Gender, Athletes' Rights, and the Court of Arbitration for Sport

Helen Jefferson Lenskyj

• Publisher: Emerald Publishing Limited
• Year: 2018
• ISBN:
  9781787439696
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

Disputes over gender, doping, and eligibility in Olympic sport are widely covered in sport studies and in the mainstream media. Less well known are the functions of the Court of Arbitration for Sport (CAS), and the threat it poses to athletes' rights by depriving them of access to their own countries' court systems. CAS loosely follows the model of international arbitration tribunals. As in forced arbitration outside of sport, employees – in this case, high performance athletes – sign contracts agreeing to arbitration rather than litigation as the sole means of dispute resolution.
Promoting the concept of sport exceptionalism, the International Olympic Committee (IOC) justifies the power it exercises through CAS by claiming that sport must be autonomous and self-regulating, with disputes settled by specialist arbitrators. Arguments in support of this position point to lex sportiva (global sports law) as a valid legal principle in sport-related disputes, which, it is claimed, cannot be understood or resolved by non-specialists. Self-regulation works effectively to protect the Olympic industry brand by keeping disputes 'in the family'.
This critical analysis of CAS's history and functions demonstrates how athletes' rights are threatened by the forced arbitration process at CAS. In particular, CAS decisions involving female and gender-variant athletes, and racialized men and women, reflect numerous injustices. As well as the chronic problem of CAS's lack of independence, other issues examined here include confidentiality, lex sportiva, non-precedential awards, the closed list of specialist arbitrators, and, in doping cases, questions concerning strict liability and burden of proof.

PART I

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 confidential 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 matters. 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.

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 exemplified 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 selfishness. 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 multinational corporate sponsors provides ample evidence of its secure position within the ‘establishment.’

Explaining some other features of sports law, Beloff pointed out that ‘words which bear one meaning in ordinary legal instruments may bear another in instruments governing sport,’ giving as examples cases where ‘sporting nationality’ differed from ‘legal nationality’ (Beloff, 2012, p. 74). In much the same way, the IOC has long had the power to confer or to refuse to confer ‘country’ status on contested territories. Similarly, the term ‘independent’ often takes on different meanings in sports law contexts. Although he was a CAS arbitrator, McLaren was identified as ‘the Independent Person’ in the report submitted to the World Anti-Doping Agency (WADA) in 2016, following his investigations into Russia’s state-sponsored doping program. Similarly, in 2017, CAS arbitrator Beloff was appointed chair of the International Association of Athletics Federations (IAAF) Independent Disciplinary Tribunal. Regardless of these men’s personal integrity, to the outside observer they do not appear independent in the usual sense of the word.

As I argued in a 2017 critique of ‘Olympic ideals,’ redefining words to fit the Olympic image is a convenient way to obscure its flaws (Lenskyj, 2017). In one example, anthropologist Susan Brownell made the confusing assertion that the ‘Olympic movement’ represents an ‘alternative’ system of defending human dignity. The Olympic Charter’s reference to ‘universal fundamental ethical principles,’ she claimed, does not necessarily include what she referred to as the UN’s and human rights movements’ definitions of human rights – a strange distinction in light of the IOC’s observer status at the UN and its long involvement in ‘Sport in Development’ partnerships with UN organizations. Instead, according to Brownell, the IOC ‘defends human dignity with sport, fair play, friendship, and so on’ (Brownell, 2012, pp. 128, 130).

These are more than simply matters of definition or semantics. Despite the fact that human rights violations in China were virtually untouched by that country’s hosting of the 2008 Beijing Olympics, and have escalated since then (Amnesty International, 2016), apologists relying on ‘alternative’ definitions can invoke the ‘human dignity’ argument, claiming that the Beijing Olympics achieved the goal of bringing humanity together to celebrate sport. The same false claims could be made for other recent host cities – Sochi, Vancouver, Sydney, Salt Lake City, and Atlanta, for example – while ignoring clear evidence that the human rights of Indigenous people, ethnic minorities, homeless people and protesters were violated (Lenskyj, 2000, 2002, 2008, 2014). Furthermore, as the following discussion will demonstrate, the language around the decades-long campaign to make sports law special threatens athletes’ fundamental rights, and, ultimately, the integrity of sport.

In line with the emphasis on sports law as special is the requirement that specialist arbitrators deal with sport-related disputes. A counterargument holds that generalists, unlike specialists, are less likely to be biased as a result of their prior knowledge, thereby providing a forum where both parties have the opportunity to educate the arbitrator. Challenging my critique of sport-specific dispute resolution at a recent presentation, a sports lawyer in the audience sounded incredulous, asserting that those involved in sport-related cases must understand sport. What does this mean? They should value sport as a ‘social good’? Believe in its purported magic and mystique? Understand the rules of play? Recognize its economic contribution? Play a sport themselves? Enjoy watching televised sport?

None of these requirements appear to be central to the judgement of CAS arbitrators. They rarely intervene in ‘field of play’ disputes. They appoint experts to assist on issues such as doping and gender identity. They need only ‘a good knowledge of sport in general,’ according to the CAS Code, and some appear to have less than that. The required ‘competence’ in sports law and/or international arbitration, as identified in the Code since 2004, means that some may have no actual sports law competence (TAS-CAS, 2016a). On the more nebulous ‘social good’ arguments, CAS decisions rarely invoke social or moral arguments, except in doping cases where they refer to the deterrent effects of sanctions and CAS’s role in ‘the fight against doping.’ About one-quarter of CAS’s published cases involve contract or transfer matters, mostly in football, and, like commercial contract disputes outside of sport, arbitrators examine similar basic issues: salary, breach of contract, compensation for damages, termination of contract, and other typical employment issues. Specialization in sports law is not necessarily a requirement for dealing with these kinds of disputes.

McLaren (1998) claimed that athletes’ rights were central to the establishment of CAS, in part as a consequence of the IOC’s 1986 suspension of the amateur rule and the growing numbers of professionals who participated in Olympic sport. Athletes increasingly recognized the economic implications of the sport–business–entertainment nexus and were demanding their rights. Insofar as ‘rights’ pertain to an individual athlete’s career and livelihood, McLaren was correct in stating that the financial stakes had increased, but he may not have anticipated the recent rise in activism for collective rights, evident in the ongoing anti-racist protests initiated by African Americans and their supporters in the National Football League, or the growing strength of the World Players’ Association (WPA). In fact, had CAS succeeded in protecting athletes’ rights, including the right to full protection of the law and the presumption of innocence, WPA’s 2017 Universal Declaration of Player Rights may have been unnecessary (World Players, 2017).

1.2. ALTERNATIVE DISPUTE RESOLUTION

The operation of CAS falls under the general heading of Alternative Dispute Resolution (ADR), a method of settling disputes, mostly commercial in nature, through mediation and/or arbitration. (Arbitration, and not mediation, will be the focus of this discussion.) ADR was developed in the 1970s as a cheaper and more flexible method than traditional litigation, which was criticized for its lengthy and costly adversarial proceedings. However, ADR’s widespread popularity concealed numerous shortcomings, and by the 1990s, legal scholars and others were questioning whether the goals of fairness and justice were being met.

Whereas 1960s law reforms in western countries were shaped by the concepts of rights and justice, ADR rhetoric focused on harmony and efficiency, or as anthropologist Laura Nader termed it, harmony ideology, that is, ‘the belief that harmony, in the guise of compromise or agreement is ipso facto better than an adversarial posture’ (Nader, 1993, p. 3). Writing in 1993 about the American legal context, Nader presented an incisive critique of ADR as ‘a coercive mechanism of pacification.’ She explained how the alleged problems of ‘too much litigation’ and too much reliance on courts and the adversarial system had led to the widespread popularity of ADR, which was touted as protecting courts from overload, and freed them from so-called ‘rubbish cases’ concerning gender, the environment, and consumer issues.

1.2.1. ADR: A Feminist Alternative?

Not coincidentally, harmony ideology was compatible with feminist theories of the 1970s that emphasized the ethic of care and the special significance of connection and relationships in women’s lives. According to this way of thinking, women spoke and reasoned In a Different Voice, as the title of Carol Gilligan’s 1982 pioneering book suggested. In domestic disputes and divorce proceedings, for example, private mediation was seen as preferable to the public arena of family court, on the grounds that it produced inclusive solutions and preserved the family connections that women valued. While Gilligan based her theories on careful analysis of research findings, feminist scholars who followed her line of reasoning were often accused of biological determinism – in a few cases, a valid charge.

One of ADR’s earliest American proponents, Carrie Menkel-Meadow, initially embraced Gilligan’s arguments, most notably in a 1985 article titled ‘Portia in a different voice: speculations on a women’s lawyering process,’ where she suggested that women’s growing numbers in the legal profession would bring about more caring methods of dispute resolution (Menkel-Meadow, 1985). More recently, however, Menkel-Meadow has rethought her earlier position on the significance of gender. In a 2012 publication, she noted that research does not consistently demonstrate gender differences in ADR practice, and concluded that gender matters, but to different degrees and in different circumstances. Giving the specific example of cases involving a dangerous birth control device, the Dalkon Shield, she identified some ‘gender-salient’ issues where, she argued, gender does matter. Finally, she restated her position that diversity among dispute resolvers in terms of gender, ethnicity and social class ‘is essential for democratic representation’ and for extending the possibility of diverse ideas and approaches to problem-solving (Menkel-Meadow, 2012, p. 8).

On the broader issue of dispute resolution, Menkel-Meadow was critical of the cooptation of ADR and the ‘privatization of justice,’ in contrast to its initial goal of challenging ‘formalistic and legalistic approaches to legal and social problem-solving’ (Menkel-Meadow, 2013, p. 419). Moreover, the recent pattern where consumers and employees are contractually bound to mandatory arbitration results in private, unregulated and unreported outcomes that are not necessarily fair or just. The purported ‘success’ of ADR, notably the low rate of 2% of civil cases that proceed to full trial in the US, has had the unintended consequence of producing what critics consider ‘an inadequate number for a democratic society to produce legal precedents and fair process.’ Concerned about this cooptation, critics like Menkel-Meadow prefer the term ‘appropriate dispute resolution’ to demonstrate the need to recognize that ‘one size of legal process does not fit all’ (Menkel-Meadow, 2013, pp. 446, 423). This is a useful distinction in the context of sport-related disputes, many of which may be better suited to litigation than to arbitration.

Like virtually every other aspect of sport administration, CAS does not begin to meet the gender diversity criterion. Even when one takes into account the fact that opportunities for women to study law and/or to specialize in sports law are limited by cultural norms in many countries, there is a clear gender imbalance among CAS arbitrators. In 2016, 23 years after its creation, the International Council of Arbitration for Sport (ICAS), which provides oversight of CAS, finally achieved gender equality. Since 1996, the Ad Hoc Division (AHD) of CAS has heard appeals in Olympic host cities, but it was not until 2016 that the 12-member AHD at the Rio Olympics comprised equal numbers of women and men.

In the years since Menkel-Meadow’s critique, there has been a groundswell of resistance to forced arbitration in the US, including a now-doomed move by two Democrat senators in 2016 to enact anti-forced arbitration laws, and the high-profile sexual harassment lawsuit filed in July 2016 by Fox News journalist Gretchen Carlson against Fox CEO Roger Ailes. Ailes’s lawyers tried unsuccessfully to force the case into arbitration based on a clause in Carlson’s contract. The case, which resulted in a confidential settlement of US$20m and Ailes’s swift departure from Fox, drew widespread public attention to the pitfalls of arbitration (Diaz & Dockterman, 2016).

1.3. INTERNATIONAL DISPUTES: (FORCED) ARBITRATION OR LITIGATION?

An overview of developments in international arbitration will provide further context for a critical analysis of CAS’s history and functions. In commercial law circles, arbitration of international disputes has come to be viewed as the preferred method of resolution, most notably because it avoids some of the inherent problems of litigation, such as lengthy and expensive court proceedings. Discussing international arbitration, Moses (2008) identified the following benefits: cases are arbitrated in a neutral third country, parties may be represented by their regular counsels, and awards are more easily enforced throughout the world through the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, in force since 1958 and applicable to 157 contracting nation-states.

A detailed evaluation of the advantages and disadvantages of arbitration was developed by Australian federal court judge and independent arbitrator Kevin Lindgren. On the positive side, he listed privacy, confidentiality and procedural flexibility, facilitating lower costs and quicker outcomes. Arbitration hearings are rarely open to the media or the public, with attendance usually limited to the parties themselves, their legal representatives and transcribers. Personally or commercially sensitive information can therefore be discussed in private. On the the issue of costs, however, he identified some disadvantages: if the case were litigated, expenses such as hearing room rental, transcription services and the judge’s fee would be borne by taxpayers, rather than by the parties involved (Lindgren, 2016). CAS proceedings in Lausanne incur these kinds of costs, but hearings before AHD panels are free; in both instances, parties must pay for representation.

There are important distinctions between voluntary and forced arbitration, and the compliance demanded of athletes through their contracts with IFs and Olympic entry forms makes this an example of forced arbitration. As Comsti explained in a 2014 critique of forced arbitration in the US, there are ‘fundamental differences’ in ‘knowledge, consent, and equal bargaining power between the individual employee and employer’ (Comsti, 2014, p. 8). Forced arbitration, she argued, has developed into ‘a juggernaut that has changed the nature of statutory enforcement of worker protection laws’ and is ‘an inadequate substitute for the public vindication of statutory workplace rights in our civil justice system’ (Comsti, 2014, pp. 6, 9).

Commenting on general trends relating to involuntary arbitration and ‘relationships of grossly disparate bargaining power,’ American judges Craig Smith and Eric Moye concluded that ‘law, including the FAA [Federal Arbitration Act] should be a shield for the weak and powerless and not a hammer for the strong and powerful’ – a particularly apposite statement in relation to athletes’ rights (cited in Comsti, 2014, p. 27). Although it serves IOC and CAS interests to promote sport exceptionalism and Olympic mystique – athletes as ‘peace ambassadors’ and members of one big ‘Olympic family’– athletes are, in fact, workers, and the sporting arena is their workplace (e.g., McArdle, 2015, chapter 10; Sack & Staurowsky, 1998). As a consequence, it is reasonable to argue that they should enjoy the rights of similarly situated workers in their home countries.

As one critic asked, although athletes’ contracts with NSOs were ‘typical of private dispute resolution regulated in the code of civil procedure’ (Wolf, 2014, p. 299), were their agreements really voluntary in a context where NSOs had the monopoly over their sport? However, Wolf concluded, somewhat optimistically, that NSOs’ actions were scrutinized by human rights institutions, thus providing a ‘link back to common good and the rule of law’ (Wolf, 2014, p. 301). There is little evidence to support his optimism, although, as legal scholar Andrew Byrnes (2016, p.103) demonstrated, on the specific issue of anti-doping, external criticism and scrutiny as well as the efforts of ‘internal human rights norm entrepreneurs working within CAS’ have resulted in some improvements to the WADA Code. Overall, however, Byrnes concluded that such changes tended to focus on procedural rights, while substantive human rights violations continued to occur.

Comsti’s points regarding the FAA’s shortcomings are particularly relevant to CAS:

1. Forced arbitration is an inadequate substitute for the public vindication of statutory workplace rights in our civil justice system.
2. [It] stacks the decks in favor of employers.
3. Statistics show that workers lose more often, win smaller awards, and spend more money to prosecute their claims in forced arbitration than in court.
4. Forced arbitration shields employers from public accountability and judicial review when they violate the law. (Comsti, 2014, pp. 9, 10).

1.4. IOC AND CAS: GOVERNANCE ISSUES

Despite the IOC’s status as a ‘legal person’ under Swiss law, it has more in common with the Church than with a business corporation, as sports law scholar Saul Fridman argued in a 1999 article. The Olympic Charter fails to include any provisions concerning members’ and non-members’ rights, managers’ responsibilities, reporting and auditing requirements, remedies available to stakeholders, and so on, that are typically required under national incorporation legislation. Furthermore, like the Church, the IOC does not have democratically elected members, nor is it subject to national authorities or accountable to stakeholders. Finally, both the ‘Olympic movement’ and the Church are based on values established by a small group of individuals, and both purport to be self-regulating (Fridman, 1999, pp. 797–798). The IOC’s subculture of bribery and corruption and the Church’s record of inaction on child sexual abuse amply demonstrate these organizations’ unwillingness and/or inability to regulate and discipline their own members, as well as their practice of actively protecting guilty parties from scrutiny or prosecution (Lenskyj, 2010).

Critics have shown how the IOC and IFs, unlike UN member states, are not bound by international treaties, laws or judicial bodies, rendering them ‘a law unto themselves’ (Munro, 2016, p. 7), or even ‘a virtual world government’ (Peacock, 2010). Whereas the 30 + UN organizations in 17 countries operate under standardized host country agreements, IFs are only subject to their o...

Table of contents

• Cover
• Title Page
• Introduction
• Part I
• Part II
• CAS Awards available at jurisprudence.tas-cas.org
• Swiss Federal Tribunal Awards English translations available at swissarbitrationdecisions.com
• Bibliography
• Index