THE COURT OF ARBITRATION FOR SPORT UPDATES ITS MEDIATION RULES A PRACTICE NOTE BY PROF DR IAN BLACKSHAW
The Court of Arbitration for Sport (CAS) introduced Mediation as a means of settling sports-related disputes on 18 May, 1999, and, as Ousmane Kane, the former Senior Counsel to the CAS and, during his tenure as such, responsible for CAS Mediation, remarked at the time:
“The International Council of Arbitration for Sport took the reminitiative to introduce mediation alongside arbitration. As the mediation rules encourage and protect fair play and the spirit of understanding, they are made to measure for sport.”
Generally speaking, Mediation is proving to be an effective and relatively speedy way of settling sports disputes, not only because it tends to preserve on-going relationships, but also, like other forms of ADR, offers the parties in dispute a ‘win-win’ situation. However, CAS Mediations, to date, have been few and far between, although the CAS is now promoting its Mediation service, and has recently updated its Mediation Rules, the subject of this practice note.
We set out below the text of these new Rules, which are clear and self-explanatory and effective as of 1 September, 2013. As will be seen from them, CAS Mediation is generally offered for disputes falling within the purview of the CAS Ordinary Division and does not, in general, apply to disciplinary matters, such as doping issues, match-fixing and corruption. However, in appropriate cases and where the parties actually agree, it may be possible to invoke CAS Mediation for the settlement of other disciplinary disputes. But, it should be noted that, in any case, Mediation is a useful way of settling disputes relating to commercial and financial fallout resulting from decisions in disciplinary cases, for example, loss of lucrative sponsorship and endorsement contracts, particularly where the sports person concerned has been wrongly accused of being, say, a drugs cheat.
The role of the CAS Mediator is set out in Article 9 of the Rules and the Mediator is expected to take a more active role in the Mediation and not only facilitate the parties’ negotiations, but also propose solutions to the parties in dispute, but may not impose them on them.
The parties in a CAS Mediation may be represented and, in such cases, their representatives, who may or may not be lawyers, must have full authority from them to settle the dispute alone, such authority being proved by a corresponding Power of Attorney.
The procedure and timings of the Mediation is determined by the Mediator at the outset, unless the parties in dispute decide to proceed otherwise.
Article 10 of the Rules includes comprehensive provisions on the confidentiality and ‘without prejudice’ nature of the proceedings, both during the Mediation and afterwards in any arbitral or judicial proceedings - such being hallmarks of the process of Mediation.
One final point. Article 13 of the Rules foresees and provides for the possibility of using ‘Med-Arb’ as a procedure for settling disputes. Under this procedure, in those cases where the CAS Mediation fails - in general, Mediation enjoys a success rate of 85% in appropriate cases - the parties may proceed to CAS Arbitration. ‘Med-Arb’ is a useful form of ADR in which the Mediation identifies the issues involved and the Arbitration settles them. However, this procedure raises the controversial matter of whether the CAS Mediator should also act as the CAS Arbitrator, even where, as provided in Article 13, the parties agree! Personally and professionally speaking, I do not generally favour such an arrangement.
There is a new Schedule of CAS Mediation Costs, effective as of 1 July, 2013, which is also set out below, and reference should also be made to the provisions of Article 14 of the Rules, which deals with advances and payment by the parties of the CAS and Mediator’s costs.
The CAS Mediation Rules
(in force as from 1 September 2013)
Pursuant to Articles S2 and S6 paragraphs 1 and 10 of the Code of Sports-related Arbitration,
the International Council of Arbitration for Sport adopts the present Mediation Rules (the
CAS mediation is a non-binding and informal procedure, based on an agreement to mediate in which each party undertakes to attempt in good faith to negotiate with the other party with a view to settling a sports-related dispute. The parties are assisted in their negotiations by a CAS mediator.
In principle, CAS mediation is provided for the resolution of disputes submitted to the CAS
ordinary arbitration procedure. Disputes related to disciplinary matters, such as doping issues,
match-fixing and corruption, are excluded from CAS mediation. However, in certain cases,
where the circumstances so require and the parties expressly agree, disputes related to other
disciplinary matters may be submitted to CAS mediation.
A mediation agreement is one whereby the parties agree to submit to mediation a sportsrelated dispute which has arisen or which may arise between them.
A mediation agreement may take the form of a mediation clause in a contract or separate
B. SCOPE OF APPLICATION OF RULES
Where a mediation agreement provides for mediation under the CAS Mediation Rules, these
Rules shall be deemed to form an integral part of such mediation agreement. Unless the
parties have agreed otherwise, the version of these Rules in force on the date when the
mediation request is filed shall apply.
The parties may however agree to apply other rules of procedure.
C. COMMENCEMENT OF THE MEDIATION
A party wishing to institute mediation proceedings shall address a request to that effect in
writing to the CAS Court Office.
The request shall contain: the identity of the parties and their representatives (name, address,
email address, telephone and fax numbers), a copy of the mediation agreement and a brief
description of the dispute.
The day on which the mediation request is received by the CAS Court Office shall be
considered as the date on which the mediation proceedings commence.
The CAS Court Office shall immediately inform the parties of the date on which the
mediation commences and shall fix the time limit by which the parties shall pay their share of
the administrative costs pursuant to Article 14 and Appendix I of the Rules.
D. APPOINTMENT OF THE MEDIATOR
The ICAS draws up the list of mediators available to be appointed in CAS mediation
The personalities the ICAS choose shall appear on the list of mediators for a four-year period
and are thereafter eligible for reselection.
Unless the parties have jointly selected a mediator from the list of CAS mediators, he shall be
chosen by the CAS President from the list of CAS mediators and appointed after consultation
with the parties.
In accepting such appointment, the mediator undertakes to devote sufficient time to the
mediation proceedings as will allow them to be conducted expeditiously.
The mediator shall be and must remain impartial, and independent of the parties, and is
bound to disclose any circumstances likely to compromise his independence with respect to
any of the parties. Having duly been informed thereof, the parties may however authorize the
mediator to continue his mandate, by means of a signed separate or joint declaration.
In the event of an objection by any of the parties, or at his own discretion if he deems himself
unable to bring the mediation to a successful conclusion, the mediator shall cease his mandate
and inform the CAS President accordingly, whereupon the latter will make arrangements to
replace him, after consulting the parties and offering them the possibility to appoint another
E. REPRESENTATION OF PARTIES
The parties may be represented or assisted in their meetings with the mediator.
If a party is being represented, the other party and the CAS must be informed beforehand of
the identity of such representative.
The representative must have full authority to settle the dispute alone, without consulting the
party he is representing.
F. CONDUCT OF MEDIATION
Unless the parties have agreed to conduct the mediation in a particular manner, the mediator
shall determine how the mediation will proceed.
Upon his appointment, the mediator shall establish the terms and timetable for submission by
each party of a statement summarizing the dispute, including the following details:
- a brief description of the facts and points of law, including a list of the issues submitted to
the mediator with a view to resolution;
- a copy of the mediation agreement.
Where the parties agree to submit an ordinary arbitration case to mediation, the mediator may
consider the request for arbitration as one party’s summary of its dispute and may invite only
the other party to submit its summary of the dispute.
Each party shall cooperate in good faith with the mediator and shall guarantee him the
freedom to perform his mandate to advance the mediation as expeditiously as possible. The
mediator may make any suggestions he deems appropriate in this regard. He may at any time
communicate separately with the parties if he deems it necessary to do so.
G. ROLE OF THE MEDIATOR
The mediator shall promote the settlement of the issues in dispute in any manner that he
believes to be appropriate. To achieve this, he will:
a. identify the issues in dispute;
b. facilitate discussion of the issues by the parties;
c. propose solutions.
However, the mediator may not impose a solution of the dispute on either party.
The mediator, the parties, their representatives and advisers, and any other person present
during the meetings between the parties shall sign a confidentiality agreement and shall not
disclose to any third party any information given to them during the mediation, unless
required by law to do so.
Unless required to do so by applicable law and in the absence of any agreement of the parties
to the contrary, a party shall not compel the mediator to divulge records, reports or other
documents, or to testify in regard to the mediation in any arbitral or judicial proceedings.
Any information given by one party may be disclosed by the mediator to the other party only
with the consent of the former.
No record of any kind shall be made of the meetings.
Unless required to do so by applicable law and in the absence of any agreement of the parties
to the contrary, the parties shall not rely on, or introduce as evidence in any arbitral or judicial proceedings:
a. views expressed or suggestions made by a party with respect to a possible
settlement of the dispute;
b. admissions made by a party in the course of the mediation proceedings;
c. documents, notes or other information obtained during the mediation proceedings;
d. proposals made or views expressed by the mediator; or
e. the fact that a party had or had not indicated willingness to accept a proposal.
Either party or the mediator may terminate the mediation at any time.
The mediation shall be terminated:
a. by the signing of a settlement by the parties;
b. by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile;
c. by a written declaration of a party or the parties to the effect that the mediation proceedings are terminated; or
d. where one of the parties, or both, refuse(s) to pay its (their) share of the mediation costs within the time limit fixed pursuant to Article 14 of the Rules.
The settlement is drawn up by the mediator and signed by the parties and the mediator.
Each party shall receive a copy thereof. In the event of any breach, a party may rely on such
copy before an arbitral or judicial authority.
A copy of the settlement is submitted for inclusion in the records of the CAS Court Office.
K. FAILURE TO SETTLE
The parties may have recourse to arbitration when a dispute has not been resolved by
mediation, provided that an arbitration agreement or clause exists between the parties.
The arbitration clause may be included in the mediation agreement. In such a case, the
expedited procedure provided for under article R44, paragraph 4 of the Code of Sports-related Arbitration may be applied.
In the event of failure to resolve a dispute by mediation, unless the parties agree in writing
otherwise, the mediator shall not accept an appointment as an arbitrator in any arbitral
proceedings concerning the parties involved in the same dispute.
Each party shall pay the CAS administrative costs within the time limit provided in Article 4
of the Rules. In the absence of such payment, the mediation proceedings will not be set in
The parties shall pay their own mediation fees and expenses.
Unless otherwise agreed between the parties, the final costs of the mediation, which include
the CAS administrative costs of CHF 1,000, the costs and fees of the mediator calculated on
the basis of the CAS fee scale set out in Appendix I, and a contribution towards the CAS
expenses will be borne by the parties in equal shares.
The CAS Court Office may require the parties to deposit an equal amount as an advance
towards the costs of the mediation.
At the conclusion of the mediation, any portion of the advance of costs which is not used,
shall be reimbursed to the parties in equal shares, or in the proportion in which the parties
paid the advance of costs.
SCHEDULE OF MEDIATION COSTS
(in force as from 1 July 2013)
CAS Administrative costs
The CAS administrative costs for a mediation is fixed at CHF 1,000.
Each party involved in a dispute submitted to CAS mediation must pay the CAS
administrative costs in equal shares of CHF 500 (five hundred Swiss francs) in order for the
mediation to be set in motion. If the parties agree to submit an ordinary arbitration procedure
to mediation, the CHF 1,000 (one thousand Swiss francs) Court Office fee paid by the
Claimant in the arbitration procedure, shall be credited to the mediation procedure, and used
as the administrative costs.
Mediator's costs and fees
The amount of fees to be paid to the mediator is fixed by the Secretary General of the CAS
on the basis of the work provided by the mediator and on the basis of time reasonably
devoted to his/her task. CAS mediators are paid an hourly rate of CHF 250.
In addition to the payment of fees, the mediator is justified in requesting the reimbursement
of his/her costs upon presentation of receipts as follows:
- Air travel: up to 2500 km per journey: price of an economy class ticket (determined by the CAS);
more than 2500 km: price of a business class ticket (determined by the CAS);
- Travel by train: price of a first class return ticket;
- Travel by car: price of a first class return rail ticket;
- Hotel accommodation: price of a hotel room, superior category, up to a
maximum of CHF 350 per night.
- Meals: maximum of CHF 150 per day.
- In the absence of receipts, any telephone, fax, postage, photocopying or other
secretarial costs are reimbursed, up to a maximum of CHF 200.
If a mediator does not file a summary of his work and time spent on the case, or the receipts
for the reimbursement of his expenses, within 30 days of the termination of the mediation, he
is deemed to have waived his costs and fees and the ICAS/CAS is entitled not to pay him any
National taxes, such as VAT, if any, related to the amounts paid by the CAS shall be borne by the mediator.