CAS JURISDICTION
First we should bear in mind is the
jurisdiction of the CAS on its own territory, where it is domiciled, which is
Switzerland. The Swiss Private
International Law (Article 186) states “the
arbitral tribunal shall itself decide on its own jurisdiction”. In
accordance with this provision the CAS has the power to decide upon its own
jurisdiction.
Now the CAS shall be satisfied that it has
jurisdiction to hear the parties “on a prima facie basis” (CAS 2009/A/1917). So
the parties shall fulfil several requirements relating to the CAS Procedural
Rules. These rules state, taking into account the article R47 CAS Code Procedural Rules (the “Code”) that an appeal before
CAS has to be filed “against the decision of a federation, association or
sports-related body”. Here it is important to make a reference to what it is
understood by “decision”. Several CAS decisions have named the importance of
the “animus decidendi” of the
statement issued by the body, which a party wants to challenge. According to
the CAS 2008/A/1548 decision “is
normally a communication of the association directed to a party and based on an
„animus decidendi‟, i.e. an intention of a body of the association to
decide on a matter […]. A simple information, which does not contain any
„ruling‟, cannot be considered a decision.”
Also, this R47 is stating another
requirement to file an appeal at the CAS. Necessarily it has to be recognised
the CAS jurisdiction in:
-
“the statutes or regulations of the said body so provide or,
-
the parties have concluded a specific arbitration agreement”.
And finally the Appellant has exhausted the
legal remedies available to him prior to the appeal, in accordance with the
statutes or regulations of that body.
In addition, the R37 of the Code regulates the “Provisional and Conservatory
Measures”, and the Jurisdiction of CAS to decide on the request for the provisional measures arises from article this R37 of the CAS Code.
These provisions point directly to the body regulations where the CAS
jurisdiction should be included. Or if not, an agreement between the parties, as has been stated above.
Once these requirements are met and any
party does not challenge the CAS
jurisdiction. Based on the foregoing, the CAS has to decide on the dispute
raised by the parties.
CONDITIONS LISTED IN ART. R37 OF THE CODE
R37 of the Code: “(…) When deciding whether to award preliminary relief, the President
of the Division or the Panel, as the case may be, shall consider whether the
relief is necessary to protect the applicant from irreparable harm, the
likelihood of success on the merits of the claim, and whether the interests
of the Applicant outweigh those of the Respondent(s).”
With the purpose of illustrating how
necessary are these conditions, it should be analysed the CAS 2008/A/1621
Iraqi Football Association (IFA) v. Fédération Internationale de Football
Association (FIFA) & Qatar Football Association (QFA), order of 27 August
2008.
On a dispute between the IFA against FIFA
and QFA related a match played in March 2008 in Doha corresponding to the
qualifying tournament for the World Cup of 2010 (the “Match”). IFA claimed
before FIFA that Emerson, who played for Qatar on that date, was ineligible to
play the Match.
Once the appeal was filed before the CAS,
according to the Appeal Brief submitted by the IFA, the legal remedy no. 6
sought by them was: “6. All the matches
of the Qatari team in the fourth round of the Asia preliminary competition of
the 2010 World Cup South Africa have to be suspended until a judgement of the
CAS is available.”
With this statement the IFA was looking for
that the CAS a provisional measure. But the problem was that this request was
issued without any motivation and reasoning of any kind.
The request for provisional measures shall
be found on the prerequisites above, which the CAS jurisprudence and the art.
R37 have established.
The Panel, in this decision, states the
following: “The jurisprudence of CAS
regarding provisional measures has uniformly declared that the elements that
shall be taken into account in order to determine if provisional measures are
granted or not in an appeal proceeding are (i) the likelihood of success of the claim filed by the appellant, (ii)
protection of the appellant from an irreparable
harm and (iii) if the interest of
the appellant overweighs the interest of the respondent (ad exemplum, CAS
2001/A/324, CAS 2005/A/916, or CAS 2006/A/1100). The three elements must cumulatively exist in a concrete
case so that the requested provisional measures can be ordered.”
The Panel adds that these conditions must
be met “cumulatively” in order to consider the possibility to decide on the
terms of the Appellant.
Later the Panel continues making reference
to the three requirements, stating: “In
the referred Appeal Brief the Appellant indeed asks for the suspension of
matches but does not justify the existence in the present case of the three
elements (fumus boni iuris, periculum in
mora and balance of interest) leading to the granting of provisional
measures. In other words, when the IFA makes the request for provisional
measures within its Appeal Brief, the IFA does not motivate or explain:
(i)
why in its understanding, the appeal is likely to succeed,
(ii)
from which irreparable harm shall the IFA be protected and why shall
it be protected, and
(iii)
which is the IFA’s interest that shall overweigh the Respondents’
interest either.”
On the other side, related to the burden and explaining or proving,
the Panel clearly states that it is duty of the Appellant who seek the
provisional measure.
“The burden of explaining and proving the
existence of the mentioned elements is on the side of the party applying for
the measures, and in the present case no proof or even plausible explanation in
the referred sense has been contributed by the Appellant in its Appeal Brief”
In this regard it is also stated in the CAS
2007/A/1317 that the Panel, if the party applying for the measure does not
fulfil the requirements, “is not itself
obliged to search for such an eventual irreparable harm threatening the
Appellants”.
Due to all of these facts, the Panel
rejected the request submitted by the IFA.
MORE CAS JURISPRUDENCE
Once has been presented the conditions with
this particular case, it is necessary to add some more requirements to take
into account or just expand the three conditions explained above.
A)
CAS 2001/A/324
This decision is referring to an element to
consider when a decision related a provisional measure is carried out, which is
“to compare the risks incurred by the
Appellants in the event of immediate execution of the decision with the
disadvantages for the Respondent in being deprived such execution”. This
risk test is seeking to take into account the consequences that such decision
would have for the parties and outcome that could have in accordance the
decision.
B)
CAS 2001/O/341
Furthermore, the Appellants must show to
the CAS that “the facts have a
certain probability, and must summarily plausible that the rights
cited exist and the material conditions for a legal action are fulfilled”.
With this statement this Panel invites the Appellant to prove the allegations
that seek obtain that provisional measure. That is to say, a proper motivation.
C)
CAS 2007/A/1370
In this dispute between the Brazilian
player Dodo (with Superior Tribunal de Justiça Desportiva do Futebol &
Confederação Brasileira de Futebol) and FIFA and the WADA. The Panel considers
more CAS jurisprudence to decide whether the provisional measure should be
ordered, and the factors to consider (expanding the three conditions named
above):
1.
“Whether the measure is useful to protect the applicant from irreparable
harm (“irreparable harm” test): the
applicant must demonstrate that the requested measures are necessary in order
to protect its position from damage or risks that would be impossible, or very
difficult, to remedy or cancel at a later stage;
2.
“whether
the applicant is likely to succeed on the merits (“likelihood of success” test): the applicant must demonstrate that
it has a reasonable chance eventually to win the case;
3.
“whether the interests of the applicant outweigh those of the opposite
party and of third parties (“balance of
convenience” test): the applicant must demonstrate that the harm or
inconvenience it would suffer from the refusal of the requested provisional
measures would be comparatively greater than the harm or inconvenience the
other parties would suffer from the granting of the provisional measures”.
Among these requirement, in the doping
cases should be also contemplate “in
weighing the balance of convenience a CAS panel must also consider the public interest of the fight against
doping”.
D) CAS 2013/A/3139
This order had been drafted making a strong
reference to the “irreparable harm” because of the particular of this case
between Fenerbahçe and UEFA related a sanction imposed to the Turkish club by
the European body due to some incidents occurred in a match against BATE
Borisov at the Fenerbahçe stadium based on the exclusion of the club “from
participating in the next UEFA club competition for which it would otherwise
qualify. The sanction is deferred for a probationary period of two years”. The
Deputy President of the CAS Appeals Arbitration Division states the following:
“1. A
sanction that is deferred for a probationary period and that is therefore
purely hypothetical cannot constitute an irreparable harm.
2.
Any harm which can be financially compensated cannot be considered as an
irreparable harm. A reputation or image loss can be financially compensated and
cannot therefore constitute an irreparable harm.”
Luis Torres
@Luis_Torres_M
Luis Torres
@Luis_Torres_M
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