CAS and Sport Exceptionalism

• DOI: https://doi.org/10.1108/978-1-78743-753-120181003
• Date: 28 September 2018
• Pages: 41-68
• Published date: 28 September 2018
• Author: Helen Jefferson Lenskyj University of Toronto, Canada

CHAPTER 2

CAS AND SPORT

EXCEPTIONALISM

For 35 years, proponents of alternative dispute resolution

through CAS, the ‘supreme court for sport’, have relied on

speed, efficiency and privacy arguments, while consideration

of athletes’rights and the pursuit of justice remain secondary.

According to the sport exceptionalism argument, dispute res-

olution within the ‘family of sport’is far preferable to public

litigation. Reputations within the ‘small world of sport’are

‘worth preserving’, lest disputes damage fan support and

team morale, in other words, the bottom line (Morek, 2012).

2.1. ALTERNATIVE DISPUTE RESOLUTION AND

CONFIDENTIALITY

Although privacy is routinely cited as a benefit of ADR, it is

not necessarily in the athlete’s or public interest to keep dis-

pute proceedings private and confidential. The level of media

scrutiny of all Olympic-related controversies is extremely

high, and it could therefore be argued that first-hand,

41

accurate accounts of hearings are preferable to hearsay.

Moreover, privacy may be valued more by one party than by

the other. Given the power differential between an individual

athlete and a sports organization, complete transparency

would probably benefit the athlete in the long run. Sports

lawyer Mark Mangan points out, however, that, unlike the

more common policy in commercial arbitration where the

default position is confidentiality, the CAS Code only keeps

awards confidential if one party requests it. On the issue of

greater transparency, he recommended open proceedings

which ‘would discourage unmeritorious claims and appeals…

and spread important messages about…the fight against

doping.’Published decisions have generated a useful body of

case law, known as lex sportiva, he claimed, but he also

acknowledged that, while other arbitral panels frequently

consult precedents, the CAS Code does not formally recog-

nize the stare decisis (precedent) principle (Mangan, 2009,

p. 598). In short, privacy is a mixed blessing for the parties

involved, as well as for future appellants.

For their part, unsurprisingly, CAS’s proponents fre-

quently invoked the privacy issue and the importance of

keeping disputes ‘within the family of sport.’According to

Blackshaw, perhaps unwittingly echoing Carol Gilligan, ADR

‘facilitates the restoration and maintenance of personal and

business relationships.’The benign-sounding ‘family of sport’

metaphor resembles ‘Olympic family’rhetoric invoked by

IOC and bid committee members who were embroiled in the

bribery and corruption scandals of 19992000. Exchanges

of expensive gifts and other ‘benefits’, according to these

men, simply demonstrated the depth of ties among members

of the ‘Olympic family’(Lenskyj, 2000, chapter 3).

More importantly, and arguably a higher priority for

SGBs, Blackshaw claimed that this strategy avoided the prob-

lem of sports bodies and sports people having to ‘wash their

42 Gender, Athletes’Rights, and CAS