A Race Against Time: The Role of Emergency Arbitration in International Sports
Photo Credits: Court of Arbitration for Sport (CAS)' (Universidad Europea) https://universidadeuropea.com/en/blog/court-of-arbitration-sport/
Consider the following scenario:
Just days before one of the most decisive matches of your career, an over-zealous member of your support staff jeopardises it all by deploying invasive surveillance tactics on the opposing team. A drone is flown over the opponent’s training session in an attempt to gain potentially game-changing insights into their strategy. The drone operator, a member of your team, is caught, and you are penalised six points in the tournament, detrimentally impacting your standing. You require urgent relief to overturn this penalty and restore your competitiveness in the competition.
Photo Credits: DroneXL ‘Drone Olympics in Canada: Allegations of Spying on Soccer Matches’ (DroneXL, 24 July 2024)
You consider the following potential recourses:
1. Request urgent measures from a court
Several complications, however, arise. The complexities surrounding the governing authorities’ guidelines on fair play and competitive integrity may overwhelm a national court judge who has had insufficient time to familiarise themselves with the matter. Additionally, concerns regarding impartiality may emerge, particularly if national bias influences proceedings- an issue that could be exacerbated if your team is from another country.[1] The courts have already recognised that sporting bodies should be afforded “as free a hand as possible, consistent with the fundamental requirements of fairness.”[2] National courts are often ill-equipped to provide immediate relief within the narrow timeframes required for fast-paced tournaments, making them unsuitable for resolving such urgent matters. Furthermore, the unattractive procedural route, combined with the possibility of appeals, may lead to delays that prevent a timely solution. For your team to proceed in the tournament without uncertainty over eligibility, achieving finality is crucial.
2. Commence arbitration
Given the fundamental role of an independent dispute mechanism in maintaining the legitimacy of sport as a self-regulating industry,[3] you may turn to arbitration. However, arbitration proceedings can only commence once the tribunal is constituted, and time remains a significant concern;[4] the cooperation between disputing parties and challenges to nominated arbitrators are possible impediments to a swift process. Even under ideal circumstances, the confirmation of an arbitral tribunal may take several weeks or months.[5] To your team’s dismay, an ensuing waiting period of uncertain duration may render the sought measures redundant. If the tribunal is not finalised before the competition concludes, the penalty will have already affected the outcome of the tournament. Therefore, urgent interim measures are fundamentally incompatible with the time required to establish an arbitral tribunal.
3. Alternative procedures
Prominent alternatives for obtaining urgent relief include pre-arbitral referee procedures,[6] dispute boards,[7] and expedited tribunal formation.[8] However, the first two options are only available if explicitly agreed upon by the parties.[9] While expedited tribunal formation may reduce the waiting period for tribunal constitution, it is unlikely to fully alleviate the issues caused by delays in applying for urgent relief. Although such procedures may slightly accelerate the tribunal’s decision-making process, the time required will almost certainly be too slow to secure the urgent relief required.
Evidently, these three options for obtaining urgent relief fail to provide an effective means of addressing disputes requiring immediate resolution while remaining within the arbitration framework. So, what can your team do now?
Photo Credit: Vibrant Olympic Games Action: High-Contrast Sports Photography' (Easy-Peasy.AI)
The above scenario mirrors a real case during the 2024 Paris Olympics involving the Canadian women's football team. The team faced disciplinary action from FIFA, a six-point penalty, just before a decisive Olympic match.[10] The Canadian Olympic Committee and Canada Soccer promptly filed an appeal to the Court of Arbitration of Sport (CAS), seeking interim relief.[11] Within hours of receiving the application, CAS appointed an emergency arbitrator, who was tasked with evaluating the urgency and merit of the request.[12]
The timeline unfolded quickly:[13]
Day 1: The appeal was filed, and CAS acknowledged the urgent nature of the request.
Day 2: CAS appointed an emergency arbitrator within 24 hours, allowing the process to proceed without delay.
Day 3-4: The arbitrator reviewed the case, evaluated the evidence provided, and issued a temporary ruling, suspending the penalty. This allowed the Canadian team to compete without the point deduction while the primary issue was addressed.[14]
So follows the rationale for emergency arbitration.
This expedited timeline showcases how CAS can provide athletes and teams with a near-immediate forum for cases demanding urgent relief. When teams, such as in the example cited above, face immediate challenges that could impact their participation in high-stakes competitions, CAS emergency procedures step in to prevent national biases or procedural bottlenecks from obstructing impartiality. In this case, CAS delivered an immediate, legally binding decision that clarified Canada’s standings, which upheld the tournament’s and ensured compliance with FIFA rules.[15] The Olympic Games, with their tightly synchronised global events, highlight the need for rapid dispute resolution to avoid disruptions to the competition structure.
Photo Credits: OpenAI DALL·E, 'Olympic Games Scene with Vibrant Lighting and Sports Action' (16 November 2024)
Emergency arbitration (EA), created by the 1990 ICC Pre-Arbitral Referee Rules as a distinct set of rules from the ordinary ICC arbitration rules, allows parties to request immediate relief during the tribunal formation period.[16] Unlike summary proceedings, emergency arbitration grants only temporary relief to prevent irreversible harm or maintain the status quo before the tribunal is constituted.[17] This process, which bypasses courts and ensures that arbitration remains the primary forum for resolving disputes, has proven critical in fast-paced sports contexts. The nature of sports requires that the envisaged dispute resolution system be rapid. This continues to be a crucial element, particularly when it comes to disciplinary and eligibility decisions where it is neither possible nor desirable for an athlete to wait months before knowing the outcome of their case.[18]
The CAS ad hoc division at the Olympics is an instance of emergency arbitration’s effectiveness, providing timely rulings tailored to the stakes of the competition. Starting with the 1996 Summer Olympic Games in Atlanta, the International Olympic Committee requested the CAS to constitute an ad hoc division of a selected number of arbitrators to go on-site and adjudicate disputes according to a very expedited arbitration procedure.[19] Since then, a so-called CAS ad hoc division has been put in place for every Olympic Games.[20] The significance of the role of the CAS's ad hoc decisions for the Olympics has become evident through the work of the earliest ad hoc divisions, which earned a solid reputation for their expertise, fairness and expeditious decision-making.[21] Interestingly, there is now a Basketball Arbitral Tribunal (BAT), established in 2006, with the specific aim of offering a mechanism for the resolution of contractual disputes arising in the world of basketball.[22] Emergency Arbitration remains an evolving feature in the realm of arbitral institutions, raising intriguing possibilities for the development of new tribunals in the future.
CAS established its emergency arbitration mechanism specifically to handle urgent cases with efficiency.[23] In situations demanding immediate action, CAS can appoint an emergency arbitrator within 24 hours of receiving a request, a key feature that distinguishes this procedure from standard arbitration timelines.[24] This accelerated appointment is crucial, as it enables the emergency arbitrator to swiftly address applications for interim measures, such as staying penalties, ensuring that the team can continue competing while the primary dispute is pending.[25]
Once appointed, the emergency arbitrator has the authority to evaluate applications for preliminary relief, based on a prima facie review of evidence.[26] Unlike standard arbitration, which may involve lengthy evidentiary submissions and witness testimonies, emergency arbitration requires only initial, sufficient evidence demonstrating the necessity of urgent action.[27] This ‘prima facie’ standard streamlines the process, enabling decisions based on credible preliminary findings rather than exhaustive arguments.
A party in need of urgent relief, yet unable or unwilling to seek it outside the realm of arbitration, faces what has been termed the “temporal problem”[28] or the “unfortunate gap.”[29] This gap, first described by Jason Fry as a pressing obstacle in arbitration,[30] underscores the challenge of achieving swift interim decisions without waiting for a full tribunal to form. The problem is exacerbated in competitive sports settings, where schedules are often inflexible. Emergency arbitration has emerged as a crucial mechanism to alleviate the temporal gap by creating a procedural bridge for immediate relief.[31] Indeed, speed is one of the main aspects that throws a party to request emergency arbitration and not local courts. An arbitration institution appoints the emergency arbitrator in a short time frame, usually 24 or 48 hours after the request, and decisions are usually rendered in 72 hours.[32] Case managers work restlessly upon an EA request.[33]
Photo Credit: ICC Emergency Arbitration' (Aceris Law LLC) https://www.acerislaw.com/icc-emergency-arbitration/
However, when considering EA as an alternative route to urgent relief, there appear to be two key reasons that a party should proceed with caution.
Firstly, the success rate for applicants in EA proceedings is modest. In the first 69 ICC emergency arbitrations in which an order was made, applicants only obtained partial or full relief in 23 cases.[34] This reflects the high threshold a party must satisfy to obtain interim relief. According to CAS law, the criteria for successful provisional measures are: 1) the party seeking such relief would suffer irreparable harm if the relief were not granted, 2) the party has a likelihood of success on the merits of the appeal, and 3) the interests of the appellant outweigh those of the other party.[35]The stringent criteria for obtaining interim relief often limit EA’s effectiveness. Statistics reveal the modest success rates in EA; only 33% of ICC cases granted partial or full relief in their initial findings.[36] This only serves to indicate the evidentiary and procedural challenges in obtaining urgent relief.
Secondly, enforceability remains a significant challenge. Not all jurisdictions recognise emergency arbitration orders, which can create complications when athletes require relief outside of CAS’ primary domain. Settling this is important. A recent survey revealed that the ability to enforce decisions of emergency arbitrators or interim measures ordered by the tribunals would make seats more attractive to 39% of the users.[37] Article 29(2) of the ICC rules declares that the emergency arbitrator’s decision shall take the form of an order.[38] Some jurisdictions may deny the recognition of the decision by not having the form of an award. One reason for the ICC approach is that pursuing Article 34, which ensures the enforceability of an award, must undergo the ICC Court’s scrutiny.[39] In contrast, an order does not. This challenge to the EA’s decision on enforceability still needs to be addressed in most jurisdictions.
For instance, certain national courts, particularly in France, have been hesitant to enforce emergency arbitration decisions from CAS.[40] French courts are more formal and usually refuse to enforce an arbitrator’s decision because it is not an award.[41] The Cour de Cassation considers an order to be a decision of an arbitral tribunal which finally settles the underlying dispute, whereas an interim measure is by its nature, subject to modification, termination, or annulment.[42]Conversely, US Courts adopt a more flexible approach and recognise EA decisions as enforceable awards.[43] Recently, the High Court of the Republic of Singapore held that an interim award by a foreign emergency arbitrator is enforceable.[44] Uncertainty appears to be slowly evaporating. Several jurisdictions have since amended their arbitration laws to provide for the enforcement of emergency arbitrator decisions expressly, and several courts have enforced emergency arbitrator decisions even absent an express statutory basis.[45] This divergence in approach can therefore be seen to be gradually narrowing as jurisdictions increasingly embrace the enforceability of EA decisions, reflecting its growing role in resolving significant disputes.[46] [47][SL2]
Fanny Schertzer, 'The Castle of Béthusy, Headquarters of the Court of Arbitration for Sport in Lausanne, Switzerland' (Own work, Wikimedia Commons, 17 September 2012) https://commons.wikimedia.org/wiki/File:Court_of_Arbitration_for_Sport_-_Lausanne_2.jpg
On the whole, it can be said that EA is a procedure which reflects the basic contents of the rule of law. EA has improved the accessibility of the law by enabling pre-tribunal interim relief to be obtained where it could not be otherwise obtained. By serving as a vital tool for international arbitration users to obtain urgent relief, emergency arbitration will continue to promote and uphold the rule of law on a global scale.[48] As EA evolves, its significance in international dispute resolution will undoubtedly grow.[49] To ensure its seamless application worldwide, stakeholders in sports and arbitration must prioritise resolving enforceability challenges and further refining its framework.
REFERENCES AND SOURCES:
[1] Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781 (HL), para 38.
[2] Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, para 78.
[3] T R Tyler, 'Procedural Justice' in J D Lieberman and D A Krauss (eds), Jury Psychology: Social Aspects of Trial Processes: Psychology in the Courtroom, vol 1 (Ashgate Publishing 2009) 25
[4] ICC Arbitration Rules 2021, art 28(1)
[6] ICC Pre-Arbitral Referee Rules (1990)
[7] ICC Dispute Board Rules
[8] London Court of International Arbitration (LCIA) Rules, art 9A
[9] FIDIC Red Book (2017), Clause 20.2
[10] FIFA Appeal Committee, 'Decision on the Canadian Soccer Association and Its Officials' (Inside FIFA) (27 July 2024) https://inside.fifa.com/legal/judicial-bodies/news/fifa-appeal-committee-decision-on-the-canadian-soccer-association-and-its-officials
[11] Court of Arbitration for Sport, Award OG24-09 (7 August 2024) https://www.tas-cas.org/fileadmin/user_upload/CAS_AHD_Award_OG24-09__for_publication_.pdf, , para 21
[12]Ibid para 23
[13] Ibid section III
[14] Court of Arbitration for Sport, 'Media Release: Paris OG Decision OG 9' (31 July) https://www.tas-cas.org/fileadmin/user_upload/CAS_Media_Release_ParisOG_decision_OG_9.pdf
[15] Ibid
[16] 1990 ICC Pre-Arbitral Referee Rules, Art 4
[17] ICC Arbitration Rules (2021) Article 29(1) and Appendix v (Emergency Arbitrator Rules)
[18] CAS 2019/A/6148 World Anti-Doping Agency v. Mr Sun Yang & Fédération Internationale de Natation (FINA)
[19] Arbitration CAS ad hoc Division (O.G. Atlanta) 96/001 US Swimming/Fédération Internationale de Natation Amateur (FINA), award of 22 July 1996
[20] Olympic Charter, art 61.2
[21] CAS OG 96/003 – C.J. Hunter v. International Olympic Committee (IOC) (Atlanta 1996), CAS OG 00/013 – Russian Olympic Committee (ROC) v. IOC (Sydney 2000), CAS OG 08/001 – Angel Matos and Cuban Taekwondo Federation v. World Taekwondo Federation (WTF) (Beijing 2008), CAS OG 16/012 – Yulia Efimova v. IOC (Rio 2016), CAS OG 20/04 – Caster Semenya v. World Athletics (Tokyo 2020, pre-Games ruling), CAS OG 04/003 – Hamm v. FIG (Athens 2004)
[22] FIBA, 'Basketball Arbitral Tribunal' https://about.fiba.basketball/en/services/basketball-arbitral-tribunal
[23] Antoine Duval, Marcus F Mazzucco, 'The Supervisory Role of the Court of Arbitration for Sport in Regulating the International Sport System' (Sport and Society, 1:2, 131 144) https://www.academia.edu/1190383/The_Supervisory_Role_of_the_Court_of_Arbitration_for_Sport_in_Regulating_the_International_Sport_System
[24] CAS Code (Article R37)
[25] CAS 2011/A/2479 – Union Cycliste Internationale (UCI) v. Alberto Contador Velasco
[26] Article R37 CAS Code of Sports Related Arbitration, 2022
[27] International Chamber of Commerce (ICC) Arbitration Rules (2021), Appendix V, Article 6
[28] Jason Fry, ‘The Emergency Arbitrator—Flawed Fashion or Sensible Solution?’, Dispute Resolution International (2013) 7(2): 179, 180
[29] Bernd Ehle, ‘Emergency Arbitration in Practice’, in Christoph Müller and Antonio Rigozzi (eds.), New Developments in International Commercial Arbitration (Schulthess 2013) 89.
[30] Jason Fry, ‘The Emergency Arbitrator—Flawed Fashion or Sensible Solution?’, Dispute Resolution International (2013) 7(2): 179, 180
[31] Antonio Rigozzi, 'Sports Arbitration: Inherent Need for Speed and Effectiveness', in Laurent Lévy and Filippo Polkinghorne (eds), Expedited Procedures in International Arbitration (2017) 88–109 https://lk-k.com/wp-content/uploads/2017/12/RIGOZZI-in-LEVY-POLKINGHORNE-Eds-Expedited-Procedures-in-Intl-Arb.-2017-Sports-Arb.-Inherent-Need-for-Speed-Effectiveness-pp.-88-109.pdf
[32]Grant Hanessian and E Alexandra Dosman, 'Songs of Innocence and Experience: Ten Years of Emergency Arbitration' (2018) 27 The American Review of International Arbitration 215, 224 https://arbitrationlaw.com/sites/default/files/free_pdfs/aria_-_songs_of_access.pdf
[33] Gary B Born, International Commercial Arbitration (3rd edn, Kluwer Law International 2021) ch 14
[34] ICC Arbitration and ADR Commission, 'Emergency Arbitrator Proceedings' (ICC) (2019) https://iccwbo.org/publication/emergency-arbitrator-proceedings-icc-arbitration-and-adr-commission-report/
[35] CAS 2014/A/3703 Legia Warszawa SA v Union des Associations Européenes de Football (UEFA) & Celtic Football Club, order of 1 September 2014
[36] White & Case, 'ICC Task Force on Emergency Arbitrator Proceedings Releases Findings' (2019) https://www.whitecase.com/insight-alert/icc-task-force-emergency-arbitrator-proceedings-releases-findings
[37] Queen Mary University of London, International Arbitration Survey 2021 https://www.qmul.ac.uk/arbitration/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf
[38] ICC Arbitration Rules 2021, art 29(2)
[39] ICC Arbitration Rules 2021, art 34
[40] Code de Procédure Civile, Article 1520
[41] Laurence Francoz-Terminal, Arbitration in France: Law and Practice (2020), s 6.2.3.
[42] Emmanuel Gaillard and John Savage, Fouchard, Gaillard, Goldman on International Commercial Arbitration (1999), ch on Interim Relief (give number)
[43] Gary B Born, International Commercial Arbitration (3rd edn, Kluwer Law International 2021) ch VI
[44] CVG v. CVH [2022] SGHC 249.
[45] Hong Kong Arbitration Ordinance (Cap 609, s 22B), New Zealand Arbitration Act 1996 (amended 2016).
[46] CAS OG 20/06 WADA v. Russian Federation (2020)
[47] Manchester City v. UEFA (2020)
[48] James E Castello and Rami Chahine, 'Enforcement of Interim Measures' in The Guide to Challenging and Enforcing Arbitration Awards (3rd edn, Global Arbitration Review 2023) https://globalarbitrationreview.com/guide/the-guide-challenging-and-enforcing-arbitration-awards/3rd-edition/article/enforcement-of-interim-measures
[49] CAS Annual Commentary (2021), Section on Emergency Arbitration Trends
