THE COURT OF ARBITRATION FOR SPORT INTRODUCES A LEGAL AID SCHEME

BY PROF DR IAN BLACKSHAW

In June of next year, the Court of Arbitration for Sport (CAS) will celebrate thirty years of operations. The CAS has come a long way since it opened its doors in 1984 and, over the years, has established itself, as its founders intended, as the ‘Supreme Court of World Sport’.

 

The CAS is now handling some three hundred cases a year. Its workload has increased exponentially since FIFA, the World Governing Body of Football, joined its ranks in December 2002. In fact, the CAS has established a specific list of arbitrators who are specialised in football matters, especially international transfer disputes.

 

Although CAS proceedings are relatively quick, the costs of going to CAS are quite high, especially for individual athletes, who may not enjoy the benefit, for example, of lucrative sponsorship deals, which would enable them to finance claims and appeals before the CAS.

 

There has been some disquiet, therefore, for some time, as the costs of CAS Proceedings have increased, that the CAS is not universally accessible to the sporting community.

 

The International Council of Arbitration for Sport (ICAS), the Governing Body of the CAS, has addressed this issue and recently introduced a Legal Aid Scheme to enable individuals who do not have the wherewithal to bring their cases to the CAS.

 

The rules providing for the granting of Legal Aid apply in both ordinary and appeal CAS proceedings, and Legal Aid, in appropriate cases, is granted in accordance with the Guidelines, which are reproduced in full below.

 

The ICAS President, who decides on requests for Legal Aid, must give brief reasons for his decision, against which, however, there is no right of appeal. Legal Aid will be refused if it is obvious that there is no legal basis to the applicant's claim or defence. Legal Aid will also be refused if it is obvious that the claim or defence is frivolous or vexatious.

 

Where Legal Aid is granted the extent of the financial assistance offered to the party concerned is determined by the ICAS President according to that individual’s particular needs.

 

To give practical effect to these new financial arrangements, provision is made for the appointment of ‘Pro Bono’ Lawyers to represent those granted Legal Aid. Such Lawyers may not charge for their professional services, but, if the ICAS President agrees, all or part of their travel expenses and accommodation may be reimbursed, to the extent that they are reasonable.

 

The ICAS shall establish a List of such ‘Pro Bono’ Lawyers, from which the party granted Legal Aid may freely choose.

 

Where Legal Aid is granted, the other party or parties in the CAS Proceedings must be informed of the fact, but otherwise the details of the financial assistance are confidential.

 

The new arrangements came into effect on 1 September, 2013 and apply to Proceedings commenced after that date.

 

It will be interesting to see how they work out in practice and the extent of the take-up of Legal Aid in CAS Arbitration Proceedings.

 

Guidelines on Legal Aid before the Court of Arbitration for Sport

(in force as from 1 September 2013)

 

General provisions

Art. 1 The aim of the present rules, established in accordance with Article S6.9 of

the Code of Sports-related Arbitration (hereinafter, the “Code”), is to guarantee the

rights of natural persons without sufficient financial means, to defend their rights

before the Court of Arbitration for Sport (CAS).

The Guidelines set out the conditions according to which legal aid may be granted.

Art. 2 The Guidelines apply to both ordinary and appeal procedures before the

CAS.

Art. 3 The ICAS President decides on requests for legal aid.

Art. 4 The International Council of Arbitration for Sport (ICAS) is responsible for

financing legal aid before the CAS. To this end, it ensures that the legal aid scheme it creates is sufficiently well-funded.

Art. 5 Legal aid is granted, based on a reasoned request and accompanied by

supporting documents, to any natural person provided that his income and assets are not sufficient to allow him to cover the costs of proceedings, without drawing on that part of his assets necessary to support him and his family.

Legal aid will be refused if it is obvious that the applicant's claim or grounds of

defence have no legal basis. Furthermore, legal aid will be refused if it is obvious that the claim or grounds of defence are frivolous or vexatious.

Art. 6 According to an applicant’s needs and the decision of the ICAS President,

legal aid may apply as follows:

- The applicant may be released from having to pay the costs of the procedure,

or to pay an advance of costs;

- “Pro bono” counsel may be chosen by the applicant from the list established

by the CAS;

- The applicant may be granted a lump sum to cover his own travel and

accommodation costs and those of his witnesses, experts and interpreters in

connection with any CAS hearing, as well as the travel and accommodation

costs of “pro bono” counsel.

 

Application Procedure

Art. 7 Legal aid may be requested by the Appellant/Claimant once the statement of

appeal/request for arbitration is filed; a Respondent may request legal aid as soon as

he receives the statement of appeal/request for arbitration. Following this, legal aid

may be requested at any time in the procedure, but will only cover future costs and

cannot be granted retroactively.

Art. 8 A request for legal aid should be sent in writing to the CAS Court Office,

enclosing the signed and completed Legal Aid Application Form, available on the

CAS website (http:/www.tas-cas.org).

Art. 9 The applicant shall supply all the elements necessary to establish his

financial situation, accompanied by supporting documents, e.g., tax returns, contract

of employment, statement of salary, lease. The applicant shall also set out, in a

summary fashion, the grounds of his appeal/defence to establish that his

appeal/defence has a legal basis.

The applicant is requested to authorise state institutions and third parties to provide

confidential information on his financial situation.

In the absence of the above requirements, the request for legal aid will be refused.

Art. 10 The ICAS President decides on requests for legal aid and shall give brief

reasons for his decision.

The decision is communicated to the applicant and, as the case may be, to his “pro

bono” counsel.

The decision is not subject to appeal.

If the assistance of counsel is requested and granted, the applicant may choose “pro

bono” counsel from the list established by the ICAS/CAS.

The procedure for requesting legal aid is free.

Art. 11 All beneficiaries of legal aid agree to immediately advise the CAS Court

Office of any change in circumstances on which the granting of legal aid was based,

as well as the occurrence of any other fact relevant to the granting of legal aid.

Art. 12 An applicant for legal aid may request that his application be reconsidered in

circumstances where his financial situation deteriorates significantly after his initial

request for legal aid was considered and refused.

The provisions governing requests for legal aid shall apply mutatis mutandis to

reconsiderations of requests.

Art. 13 Legal aid takes effect from the day it is requested and ends, except where it

is revoked by the ICAS President beforehand, at the end of the proceedings before

the CAS.

Art. 14 The ICAS President may withdraw legal aid if it finds that the beneficiary is

no longer entitled to it, or if legal aid was improperly granted.

The withdrawal of legal aid has a retroactive effect.

 

Costs

Art. 15 In accordance with Article R64 of the Code, at the end of the procedure, the

CAS Court Office shall determine the final amount of the costs of arbitration.

In accordance with the Code, the Panel shall determine in the final award which party shall bear the arbitration costs or in which proportion the parties shall share them. As a general rule, the Panel has discretion to grant the prevailing party a contribution towards its legal fees and other expenses incurred in connection with the proceedings.

Art. 16 At the conclusion of the arbitration proceedings, the beneficiary of legal aid

can be ordered to pay costs. However, the CAS will waive its right to claim the costs

from him. The beneficiary can also be ordered to pay a contribution towards the legal

fees of the prevailing party. In this case, the beneficiary must discharge this amount

himself, and the CAS does not pay this amount on his behalf.

Art. 17 If the beneficiary of legal aid is successful in his appeal/arbitration and the

other party is ordered to bear the costs of arbitration, the other party shall pay the

required amount to the CAS.

 

Role of “Pro Bono” Counsel

Art. 18 The CAS Court Office shall establish a list of volunteer lawyers ("pro bono

counsel"), competent in international arbitration and/or sports law and able to work in

the official languages of the CAS. If deemed appropriate, the CAS Court Office may

publish this list. The list is given to the beneficiary of legal aid so that he can freely

choose his counsel.

The beneficiary of legal aid may terminate the legal relationship with the pro bono

counsel at any time. The pro bono counsel may be released from such legal relationship with

the authorization of the President of the Panel. If necessary, the beneficiary may request

from the CAS Court Office the assistance of replacement “pro bono” counsel.

Neither the ICAS nor CAS can be held in any way responsible for the activities

undertaken or the advice given by "pro bono" counsel in favor of the beneficiary.

Art. 19 When the ICAS President authorizes the appointment of "pro bono" counsel,

counsel agrees to work for free, within the scope of his mandate to represent the

beneficiary before the CAS. Counsel cannot refuse to accept a case without good

reason and may not ask the beneficiary to pay any fees or expenses, nor to accept

any payment from him.

Counsel limits his activity to what is necessary to protect the interests entrusted to

him, taking into account the nature, importance and difficulty of the case, and the

professional services expected of him.

Art. 20 Counsel receives no remuneration for his work. However, if the ICAS

President so decides, counsel may request that all or part of his travel expenses and accommodation be reimbursed, to the extent that they are reasonable.

 

Conditions for Reimbursement

Art. 21 Except in exceptional circumstances, the ICAS/CAS does not pay the

expenses of the beneficiary of legal aid or his counsel in advance.

At the conclusion of the arbitration, provided that the President of the ICAS has so

decided beforehand, the beneficiary and/or counsel may request a refund of all or

part of the expenses incurred by them in accordance with Art. 6 above. The claim

must include receipts for expenses for which reimbursement is claimed.

Unless otherwise determined by the ICAS President, the ICAS/CAS pays the amount

claimed for reimbursement up to the lump sum awarded in the decision to grant legal

aid.

The decision on reimbursement is not subject to appeal.

 

Confidentiality

Art. 22 The procedure for granting legal aid is confidential. The CAS Court Office

shall not disclose any part of the legal aid application or any supporting

documentation to third parties, subject to requests from state judicial authorities. The

CAS Court Office must however inform the other parties involved in the arbitration

and the Panel that legal aid has been granted to the applicant.

 

Transitional and Final Provisions

Art. 23 These Guidelines shall apply to proceedings initiated after their entry into

force.

These Guidelines enter into force on 1 September 2013.

 

Prof Dr Ian Blackshaw is an International Lawyer, Academic and Author. He is also a Member of the CAS and may be contacted by e-mail at ‘This email address is being protected from spambots. You need JavaScript enabled to view it.’

 

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