizontal stripes of the Russian flag, as the Russian athletes have been seen carrying a white flag bearing the Olympic rings with flames of white, blue, and red above them.[90] The same design is featured on the athletes’ warmups and hangs over their heads on the medal podiums. When gold medals were won, Tchaikovsky’s Piano Concerto No. 1 played in place of the Russian national anthem.[91] Not even a historical version of the Russian flag has been allowed to be flown or displayed at any of these events, nor has the name of the nation, itself, in any language or format been allowed on the uniforms of the athletes or their support staff in any of the areas officially controlled by the events.[92]
The doping scandal continues to follow Russia and its athletes, even those who were not proven to be associated or involved in the doping program. At the 2022 Winter Olympic Games in Beijing, news flooded the media with reports that 15-year-old women’s figure skater, Kamila Valieva, allegedly had traces of prohibited substances, namely, a banned heart medication, in the sample she provided during the Russian National Championships in December 2021.[93] Rumors circulated of a connection between Valieva’s sample and Russia’s history of doping, especially when RUSADA aimed to lift Valieva’s suspension. The IOC, WADA, and International Skating Union appealed RUSADA’s decision to lift Valieva’s suspension, asking for either a new hearing or an immediate suspension.[94] However, the Court soon rejected each of the applications for appeal, ruling that RUSADA’s decision to lift Valieva’s suspension be upheld, allowing her to continue in the Olympic competitions.[95] The Court held that allowing an investigation to continue into Valieva’s positive test result while she competed at the Olympics would allow Valieva the chance to compete, and potentially win, should the investigation reveal she was not participating in a doping violation.[96] If Valieva was found to have committed a doping violation, whatever medals she may have earned would then be stripped and her placement vacated.[97]
Although the Court suggested Valieva be able to return to competition, many felt skeptical that there were once again doping issues surrounding the Russian athletes. To many spectators and athletes, Valieva’s test results were another sign of Russia’s dishonesty when it came to competing in sports, regardless of the Court’s ruling on Valieva’s case. Valieva performed wonderfully in the team figure skating event, leading her and her teammates to hopefully receive gold medals, all dependent on the resolution of her doping case. As of October 2022, Valieva’s doping case has not yet concluded, and the medals for the team figure skating event have yet to be awarded.[98] The Russian Olympic Committee athletes still put up a fight and came home with 71 medals, 20 of which were gold.[99]
RUSADA’s appeal was not the last time a ban on Russia was the subject of a dispute in front of the Court. With the recent Russian invasion of Ukraine, numerous sports organizations banned Russian teams and athletes from participating in their competitions. These bans have resulted in uproar from Russian sports organizations, teams, athletes, and even politicians. Most notably, in March 2022, the Union of European Football Associations (UEFA) and the International Federation of Football Associations (FIFA) announced their decisions to ban all Russian national and club teams from competition.[100] Unsurprisingly, The Football Union of Russia, as well as some Russian clubs, appealed the bans to the Court.
In the appeal against FIFA’s ban of Russian teams, FUR detailed the harm it felt the Russian athletes and teams would face if they were not allowed to compete in matches, nor the FIFA World Cup or Women’s World Cup.[101] These competitions are arguably the most elite and paramount sporting events in the world, so FUR relied on not only the monetary harm that these teams would incur if they were not able to compete due to the potential losses of sponsorship deals, but the emotional toll some of the athletes would face if they were near the ends of their careers.[102] Many of these same concerns were addressed in FUR’s appeal against UEFA’s ban, as well as the probable loss in the teams’ rankings amongst the opposing teams.[103]
Although FUR’s appeals felt reminiscent of RUSADA’s, the outcomes were quite different. The Court dismissed the appeals, upholding UEFA and FIFA’s bans on the Russian teams and athletes.[104] The Court felt that although Russian athletes may in fact face substantial harm from being taken out of and banned from these competitions, and losing team rankings as well, FUR and its co-appellants did not sufficiently demonstrate that these interests would prevail over the interests of the opposing bodies.[105] On the balancing of these interests, the Court felt that UEFA and FIFA’s duties to maintain the integrity of the competitions outweighed FUR’s arguments of harm.[106] UEFA and FIFA detailed the costs, both financially and organizationally, of reinstating the Russian teams, which the Court felt significantly outweighed FUR’s interests in remaining in the competitions. UEFA’s main counterpoints included its interest in maintaining security for its shareholders, as the organizing entity of the FIFA World Cups’ qualifying matches.[107] Many teams that make up UEFA publicly declared they would not participate in matches against Russian teams, and many nations suggested they would not be willing to host matches featuring Russian teams.[108] UEFA felt, and the Court agreed, that this meant including Russian teams would significantly affect the structure and integrity of the World Cup and its preliminary events to such a degree that it would disrupt the competition and its competitors more so than the exclusion of Russian teams would.[109] On the other hand, FIFA’s counterarguments involved the enhanced security measures that would likely need to be instituted at official events due to the increasing fervor against Russia’s actions against Ukraine, and the fact that no team has a guaranteed spot in the World Cup, meaning that Russia’s exclusion from the matches did not necessarily prevent it from competing in the championship event.[110] Every team had to participate in the qualifying rounds, and there was no assurance that Russian teams would make it past the first round, let alone make it to the final match. The Court agreed, which negated much of FUR’s arguments surrounding the losses Russian teams would incur from not competing in the World Cup.[111]
Since the Court’s ruling on the UEFA and FIFA bans, Russian sports organizations have filed more appeals to be heard in front of the Court, as more and more organizations have followed the soccer leagues’ leads and banned Russian participation in competitions. The Court’s current docket shows appeals involving gymnastics, rowing, figure skating, biathlon, and rugby.[112] The Russian Olympic Committee will also appeal a decision arising from the European Olympic Committees as well.[113] As the Russian-Ukrainian conflict wears on, more and more sport federations will likely take similar stances on banning Russia, and the Russian organizations will likely file more appeals.
The IOC also issued a recommendation to ban all Russian athletes from participating in international sport competitions.[114] This news came among similar calls from athletes worldwide who were taking a stand against the Russian invasion. In the interest of maintaining its current standard of allowing each of the international sport organizations to conduct their own decision-making into their sanctioning, as well as discouraging the support or indifference towards Russia’s actions, the IOC recommended that sporting events should not be hosted or organized in Russia, nor its ally, the neighboring Belarus.[115] With this recommendation also came the IOC’s decision to withdraw Russian President Vladimir Putin’s Olympic Order award, as well as those of any other Russian Federation government authorities.[116] The Olympic Order is an award granted by the IOC for the recognition of “an individual who has illustrated the Olympic ideal through his/her action, has achieved remarkable merit in the sporting world, or has rendered outstanding services to the Olympic cause, either through his own personal achievement or his contribution to the development of sport.”[117]
Since the banning of Russia from numerous international competitions, many Russian athletes have considered changing their nationalities in order to be able to participate in these sporting events. Natela Dzalamidze, a Russian tennis player, changed her nationality to Georgia a week before the Wimbledon tournament in June 2022.[118] Dzalamidze already had dual citizenship in Georgia, as well as a Georgian passport.[119] Cyclist Pavel Sivakov changed his nationality from Russia to France after the Russian invasion of Ukraine.[120] Sivakov would still have been able to compete as a neutral cyclist under the Union Cycliste Internationale, the international governing body for cycling.[121] However, Sivakov felt so strongly against the invasion of Ukraine, he still switched his nationality.
In response to Russian athletes switching their nationalities, there have been calls in Russia for such athletes to be considered treasonous against Russia.[122] Russian politician Roman Teryushkov has spearheaded this proposal, but it is questionable whether the proposal will gain much traction.[123] Due to the conditions of news media in the country, it is difficult to ascertain rumors from truth regarding the current status of Teryushkov’s proposal, however rumors have circulated that another component of the politician’s proposal is the removal of Russia from the Court’s jurisdiction.[124] However, if true, this would likely prevent Russian teams from being able to participate in international sports competitions, as many of the international governing bodies for sports include reference to the Court’s jurisdiction of arbitration matters in their statutes and regulations.
In addition to the number of sports organizations announcing bans on Russia and its teams in their competitions, nations around the world have continued enacting their own sanctions against Russia as it continues to use military force against Ukraine. As of October 2022, the European Union has agreed to its eighth package of sanctions to enact against Russia, including new import bans, export restrictions, and the beginning plans for an oil price cap.[125] In addition, the EU has also chosen to sanction business entities and individuals who have been known to be involved with Russia’s invasion and occupation of Ukraine, including high-ranking authorities and military officials, as well as those who are financially supporting the Russian armed forces.[126] Evidently, these sanctions are not all due to the actions of UEFA, FIFA, or even the Court itself, but it can be argued that more and more organizations, nations, and the like may feel more comfortable or reassured in repudiating Russia.
Conclusion
The Court’s historical decisions involving Russia and its sports organizations are a prime example of how the Court has helped shape international law and policy, through its past with the WADC as well as its present with the invasion of Ukraine. Not only has the Court’s decisions influenced other sport organizations as well as nations around the world to follow in the IOC, UEFA, and FIFA’s leads in taking a stand against Russia’s show of brute force, but these decisions have helped shed light on the dishonesty and corruption that has plagued the sports world for decades. Even before Russia’s invasion of Ukraine, people worldwide, including athletes, have voiced their skepticism of Russian athletes and teams playing “cleanly.” The world previously saw how a doping scandal in the 1990s paved the way for a standardized set of anti-doping rules and the Court’s jurisdiction over such disputes, so it is likely to say that another sports scandal could see growth and movement in the Court’s jurisdiction once more.
Meanwhile, as the Court begins to hear more of the disputes regarding Russia’s ban from many international sports, it will be interesting to see the effect those decisions will bring as well. With regards to Russia, the question remains whether its athletes and teams will return to participate in international competitions, and when said return will occur. As the conflict between Russia and Ukraine wages on, Russia’s exclusion does not seem to be ending anytime soon. Furthermore, the continuous doping scandals plaguing Russian athletes only adds fuel to the fire that is the distrust and skepticism of Russian athletes in sports. If a country cannot be deemed to play fair in sports, even to the knowledge and acceptance of its government, it would not be an unexpected prediction to assume the country would not play fair in other aspects of international relationships.
As enthralling as the ban on Russian sports may be, the Court’s decisions regarding Russia are far from its first monumental rulings. After its inception in the 1980s, the Court has ruled on numerous disputes on various issues. Throughout its tenure as the arbitration authority in international sports, the Court has seen the repercussions of international conflict and misconduct through the disputes presented to it. In the analysis of how international sports affect international law, the Court of Arbitration for Sport takes center stage. Through each of the Court’s decisions, another step is taken toward amending, adopting, or reforming international law in some shape or form. Although the situation surrounding Russia is just the most recent, captivating example of how the Court can affect international law, it will be far from the last time the world is changed by a ruling in sports.
[1] Olympic Movement, https://olympics.com/ioc/olympic-movement#:~:text=The%20goal%20of%20the%20Olympic,and%20recognition%20by%20the%20IOC.
[2] History of the CAS – Court of Arbitration for Sport: Origins, https://www.tas-cas.org/en/general-information/history-of-the-cas.html
[3] Id.
[4] Id. at Organization of the CAS from its creation until 1994.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at The 1994 reform.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at The Paris Agreement.
[14] Id. at Organization and structure of the ICAS and CAS.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] CAS – List of CAS Arbitrators by Nationality (381), https://www.tas-cas.org/en/arbitration/liste-des-arbitres-liste-generale.html
[21] History of the CAS – Court of Arbitration for Sport.
[22] Id.
[23] Id.
[24] Id.
[25] Black’s Law Dictionary
[26] Id. at The decentralized CAS offices and the ad hoc divisions.
[27] Id.
[28] Id.
[29] Id. at Organization and structure of the ICAS and CAS.
[30] Id.
[31] Id. at The 1994 reform.
[32] Id.
[33] Id.
[34] Id.
[35] Id. at Types of disputes submitted to the CAS.
[36] Id. at Organization and structure of the ICAS and CAS.
[37] Id.
[38] Id. Types of disputes submitted to the CAS.
[39] Id.
[40] Cardiff City Football Club Limited v. SASP Football Club de Nantes, CAS 2019/A/6594 (August 26, 2022), Section II, para. 4.
[41] Id. at Section II, para. 6.
[42] Id. at Section XI, para. 388-389.
[43] History of the CAS – Court of Arbitration for Sport: Types of disputes submitted to the CAS.
[44] Id.
[45] ARTICLE “Sports Law”: Implications for the Development of International, Comparative, and National Law and Global Dispute Resolution, 85 Tul. L. Rev. 269 (275-276).
[46] Id.
[47] Id.
[48] World Anti-Doping Code, Art. 1. Pg. 19.
[49] World Anti-Doping Code, Art. 2, Sections 2.1-2.11, Pgs. 19-26.
[50] World Anti-Doping Code, Art. 13.
[51] Staff and AP, Doping at the Olympics: The Most Famous Cases, NBC NY., Feb. 10, 2022, https://www.nbcnewyork.com/news/sports/beijing-winter-olympics/doping-at-the-olympics-the-most-infamous-cases/3546126/
[52] Staff and AP, Doping at the Olympics: The Most Famous Cases, NBC NY., Feb. 10, 2022, https://www.nbcnewyork.com/news/sports/beijing-winter-olympics/doping-at-the-olympics-the-most-infamous-cases/3546126/
[53] World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), Arbitration CAS 2020/O/6689 (Dec. 17, 2020), Section II, para. 24.
[54] Id. at Section II, para. 25.
[55] Id. at Section II, para. 25-28.
[56] Id. at Section II, para. 28.
[57] Id. at Section II, para. 29.
[58] Id. at Section II, para. 30.
[59] Id. at Section II, para. 31.
[60] 2014 Winter Olympic – Medal Tracker, https://www.espn.com/olympics/winter/2014/medals
[61] World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), at Section II, para. 34.
[62] Id. at Section II, para. 35-36.
[63] Id. at Section II, para. 37-38.
[64] Id.
[65] Id.
[66] Id. at Section II, para. 47.
[67] Ava Wallace & Emily Gambalvo, A timeline of Russia’s state-sponsored Olympic doping scandal, Washington Post, Feb. 11, 2022, https://www.washingtonpost.com/sports/olympics/2022/02/11/russia-olympics-doping-scandal/
[68] Id.
[69] Rio 2016 Medal Table, https://olympics.com/en/olympic-games/rio-2016/medals
[70] Ava Wallace & Emily Gambalvo, A timeline of Russia’s state-sponsored Olympic doping scandal, Washington Post, Feb. 11, 2022, https://www.washingtonpost.com/sports/olympics/2022/02/11/russia-olympics-doping-scandal/
[71] World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), at Section II, para. 37- 44.
[72] Id. at Section II, para. 44-45.
[73] Id.
[74] Ava Wallace & Emily Gambalvo, A timeline of Russia’s state-sponsored Olympic doping scandal, Washington Post, Feb. 11, 2022, https://www.washingtonpost.com/sports/olympics/2022/02/11/russia-olympics-doping-scandal/
[75] World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), at Section II, para. 48-51.
[76] Id. at Section II, para. 52-55.
[77] Id. Section II, para. 47.
[78] Id. at Section II, para. 52-69.
[79] Id. at Section II, para. 64-65.
[80] Id. at Section IV, para. 122-124.
[81] Id.
[82] Id.
[83] Id. at Section I, para. 17.
[84] MEDIA RELEASE: World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), December 17, 2020, pg. 2.
[85] Id. at pg. 1.
[86] World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), at pg. 184-189.
[87] MEDIA RELEASE: World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), at pg. 5.
[88] Id.
[89] World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), at pg. 187.
[90] Ava Wallace & Emily Gambalvo, A timeline of Russia’s state-sponsored Olympic doping scandal, Washington Post, Feb. 11, 2022, https://www.washingtonpost.com/sports/olympics/2022/02/11/russia-olympics-doping-scandal/
[91] Id.
[92] World Anti-Doping Agency (WADA) v. Russian Anti-Doping Agency (RUSADA), at pg. 187.
[93] Juliet Macur, Kamila Valieva, Supernova, New York Times, Aug. 17, 2022, https://www.nytimes.com/2022/08/17/sports/olympics/fame-kamila-valieva-figure-skating.html
[94] International Olympic Committee, et al. v. Russian Anti-Doping Agency, et al., CAS OG 22/08 -CAS OG 22/09 -CAS OG 22/10 (Feb. 17, 2022), at Section VI, para. 55-96.
[95] Id. at Section XI, para. 226.
[96] Id. at Section X, para. 217.
[97] Id.
[98] Juliet Macur, Kamila Valieva, Supernova, New York Times, Aug. 17, 2022, https://www.nytimes.com/2022/08/17/sports/olympics/fame-kamila-valieva-figure-skating.html
[99] Beijing 2022 Medal Table, https://olympics.com/en/olympic-games/beijing-2022/medals
[100] Football Union of Russia (FUR) v. Union of European Football Associations et al., CAS 2022/A/8709 (Apr. 8, 2022), at Section II, para. 20; Football Union of Russia (FUR) v. Union of European Football Associations et al., CAS 2022/A/8709 (Apr. 8, 2022), at Section II, para. 23.
[101] Football Union of Russia (FUR) v. Fédération Internationale de Football Association (FIFA) et al., at Section IV, para. 34-39.
[102] Football Union of Russia (FUR) v. Union of European Football Associations et al., at Section IV, para. 28.
[103] Id. at Section IV, para. 28-38.
[104] Football Union of Russia (FUR) v. Union of European Football Associations et al., at Section VII, para. 66-89; Football Union of Russia (FUR) v. Union of European Football Associations et al., at Section VII, para. 80-108.
[105] Id.
[106] Id.
[107] Football Union of Russia (FUR) v. Union of European Football Associations et al., at Section VII, para. 83-85.
[108] Id. at Section VII, para. 84-86.
[109] Id.
[110] Football Union of Russia (FUR) v. Fédération Internationale de Football Association (FIFA) et al., at Section VII, para. 93-106.
[111] Id.
[112] CAS Latest News – List of Hearings, October 10, 2022, https://www.tas-cas.org/en/media/latest-news/article/list-of-hearings-4.html
[113] CAS Latest News – List of Hearings, October 10, 2022
[114] Manasi Pathak, IOC recommends banning Russian, Belarusian athletes from international events, Reuters, February 28, 2022, https://www.reuters.com/lifestyle/sports/ioc-recommends-banning-russian-belarusian-athletes-international-events-2022-02-28/#:~:text=The%20IOC%20also%20strongly%20urged,neutral%20athletes%20or%20neutral%20teams
[115] Id.
[116] Id.
[117] The IOC Awards the Olympic Order to Alberto Tomba, IOC, April 5th, 2000, https://olympics.com/ioc/news/the-ioc-awards-the-olympic-order-to-alberto-tomba
[118] Rachel Hosie, A Russian tennis player changed her nationality to Georgian so she can compete in Wimbledon, Insider, June 20, 2022, https://www.insider.com/russia-tennis-player-natela-dzalamidze-changes-nationality-wimbledon-olympics-2022-6
[119] Id.
[120] Pavel Sivakov changes nationality from Russian to French, BBC Sport, March 4, 2022, https://www.bbc.com/sport/cycling/60614983
[121] Id.
[122] Kremlin comments on treason calls for athletes who change nationality, RT News, July 18, 2022, https://www.rt.com/sport/559154-dmity-peskov-reaction-athletes-treason/
[123] Id.
[124] Riley Overend, Russian Bills Seeks to Criminalize CAS Sanctions, SwimSwam, May 18, 2022, https://swimswam.com/russia-bill-seeks-to-criminalize-cas-sanctions/
[125] Press Release, Ukraine: EU agrees on eighth package of sanctions against Russia, EU Commission, October 6, 2022, https://ec.europa.eu/commission/presscorner/detail/en/ip_22_5989
[126] Id.