Sports Law and the Court of Arbitration for Sport

• Date: 28 September 2018
• DOI: https://doi.org/10.1108/978-1-78743-753-120181002
• Pages: 13-40
• Published date: 28 September 2018
• Author: Helen Jefferson Lenskyj University of Toronto, Canada

CHAPTER 1

SPORTS LAW AND THE COURT OF

ARBITRATION FOR SPORT

The IOC established the Court of Arbitration for Sport (CAS)

in 1983 because of the perceived need within Olympic and

international sport circles for a speedy, sport-specific and con-

fidential dispute resolution process. The IOC, international

federations (IFs), national Olympic committees (NOCs) and

national sports organizations (NSOs) that is, the most

important Olympic industry players were concerned about

the ‘intrusion of law into sport’and sought ‘immunity from

domestic jurisdictions’(Anderson, 2000, p. 123). Mainstream

courts, proponents argued, were costly and time-consuming,

and judges lacked specialized knowledge of sport-related mat-

ters. More ominously, according to veteran CAS arbitrator

Richard McLaren, ‘politics and economic incentives cast a

darkening shadow across the playing field’(McLaren, 2001c,

p. 379). In the oft-quoted words of another longstanding CAS

arbitrator, Michael Beloff, ‘Render unto sports the things that

are sports and to courts the things that are legal’(Beloff,

2012, p. 80) an overly simplistic formula and, arguably, a

false dichotomy.

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1.1. SPORTS, LAW, POLITICS

The notion that ‘politics and sport don’t mix,’or shouldn’t

mix, is a hoary chestnut that has been convincingly debunked

by generations of progressive sport scholars dating back to

the 1970s (see, for example, Bairner & Molnar, 2010;

Brohm, 1978; Espy, 1979; Lenskyj & Wagg, 2012). On a

global scale, the IOC’s exercise of political power is exempli-

fied through its 30-year relationship with the UN, and, as one

critic noted, the IOC has moved from merely partnering with

UN organizations to becoming ‘a political insider at the UN’

(van Luikj, 2017). One in seven NOCs around the globe has

direct ties with that country’s government (Play the Game,

2017). Sports and politics are certainly not strangers, as the

following chapters will demonstrate.

In a 2012 commentary, Beloff observed that there were

precedents to demonstrate ‘the sensitivity of ordinary law to

the peculiarities of sport,’giving as one example the UK’s Sex

Discrimination Act 1975, S.44, which exempted competitive

sport from its protections (Beloff, 2012, p. 73). However, like

S.19.2 of the 1981 Ontario Human Rights Code, discussed

above, this so-called ‘sensitivity’reflected binary thinking

about gender and the uncritical embrace of sport

exceptionalism that is, the belief that sport is unique and

requires its own special laws and rules, and that individuals

outside of sport simply ‘don’t get it.’In a 2017 example, IOC

president Thomas Bach accused critics of ignorance and self-

ishness. They were ‘aggressive,’he claimed, and unwilling to

engage in dialogue because they saw the IOC as part of the

‘establishment’(Bach, quoted in Butler, 2017). In fact, the

IOC’s close relationship with national governments and mul-

tinational corporate sponsors provides ample evidence of its

secure position within the ‘establishment.’

14 Gender, Athletes’Rights, and CAS