As discussed in our article of 15 January 2016, a decision of the Court of Arbitration for Sport (CAS)  can be set aside by an Australian court if that decision is in conflict with the public policy of Australia.1
Section 19 of the IAA clarifies what this means by stating that a decision (such as the Essendon 34 decision) will be considered to be in conflict with the public policy of Australia if there was a “breach of the rules of natural justice” in the making of the decision.
It is a fundamental tenet of justice that a decision-maker must be fair, and be seen to be fair. Failure to do so may constitute a breach of the rules of natural justice.
It is arguable that the CAS has breached the rules of natural justice in making the Essendon 34 decision because it was not independent in making that decision. Accordingly, the decision can be said to be in conflict with the public policy of Australia and should be set aside by an Australian court.
The recent case involving Claudia Pechstein closely mirrors some of the issues in the Essendon 34 case and is worth a closer look.
Claudia Pechstein is a German speed skater who was charged with blood doping under the World Anti-Doping Agency (WADA) code.
The CAS found against Pechstein despite what was said to be strong evidence that the real cause is an hereditary blood disorder. After exhausting all her other avenues and because she stood to lose her job as a police officer, she took her case to the German court system. Subsequently, the German Higher Regional Court, in considering all submissions, in essence has said to the CAS:
Prove to us that your Pechstein decision is not biased because, at the moment, it appears you may be biased in favour of international sporting organisations, such as the IOC and WADA.
I understand the German Higher Regional Court’s decision has now been appealed to Germany’s highest court.

Is the CAS biased or does it appear to be biased?

The International Council of Arbitration for Sport (ICAS) is responsible for the administration and financing of the CAS2. The 20 members of the ICAS are to be chosen as follows3:

  • 3 by the Association of Summer Olympic International (sporting) Federations (IFs) and 1 by the Association of Winter Olympic IFs;
  • 4 by the Association of the National Olympic Committees;
  • 4 by the International Olympic Committee (IOC) itself;
  • then that 12 choose another 4 “after appropriate consultation with a view to safeguarding the interests of athletes”;
  • then that 16 choose another 4 “from among personalities independent of the bodies designating the other members of the ICAS”.

Despite claims by the IOC and the CAS that it is not so, a number of respected people in the sporting world are of the view that the ICAS is at least biased towards, if not actually a captive of, the IOC and its fellow IFs.
And now the German Higher Regional Court is echoing this.
The 20 members of the ICAS (they all must be ‘jurists’ – meaning experienced lawyers) are responsible for appointing all arbitrators to the CAS’s arbitration panel. Appointees must have, amongst other things, appropriate legal training, recognised competence with regard to sports law and/or international arbitration, and a good knowledge of sport in general4. The expectation is that appointees would be well aware of and apply the tenet of natural justice that a decision maker must not only be fair, but must also appear to be fair.

How was the Essendon case arbitration panel selected?

Only persons on the CAS arbitration panel (which has about 330 members at present) may sit and hear a CAS arbitration. Each side chooses one from the panel. In the Essendon 34 case, WADA chose Romano Subiotto QC of the Belgian and English bars, and the players chose James Spigelman QC, former chief justice of the NSW Supreme Court. Then the President of the CAS Appeals Arbitration Division (presently Corinne Schmidhauser) chooses a third arbitrator (here, Michael Beloff QC of the English bar) to be the president of that arbitration panel5. For obvious reasons, the choice of the third arbitrator may have a significant effect on the decision reached by CAS.
The core concern is that Corinne Schmidhauser is also:

  • a member of the ICAS
  • a member of the CAS board
  • a former CAS arbitrator; and
  • the president of Antidoping Switzerland.

There is arguably, at the very least, the appearance that the President is biased in her choice of the third arbitrator.

What did the German Higher Regional Court say in Claudia Pechstein’s case?

In considering Claudia Pechstein’s situation and CAS decision, the German Higher Regional Court felt, among other things:

  • the ICAS was not sufficiently independent of the IFs and this was enough to taint the independence of the arbitrators nominated by the ICAS, and that the IFs ‘enjoy…a favourable position that enables them to have a decisive influence on the composition of the list of CAS arbitrators’;
  • the ‘disproportionate influence’ of IFs over the ICAS ‘creates the risk that the persons included on the CAS arbitrators list predominantly or even entirely favour the side of the sporting associations over the athletes’; and
  • a ‘balanced influence of the parties on the composition of the arbitral tribunal that would be needed to safeguard its independence [was] thus not provided’.

In plain English, the German Higher Regional Court was not satisfied that the CAS arbitration panel, which heard Pechstein’s appeal could, at the very least, be seen to be unbiased; this breaches the fairness rule of natural justice.
In other words, the deck appeared to be stacked against Claudia Pechstein, and the same could be said with regard to the Essendon 34.

What’s the way forward for the Essendon 34?

The independence of the CAS, and therefore the fairness and legitimacy of the CAS’s decision against the Essendon 34, remains in question and needs to be decided by an unquestionably independent judicial tribunal.
The Essendon 34 should take action in the Australian Federal Court or a state supreme court and invite it to set aside the CAS decision and prevent the AFL from acting on it.
To further discuss please contact our Sports Law team leader, Allistar Twigg, today.

Footnotes:
1 Article 34 of Schedule 2 of the International Arbitration Act 1974 (Cth) (IAA)
2 Article S2 of the Code of Sports-related Arbitration (Code)
3 Article S4 of the Code
4 Article S14 of the Code
5 Article R54 of the Code