Sport exceptionalism and the Court of Arbitration for Sport
| Pages | 5-17 |
| Published date | 12 March 2018 |
| DOI | https://doi.org/10.1108/JCRPP-01-2018-0002 |
| Date | 12 March 2018 |
| Author | Helen Lenskyj |
Sport exceptionalism and the Court of
Arbitration for Sport
Helen Lenskyj
Abstract
Purpose –The Court of Arbitration for Sport (CAS), created by the International Olympic Committee (IOC)
in 1983, resolves disputes between athletes and national or international sports governing bodies.
The purpose of this paper is to critically examine the history and functions of CAS, with a particular focus
on the ways in which athletes’rights are threatened by the IOC’s Code of Sports-Related Arbitration.
Design/methodology/approach –The author reviews relevant law literature and media sources.
Findings –The concept of lex sportiva (global sport law), general arbitration practices and controversies
concerning CAS’s impartiality are investigated, and the “strict liability”principle that CAS applies to doping
allegations is assessed. This analysis points to a long record of inconsistencies and contradictions in the
history and function of CAS. The findings lead to questions of arbitration or litigation; confidential or public
proceedings; specialist or generalist arbitrators; lex sportiva or international legal principles; precedential or
non-precedential awards; and civil or criminal burden of proof.
Originality/value –These unresolved issues demonstrate how the IOC struggles to maintain supremacy
over world sport by promoting sport exceptionalism, and provide possible grounds for athletes’future
challenges to CAS.
Keywords Athletes’rights, Code of Sports-Related Arbitration, Court of Arbitration for Sport,
International Olympic Committee, Sport exceptionalism, Sports governing bodies, World sport
Paper type Research paper
Introduction
In 1983, after consultation with selected stakeholders, the International Olympic Committee (IOC)
established Court of Arbitration for Sport (CAS) because of the perceived need withinOlympic and
international sport circles for a confidential dispute resolution process that produced “expedient,
flexible, inexpensive and informed judgments”outside of the court system (Kane, 2003, p. 2).
There islittle evidence thatsport-related caseswere causing an undueburden on the courtsbefore
CAS began operation, and it took about 20 years until the annual number of CAS cases finally
reached 100 (Duval and Marino, 2014). However, there has been no shortage of assertions from
sports governing bodies and sport lawyers that sport disputes should be resolved in a “sport court.”
The IOC, International Federations (IFs), National Olympic Committees (NOCs) and National
Sports Organizations (NSOs) –that is, the most important Olympic industry players –sought to
avoid what they saw as the evils of litigation, pointing to the time and costs involved, and
mainstream judges’lack of specialized knowledge of sport-related matters. In the words of one
veteran CAS Arbitrator, Michael Beloff, “Render unto sports the things that are sports”and to
courts the things that are legal’(Beloff, 2012, p. 80).
The pseudo-religious mystique surrounding all things Olympic, carefully nurtured for over a
century, provides fertile ground for promoting sport exceptionalism. Sport is “special,”according
to this line of thinking, and should not be tainted by local, national or international “politics”
(Lenskyj, 2000). The strong human rights movements of the last six decades in western
countries, focusing on equality and social justice for women, ethnic and sexual minorities, have
posed only a minor threat to Olympic industry hegemony.
Helen Lenskyj is a Professor
Emerita at the University of
Toronto, Toronto, Canada.
DOI 10.1108/JCRPP-01-2018-0002VOL. 4 NO. 1 2018, pp.5-17, © Emerald Publishing Limited, ISSN 2056-3841
j
JOURNAL OFCRIMINOLOGICALRESEARCH, POLICY ANDPRACTICE
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