How to litigate in the Court of Arbitration for Sport (TAS)

Updated 12/19/2019

Written by

Pablo Bruera

lawyer

The Sports Arbitration Court, from now on more TAS, is made up of three divisions:


1- Ordinary arbitration: your responsibility is to resolve the controversies submitted to the original process.

2-Anti-doping: Your responsibility is to resolve disputes related to anti-doping matters in the first instance or as the sole instance.

3-Arbitration of appeals: you must resolve disputes related to Federations or Associations to the extent that their statutes so provide (it is the case of football, since the FIFA statutes so provide)

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Challenge

The president of any division may be challenged, if there are doubts about his independence with respect to part of the arbitration.
If the challenge is successful, he will be replaced by his substitute or by the president of the TAS if he is also challenged.

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Various provisions

These statutes are supplemented by the arbitration procedure rules for the TAS anti-doping division.
In case of divergence between the texts in English or French, the latter prevails.
Remember that the Spanish language has just been authorized as the official language.
In order to modify the rules that govern these arbitrations, it is necessary to resort to ICAS (International Council of Sports Arbitration).

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Application rules

These rules apply when the parties have agreed to refer a sport-related dispute to the TAS (ordinary procedure) or may involve an appeal against a decision issued by a sports Federation or Association that so establishes.
Disputes may involve matters of principle related to sport or matters of pecuniary or other interest related to sport.

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Campus

The headquarters of the TAS and its panels is located in Lausanne, Switzerland. However, a hearing may be held elsewhere if circumstances warrant.

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Language

The working languages ​​of the TAS are French and English.
Recently, as we have already said, the Spanish language has been officially incorporated.
In any case, the parties may request that the arbitration be conducted in another language.

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Representation and assistance

The parties can be represented by people of their choice without the need for them to be Attorneys.
The party must provide confirmation of such representation.

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Notifications and communications

These are sent to the address on the request for arbitration or statement of appeal.
All presentations made by fax or email must also be submitted in writing (postal mail) to the TAS, without which the proceedings will not start.

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Deadlines

These begin on the day following receipt of the notification by the TAS.
The terms are counted in consecutive days.
The deadlines set are respected if the parties' communications are sent before midnight, the time of the location of their own address or if they have a representative, the address of their main legal offices.
If this day is an official or non-business holiday at the location from which the communication is sent, the business time expires at the end of the first subsequent business day.

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Independence

The arbitrators must remain impartial and independent of the parties.
The referees emerge from the list drawn up by the International Council of Sports Arbitration (ICAS).

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Challenge

If the impartiality and independence of the arbitrators is affected, a challenge process can be initiated.
The party that is affected must make a well-founded presentation, stating the reasons that aggravate it.
The challenge committee will resolve the issue after listening to the release of the other party and the arbitrator himself.

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Preventive and conservation measures

Before requesting this type of measures in the TAS, all the internal legal remedies provided in the corresponding sports Federation must be exhausted.
When presenting this measure in the arbitral tribunal, the 1000 Swiss Francs must be paid in advance of expenses.
If a party files a measure of this nature, it waives its rights to request the measure from the state authorities or courts.
If a preventive measure is presented, the president invites the other party to express his position. Then the decision is made.
Given the urgency of the circumstance, the president can issue an order with the mere presentation, provided that the opponent is subsequently heard.
This procedure is automatically canceled if, within ten days of taking the preventive measure, an arbitration request is not submitted (this time cannot be extended).

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Request for arbitration

A note must be submitted to the TAS office containing:


The name and full address of the defendant (s);
• a brief statement of the facts and legal argument, including a statement of the issue to be submitted to CAS for its determination;
• a copy of the contract containing the arbitration agreement or any document that provides for arbitration in accordance with these Rules of Procedure;
• any relevant information on the number and election of the arbitrator (s); If the relevant arbitration agreement provides for three arbitrators, the name of the arbitrator from the CAS list of arbitrators chosen by the claimant.
1000 non-refundable Swiss-Francs must be paid here, without which the TAS will NOT proceed.
If the requirements were not met, the court will return the document for correction, otherwise the TAS will not proceed.

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Start of arbitration

Unless it is evident that the court does not have jurisdiction in the matter, the TAS will take all appropriate measures to initiate the arbitration.
It will transfer the defendant; It will invite the parties to express themselves on the applicable law, the merits of the dispute and will establish deadlines for the other party to answer the demand.

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Reply requirements

The response must contain:
⁃ A brief statement of defense.
⁃ It must be stated regarding the competence of the TAS.
⁃ Any counter lawsuit that you believe is timely.
⁃ The defendant can request that the deadline for filing the response be set after the advance payment by the plaintiff.
The panel will decide on its own competence.
The other party may challenge the jurisdiction of the court.
In this case the panel can decide on its competence in a preliminary decision or an award on the merits of the matter.

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Panel formation.

Number of arbitrators.


The panel is made up of one or three arbitrators depending on the circumstances of the case.
The parties may agree on the method of appointment of the arbitrators.
When three arbitrators are appointed, each will appoint one and by mutual agreement they will appoint the panel president, if there is no agreement, the TAS appoints it.

Third parties

A defendant may request that a third party participate in the arbitration, which must be clarified in the response.
If a third party wishes to participate as a party in the arbitration, they must request it to the TAS together with the corresponding reasons. The parties will be able to comment on this situation.

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Conciliation

The division president, before transfer to the panel and then the panel, may at any time seek to resolve the conciliation dispute.

Confidentiality

The procedures under these rules are confidential. The parties, the arbitrators and the CAS agree not to disclose to any third party any of the facts or other information.

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Procedure before the panel

As a general principle there will be a claim statement, a response and if necessary a second response.
Thereafter, new claims can no longer be filed without the consent of the other party.
Written submissions must present the evidence on which the claim is based.
As we said, following these submissions, the parties are NOT authorized to submit further written evidence without the other party's authorization, or if the panel allows it under exceptional circumstances.
In these presentations, the witnesses must be identified and a summary of the expected testimony must be placed.

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Audience

If the hearing is going to take place, the panel president will set the date of the hearing as soon as possible.
As a general rule, there is only one hearing where the entire dispute will be resolved.
The panel chairperson conducts the hearing, which is generally not public.
Each party is responsible for the expenses it generates: witnesses, translators, experts, etc.
The hearing may be conducted by videoconference, after consulting the parties the panel may decide not to hold the hearing if it considers that it is sufficiently informed to issue the decision

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Evidentiary procedure ordered by the panel

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One party may request the panel to order the other to present documents in its custody.

The panel can request additional documentation at any time.

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Accelerated procedure

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With the consent of the parties, the TAS can proceed expeditiously and issue the appropriate instructions for it.

If the claimant does not present his declaration in accordance with the provisions of this code, it is considered that the request for arbitration was withdrawn.

If the defendant does not file its response pursuant to this code, the court may continue the arbitration and deliver an award.

If any of the parties has been duly summoned and does not appear at the hearing, the panel may proceed with the hearing and deliver an award.

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Applicable Law

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The panel analyzes the dispute according to the norms chosen by the parties, and in their absence, it will be Swiss law.

The award will be made by majority decision or in the absence of the majority, only by the President.

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The award will be in writing, dated and signed and must be briefly founded.

The TAS general secretary may make modifications. The panel may communicate the operative part of the award to the parties before the delivery of the reasons.

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The award will be enforceable as of the notification of the operational part by FAX or email.

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The award, notified by the TAS, is final and binding on the parties within thirty days after notification of the award by mail.

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Appeal

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An appeal may be filed against the decision of a sports-related federation before the TAS, if its statutes so provide or if the parties have entered into a specific arbitration agreement.

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An appeal may also be filed with the TAS against an award issued by this court when it acts as the court of first instance; if said appeal is expressly stipulated by the rules of the federation in question.

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The appellant must file a brief containing:

• the name and full address of the defendant (s);

• a copy of the appealed decision;

• the appellant's expression of grievances;

• the nomination of the arbitrator chosen by the Appellant from the TAS list, unless the Appellant requests the appointment of a sole arbitrator;

• if applicable, an application to suspend implementation of the decision being appealed, together with the reasons;

In this presentation the sum of CHF 1000 must be paid.

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If the aforementioned requirements are not met, the TAS will give a short time to complete the formalities, and if these are not met, the TAS will not proceed.

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Deadline for appeal

The period for the appeal will be twenty-one days from the reception of the appealed decision, if the federation in question did not set another date.

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Number of arbitrators

The appeal is filed before a panel of three arbitrators, unless the parties agree on a single arbitrator or the division president decides to file the appeal before a single judge.

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Summary of appeal

Within ten days after the expiration of the time limit for the appeal, the appellant must present to the TAS, a brief report of the facts and legal arguments with the evidence that it possesses.

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Initiation of arbitration

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Unless the TAS is clearly not competent with the presented claim, the court will start the arbitration.

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The defendant will be notified and the panel will be formed, and any precautionary measure will be decided.

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The TAS office will notify the entity that issued the contested decision for your information. Unless a single judge has been agreed, the defendant will appoint an arbitrator within ten days of receiving the statement of appeal; if he does not, the division president will make the appointment.

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If three arbitrators are appointed, the division president will appoint the panel chair.

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The arbitrators appointed by the parties are only confirmed after the division president names them.

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The court will note whether the cost advances were provided.

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Demand response

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Within twenty-one days after receipt of the grounds for the appeal, the defendant must send the TAS a response containing:

• a statement of defense;

• any defense of the lack of jurisdiction;

• any sample or specification of other evidence on which the Respondent intends to rely;

• the name (s) of any witnesses, including a brief summary of their expected testimony; The statements of the witnesses, if any, will be presented together with the response, unless the President of the Panel decides otherwise;

• the name (s) of the experts you intend to call, indicating their area of ​​expertise and any other evidentiary measures requested.

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The panel will decide on its own competence.

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The parties (Except in exceptional circumstances) may not later amend their arguments or present new evidence.

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At any stage, the panel can try to resolve the conciliation dispute.

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Scope of the panel review

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The panel has full power to review the facts and the law, and may issue a new decision.

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The panel may decide not to hold the hearing if it considers that it is sufficiently informed.

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If any of the parties, having been duly notified, does not attend, the panel may continue with the hearing and deliver an award.

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Applicable law

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The Panel will decide the dispute in accordance with the applicable regulations and, subsidiarily, the rules of law chosen by the parties or, in the absence of such choice, in accordance with the law of the country in which the federation, association or athlete is located.

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Decision

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It is taken by majority or in its absence, only by the president. It must be written, dated, signed and will have brief reasons.

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Before transmitting the decision to the parties, it will be sent to the TAS general secretary, who may make observations. The panel sends the parties the operative resolution and the award is enforceable from such notification via Fax or email.

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The award is final and binding on the parties and can only be appealed in special circumstances according to Swiss law, within thirty days after notification of the award.

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Interpretation

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A party may, within forty-five days of the notification request the clarification of any of the points of the award.

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Costs

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The appellant will pay a non-refundable fee of 1000CHF, without which the TAS does not proceed.

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To determine the amount to be paid in advance, the TAS will establish an estimate of the arbitration costs that will be assumed by the parties in the same amount.

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If one party does not pay their advance, the other can replace it.

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In case of non-payment of the total advance, the TAS will terminate the arbitration.

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Each party shall pay the costs of its own witnesses, experts and interpreters.

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at the end of the procedure, the TAS will determine the final amount of the arbitration cost, which will include:

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- the TAS Tribunal Office fee,

- the administrative costs of the TAS calculated according to the TAS scale,

- the costs and fees of the arbitrators,

- ad hoc employee fees, if any, calculated according to the TAS fee scale,

- a contribution towards the expenses of the TAS

- The expenses of witnesses, experts and interpreters.

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In the award, the panel will determine how the arbitration costs will be met.

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As a general principle, the panel recognizes the winning party for their legal fees and other expenses incurred (witnesses, interpreters, experts, etc.)

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If an arbitration is terminated before a panel is constituted, the costs will be free.

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The arbitrators and mediators of the TAS and its employees are not responsible to any person, act or omission in relation to any procedure of the TAS.

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As an example, we incorporate a TAS award in order to be able to graph how it solves it.

Click on the following button to see:
Award Barcelona de Guayaquil against Marcelo Delgado

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Mail: derechosdelfutbol@gmail.com

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