Ethics CasesSport

Cases · Court of Arbitration for Sport · 2010–2025

Is the Court of Arbitration for Sport Independent Enough?

The Court of Arbitration for Sport (CAS) in Lausanne resolves most international sports disputes, under mandatory arbitration clauses in federation rules. Athletes have long questioned its independence, pointing to its funding by sports bodies and its closed list of arbitrators. In 2018, the European Court of Human Rights found CAS sufficiently independent in cases brought by speed skater Claudia Pechstein and footballer Adrian Mutu, but held that Pechstein should have had the public hearing she requested. In 2025, the court's Grand Chamber found that Switzerland's review of a CAS award in Caster Semenya's case was not rigorous enough, and the EU's Court of Justice ruled in the Seraing case that EU courts must be able to review CAS awards for compliance with EU public policy. The case asks how forced arbitration can be made fair.

By Tanner Simkins, editor

Timeline

  1. CAS is created to resolve sports disputes.
  2. Pechstein and Mutu file applications at the European Court of Human Rights after losing in Swiss courts.
  3. Germany's Federal Court of Justice upholds Pechstein's CAS arbitration agreement and dismisses her damages claim.
  4. The ECtHR finds CAS independent and impartial but rules Pechstein was wrongly denied a public hearing.
  5. Germany's Federal Constitutional Court overturns the 2016 judgment, citing the lack of a right to a public CAS hearing.
  6. The CJEU, in the ISU case, confirms EU competition-law challenges can reach EU courts.
  7. The ECtHR Grand Chamber finds Swiss review of Semenya's CAS award insufficiently rigorous.
  8. The CJEU rules in Seraing that EU courts must be able to review CAS awards for EU public policy.

The ethical issues

  • Mandatory arbitration and athletes' consent.
  • Independence of a tribunal funded by sports bodies.
  • Closed lists of arbitrators.
  • Public hearings and transparency.
  • Effective judicial review of private justice.

Stakeholders

StakeholderInterests & obligations
AthletesFair hearings and effective remedies.
CAS and ICASLegitimacy, speed and uniformity of sports justice.
Sports federationsConsistent and quick dispute resolution.
ClubsAccess to courts on economic matters.
Swiss and EU courtsUpholding legal standards.

The case

The Court of Arbitration for Sport (CAS), created in 1984, handles hundreds of cases a year involving athletes, clubs, federations and others.[1] Because federation rules require disputes to go to CAS, athletes generally cannot choose a different forum. Its awards can be appealed only to the Swiss Federal Tribunal, on limited grounds.[1][3] That arrangement has been tested in European courts.

Background

Speed skater Claudia Pechstein and footballer Adrian Mutu took cases to the European Court of Human Rights in 2010 after the Swiss Federal Tribunal upheld CAS decisions against them.[1] They argued, among other things, that CAS was not independent and impartial. Critics pointed to CAS’s funding by sports bodies and its mandatory list of arbitrators.[1]

The rules and governance

How CAS is governed. CAS is overseen by the International Council of Arbitration for Sport (ICAS), whose 22 members must be “experienced jurists.” Under the current Code, six are appointed by international federations, four by the national Olympic committees’ association and four by the IOC. Those fourteen appoint four more “with a view to safeguarding the interests of the athletes,” and the eighteen then choose four “independent of the bodies designating the other members.”[5] ICAS adopts the Code and appoints the arbitrators to the closed CAS list for renewable four-year terms. It draws on names put forward “including by the IOC, the IFs, the NOCs and by the athletes’ commissions.”[5] Critics’ concerns about independence center on this chain of appointments.[1]

The 2018 ruling. On October 2, 2018, the ECtHR dismissed all claims except one.[1] According to CAS’s summary, the court found an interest in having professional sports disputes heard by “a specialized jurisdiction, able to rule on such cases in a quick and inexpensive manner.” Because arbitration clauses are mandatory, CAS must offer the guarantees of Article 6(1) of the European Convention on Human Rights.[1] On funding, the court noted that state courts are financed by governments and held that funding alone did not establish a lack of independence. It saw no grounds to overturn Swiss case law upholding the mandatory arbitrator list.[1] But it held that CAS should have allowed Pechstein a public hearing, since she requested one and there was “no particular reason to deny it.”[1]

CAS said that while the case was pending, its governing body, ICAS, had brought in a large majority of legal experts from outside sports organizations, expanded the arbitrator list and abolished sports organizations’ privilege to propose arbitrators.[1]

Pechstein in the German courts.

Pechstein also challenged the arbitration agreement itself in Germany. Before the 2009 World Championships in Hamar, she had signed an entry form drafted by the International Skating Union (ISU). Without it she could not have competed. The form included an agreement to arbitrate before CAS “unter Ausschluss des ordentlichen Rechtswegs” (excluding the ordinary courts, in translation).[7] The Munich Higher Regional Court held the agreement void, but on June 7, 2016, the antitrust senate of the Federal Court of Justice (BGH) reversed it and dismissed her damages claim as inadmissible (KZR 6/15).[7] The BGH accepted that the ISU was dominant in international speed skating. It held that CAS was a “genuine” arbitral tribunal, and that a closed list drawn up by a body made up mostly of representatives of federations and Olympic committees did not create a structural imbalance, because federations and athletes are not opposing camps: the global fight against doping serves both. It noted that each side picks an arbitrator from a list of more than 200, that arbitrators can be challenged, and that awards can be reviewed by the Swiss Federal Tribunal.[7]

The Federal Constitutional Court overturned that judgment in an order published in July 2022 (1 BvR 2103/16), finding a violation of Pechstein’s right of access to justice.[8] It held that arbitration in sport is “necessary to ensure internationally uniform sports jurisdiction and to combat doping” and is not unconstitutional in itself. But where one party “can in fact unilaterally dictate the terms of the contract,” the law must protect the weaker party’s rights. The BGH had failed to consider that the CAS rules gave no right to a public hearing. The court called public proceedings “an essential part of the rule of law” that protects parties “against a secret judiciary that is not subject to public control.”[8] It did not decide whether the rules as since amended met that standard.[8] The current CAS Code provides that, at the request of an individual party, “a public hearing should be held if the matter is of a disciplinary nature.” Exceptions include protecting minors or private life, the interests of justice, and cases that turn exclusively on questions of law.[5]

Semenya. On July 10, 2025, the ECtHR Grand Chamber found that the Swiss Federal Tribunal’s review of the CAS award against Caster Semenya had not met the “particularly rigorous examination” required, violating her right to a fair hearing.[2] See Caster Semenya and testosterone eligibility.

Seraing. In 2015, Belgian club RFC Seraing signed financing agreements with Doyen Sports, a Maltese company, that transferred part of the economic rights in some of its players. FIFA sanctioned the club under its ban on third-party ownership with a registration ban and a fine; CAS and the Swiss Federal Supreme Court upheld the sanctions. Belgian courts then refused to reconsider the rules’ compatibility with EU law, treating the CAS award as final, and the Belgian Court of Cassation referred the question to the CJEU.[6] On August 1, 2025, the CJEU ruled that EU national courts must be able to carry out “an in-depth judicial review” of whether CAS awards are consistent with EU public policy, and must disapply national legislation or sports rules that prevent it.[6][3] The Court observed that in football, as in many sports, arbitration “is generally not freely accepted but unilaterally imposed on athletes and on clubs” by international associations such as FIFA.[6] The club’s dispute had gone to CAS in 2016 and the Swiss Federal Tribunal in 2017 before Belgian courts referred it to the CJEU.[3] An Advocate General had proposed full review; the Court limited it to EU public policy.[3] Earlier, in the 2023 ISU case, the CJEU held that the European Commission was right to question skating’s rules sending disputes only to CAS.[4]

Aftermath

ICAS said about 6% of CAS decisions are appealed to the Swiss Federal Tribunal each year. It welcomed the CJEU’s recognition of sports arbitration as “a legitimate mechanism” and said CAS already applies EU law when required.[3]

The core dilemma

International sport benefits from a single, fast, specialized tribunal. But athletes do not choose CAS, and its structure is tied to sport’s institutions. How can mandatory arbitration be made fair enough to be legitimate?

Competing values

  • Uniformity and speed vs. access to courts.
  • Expertise vs. independence.
  • Confidentiality vs. public scrutiny.
  • Global consistency vs. regional legal standards.

Strongest arguments

For CAS: a single tribunal prevents conflicting national rulings, handles urgent cases quickly, and has been upheld by courts.

For greater reform: athletes cannot opt out, and funding and appointments link CAS to the bodies it judges. Courts have found specific fair-hearing failures.

A middle view: keep CAS but expand public hearings, independent appointments and meaningful review.

Applying the frameworks

Justice

A justice lens asks whether procedures give athletes a fair chance against powerful institutions, including transparency and equal footing.

Rights

A rights lens focuses on Article 6 fair-hearing rights and whether mandatory arbitration respects athletes’ autonomy.

Utilitarianism

A utilitarian lens weighs the system-wide benefits of uniformity against the harms of unfair outcomes in individual cases.

Walk it through: the Simple Decision Model

  1. Spot the issue. You are an ICAS member reviewing CAS rules. Stakeholders include athletes, federations, clubs and courts. Less visible are athletes without resources to litigate. The codes are the CAS Code and the court rulings.
  2. Gather facts. How are arbitrators appointed and how often are hearings public? Beware assuming that court approval means no room for improvement.
  3. Test options. (a) Keep the current system. (b) Make public hearings the default in disciplinary cases. (c) Change appointment and funding structures.
  4. Check codes and law. Check the ECtHR and CJEU rulings.
  5. Decide and document. Record the reasons for reform.
  6. Communicate and follow up. Publish changes and monitor outcomes.

What’s settled and what’s contested

  • Settled: the 2018, July 2025 and August 2025 rulings.
  • Contested: whether CAS is truly independent; how far courts should review CAS awards; whether athletes’ consent to arbitration is meaningful.

Why this case matters

CAS decides careers, eligibility and doping cases worldwide. Its legitimacy depends on fair procedures and accountable structures.

See also: Who Reviews Sport’s Court? Seraing and the Limits of CAS Finality.

Key terms

Due process
Fair procedures before a sanction: notice, a chance to respond, an impartial decision-maker and a right of appeal.
Consent and autonomy
Whether people have agreed freely and with full information, and whether their right to make their own choices is respected.
Institutional accountability
Structures that make a sport organization explain its decisions and face consequences: clear authority, transparency, appeals, independent oversight and enforcement.
Conflict of interest
A situation where a person’s private interest could improperly influence a decision they make in an official role.
Trust
The public’s belief that what they are watching is real. Integrity failures are ultimately failures of trust.

Definitions from the Ethics Cases glossary.

Discussion questions

  1. Athletes must accept CAS arbitration to compete. Is that genuine consent?
  2. Does funding by sports bodies undermine CAS's independence? The ECtHR compared it to state courts funded by governments. Is that convincing?
  3. Should all CAS disciplinary hearings be public?
  4. Do the benefits of a single global sports tribunal outweigh the costs of limited court review?

Sources

  1. Statement of CAS on the decision of the ECHR in the case between Claudia Pechstein / Adrian Mutu and Switzerland (2 October 2018) — Court of Arbitration for Sport
  2. Q&A – Semenya v. Switzerland (Grand Chamber judgment, July 10, 2025) — European Court of Human Rights
  3. ICAS statement on review of CAS awards by European courts for matters of EU public policy (1 August 2025) — International Council of Arbitration for Sport
  4. Press release No 202/23: International Skating Union v Commission — Court of Justice of the European Union
  5. Code of Sports-related Arbitration (2025 edition) — Court of Arbitration for Sport / ICAS
  6. Press release No 104/25: Judgment of the Court in Case C-600/23, Royal Football Club Seraing (Aug. 1, 2025) — Court of Justice of the European Union
  7. Pressemitteilung Nr. 097/2016: Schadensersatzklage von Claudia Pechstein vor den deutschen Gerichten unzulässig (Urteil vom 7. Juni 2016, KZR 6/15) — Bundesgerichtshof
  8. Press release: Constitutional complaint challenging admissibility of arbitration clause successful (1 BvR 2103/16, 2022) — Bundesverfassungsgericht