The hidden world of the Court of Arbitration for Sport

Caster Semenya. A name that has become synonymous with controversy and behind-closed-doors tribunals and rulings. Since 2009, having won the 800m at the World Championships and been subjected to a ‘sex verification test’, she has been struggling against the IAAF and various other bodies for recognition.

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In the end however, she reached the Court of Arbitration forSport (CAS). She lost and that was it. Subsequent complaints centred not on theCAS but on fundamental unfairness. Indeed, although a nominal appeal isongoing, Semenya herself appears to be preparing for a career outsideathletics, having joined JVW, a women’s football club in South Africa.

FINA’s Doping Panel body is fundamentally flawed - look, itlet Sun Yang compete, despite him destroying a surprise blood sample with ahammer. The IAAF has always been against Semenya. The point is that each ofthese individual processes can be discredited, no matter how much they purportto don a cloak of independence and virtue - they are still in the employ of theprincipal organisation.

Not so the CAS. It stands resolute, a pillar of anonymousand impartial justice, which is, uniquely, beyond reproach. Issues go off tothe court and an ultimate, unimpeachable, verdict is returned - but there is agreat degree of uncertainty as to how and by whom it has been reached.

The concept of a formal ‘sports court’ was only conceived bythe International Olympic Committee (IOC) President Samaranch in the early 1980s.This was in response to a rise in sports-related legal disputes, where the lackof a specialised authority had become increasingly apparent. Formallyestablished in 1984, the first court was led by President Kéba Mbaye, who hadalso chaired the working group which had recommended its formation.

Indeed, as bystanders observed, this close relationship,impugning one of the Court’s most vaunted attributes – its independence,threatened to undermine the Court in the early years. This came to a head inthe Gundel judgment in 1993, wherethe Federal Supreme Court of Switzerland pronounced that for the CAS tomaintain its integrity, greater independence was required. This precipitatedmajor reform of the CAS, the keystone of which was the formation of the InternationalCouncil of Arbitration for Sport , which would take control of the CAS from theIOC, making it definitively independent from the organisation which hadsponsored it from the beginning.

The Council is also responsible for the appointment and supervisionof the approximately 380 arbitrators and mediators who work in the CAS. Thesearbitrators generally preside over cases in three strong panels. Where bothparties agree however, arbitrators can preside alone. Proceedings generallytake place in private, with only two recorded exceptions - Irish swimmerMichelle De Bruin’s failed attempt to overturn her ban for sample tampering in1999 and the upcoming WADA appeal against Sun Yang’s acquittal by FINA.

Although CAS decisions can technically be appealed to theFederal Supreme Court of Switzerland (as Semenya is doing), these appealsrarely succeed and proceed, in the main, as an assessment as to whether legalprocedure has been correctly adhered to. As of 2012, there were 7 successfulappeals, with only one overturned on its own merits. This trend has continuedin recent years. In effect, its decisions are final and cases which have beenfought long and hard through various appeal processes finally rest with theCAS.

The Olympics, near-universally acknowledged as the pinnacleof athletic competition, unsurprisingly gave rise to a huge number of CAScases. Belatedly restored medals are becoming ever more common, as doping andother offences come to light. However while, technically the athlete will benoted as the champion of record, in reality they will have experienced afraction of the wealth, both financial and in emotional experience, of anOlympic win.

In response, recent editions of the ancient grecian games inPyeongchang, Rio and Sochi have seen the establishment of ‘ad hoc’ Courts inthe host city, in the immediate run up and during the games to facilitatespeedy resolutions. Sport cannot wait. The glory of a potential Olympicchampion to be, a unique moment in time, cannot be cast aside by delays inaccessing justice.

CAS decisions can be wide reaching, having an impact both onOlympic medal allocations and those whose dreams are fulfilled by simply takingpart. In 2016 there were some who argued Bertram Allen should take Horse SportIreland to the CAS over their non-selection of him for the Olympic spot whichhis own ranking had earned. Ultimately, any appeal would likely have beenfruitless as the CAS does not assess which of two athletes is better or whichis more likely to win a medal at the Games, focusing instead on proceduralfairness.

Perhaps most infamous of all, is the Semenya case. For herhowever, who once waxed lyrical of the Court’s independence and wisdom andspoke of looking forward to having her case and situation finally respected andaccepted, its decision signalled the ultimate blow. Her buttering up havingfailed, any appeal likely to be token, her case drew international attention tothe oft-mysterious and murky ways of the CAS. Ultimately, despite herprotestations, the sporting world at large has submitted itself to the CAS, andso must she. So must we all.