The Provisional Measures at CAS: Not easy as it sounds.

27 NOV 2018

Derecho Deportivo

When we, the lawyers, think about the concept of the provisional measures, it is common to focus our attention on the National Courts and on its power to enforce them. Nonetheless, in private justice such as in Arbitration it is possible to apply and enforce provisional measures by way of the regulations in place.

The objective of the present note, is to provide a simple overview of the provisional measures under the jurisdiction of the Court of Arbitration for Sport (“CAS”). CAS is the highest instance of a sports arbitral tribunal. For each case brought before it, CAS constitutes panels that have the responsibility of resolving disputes arising in the context of sport by arbitration and/or mediation pursuant to the CAS Procedural Rules (Articles R27 et seq.) (“CAS Code”).  It has the recognition and treatment as an independent arbitral tribunal and its awards are enforceable by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the "New York Convention").

It is under the Article R37 of the CAS Code, which concedes to the President of the relevant Division or to the President of the Panel the possibility of granting provisional measures upon party request. As a limitation of the prior request, article R37 clearly states that all the internal legal remedies provided for in the rules of the federation or sports body concerned should have been exhausted first, prior to the application for provisional measures.

 According to the Code, the written submissions of the parties relating to the request of the provisional measures should demonstrate to the President of the relevant division (or the President of the Panel, whichever is relevant) whether the relief is necessary to protect the applicant from irreparable harm, the likelihood of success on the merits of the case and the so-called “balance of interests” in which CAS would focus whether the interest shown by the applicant outweighs the interest of the respondent.

In order to give the reader a more concrete vision of the aforementioned requirements, we are going to comment below on each one of them:

Irreparable harm: when a party is willing to obtain from CAS the application of a provisional measure, the applicant should demonstrate  that “the requested measures are necessary in order to protect his position from damage or risks that would be impossible, or very difficult, to remedy or cancel at a later stage (CAS 2007/A/1370&1376). The applicant should be able to demonstrate that the non - application of such a measure in an expedited manner, would cause them a situation with little or no remedy.

Likelihood of success on the merits of the case:  at this stage the applicant, in order to obtain the requested provisional measure, is required to demonstrate that the chances of success on the merits of its request are prima facie reasonable in the sense that they cannot be definitively discounted (CAS  2008/A/1453). With the prior argument, in a practical stage, the applicant should convince the President of the Relevant Division or the President of the Panel that the grounds of the likelihood of such application would be conceded by CAS.

Balance of interest: The final element for the Panel or for the President of the relevant Division to verify is the balance of interests, and specifically, whether the interests of the applicant and the risk of damage that it may be exposed to outweighs the interests of the respondent maintaining the status quo. CAS Jurisprudence denotes that it is ‘necessary to compare the disadvantage to the appellant of immediate execution of the decision with the disadvantages for the respondent in being deprived such execution’ (CAS 2008/A/1453).

In this respect, there it is a controversial point on deciding whether the requirements exposed above should be considered as accumulative or alternative. The CAS Code is silent on this point, and therefore it is at the discretion of the Panel or of the President of the relevant division. From this author’s point of view, the ability to demonstrate that some of the requirements (at least two) should be deemed sufficient, and that those requirements could not or should not be accumulative but alternative.   Retaining a position where all requirements have to be strictly considered as cumulative could lead to denials of justice to appellants in instances where the respondent has sometimes intentionally or unintentionally caused an situation of irreparable harm to the appellant.

Usually, CAS find different petitions of provisional measures, nonetheless, the practice states that the normal petition of the applicant is the stay of execution of a disciplinary decision, which would have taken place in an appeal procedure. The urgency of such petitions can lead CAS to grant or reject the petition in a short period of time. Such decisions could not be appealed until CAS pronounce an award on that matter and therefore, an appeal before the Swiss Federal Tribunal applying the rules set on the Article 190 of Private International Law Arbitration (PILA) would be the last option. 

It is important to note as a practical situation, when a party requests the application of provisional measures, it expressly waives its rights to set a provisional measure procedure in an ordinary court. Despite this, the ordinary courts still have a parallel competence.

In conclusion, as we have mentioned in this note, the grant of the provisional and conservatory measures by CAS, is, in practice, complicated to obtain. Unless the situation of the applicant clearly denotes that the requirements established by CAS Code are met, at least two of them, CAS does not concede this kind of decision. Indeed, due to the difficulty to obtain such measures, an alternative to the request of provisional and conservatory measures that the practitioners in front of CAS used to give value it is the option to settle the dispute under the expedited procedure (R44.4 and 52 CAS Code of Sports – Related Arbitration) which is possible only with express agreement of the parties. Therefore, instead of requesting the stay of execution as a provisional measure (as we mentioned, the most common request), the expedited procedure would give to the parties a final decision in a short period of time.   This does, however, work on the premise that the respondent is willing to engage in such an expedited process, and if not, could again lead to issues where the applicant is unduly harmed.

 

Sergio Barrasa Anton.

CODE ABOGADOS. Sports Law Department.