CAS and Sport Exceptionalism

Date28 September 2018
Published date28 September 2018
AuthorHelen Jefferson Lenskyj University of Toronto, Canada
For 35 years, proponents of alternative dispute resolution
through CAS, the supreme court for sport, have relied on
speed, efciency and privacy arguments, while consideration
of athletesrights and the pursuit of justice remain secondary.
According to the sport exceptionalism argument, dispute res-
olution within the family of sportis far preferable to public
litigation. Reputations within the small world of sportare
worth preserving, lest disputes damage fan support and
team morale, in other words, the bottom line (Morek, 2012).
Although privacy is routinely cited as a benet of ADR, it is
not necessarily in the athletes or public interest to keep dis-
pute proceedings private and condential. The level of media
scrutiny of all Olympic-related controversies is extremely
high, and it could therefore be argued that rst-hand,
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 benet 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 condentiality, the CAS Code only keeps
awards condential 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 aboutthe ght 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, CASs 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 familyrhetoric invoked by
IOC and bid committee members who were embroiled in the
bribery and corruption scandals of 19992000. Exchanges
of expensive gifts and other benets, 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, AthletesRights, and CAS

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